Law 250 Terrorism Professor Coll May 2, 2011 Exam Number: 339

Targeted Killings: Necessary and Lawful in the Global War on Terror

I.

Introduction Targeted killings are used by governments to eliminate individuals that they view as a

threat. Generally speaking, a nation¶s intelligence, security, or military forces identify the individual in question and carry out an operation intended to kill him or her. Targeted killings have emerged as a central and integral component of the United States¶ strategy in combating terrorism.1 The U.S.¶s policy of targeted killing is being carried out ³increasingly often by means of high technology, remote-controlled Predator drone aircraft wielding missiles.´2 While there are those that argue that these killings are arbitrary, illegal extra-judicial killings in violation of international law, the practice is used by defense and intelligence agencies of governments around the world and has been viewed with increasing legitimacy since the start of the war on terror. The U.S. military uses unmanned aerial vehicles (UAVs), or drones to carry out these attacks, the most famous being the Predator system, which includes not only the aircraft but a ground crew that monitors the operation via a satellite feed.3 Drones became quickly favored due to their relatively cheap cost compared to costs associated with deploying pilots in jets for reconnaissance or utilizing ground forces in search and destroy missions. Since these strikes can
See Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law. (Working Paper; Brookings Institution; Georgetown University Law Center; Hoover Institution. May 11, 2009. Available at http://ssrn.com/abstract=1415070); Eben Kaplan, Targeted Killings, Council on Foreign Relations, March 2, 2006, http://www.cfr.org/intelligence/targeted-killings/p9627. 2 Anderson, supra note 1, at 2. 3 See U.S. Air Force Fact Sheet, MQ-1B PREDATOR, http://www.af.mil/information/factsheets/factsheet.asp?fsID=122.
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Law 250 Terrorism Professor Coll May 2, 2011 Exam Number: 339

be carried out from a safe distance from the battlefield removing risk to soldiers, the use of Predator drones has greatly increased. The main problem that the United States faces is that there are no or very few credible human sources of intelligence on the ground, which leads to innocent civilian deaths. On his third day of office, President Obama ordered C.I.A. drone strikes against Al-Qaeda targets in Pakistan.4 While a small number of al-Qaeda operatives were killed by the drone attacks, the attacks also killed a pro-government tribal leader and his entire family.5 In 2009 alone, it was believed that 41 sanctioned drone strikes were responsible for the deaths of between three hundred and twenty six and five hundred and thirty eight people in Pakistan alone.6 In the eyes of the international community, these drone strikes have led to serious concerns about the international legality of the strikes. Professor Philip Alston, the Special Rapporteur to the U.N. Human Rights Council, published a report on May 28, 2010, which directly addressed the U.S.¶s use of drones in Afghanistan and Pakistan.7 Alston concluded ³although the struggle against terrorism and the U.S. response is a legitimate aim, the increased use of drones has impermissibly spread from armed combat to law enforcement of criminals, leading to the displacement of clear legal standards with a vaguely defined license to kill, and the creation of a major accountability vacuum.´8 However, the growing sentiment remains that targeted killings are okay under both international and domestic laws but only if the United
See, e.g., Mary Ellen O¶Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009, in SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT (Bronitt, ed.) (forthcoming), available at http://ssrn.com/abstract=1501144) 5 Id. 6 Jane Mayer, The Predator War, The New Yorker, Oct. 26, 2009, available at http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer; 7 See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Human Rights Council, 14th Sess. [hereinafter Alston Report}, available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf 8 Alston Report, supra note 7, at para. 3.
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S. they 9 O¶Connell.S. The main international objective of the United States and its military was to hunt down and destroy terrorists. fourteen civilians were killed from the strike. Targeted Killings ± Recent History The United States began its ³war on terror´ following the devastating attacks of September 11. even if they were found to be U. Id. the United States increased its use of Predator drones in hopes to not only obtain more intelligence but to eliminate any found terrorist threat.S. with the primary use being during ³formal´ armed conflict by the U. 10 3 .9 In November of 2001. 11 Kaplan. Due to the terrain of Afghanistan and Iraq and public sentiment towards the sanctity of the life of an American soldier. Saddam Hussein and his sons were the targets of multiple attacks.Law 250 Terrorism Professor Coll May 2.11 However. at 3. U. armed drones were used. As early as October of 2001. II. citizens.S. 12 Id. supra note 1. U.12 As the U.S. the United States employed drones to perform reconnaissance in Afghanistan with hopes to find Osama Bin Laden. begins and continues to decrease its presence in Iraq and Afghanistan. attacking al-Qaeda in the Afghan city of Jalalbad. Military in its campaigns in Afghanistan and Iraq. the U.S. supra note 4.10 Combat drones were also used for both recon and attacks during the United States invasion of Iraq in 2003. counter-terrorism operations using drones have since occurred in a variety of settings. failed to utilize the drones to accomplish its objectives and instead. 2011 Exam Number: 339 States can ensure that those targeted are classified enemy combatants and not those who are operating as civilians. 2011.

officials say that their intelligence suggested al-Zawahiri was meeting with a group of extremist associates however in the after math.15 In this case. Pakistani officials reported that alZawahiri was not in the village and eighteen civilians were killed instead. the citizens of Pakistan are not impressed. 1 HARV. supra note 1 15 Id. 2011 Exam Number: 339 will most likely increase their use of drones in order to maintain somewhat of a military presences and to continue gathering intelligence.Y. 17 Gabriella Blum & Philip Heymann. drone strikes within Pakistan and 67% disapprove of the strikes. U.16 The failure of the attack and the high civilian casualties were highly criticized by then-President Prevez Musharraf. to be a larger threat to O¶Connell supra note 4. drone attacks increased. Despite the American justification of killing international terrorists.S. due to the number of innocent civilians killed. a 2008 Gallup Pakistan poll found that only 9% of Pakistanis approve of U. NAT¶L SEC.S. 2006 an attack launched by a CIA-operated unmanned Predator drone was targeting Ayman al-Zawahiri al-Qaeda¶s second in command. including women and children perished. 145. 13 4 .Law 250 Terrorism Professor Coll May 2.S. at 4. See also N.14 A January 13. 150 (2010).S. 14 Kaplan. J. A majority of those polled also found the U. 16 Id. they do nothing but polarize local sentiment against the U.S. 6/19/2004 article. The Reach of War: Militants ex fighter for Taliban dies in strike in Pakistan. 17 While there have been attacks that appear to have been successful in eliminating specific Taliban and al-Qaeda targets.13 While over 20 terrorists and or militants were reported to be killed as the U. The United States has executed drone strikes in Pakistan since 2004 when Taliban fighters fled there from Afghanistan.Times. an estimated 750 to 1000 civilians.

III.S. While President Obama and his administration has vehemently attempted to portray the U. 1. LOS ANGELES TIMES. http://articles. the general sentiment around the world is that the U. Alex Rodriguez. government has shown no signs that it intends to minimize or change its current drone campaign. U.S. ³No person employed by or acting on behalf of the United States Government shall engage in.S.S. during the current ³war Id.S. 2009. However. The use of drones in the U. intelligence-gathering efforts and constitutional rights²which states.S.S. does what it wants: In the Pursuit of al-Qaeda and Osama Bin Laden.¶s international activities seems to be increasing exponentially. Clinton¶s Pakistan Visit Reveals Widespread Distrust of U. the main stumbling block to carrying out targeted killings is Executive Order 12333²issued in 1981 to protect both U.latimes. Policy regarding international law has not always been embracing. 2011 Exam Number: 339 Pakistan than India or the Pakistani Taliban.19 Despite this unpopularity. 20 Executive Order 12333 19 18 5 . Policy Regarding Targeted Killings In terms of domestic law. in a more amicable light in the international community..com/2009/nov/01/world/fg-clinton-pakistan1.Law 250 Terrorism Professor Coll May 2.18 During a visit to Pakistan in October 2009.´20 Official U. Secretary of State Clinton was told that the Pakistanis living in the regions where the drone strikes were occurring considered the drone strikes to essentially be terrorist actions against Pakistani citizens.S. the U. as it protects the lives of American soldiers and is a most efficient method of performing surveillance. officials find that the end almost always justifies the means when it comes to targeted killings. or conspire to engage in.S. U. Nov. assassination.

(2008). 2011 Exam Number: 339 on terror.´ the U. Reaffirming the principles and purposes of the Charter of the United Nations. 542 U. 507.S. 1. like any act of international terrorism. 535 (2004) Boumediene v. the U. 2001. Determined to combat by all means threats to international peace and security caused by terrorist acts. as a threat to international peace and security. 553 U.S.N. Supreme Court has confirmed the use of the AUMF as self-defense against terrorists as part of an armed conflict with such. . The AUMF authorized the President to use ³all necessary and appropriate force against those nations.´ The United Nations. 2011 to the right of the United States [and any other country affected in the future] to the right of self-defense from armed attack as protected under Article 51 of the UN Charter. organizations or persons.Law 250 Terrorism Professor Coll May 2. or harbored such organizations or persons. After the attacks of September 11. or aided the terrorist attacks that occurred on September 11. Sec. on September 12.C. Washington. Recognizing the inherent right of individual or collective self-defence in accordance with the Charter.S. 6 . 1368 (2001) (italics in original). Rumsfeld. and Pennsylvania and regards such acts. committed. or persons he determines planned.S. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York. Coun. Res.23 21 22 U. 23 See Hamdi v. 2001. D. authorized. passed Resolution 1368 that states: The Security Council. 2001. . 723. .. the world was faced with a new ³type´ of war as the U. in order to prevent any future acts of international terrorism against the United States by such nations.22 The U. 21 Article 1368 connected the terrorist attacks of September 11. Congress passed the Authorization of Use of Military Force against Terrorism (AUMF). organizations.S. and the world sought legal justifications for what would become the ³war on terror. AUMF (2001).S. Soon after. Bush.¶s policy of counter-terrorism has relied upon international law as justifying the means it has and will use against al-Qaeda and other terrorists abroad.

Department of State. Department of State. the Legal Adviser to the U. Compared with the monetary cost.state.e. President Obama was not bluffing for campaign purposes about increasing attacks on terrorist targets. 24 7 . 26 Speech by Harold Hongju Koh. 2010) [hereinafter Koh Speech]. supra note 17.27 Koh stated: "U. including the 25 Id. laid out the Obama Administration¶s stance on International law.24 President Obama has since ordered a ³dramatic increase´ in drone strikes against targets in Pakistan. 25. combat drone strikes) were readily available. Legal Advisor. political unpopularity and inherent risk to human life involved with deploying troops to dangerous areas such as Afghanistan or Iraq.26 Koh stated that the United State is engaged in armed combat with the Taliban and al-Qaeda as a response to the 9/11 attacks under the right to self defense inherent in international law. including lethal operations conducted with the use of drones.. comply with all applicable law.Law 250 Terrorism Professor Coll May 2. at 151.S. to the Annual Meeting of the American Society of International Law.htm. U. During his Presidential campaign. targeting practices. The Obama Administration and International Law (Mar. Harold Koh. 2011 Exam Number: 339 While President Bush and his Administration is responsible for the contemporary use of predator drones. Blum & Heymann.S. 27 Id. as he ordered drone strikes against targets in Pakistan on his third day in office. available at http://www. relying on targeted drone strikes is a logical policy for Obama to pursue while addressing the dangers of terrorists in said areas.25 The lack of use of attack drones is an attractive option for the government due to the decreased level of danger to human troops and the increased ease with which targeted strikes and killings can be executed.gov/s/l/releases/remarks/139119. Obama criticized the Bush administration for not acting as aggressively to attack targets when the means (i.S. President Obama has continued their use in his Administration¶s continued campaign against terrorism.

Rumsfeld.C. and 3) the Willingness and ability of those States to suppress the threat the target poses. Circuit held that under the MCA and current U.S.A.S. Bush. §948a et seq. 10 U. 29 28 8 . and therefore has the lawful right to use lethal force to protect its citizens "consistent with its right to self-defense" under international law. the Taliban. and that collateral damage is kept to a minimum. Hamdan v.Law 250 Terrorism Professor Coll May 2. the D. adheres to these standards and takes great care in the "planning and execution to ensure that only legitimate objectives are targeted. law the definition of ³enemy combatant´ is an individual who was part of or supporting Taliban or al Qaeda forces. considers when determining whether to authorize a specific targeted drone killing: 1) the Imminence of the threat. citing the principles of distinction and proportionality and that the U. The Court recognized that terrorists such as al-Qaeda fighters could be considered enemy combatants engaged in armed conflict against the U. 2007). 32 Military Commissions Act of 2006. targeting operations are consistent with principles of the laws of war. and the associated forces".S."30 The question of what exactly defined an ³unlawful enemy combatant´ was clarified by the U. Supreme Court in its decisions on some Guantanamo Bay cases and the enactment of the Military Commissions Act (Hereafter ³MCA´). Rumsfeld.C.S.S. is in "an armed conflict with al-Qaeda.31 Congress enacted the Military Commissions Act of 2006 (³MCA´) to provide military tribunals for violations of laws of war.29 Koh further stated that the "rules" of U. Id. 30 Id.S. 2) the Sovereignty of other States involved. (Supp.S. 31 See Hamdi v. 2011 Exam Number: 339 laws of war´ and that the U. 28 Koh identified three elements that the U.S. or associated forces that are engaged in Id. infra.32 In Boumedine v.

S.Supp.A.´35 Finally. or (C) was a part of al Qaeda at the time of the alleged offense under this chapter. While targeted drone strikes have been criticized for civilian collateral damage.S.S. 10 U. the MCA¶s definition section. § 948a(7). The Obama Administration has simultaneously asserted a commitment to international humanitarian law and the laws or war while increasing drone strikes and other counter-terrorism based activities in countries where we are not at war with the state actors. defines a ³privileged belligerent´ as ³an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War.A. IV.Law 250 Terrorism Professor Coll May 2. § 948a(6).S. the alternative. International Standards 33 34 583 F.C. (B) has purposefully and materially supported hostilities against the United States or its coalition partners. § 948a(9).C. full-scale warfare would likely have far more civilian casualties and is ill suited for the pursuit of a small number of terrorist actors. under U.A. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. 36 10 U. 35 10 U.´36 Thus. 2008). such as Pakistan and Afghanistan.C. 2011 Exam Number: 339 hostilities against the United States or its coalition partners. an ³unlawful enemy combatant´ in military actions is a current or past supporter or member of the Taliban or al-Qaeda who has committed hostile acts towards the United States. 9 . currently.C. § 948a.´34 Section 948a(7) defines ³unprivileged enemy belligerent´ as an individual who ³(A) has engaged in hostilities against the United States or its coalition partners. 2d 133 (D.D. the MCA defines ³hostilities´ as ³any conflict subject to the laws of war.33 Currently. law.

subject to the provisions of Article 59. such as al-Qaeda. hopes to be accepted within the legal concepts of necessity and proportionality. whether general or particular. However the problem arises when non-state actors. AND PROCESS. INTERNATIONAL HUMAN RIGHTS: LAW. as evidence of a general practice accepted as law.38 Customary international law reflects widespread state practices that are generally accepted as law. DAVID WEISSBRODT. 38 37 10 . faces as it seeks to combat an enemy who has no rules. non-state actors. d. signatories and non-signatories alike. there are international norms that have become recognized as customary international law and thus binding upon state actors. as subsidiary means for the determination of rules of law. it is imperative to remember that Al-Qaeda is not a state actor nor acts on behalf of any state actor and has no political power or authority. international custom.S.39 While not explicitly ICJ Statute Art.S. international conventions.37 This conception of the sources of international law has been widely accepted being the authoritative definition of the character of modern international law. establishing rules expressly recognized by the contesting states.Law 250 Terrorism Professor Coll May 2. b. who are not states and thus are not held to the UN Charter and Geneva Conventions. judicial decisions and the teachings of the most highly qualified publicists of the various nations. by citing the laws of war and the Geneva Conventions. Whether or not non-state actors like Al-Qaeda follow customary international is the dilemma the U. 412 (4th ed. that the laws of war would apply. c. 2011 Exam Number: 339 The one question that no one can answer with absolute certainty is what body of law should govern targeted killings? U. law. 38(I). However. I would think. Article 38(I) of the Statute of the International Court of Justice states that sources of binding international law can be found in: a. at 876. and the U. 39 Id. the general principles of law recognized by civilized nations. International law constitutes a large body of binding and non-binding sources of international law and custom. 2009). would hope.S. POLICY. ET AL.

the U. even if the state is not bound by the particular treaty.Law 250 Terrorism Professor Coll May 2. the actions thus violate Article 2. The United States 40 41 The Paquete Habana. while unfortunate. in order for armed force to be used in the sovereign territory of another nation. The notion of self-defense under the U. as often as questions of right depending upon it are duly presented for their determination. 700 (1900). 4. 11 . stating. ³Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.´41 This right to self-defense must be measured in light of Article 2(4)¶s prohibition on the use of force ³against the territorial integrity or political independence of any State. 42 Id.´40 The Charter of the United Nations has outlined basic uses of force and self-defense as a guide to the international community. 2011 Exam Number: 339 written down or codified. para. Charter recognizes that the use of force. If actions of armed force are carried out within the territory of a sovereign nation without their consent and not properly justified as self-defense.S. Supreme Court has held that customary international law is ³part of our law. 175 U. the use must be 1) with the consent of the nation or in a manner that does not otherwise violate their sovereignty under Article 2(4). The U. Charter has been the most prominent international legal justification for use of armed force against non-state actors. or in any other manner inconsistent with the Purposes of the United Nations.N. a state may be bound by customary international law that derives from the language of a treaty. until the Security Council has taken measures necessary to maintain international peace and security.´42 Thus. U.N.N. 677. art. Specifically. 2. is inevitable and Article 51 aims to provide for the right of member-states to self defending. Charter.S. or 2) justified under Article 51¶s principle of self-defense. and must be ascertained and administered by the courts of justice of appropriate jurisdiction.

45 NOAM LUBELL. British troops boarded the Caroline ± a private ± set it on fire and sent it crashing over the Niagara Falls. e.S.48 Heated corresponded commenced between the U. 48 See. art.S. Daniel Webster. Oxford University Press. 2011 Exam Number: 339 invoked Article 51¶s right to self-defense when it began its military campaign against Al-Qaeda following the attacks on September 1143. and Britain. supra note 26.N. however international bodies. 19 J.g. OF TRANS. In an attempt to prevent Canadian rebels from receiving supplies from private U. with the primary offence being British invasion and intrusion of U.C. Security Council took specific note of the inherent right to self-defense in the immediate aftermath of the 9/11 attacks carried out by Al-Qaeda. against Canadian rebels. citizens. 51. most prominently. The basic norms of self-defense.´46 However. territory as the prime offense. Use of Drones in Pakistan. citizens. Jordan J. Secretary of State. legal scholars have recognized that attacks by non-state actors independent of state involvement have risen to the level of armed attack held to justify self-defense under Article 51.S..Law 250 Terrorism Professor Coll May 2. Charter.45 With the recent wave of terrorist attacks around the world. Paust. & POL¶Y 237 (2010) 44 43 12 .S. supra note 45.47 The Caroline case involved British military action. recognized British Koh Speech.N. USA p 31 (2010). in 1837. EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS. the answer to the questions is clearly yes. Article 51¶s right to self-defense can only be invoked in light of an ³armed attack. find their roots in the historic Caroline case.´44 which raises the question of whether a non-state actor can carry out an armed attack.S.J. 107-13 (July 9)). The U. under customary international law. L. (citing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (³Wall Case´). 47 LUBELL. 46 Id. as stated earlier. killing two U. Advisory Opinion. at 34. Self-Defense Targetings of Non-State Actors and Permissibility of U. U. a non-state actor. including the International Court of Justice state that self-defense ³can only be taken in response to an attack by a state or groups acting on behalf of one.S. the U. 2004 I.

at 35. LUBELL.Law 250 Terrorism Professor Coll May 2.J. 2011 Exam Number: 339 right to act against the Canadian rebels for. 53 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. and leaving no choice of means. overwhelming. the principles of necessity and proportionality.´51 Two important concepts in international law defining the appropriate limits of armed force grew out of Webster¶s stated doctrine of self-defense from the Caroline case. Necessity The Caroline case is important as being one of the first instances to set out the concept of necessity.52 The International Court of Justice recognizes the principles of necessity and proportionality as the applicable standards of limitation to acts of self-defense. in a letter to the British government following the destruction of the Caroline. 41 (July 8). a rule well established in customary international law¶.49 It did not matter that the Canadian rebel¶s actions could not be marked as state actions of either the U. 50 49 13 .53 The ICJ has stated that ³there is a µspecific rule whereby self-[defense] would warrant only measures which are proportional to the armed attack and necessary to respond to it. whatever the means of force employed. if anything. 52 Id. and no moment for deliberation. wrote that ³the act justified by the necessity of self-defense. 1996 I.S. .55 Secretary of State Daniel Webster. supra note 45. which is ³instant. 51 Id.´54 1. 55 Id.50 However. or Canada for the notion of self-defense was still a right that Britain could properly invoke. Secretary of State Webster qualified his comments by stating that self-defense could only be justified by necessity. .C. and kept clearly within it´ and that the ³necessity of that selfId. This dual condition applies equally to Article 51 of the Charter. at 243. must be limited by that necessity. matters of self-defense. 54 Id. at 43.

Al Qaeda. as well as the Article 51 conception to self-defense. the rebels. and leaving no choice of means.59 However. been applied to situations of relative immediacy and noted in cases where nation-states wait days or even weeks before responding.57 However. dated August 6.58 Because of all of the gray areas that still exist in armed relationships between state actors and non-state actors. The failure of the Taliban to cooperate thus properly triggered the concept of necessity under the ICJ¶s formulation. at 44 (quoting Letter. under the leadership of the Northern Alliance. the new government in Afghanistan claimed to close its doors to AlQaeda. LUBELL. however necessity has. Department of State. and no moment for deliberation. from Mr. under the Taliban regime. supra note 45.S. 1842. While the Taliban refused to cooperate with the United Nations and the U.Law 250 Terrorism Professor Coll May 2. once the Taliban were defeated. at 46. the Caroline definition has not been applied literally nor unilaterally.S. However. it is imperative for all participants to acknowledge that there needs to be an extremely timely correlation between the armed attack and any measures that the attacked nation-state undertakes in self-defense.´56 Obviously. necessity may require the exhaustion of all other diplomatic responses. as the U. at 45 59 Id. has experienced with its battle with Al-Qaeda. allowed the United States almost full access to enter Afghanistan and seek Osama Bin Laden and al-Qaeda. No other country in the region (save a very select few) would be willing to risk the wrath of the United States by willingly hosting such Al-Qaeda so diplomatic routes prove almost impossible. 56 14 . not the least being an appeal to the host nation-state where the non-state actor is hiding. Washington). 2011 Exam Number: 339 [defense] is instant. in handing over Al-Qaeda leadership to the United States. 58 Id. found safe haven in Afghanistan. 57 Id. Webster to Lord Ashburton. overwhelming. in many instances the nonstate actor does not have a home in a sole nation state that can provide remedy.

actions against Al-Qaeda both in Afghanistan and on a global front regarding preventive measures. art 51.´62 Id. especially when the threat is imminent.. the Caroline case was a case of pre-emptive self-defense. have led to the U. as the British troops were taking action intended to curtail the Canadian rebels¶ future capacity to wage attacks by destroying their supplies. however.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy. concluding that while ³[the] United States will not use force in all cases to preempt emerging threats.S.Law 250 Terrorism Professor Coll May 2. which apparently provides for no preemptive action.S.pdf. 61 60 15 . such as the 9/11 attacks or other future terrorist attacks.61 Clearly.60 The Article 51 conception of self-defense. we questions whether a nation-state has a right to take action in order to prevent hypothetical future events? Does the United States have the right to rout out other terrorist organizations in order to stop them from ever potentially targeting the U.. in an age where the enemies of civilization openly and actively seek the world¶s most destructive technologies.N. there does not appear to have been much debate regarding a nation-state¶s ability to defend itself with preemptive attacks as to avoid any harm to the nation-state or its citizens with full knowledge that an attack is very probably forthcoming The potentially devastating results of armed attacks by non-state actors. at 56. September 2002. however. 62 The National Security Strategy of the United States of America. The White House.S. very explicitly only allows for self-defense in the context of a response to an armed attack. http://www. or its citizens? Arguably. 2011 Exam Number: 339 A new question that has arisen due to increased U. While few would dispute a nation¶s right to protect itself and its borders. Charter. See U. when an attack is imminent. the United States cannot remain idle while dangers gather.

Regarding the Caroline incident. 16 . But. the response to any threat must be ³essential and proportional. As a result. it is clear that their innocent lives destroyed did not equal the possibility of killing AlQaeda¶s second in command. Proportionality The concept of proportionality also finds its roots in Webster¶s Caroline doctrine of selfdefense. In the case of the Damodola attacks. of lives.64 This balancing act raises many concerns with both domestic and international critics of targeted killings. for the sake of protecting a nation-state from the imminent threat. the concern is whether the threat posed by the non-state actor warrants the energy and means needed to face that threat.S.Law 250 Terrorism Professor Coll May 2. Webster stated that the right to self-defense was limited by the threat at hand. if he was killed. at 64 Id. supra note 45. if not thousands. was a potential attack against Al-Zawhiri worth the eighteen innocent lives that resulted? Since he was not killed. and all peaceful means of resolving the dispute [must] have been exhausted. how many innocent lives does his life equal? As a mastermind of hundreds. In reality. 2011 Exam Number: 339 2. than the innocent lives lost are an unfortunate but necessary casualty of armed conflict. military commanders and states have enjoyed a great deal of discretion in making these evaluations´ but face increased 63 64 LUBELL. proportionality comes into play when. When we are dealing with self-defense against non state actors. could have prevented thousand mores. however. the proportionality test is therefore ³much easier to formulate in principle than to apply to a complex or uncertain set of circumstances. collateral damage is done to civilians. if by killing him the U.´63 Within the self-defense framework in situations of warfare. at 65.

at 426. 428 (2009). 1950 (hereinafter ³1949 Geneva Convention I´) (³the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. even though the U. J. . even if the state of war is not recognized by one of them. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (August 12. and allied military intervention went beyond the destruction of al Qaeda¶s bases in that country and led to the overthrow of the Taliban. 69 See. . 75 UNTS 31. 68 Id. or. a peaceful settlement is achieved. e. 103 AM. International Humanitarian Law International Humanitarian Law (³IHL´) is the body of international law that defines the applicable legal human rights norms for nation-states involved in an armed conflict. there was never any possibility that the United States could destroy al Qaeda¶s presence in that country without affecting the outcome of the civil war that was already taking place.´) 66 65 17 .69 The importance of formal declarations of ³war´ is an important aspect of international legal jurisprudence in terms of conflicts between states and in adjudging See Jack M.. Beard.´68 There does not need to be a formal declaration of war or conflicts between nation-states or armed groups in order to qualify as an armed conflict under IHL. See also Lubell supra note 45 at 87. 67 Id.66 Given the Taliban¶s opposition. INT¶L L. ESSAYS ON WAR IN INTERNATIONAL LAW 426 (2006).S.Law 250 Terrorism Professor Coll May 2.g.67 B. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (³ICTY´) stated that ³an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups within a state´ and continued with ³[i]nternational humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached. Law and War in the Virtual Era. 409. it was nevertheless a proportionate action. 1949).65 In the case of Afghanistan. CHRISTOPHER GREENWOOD. entered into force October 21. 2011 Exam Number: 339 public pressure and scrutiny.

70 18 .S. carrying out acts of armed combat and self-defense against non-state actors within the borders of other legitimate nation states. civilians taking direct part in hostilities are in the gray area between civilian and combatant. supra note 45.Law 250 Terrorism Professor Coll May 2. explicitly or implicitly. targeted attacks against such non-privileged civilians or unlawful combatants could satisfy requirements of IHL in a noninternational armed conflict. This inability to classify al-Qaeda fighters and terrorists as ³combatants´ was one of the underlying reasons for the controversial nature of the Guantanamo Bay cases (alleged human rights violations aside.70 Thus. in order to fall under IHL. Essentially. Sovereignty Sovereignty is undeniably implicated by the U. carrying out targeted killings within their LUBELL. Lubell notes that situations like the U. such as al-Qaeda. but the necessary threshold to trigger IHL regarding action against non-state actors is the existence of an armed conflict. C.) However. to the U. when weighed with the standards of necessity and proportionality. Thus.´ and terrorist actors. non-state actors would have to be civilians who take ³direct part in hostilities.S. can never qualify as ³combatants´ under IHL rules of armed conflict. and defining them as ³unlawful combatants´ seems necessary to distinguish the fact that they neither are entitled to civilian protections nor can they be considered proper combatants under current IHL. 2011 Exam Number: 339 internal uses of state ³emergency´ laws. actions against Afghanistan early in the 2001 war where Afghanistan¶s government was actually backing non-state actors such as al-Qaeda could have been labeled as actual war. who then lose the protections normally accorded to civilians due to this illegal participation in armed conflict. they could be civilians who take direct part in hostilities. even though AlQaeda members could not be classified as ³combatants´ under current IHL. then.S. at 88. many legal scholars have noted that sovereignty of other nations is not an issue when they consent. However.

Anderson. available at http://www. had been granted permission to carry it out. however Pakistan is afraid to risk the immense monetary aid they receive from the U. to Expand Use of Drones in Pakistan. Scott Shane.nytimes. NY Times. Pakistan. While sovereignty issues could be a paper in itself. when these nations cooperate through coordination and sharing of intelligence. C. While carrying out law enforcement actions within another state¶s territory without their consent would be a per se violation of the UN Charter and potentially be an act of war which could trigger a state of international armed conflict.S and is assumed to give a broad implied consent to the United States. supra note 1. it is not possible to conclusively determine whether sovereignty has been violated under international law. conflict could arise for the number of drone attacks conducted within its borders. Pakistani Prime Minister Shaukat Aziz publicly denied advance knowledge of the attack or that the U. it must be noted that the state of Pakistan is not a theater of war so justifying attacks done there is very different than actions performed in Afghanistan and Iraq. 2009. Yet.Law 250 Terrorism Professor Coll May 2. was consulted before any attack was made by attack drones upon its soil.73 the nations are ratifying the strikes and thus there is no infringement upon their sovereignty. supra note 1.71 Arguably.. at 20. the United States started operating missions without Pakistan¶s consent.A. Without specific knowledge of whether the countries actually officially approve the actions or not.html 73 Kaplan. In the case of Pakistan.com/2009/12/04/world/asia/04drones. However. for example. 2006 strike against Zawahiri. Dec. Despite the fact that NSA sources confirmed that Pakistani President Pervez Musharraf was aware of the January.S.72 or are aware of the strikes but publicly deny such knowledge. Thus. any targeted killing discussed will be presumed to be executed with at least the implicit consent of the nation-state controlling the relevant territory. 72 71 19 . 4. 2011 Exam Number: 339 borders.I. with fear that terrorist groups were warned in advance by certain sects of the government.

S. 7.guardian. government should improve its intelligence and rapid-strike capabilities in countries where targeted killings might be necessary. 2010.S. It should also continue to develop and deploy weapons. Unless the procedures for authorizing targeted killings are made clear. these attacks cannot continue without some measure of accountability. while these strikes are likely necessary and proportionate to the grave threat they pose. U. To prepare for such eventualities and keep its options open.co. officials must also ensure that the benefits of eliminating the particular terrorists outweigh the political and diplomatic fallout that is bound to happen. transparent. and legitimate procedures for deciding when targeted killings are appropriate. Oct. 2011 Exam Number: 339 V. While military strikes resulting in civilian casualties in the past have been justified due to a lack of knowledge. government can gather the exact numbers and identities of possible civilian casualties. Before acting. the U. however. such as unmanned aircraft with limited-impact warheads that can kill suspects without causing too much collateral damage. http://www. Targeted killings are perfectly acceptable under international law and constitutionally if we can ensure that those targeted are enemy combatants and that they are not operating as civilians.Law 250 Terrorism Professor Coll May 2.uk/world/2010/oct/07/pakistan-drone-missile-obama-increased 20 . Conclusion Drone strikes in Pakistan alone have been estimated to have killed over 1. Washington needs to develop clear.S. Obama¶s Enthusiasm for Drone Strikes Takes Heavy Toll on Pakistan¶s Tribesmen. the United States must make sure it has excellent intelligence so as to minimize the chances that the attacks inadvertently kill innocent people.800 people74. GUARDIAN. the United States risks 74 Declan Walsh. Even more important. drone technology has advanced to a point where the U.

A public educated about the need for distasteful measures . targeted strikes executed by the U. Unless the procedures are made transparent they are unlikely to garner the legitimacy necessary to make them sustainable. when necessary. How long and how far the United States can use the self-defense justification without international push-back will be a test of time. The U.S. 2011 Exam Number: 339 moving either too slowly when it decides to act (thereby allowing the target to escape) or too quickly (bypassing appropriate deliberation or the careful vetting of intelligence). There does not seem to be a current consensus under international law regarding what body of law should be applied to counter-terrorism actions carried out within and among several states against non-state actors. military and its coalition partners need time and endurance to prevail in the counterinsurgency and counterterrorism situations in Iraq. law.Law 250 Terrorism Professor Coll May 2.S. Moreover. the U.S. it does not appear these attacks will end in the near future. U.S. The Obama Administration seems to have implicitly recognized this by attempting to apply the rules of armed conflict and laws of war to the ³war on terror´ while simultaneously recognizing that the terrorists of al-Qaeda and its affiliates are acting outside of the laws of war and that ³enemy unlawful combatants´ under U.would be more likely to tolerate them. 21 . even if mistakes are made in the implementation of those measures. law are arguably ³unlawful combatants´ under international law. military against al Qaeda and Taliban forces satisfy the criteria set forth in customary international law. With the current administration¶s increase in targeted killings over the past two years. Charter and U.N. Until that day. In the context of counter-terrorism and targeted killings. Afghanistan and the Horn of Africa²targeted killing provides them the ability to endure and strike.S. the lines between armed conflict and law enforcement have blurred substantially.

S. saving the lives of American soldiers at the potential cost of the lives of innocent civilians. military casualties.Law 250 Terrorism Professor Coll May 2. decreased budgeting and demands for limited U. 2011 Exam Number: 339 military commanders face such challenges as force reduction. 22 . these challenges only force commanders and mission planners to utilize targeted killings instead of boots on the ground and other resources.