Frontier justice: international law and ‘lawless’ spaces in the “War on Terror”

International law, sovereignty, and the inside/outside dialectic

It is well established that traditional International Relations theory’s focus on anarchy creates a firm division between internal and external political spaces, to various discursive effects. These entrenched conceptual divides between “ordered” domestic interiors and “anarchical,” conflict-ridden exteriors has led to theoretical and policy assumptions that the international sphere is an inherently more dangerous arena for enacting politics than domestic contexts (Kubálková, 2001: 17; March and Olsen, 1998). This “inside/outside dialectic” reifies the state as a bulwark against “dangerous” externalities (Walker, 1993). International law is premised upon the same inside/outside dialectic of the sovereign international system. Sovereignty and the right of a state to defend its territorial integrity are enshrined in Articles 2 and 51 of the UN Charter, and are considered the linchpins of international law.

The structuring of international law around domestic interiors and anarchic exteriors is perhaps best evidenced in the relationship between its two branches: International Humanitarian Law (IHL) and International Human Rights Law (IHRL). IHL, also referred to as the law of armed conflict or war law, is meant to govern conduct and mitigate harm in interstate wars within the international system. IHL, as it pertains to internal armed conflicts, is much less detailed. IHRL is primarily meant to govern how states treat populations within their sovereign jurisdiction and applies during war and peacetime (International Committee of the Red Cross, 2010). The Universal Declaration of Human Rights (UDHR) and core human rights treaties establish individuals as the beneficiaries of these rights (Mansell and Openshaw, 2010: 28), with the sovereign state as the obligation bearer within its borders. IHRL relies on a domestic context with a large semblance of institutional order, in which international law can be domestically encoded (Simmons, 2009). This is unlike the heavy IHL regulations governing interstate conflict, which is premised on an anarchical conception of the international sphere. These sets of constraints play a key role in the legal debates on drones, which I later explore in my case study.

The division of international law into these domains, with IHL governing the “anarchical” outside of states and IHRL governing the “ordered” inside of states has productive effects. This inside/outside discourse of sovereign international law is predicated on the existence of spaces that have no “sovereign.” ³ The supposed absence of order—measured in terms of a liberal understanding of order—within these “anomalous” spaces is a useful identity-building tool. As the literature on juridical sovereignty tells us (Jackson and Rosberg, 1982), external recognition of sovereignty by powerful international actors matters as much as actual, empirical sovereignty when it comes to who can participate in International Relations (Jackson, 1993: 31). ⁴ This has implications for geographical areas that are perceived as failing to fit into or defying hegemonic understandings of order, both in terms of their security, and their perceived place in legal codes based on state sovereignty.

These frontier territories defy easy definition. On the one hand, they can be classified in terms of their political geography. Frontier territories are within recognized state borders (Ron, 2003: 14), though they tend to bedevil state and liberal international actors’ attempts to fully and continuously impose their desired method of governance over them. They are typically governed by rules, regulations, and norms parallel to or separate from those of the state’s, such as tribal institutions. In this way, their existence complicates traditional notions of sovereignty. More importantly for this paper, the frontier territory can also be thought of more broadly as the affective associations that get pinned to these spaces for not conforming to liberal understandings of order; I develop this part of the definition in the next subsection. A frontier territory, conceptualized in this paper as a space of exception, is not a legal category in international law; it is distinct from the well-trodden legal concept of national borders. Rather, I argue that the frontier territory is an idea constituted by the binary schema of international law.

In this way, the frontier territory becomes a useful modality for explaining how the discourse of international law—which is firmly rooted in the idea of interiors and exteriors—might sometimes facilitate extraterritorial state violence. As critical theorists have argued, international law itself may perpetuate the conditions it purportedly seeks to mitigate (Gathii, 1998; Pahuja, 2013; Parfitt, 2018). Because they do not fit into a readily determinable category, frontier territories are rendered legal gray zones. This opens up opportunities for powerful international actors to rhetorically define them in politically useful ways. By constructing frontier territories as areas of lawlessness, international actors ignore the multiple layers of legal constraints that are in contest. Actors can then use the set of laws that best facilitates and legitimates their strategic objectives within a specific political space. This process of construction is crucial in terms of policymaking, because defining an area as lawless from one perspective of the law allows certain actions that would be considered unlawful from other perspectives.

“Lawless” spaces and the construction of frontier territories

Geographical areas that fall outside traditional notions of state authority and control may be subjected to different norms of state violence. James Ron argues that states are “highly sensitive to geography and borders” when deciding whether to use controlled or unbridled violence against marginalized domestic populations (Ron, 2003: 9). He argues that levels of state control and the “extent to which states . . . feel a bureaucratic, moral, and political sense of responsibility for their fate” determines whether or not a state resorts to extreme violence, like ethnic cleansing (Ron, 2003: 9). Different institutional settings—defined by differing levels of visibility, state control, and regulation—have “their own logic of appropriateness” regarding the use of armed force (Ron, 2003: 8, 15). This means that different geographic areas are subjected to different repertoires of state violence (Foucault, 1995; Giddens, 1987). Because states do not feel compelled by the same legal obligations to frontiers, these areas are treated as “objects of war” that “permit and even promote” extreme state violence within them (Ron, 2003: 9).

In addition to the characteristics detailed above, the frontier territory concept also carries with it a historically weighted discourse about civilization and barbarity that may further render it vulnerable. In its simplest form, a frontier territory is an area that falls beyond a socially recognized boundary. The mythos of the frontier in general is a powerful discourse, with its effects lying at the nexus between dispossession and exploitation. In the words of Anna Tsing (2015), “this is a story we know; it is the story of pioneers, progress, and the transformation of ‘empty’ spaces” (18). Frontier narratives are a “romance with darkness and barbarity,” mixed with the civilizer’s understandings of progress (Benton, 2010: 40). The colonization of the “new world” was in part driven by the aura of marvelousness that these “uncharted” areas inspired (Greenblatt, 1993). These spaces have been portrayed as empty, rugged, and lawless canvases upon which the tools of modernity can overcome natural obstacles and discipline space in the name of progress (Netz, 2004: 67). Of course, these areas deemed “terra nullis” were (and are) never devoid of human or animal bodies, and their contested nature often breeds extraordinary violence (Netz, 2004).

We can extrapolate these insights from comparative politics about how states perpetrate violence in their frontier territories to gain useful insights on how international state actors perpetrate extraterritorial state violence within these same spaces. The frontier territory mythos speaks to the critical International Relations theorizing that defines foreign policy as “an identity-making tool that erects boundaries between the self and other, defining in the process what are the national interests” (Mesari, 2001: 227). These “gray areas,” constituted by the internal/external divisions within the discourse of international law, are often deemed as ungovernable and unenlightened by supposedly neutral institutions. They are conceived of as the “treacherous lands” of colonial tropes, inhabited by “natives” inoculated against rationality. ⁵ Legal discourses can reinforce the vulnerability of frontier territories by promulgating false assumptions about lawlessness, which by extension designates them as less deserving of protection from external aggression. In the case of drone strikes, affective associations between “terrorism”/“otherness” and “Muslims” in the wider US foreign policy public discourse (Mesari, 2001) may further single out the frontier territories in Pakistan, Yemen, and Somalia as exceptional political spaces, and facilitate expedient uses of state violence within them.

“Rule of law” as a permissive discourse for extra-state violence in frontier territories

Discourses about the “rule of law”—specifically the notion of lawlessness that the rule of law purportedly ameliorates—may render frontier territories even more vulnerable to extraterritorial state violence. Many scholars, human rights advocates, and policy makers alike draw on the rule of law as a way to strengthen states and replicate liberal models of citizens-as-rights-bearers/states-as-obligation-bearers in diverse contexts (Carothers, 2006). Precisely because of differentiated historical and political experiences, these states—and certainly the frontier territories within them—oftentimes do not follow the same formal, institutionally regulated rules that purportedly characterize Euroamerican states. A constructed “lack” of law has justified interventions into these areas, in the name of development as well as national security (Pahuja, 2013: 3). ⁶ Different legal codes and constraints tend to overlap within frontier territories, making their legal standings considerably more discursively contested than cities or states. The rule of law becomes not just a policy objective in these areas, but also a political tool that enables violent intervention through reference to its absence. For example, in one of the legal documents I analyze, militarily intervening in a country that is unable to maintain rule of law is cited as “ensur[ing] that the sovereignty of other States is respected” (Jaffer, 2016: 278).

Exploring rule of law discourses requires unpacking understandings of what constitutes “law” and “lawlessness,” and how frontier territories in particular fall prey to the political uses of these concepts. Mark Massoud (2013) defines the rule of law as “a structure of governance rooted in the normative belief that law exists to configure and constrain social, economic, and political relations and to resolve dispute peacefully; often (but not always) coexisting with contemporary values of human rights and democracy” (21). The UN characterizes the rule of law as “essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms”—the key assumption being that robust domestic legal mechanisms can help bring about “social stability” and legitimize the state (Massoud, 2013: 212; United Nations, n.d.). After 9/11, many governments and some scholars have characterized rule of law building as promoting the national security interests of superpowers. This is because rule of law promotion in fragile states will purportedly bolster security and stability within the country (Mason, 2011), primarily by making the state more accountable to its citizens and denying radical groups grievances from which to feed (Kleinfeld, 2012: 5).

Treating the rule of law as a discourse allows scholars to interrogate how the saliency of law as a social construct can have material political outcomes. Critical legal scholars ask what political work law is capable of doing for a variety of domestic and international actors. Law is not static, but embedded within global power structures and interests—international law itself is “a site of politics” (Dezalay and Garth, 2002: 25; Pahuja, 2013: 252). This is contrary to a technical, neutral and non-instrumental view of the law (Tamanaha, 2006: 5, 215), which sees law as something that merely guides state institutions (Reno, 1998). Viewing both the rule of law as well as sovereign international law as discourses illuminates the ways in which different power holders can wield legality in pursuit of political goals, and allows scholars to consider how contestations over which laws apply to a space can become opportunities to legitimize violence (Massoud, 2013: 10).

Applying labels of lawlessness to political spaces is a particularly powerful discursive tool, due to the esteemed place that the rule of law as an ideal of governance occupies in Euroamerican contexts. These political actors tend to view the rule of law as a normative good, and by extension as a “scale that measures ‘good’ states versus ‘bad’ states” (Massoud, 2016). As Sally Merry (1995) argues on the productive powers of law, settings like courts and legal debates “provide performances in which problems are named and solutions determined” (14). Venerating a liberal conception of the rule of law can demonize ‘lawless’ spaces, which are constructed as not conforming to this ideal (Massoud, 2013: 4). Law becomes a powerful political device, with its influence laying in its ability to designate other societies as “lawless” because they are lacking rule of law (Mattei and Nader, 2008: 65)—a move that simultaneously legitimates intervention while deflecting criticism away from its own violence.

All of these factors culminate in the creation of a permissive politico-legal discourse—one that powerful actors can tap into in order to legitimate violent foreign policies within frontier territories. The labeling of these spaces as “lawless” then can be viewed partially as a “moral politics” tale, about who is deserving and undeserving of protection from violence and external intervention under international law, by merit of how much they’ve integrated liberal sensibilities (Clarke, 2009; Humphreys, 2010). Rule of law “deficiencies” within frontier territories are labeled “policy nightmares that bedevil countries in the developed world,” due to the instability that they allegedly radiate outward, especially in the form of terrorism (Kleinfeld, 2012: 5). Because they do not easily fit within a pre-given legal container under international sovereign law, frontier territories are uniquely rhetorically contested sites that have multiple overlapping and competing legal constraints, as well as multiple understandings of legality on local levels. This makes them vulnerable to redefinition by powerful actors, who have political interests in constructing these areas as “lawless” sites that “necessitate” extraterritorial state intervention in the name of enforcing international rule of law (Humphreys, 2010). This process of construction is inherently political, because deciding which laws matter ignores other existent legal constraints that less powerful actors recognize as legitimate.

The “lawlessness” of frontier territories in context

Despite these accusations of lawlessness, a more contextualized look at frontier territories oftentimes reveals that they are only “lawless” if one’s measuring stick is based on the liberal conception of sovereign law. Even “illiberal” ordering principles, such as warlord politics, can achieve similar (or at least comparable) results as law, in that it organizes society in a somewhat predictable manner (Reno, 1998). Laurent Gayer (2014) calls this phenomenon “ordered disorder,” where even in the face of “chronic” violence, “routines of organization, interpretation, and action” within a political space make that violence manageable (5). Violence is not a measure of a lack of order, as violence itself can be ordered so that it does not become all-consuming—though not in the ways many powerful international actors desire. Relatedly, the apparent absence of rule of law within “fragile” spaces is sometimes attributable to an abundance of overlapping/competing legal frameworks, oftentimes the by-product of earlier colonial rule (Massoud, 2013).

Connections between frontier territories and lawlessness permeate post-9/11 US government documents. The 9/11 Commission Report labels the “legal vacuums” created by failed states and areas that fall under alternative authorities as “breeding grounds for attacks against Americans at home” (Senate Committee on Intelligence 9/11 Commission, 2004: 367). The 9/11 Commission Report recommends that these areas be identified and prioritized, and then subjected to “all elements of national power” to prevent the growth of violent extremism (Senate Committee on Intelligence 9/11 Commission, 2004: 367). These “blank spaces” on the map are characterized as areas in which the legitimate “writ of government has failed, and highwaymen rule once again” (Kleinfeld, 2012: 5). The stagnant images of frontier territories have particular histories, ⁷ and all three areas targeted by drones during the Obama Administration had their domestic institutions intensely manipulated under colonialism.

The history of law in Pakistan’s tribal areas illuminates how post-colonial contexts are oftentimes steeped in, constituted, and controlled by past and contemporary legal legacies. Formerly referred to as the Federally Administered Tribal Areas (FATA), this region is regarded by policymakers and think tanks as the “prototypical ungoverned territory” (Rabasa et al., 2007: 23). However, the Frontier Crimes Regulations (FCR)—a frontier-disciplining legal code from the colonial era—defined this region as an “exceptional” ⁸ area where the rule of law of the Pakistani state did not extend until as recent as 2018 (Farooq, 2014). All the while, the individuals from this region have become “historical subjects only when acted upon by outsiders,” essentialized and portrayed as if they would “ultimately strike out against the security of the West if left to themselves” (Bashir and Crews, 2012: 1–5). This view ignores the fact that residents of this border region have “interacted and co-constructed” the politico-legal space alongside “empires, states and insurgencies” (Bashir and Crews, 2012: 1–5). Tribal legal codes, such as Pashtunwali continue to transcend national borders and, in so doing, reject hegemonic understandings of space. Past and contemporary domestic law plays a significant role in creating many of the conditions that enable international powers to label this region as “lawless/dangerous,” and to attack it (Tahir, 2017). ⁹ Local legal institutions are oftentimes ignored or short-circuited, even the ones whose interests and actions align with the United States’ counterterrorism goals.

Similarly, Yemen’s frontier territories were designated spaces of legal exception by colonial powers (Willis, 2009: 26, 28). The tribal periphery was legally and institutionally carved out from the center in Aden by the British (Willis, 2009: 27). This isolation of Yemen’s frontier territories has informed subsequent relations between the tribal areas and the central government, which has been one of neglect regarding resource allocation (Hull, 2011). However, the idea that the periphery has been in a state of perpetual chaos ignores the level of stability that tribal legal mechanisms have historically offered. Some scholars call the tribes “small sovereignties,” due to the societal order that tribal politico-legal systems have brought to their territories (Weir, 2007). This order maintenance system includes services such as tax collection, dispute resolution, and mediation with the state (Salmoni et al., 2010: 323; Schmitz, 2011). A parochial view of the Yemeni tribes also downplays the historical level of involvement of some sheikhs in national politics (Schmitz, 2011). The Yemeni case demonstrates that frontier territories are at the very least legally intertwined with the state, and certainly not “lawless.”

Even Somalia, which is considered the quintessential failed state and “one of the most dangerous places on the planet” (Messner and Lawrence, 2013), can still be thought of as having an “ordered disorder” (Gayer, 2014). The differences in colonial administration between the north and south created dramatic disparities between rural and urban centers (Besteman, 1999). While the Somali state can only extend its control over limited pockets of territory, there is “governance without a government” in the country (Menkhaus, 2007: 74). Business groups, civic leaders, and traditional authorities, through “informal systems of adaptation, security and governance,” have historically created “organic forms of public order and rule of law” (Menkhaus, 2007: 74). Most notable are informal business networks that have an interest in keeping the Somali state weak, out of fear of increased regulation (Menkhaus, 2007: 74). This “ordered disorder” (Gayer, 2014) may certainly frustrate liberal international actors but demonstrates that assumptions of total anarchy are oversimplifications.

Delving into three specific frontier territories demonstrates that while they may not meet the rule of law standard in the liberal sense, these areas are not unordered. As discussed earlier, these spaces defy traditional legal categorization and total absorption into a state’s central control. However, they also defy the politically weighted labels of “lawlessness” that powerful actors affix to them. Rendering frontier territories as exceptional spaces constitutes “juridical othering” in service of political goals, which often require violence (Shaw et al., 2012: 1503). This othering annuls the law “through the law” by setting frontiers up against “normal,” rule of law-abiding political powers (Gregory, 2007: 226). In fact, the powers that designate frontier territories as lawless may actually produce some of the very conditions they claim to be ameliorating.

In sum, international law does not enjoy an objective or natural existence apart from the historical and contemporary power structures that constitute it. Therefore, the focus of this paper is on how actors use or reframe international law. The discursive, constructed aspect of international law (with its privileging of sovereign understandings of interiors and exteriors) allows it to be wielded as a political tool by certain actors. The frontier territory concept as defined in this paper deepens our understanding of the mechanisms through which powerholders instrumentalize legal discourses and helps us to better understand how international law can bolster specific national security policies of powerful states. The modality of the frontier territory, lifted from the domestic state context, extends a growing body of critical international law literature that considers the “illiberal use of liberal law” (Eslava, 2018; Pahuja, 2013; Parfitt, 2018). These studies argue that through activities like humanitarianism and rule of law building in the Global South, international legal discourses can contribute to colonizing projects in the Global North (Eslava, 2018; Mattei and Nader, 2008; Nader and Savinar, 2016). The frontier territory concept, and its use as a discursive tool to secure the state through law, may show similar patterns of domination through the laws of armed conflict.

The “law of 9/11,” continuities in counterterrorism, and drones

In his 2009 Nobel Lecture, former US President Barack Obama attempted to reaffirm America’s commitment to upholding international law. He argued that the United States had become unmoored from its principles and disregarded the importance of international order. The United States has a duty to act in accordance with international legal commitments, he stated, and to “honor those ideals by upholding them not when it’s easy, but when it is hard” (Obama, 2009). However, his speech made it clear that his presidency would not harken a foreign policy paradigm shift—global terrorism would still be met with a military response, and the United States was still in a global war (McCrisken, 2011: 796).

Indeed, the US government’s position that it is in a global war has been critical to its strategy for the past 18 years. The Bush Administration insisted that 9/11 had ushered in a new world, one that should not restrict combat operations to a single battleground. While not prescribing to the “terrorism-as-war” position as a whole, the UN Security Council reasoned that the 9/11 attacks merited an Article 51 US-led war of self-defense against the Taliban in Afghanistan. Under the war paradigm, the Bush Administration legalized its war in Iraq, and its use of renditions and “enhanced interrogations” through a succession of White House Office of Legal Council (OLC) memos, White Papers, and Presidential Findings.

The assumption that President Obama’s counterterrorism policies better conformed to international law ignores a larger question about how the law itself can be used to achieve political goals. The Obama White House followed in the footsteps of their predecessors to define, defend, and institutionalize their counterterrorism tactic of choice—lethal drone strikes beyond “hot” battlefields—as legal, also in the language of war law. Using drones to target and kill “suspected terrorists” became the hallmark of its expanded military operations. Within the Obama Administration’s first 2 years in office, the number of drone strikes increased six times over, and death tolls quadrupled. The Obama White House turned to areas outside active zones of hostility, in the frontier territories within Pakistan, Yemen, and Somalia (McCrisken, 2011: 796).

But this war framing did not go uncontested; many international human rights advocates, attorneys, international law experts, and nongovernmental organizations disagree with the United States’ legal position. ¹¹ For example, the International Committee of the Red Cross (ICRC) states that both IHL and IHRL are applicable during armed conflict, which is especially important in NIACs where war law is less detailed than in international wars (International Committee of the Red Cross, 2010). Questions about legal frameworks become even more complicated in the “war on terror,” since the domestic state in which the NIAC is occurring is not the immediate belligerent, and the US government claims to have no human rights responsibilities beyond its borders.

These debates have been well-documented for nearly two decades, and this paper does not attempt to intervene into or resolve them. Instead, I use this case to demonstrate how the US government constructed a specific legal idea of the frontier territory—a move that is enabled by international law’s focus on sovereignty—as a legitimating tool for the use of extraterritorial violence. First, I examine how the US government manufactured the lawfulness of its actions in frontier territories according to jus ad bellum and jus in bello principles. I then show how these documents simultaneously manufactured the “lawlessness” of the targeted areas. Finally, I consider how the frontier territory construct may have enabled the government to lessen and avoid constraints that many other actors view as applying.

Manufacturing legality

There was nothing natural or inevitable about expanding the greater war frame of the United States’ “war against terrorists” to these areas. Indeed, the documents I analyze reveal a great deal of legal maneuvering to bring areas “outside active battlefields” into the purview of war law, and into the larger militarized counterterrorism discourse. Within the 16 artifacts, these justifications fall into two types of categories: jus ad bellum reasoning—“where” the Administration can strike, according to US Department of State Legal Adviser Brian Egan—and jus in bello reasoning—“how” the Administration can strike (Jaffer, 2016: 277). In both categories, the documents rely on war law to justify lethal drone strikes within frontier territories. They do this by directly referencing war law and integrating the Geneva Conventions into their arguments, and also by more casually referencing IHL terms such as “civilian casualties” and “combatants.” In both the jus ad bellum and jus in bello justifications, the OLC’s reinterpretation of the US Supreme Court case Hamdan v. Rumsfeld in the Anwar al-Aulaqi White Papers plays a key role in explaining how this war law frame got extended to drone-targeted frontier territories.

In regard to jus ad bellum, the Administration contends that its war with al-Qaeda is a just war, that it is a NIAC under Common Article 3 of the Geneva Conventions, and that drone strikes outside areas of active hostilities falls within this frame (Jaffer, 2016: 274–278). The OLC Memos cite the AUMF, the UN Charter’s right to self-defense, and the US Supreme Court’s decision in Hamdan v. Rumsfeld as authorizing the strikes as wartime killing. Citing the UN Charter, Egan states that the US’s “inherent right self-defense” legitimates broad military action against al-Qaeda and its Affiliates, both “in response to armed attacks” and “imminent [attacks] before they occur” (Jaffer, 2016: 274–278). The “absence of specific evidence” on the imminence of such anticipated attacks is not viewed as precluding the United States from legally initiating a pre-emptive attack (Jaffer, 2016: 276).

Pakistan, Yemen, and Somalia were pulled into the scope of this wider NIAC by the OLC documents on the legality of killing al-Aulaqi, an American citizen in Yemen, by drone strike (Jaffer, 2016: 96). The July 2010 OLC Memo states that:

in Hamdan v Rumsfeld, the Supreme Court held that the United States is engaged in a non-international armed conflict with al-Qaeda. … In so holding, the Court rejected the argument that non-international armed conflicts are limited to civil wars and other internal conflicts between a state and an internal non-state armed group that are confined to the territory of the state itself; it held instead that a conflict between a transnational non-state actor and a nation, occurring outside that nation’s territory, is an armed conflict ‘not of an international character’ because it is not ‘a clash between nations.’” (Jaffer, 2016: 92)

Through the 2010 White Paper, the US government expanded its jurisdiction in its “war against terrorists” by drawing on a narrow Supreme Court ruling meant to address Bush-era military commissions. In Hamdan v Rumsfeld, the finding that the US is in a NIAC was applicable only to Afghanistan, as that is where Salim Ahmed Hamdan was captured (Hamdan v Rumsfeld, 2006). However, in the 2010 White Paper, the case is being reinterpreted to advance the claim that NIAC law is applicable for all US global counterterrorism operations. This maneuvering enables “legal” wartime targeting within Pakistan, Yemen, and Somalia, under the IHL of NIAC.

Table 1 offers a representative sample of statements that shows more examples of how the Administration presented its legal argument for extending the geographic scope of its war with al-Qaeda and its associates to areas beyond “hot” warzones (all emphases mine).

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Table 1.

Representative sample of references to geographic scope of war law in documents justifying US drone strikes.

Source	Reference to Geographic Scope of War Law
Public Speech delivered by Attorney General Eric Holder at Northwestern University School of Law; “Untitled” (2012)	“International law recognizes the inherent right to self-defense. None of this is changed by the fact that we are not in a conventional war. Our legal authority not limited to the battlefields of Afghanistan” (Jaffer, 2016: 194).
Public Speech delivered by Brian Egan at Annual Meeting of the American Society of International Law; “International Law, Legal Diplomacy, and the Counter-ISIL Campaign” (2016)	“. . .Under the jus ad bellum, the international legal basis for the resort to force in self-defense on another state’s territory takes into account State sovereignty . . . International law requires that states must either determine that they have the relevant government’s consent, or if they must rely must rely on self-defense to use force against a nonstate actor on another State’s territory, determine that the territorial state is ‘unable or unwilling’ to address the threat posed by the non-state actor on its territory” (Jaffer, 2016: 276-277).
Public Speech delivered by John O. Brennan at Harvard Law School; “Strengthening Our Security by Adhering to Our Values and Laws” (2011)	“As a matter of international law, the United States is in an armed conflict with al-Qaeda, the Taliban and its associated forces . . . and we may also use force consistent to our inherent right of self-defense. There is nothing in international law that bans the use of remotely piloted aircraft or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country consents or is unable or unwilling to take action against that threat” (Jaffer, 2016: 206).
Office of Legal Counsel Memorandum; “Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Sheikh Anwar al-Aulaqi” (July 2010)	“For present purposes, in applying a more context-specific approach to determining whether an operation would take place within the scope of a particular armed conflict, it is sufficient that the facts as they have been represented to us here, in combination, support the judgment that the DoD’s operation in Yemen would be conducted as part of the non-international armed conflict between the US and al-Qaida” (Jaffer, 2016: 96).
	“The 1949 ICRC Commentary on the Additional Protocols to the Geneva Conventions [state] that a non-international armed conflict “is distinct from an international armed conflict because of the legal status of the entities opposing each other. The Court explained that this interpretation – that the nature of the conflict depends at least in part on the status of the parties, rather than simply on the locations in which they fight – in turn accords with the view expressed in the ICRC Commentaries to the Geneva Conventions that “the scope and application” of Common Article 3, which establishes basic protections that govern conflicts not of an international character, ‘must be as wide as possible’” (Jaffer, 2016: 92-93).“In Hamdan v. Rumsfeld, the Supreme Court held that the US is engaged in a non-international conflict with AQ. In so holding, the Court rejected the argument that non-international armed conflicts are limited to civil wars and other internal conflicts between a state and an internal non-state armed group that are confined to the territory of the state itself; it held instead that a conflict between a transnational non-state actor and a nation, occurring outside that nation’s territory, is an armed conflict ‘not of an international character’ because it is not ‘a clash between nations.’ Here, unlike in Hamdan, the contemplated DoD operation would occur in Yemen, a location that is far from the most active theater of combat between the US and AQ. That does not affect our conclusion . . . that the DoD operation in Yemen [is] part of the non-international armed conflict with AQ” (Jaffer, 2016: 92).

The Administration also argues that its use of drones adheres to jus in bello principles, alongside jus ad bellum principles. In addition to stating “where” the United States can undertake military action, the 2010 al-Aulaqi OLC White Paper also has implications for the type of international law the US government claims as being applicable in areas outside active zones of hostilities. For example, in his speech during the Annual Meeting of the American Society of International Law, Egan states that the “applicable legal regime governing our military operations is the law of armed conflict covering NIACs, most importantly, Common Article 3 of the 1949 Geneva Conventions” (Jaffer, 2016: 279). It is crucial again to note that IHL in NIACs is significantly less detailed than the Laws of Armed Conflict as they apply to interstate wars (International Committee of the Red Cross, n.d.). ¹²

Given this position, any subsequent lethal action within frontier territories is legitimated as long as individual missions are conducted according to the principles found in NIAC law (Jaffer, 2016: 300). For example, the rules stipulated within the 2013 Presidential Policy Guidance (PPG) for pre- and post- strike procedures includes specifying the “international legal basis for taking action,” based on how well the proposed or already executed action fits into the minimum standards of IHL as they apply to conflicts not of an international character (Jaffer, 2016: 244–250). The PPG’s Fact Sheet claims that adherence to the rules of war is the first precondition that any proposed strike must meet (Jaffer, 2016: 255). However, the PPG specifies that in “extraordinary cases,” operations may derogate from the institutionalized targeting procedures, as long as they are subject to a “separate legal review” that finds the action “in accordance with applicable” international law (Jaffer, 2016: 250).

As can be seen from this sampling of the data in Table 2 (all emphases mine), the documents make the argument that drone strikes in frontier territories comply with “all applicable law,” with the “applicable law” becoming NIAC law once these spaces are re-fashioned into targetable sites through the jus ad bellum reasoning detailed previously (Jaffer, 2016: 121). On this point, State Department Legal Adviser Harold Koh states emphatically: “let there be no doubt: the Obama Administration is firmly committed to complying with all applicable law, including the laws of war, in all aspects of these ongoing conflicts” (Jaffer, 2016: 121). This permits the United States to claim that it still upholds and respects international law in its military operations within frontier territories, within the framework of a more permissive set of regulations (Jaffer, 2016: 300).

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Table 2.

Representative sample of references to war law principles and concepts in documents justifying US drone strikes.

Source	Reference to War Law Principles and Concepts
Public speech delivered by Harold Hongju Koh at the Annual Meeting of the American Society of International Law; “The Obama Administration and International Law” (2010)	“Let there be no doubt: the Obama Administration is firmly committed to complying with all applicable law, including the laws of war, in all aspects of these ongoing conflicts” (Jaffer, 2016: 121).“There is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such pilotless aircraft or so-called smart bombs – as long as they are employed in conformity with applicable laws of war” (Jaffer, 2016: 123).
Executive Order Fact Sheet; “Executive Order on the US Policy on Pre & Post-Strike Measures to Address Civilian Casualties in the US Operations Involving the Use of Force & the DNI Release of Aggregate Data on Strikes Outside Areas of Active Hostilities” (2016)	“Unlike terrorist organizations, which deliberately target civilians and violate the laws of armed conflict, the United States takes great care to adhere to the law of armed conflict and, in may circumstances, apply policy standards that exceed the requirements of the law of armed conflict” (Jaffer, 2016: 290).“Demonstrating the legitimacy of our counterterrorism efforts . . . requires complying with the law of armed conflict and setting policy standards that exceeds the law’s requirements” (Jaffer, 2016: 291)
Executive Order; “United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in US Operations Involving the Use of Force” (2016)	“Civilian casualties are an unavoidable consequence of the use of force in situations of armed conflict or in the exercise of a state’s inherent right to self-defense” (Jaffer, 2016: 300).“The policies set forth in this order are consistent with existing US obligations under international law and are not intended to create new international legal obligations; nor shall anything in this order be construed to derogate from obligations under applicable law, including the law of armed conflict” (Jaffer, 2016: 304).
Office of Legal Counsel Memorandum; “Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi” (July 2010)	“. . .We believe DoD’s contemplated operation against al-Aulaqi would comply with international law, including the laws of war applicable to this armed conflict, and would fall within Congress’s authorization to use ‘necessary and appropriate force’ against al-Qaida. In consequence, the operation should be understood to constitute the lawful conduct of war. . .” (Jaffer, 2016: 101).“The CIA [REDACTED] would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict. . .” (Jaffer, 2016: 105).“Common Article 3[‘s protection of non-combatants] does not alter the fundamental law of war principle concerning a belligerent party’s right in an armed conflict to target individuals who are part of an enemy’s armed forces” (Jaffer, 2016: 112).
Public Speech delivered by Brian Egan at Annual Meeting of the American Society of International Law; “International Law, Legal Diplomacy, and the Counter-ISIL Campaign” (2016)	“To start from first principles – the United States complies with the international law of armed conflict in our military campaign [against terrorists] as we do in all conflicts. We comply with the laws of armed conflict because it is the international legal obligation of the United States; because we have a proud history of standing for the rule of law; because it is essential for building and maintaining our international coalition; because it enhances rather than compromises our military effectiveness; and because it is the right thing to do” (Jaffer, 2016: 273).[Since the US is in a NIAC], the applicable international legal regime governing our military operations [outside hot battle zones] is the law of armed conflict covering NIACs, most importantly Common Article 3 of the 1949 Geneva Conventions and other treaty and customary international law rules governing the conduct of hostilities in NIACs.” (Jaffer, 2016: 279).

These artifacts elucidate the ways in which the US government constructed drone strikes within areas outside active battlefields as legal. This is both in terms of how and why it can use force within areas outside active battlefields, as well as how the actions it undertakes in these areas comply with “accepted” international legal standards. Again, there was nothing inevitable about the US government expanding its war frame from Afghanistan and Iraq to Pakistan, Yemen, and Somalia. In fact, the US legal team had to undertake significant maneuvering to do so. This is perhaps best evidenced in the al-Aulaqi White Papers, in which the OLC reinterpreted the Supreme Court’s finding in Hamdan v Rumsfeld (2006) to apply NIAC law to its global counterterrorism operations.

Manufacturing frontier territories

In addition to looking for how the Administration used law, I also qualitatively coded these artifacts for how they characterize the geographic spaces subjected to drone strikes. I found that Administration officials overwhelmingly present these spaces in terms of their perceived lack of political and legal institutional organization, creating a systematic categorization of them as “lawless.” The documents do this in two key interrelated ways. First, Administration officials use affective epithets such as “lawless,” “chaotic,” and “unforgiving” when describing the ground realities of the targeted areas. Second, they make the unqualified claim that these frontier territories lay beyond the control of the domestic state in which they reside.

Former President Obama’s 2013 speech to the National Defense University exemplifies the rhetorical construction of frontier territories by affixing epithets to the targeted spaces. He states that “al-Qaeda and its affiliates try to gain foothold in some of the most distant and unforgiving places on Earth. They take refuge in remote tribal regions. They hide in caves and walled compounds. They train in empty deserts and rugged mountains” (Jaffer, 2016: 264). He continues, stating that suspected terrorists hide “in territories that have no functioning police or security services – and indeed, have no functioning law” (Jaffer, 2016: 268). John O Brennan echoes these frontier territory associations, arguing that “these terrorists are skilled at seeking remote, inhospitable terrain” (Jaffer, 2016: 211). In this same speech, Brennan argues that rule of law building in these areas is an ideal, long-term policy goal because it will ultimately “eliminat[e] the very chaos that organization [al-Qaeda] needs to survive” (Brennan, 2011).

These geographic spaces are rarely mentioned on their own; they are typically described in relation and/or comparison to their domestic state. For example, in a speech at Northwestern University School of Law, former US Attorney General Eric Holder claimed that a state’s government being “unwilling or unable” to eliminate a terrorist threat was justification enough for extraterritorial intervention into their territory. Importantly, these descriptions do not include the ways in which the domestic state might perpetuate these supposed conditions of “lawlessness.” Instead, the frontier territory is portrayed as standing on its own, independent of any external constituting processes.

Table 3 displays a representative sample from my data on references to frontier territories. I include a second column, in which I identify the key monikers attributed within the statement to the geographic space targeted by US drone strikes (all emphases mine).

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Table 3.

Representative sample of descriptive references to frontiers in documents justifying US drone strikes.

Source	Epithet or Description	References to Frontiers
Public Speech delivered by President Barack Obama at the National Defense University; “Untitled” (2013)	Distant, Unforgiving, Remote, Empty, Rugged, Tribal, Tenuous [state control], Lack of [state] capacity	“Al Qaeda and its affiliates try to gain foothold in some of the most distant and unforgiving places on Earth. They take refuge in remote tribal regions. They hide in caves and walled compounds. They train in empty deserts and rugged mountains. In some of these places – such as parts of Somalia and Yemen – the state only the most tenuous reach into the territory. In other cases, the state lacks the capacity or will to take action” (Jaffer, 2016: 264).
Public Speech delivered by John O. Brennan at the Woodrow Wilson International Center for Scholars; “The Ethics and Efficacy of the President’s Counterterrorism Strategy” (2012)	Remote, Inhospitable	“These terrorists are skilled at seeking remote, inhospitable terrain, places where the United States and our partners simply do not have the ability to arrest or capture them . . . There are many reasons why capture might not be feasible, in which case lethal force might be the only remaining option to address the threat, prevent an attack, and save lives” (Jaffer, 2016: 211).
	Terrorists, Hard-to-reach places	“. . .There are still terrorists in hard-to-reach places who are actively planning attacks against us” (Jaffer, 2016: 216).
Public Speech delivered by Brian Egan at Annual Meeting of the American Society of International Law; “International Law, Legal Diplomacy, and the Counter-ISIL Campaign” (2016)	Loss or Abandonment of effective state control	“. . .if they [a State] must rely on self-defense to use force against a nonstate actor on another State’s territory, [the State must] determine that the territorial state is ‘unable or unwilling’ to address the threat posed by the non-state actor on its territory . . . Of course the concept of consent can pose challenges in a world in which governments are rapidly changing, or have lost control of significant parts of their territory, or have shown no desire to address the threat” (Jaffer, 2016: 277).“With respect to the ‘unable’ prong of the [unable and unwilling] standard, inability perhaps can be demonstrated most plainly, for example, where a state has lost or abandoned effective control over the portion of its territory from which the non-state actor is operating” (Jaffer, 2016: 278)
Public Speech delivered by Attorney General Eric Holder at Northwestern University School of Law; “Untitled” (2012)	Inability of state to govern/counter threat	“International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States” (Jaffer, 2016: 194).
Public Speech delivered by John O. Brennan at Harvard Law School; “Strengthening Our Security by Adhering to Our Values and Laws” (2011)	Disorder, Inhospitable, Tribal, Central governments lack the ability to effectively govern, Chaos	As we have seen from Afghanistan in the 1990s to Yemen, Somalia and the tribal areas of Pakistan today, al-Qa’ida and its affiliates often thrive where there is disorder or where central governments lack the ability to effectively govern their own territory. In contrast, helping such countries build a robust legal framework, coupled with effective institutions to enforce them and the transparency and fairness to sustain them, can serve as one of our most effective weapons against groups like al-Qa’ida by eliminating the very chaos that organization needs to survive” (Brennan, 2011).

These documents reveal how US officials constructed drone-targeted areas as frontier territories. They did so by attaching pejorative epithets to the targeted spaces, and by setting them apart from the domestic states in which they reside.

Tying legality and frontier territories together

The above processes of construction—the manufacturing of legality and the manufacturing of frontier territories by the US government—are linked. The way in which legality was constructed, in terms of where and how the government could undertake lethal drone strikes, was dependent upon the simultaneous construction of frontier territories as anarchical. By describing these territories as “lawless spaces,” these documents “other” them as geographic spaces of exception. They do so by over-lexicalizing frontier territories—negatively differentiating them from more institutionally dense areas ordered by liberal rule of law. “Over-lexicalization” occurs when “a surfeit of repetitious, quasi-synonymous terms is woven into the fabric” of a hegemonic discourse to describe people, places, and/or things that occupy a less privileged position of power (Teo, 2000: 20–21). This process often has “pejorative effects,” because it “signals a kind of deviation from social convention or expectation and reflects perceptions and judgments from the essentially biased standpoint of such cultural norms or social expectations” (Teo, 2000: 20–21). In this case, the productive effects of this “othering” process fashion the frontier territory into a rhetorical tool, which was then used for pursuing national security imperatives in locations that may otherwise have been unreachable. Specifically, this tool enabled the US government to sidestep constraints pertaining to jus ad bellum as well as jus in bello.

The manufacturing of a lack of sovereignty in the targeted areas opens up opportunities to apply a legal framework more conducive to achieving political goals. In the present case, this involved extending NIAC law to the targeted areas and avoiding more stringent jus in bello regulations. Because international law is created by state actors, NIAC law is thought of as containing power “asymmetries” between the rights of states, and the rights of the combatants attempting to forcibly challenge the state (Medecins Sans Frontieres, n.d.). ¹³ Indeed, the 2010 OLC Memo notes that the Geneva Conventions “do not themselves directly impose extensive restrictions on the conduct of a non-international armed conflict” (Jaffer, 2016: 98).

In regard to lowering jus ad bellum constraints, denying the sovereignty of frontier territories is key, given the primacy of sovereignty in international law discourse. In fact, the “danger” that these territories present “ordered” international society is so great, that only intervention to mitigate these conditions “ensures that the sovereignty of other states is protected” (Jaffer, 2016: 278). US officials claim to either seek the “consent” of the targeted state, or determine that the state is either “unwilling or unable” to confront the threat itself to maintain international peace (Jaffer, 2016: 277). ¹⁴ In the words of President Obama: “In some of these places – such as parts of Somalia and Yemen – the state only has the most tenuous reach into the territory. In other cases, the state lacks the capacity or will to take action” (Jaffer, 2016: 264). Denying the sovereignty of frontier territories thus becomes a sovereignty-maintenance tool for more powerful actors.

The ability of powerful actors to unilaterally define these spaces as “lawless’” reveals the inherently political nature of these processes. Indeed, there is a conspicuous absence of references to local law or ordering principles in Pakistani, Yemeni, or Somali frontier territories within the documents I analyze. This is despite the fact that these territories are not actually unordered—they merely do not conform to the hegemonic understanding of liberal rule of law. This has the effect of ignoring other constraints that may apply within these areas, because defining an area in terms of one type of narrow law sanctions actions that would be considered unlawful from alternative perspectives.

As I have argued previously, accusations of “lawlessness” can render frontier territories even more vulnerable to violence by constructing them as the “badlands” between hot warzones and areas of territorialized liberal peace (Savage, 2015: 246). This leads to a situation where the solution—extraterritorial drone strikes—can be presented as being endogenous to the “problem”—the fact terrorists hide in “remote, inhospitable terrain” that the United States and its partners cannot access (Jaffer, 2016: 211) The supposed lack of sovereign state control is matter-of-factly woven into this “problem,” with no mention of local practices or actual state-frontier territory entwinement. This decontextualized view eradicates the history of the targeted areas. The “problems” of “lawlessness” and “terrorism” are constructed as existing separate from any sort of external intervention or provocation—divorced from politics and path dependency. Such a “problem” becomes something solvable by technical means, through “surgical” military strikes.

All this being said, when it comes to individual officials, it is difficult to speak to the level of intentionality behind these omissions. With only 16 documents available, it is indeterminable whether these local institutions are merely illegible to the artifacts’ authors, or whether these institutions are indeed legible, but consciously ignored in order to pursue military intervention. These would be two different processes with different implications, but there is simply not enough available data to reliably assert one or the other. The reality is likely gray—a mixture of politico-strategic interests alongside cognitive associations. For example, historical entanglements suggest that there should be institutional knowledge of these local ordering principles—at least in the Pakistani context. During the Soviet–Afghan War, the American intelligence community worked alongside Pakistani intelligence to train Mujahideen fighters in the tribal areas in order to send them into Afghanistan to hobble Soviet efforts. The US government worked extensively with indigenous institutions in this period, and the Pakistani frontier territory (along with its residents) was romanticized. This is of course in sharp contrast to post-9/11 US policymakers’ construction of the same area, which demonizes it and places it beyond the purview of law. These differing portrayals remind us that the frontier territory is inherently constructed. Its nature is not a foregone conclusion but influenced by the political imperatives of more powerful actors, as well as the constituting properties of more powerful legal discourses. In the span of two decades, the same territory went from a rugged, romantic site of resistance to an impenetrable “fortress” populated by fanatics (Bashir and Crews, 2012: 4).