Article by A. Louis Evans
Abstract: Freedom of speech is considered one of the most fundamental human rights, but it is not without limits. In the context of an armed conflict, engaging in certain types of speech can form the basis for lethal targeting by States. Consensus exists in customary international law that speech-driven strikes constitute a lawful use of force under jus in bello standards. For example, a civilian who communicates the position of targets, or broadcasts tactical intelligence for a specific military operation has, by their speech, made themselves a lawful target. While customary international law agrees that speech-driven targeting is lawful, there has been little discussion by States or scholars of the requirements that form the basis for speech-driven targeting. The lack of scholarship concerning speech-driven targeting by States undercuts the legitimacy of speech-driven targeting and suggests that international law is not currently imposing adequate limits on the use of force by States against the fundamental human right of free speech. To justify speech-driven strikes, States and commentators use traditional tests based on a person’s actions to determine whether an individual has forfeited their protected status and is targetable. These action-based tests are problematic and lead to inconsistent results because they are designed to assess an individual’s actions as opposed to speech. To address this problem, this article will provide the first descriptive and normative analysis of speech-driven targeting. Descriptively, the article explains how speech-driven targeting currently exists in international law while simultaneously demonstrating the lack of guidance and agreement about what is required before the lawful use of lethal force. Next, from a normative perspective, the article proposes a core set of factors that should inform the speech-driven targeting analysis. The article then applies these factors to a real-world example of America’s use of force in Yemen against Anwar al-Awlaki to explore how using the factors would affect the legality of such a strike. The article concludes that using these proposed factors would enhance protections for freedom of speech while simultaneously enhancing State decisions and actions from a substantive and procedural perspective.