Targeted Killings1

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 nations 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 increasingly 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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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 although 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 OConnell, 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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States can ensure that those targeted are classified enemy combatants and not those who are operating as civilians.
II.
U.S. Targeted Killings Recent History The United States began its war on terror following the devastating attacks of
September 11, 2011. The main international objective of the United States and its military was to hunt down and destroy terrorists, even if they were found to be U.S. citizens. Due to the terrain of Afghanistan and Iraq and public sentiment towards the sanctity of the life of an American soldier, the United States increased its use of Predator drones in hopes to not only obtain more intelligence but to eliminate any found terrorist threat. U.S. counter-terrorism operations using drones have since occurred in a variety of settings, with the primary use being during formal armed conflict by the U.S. Military in its campaigns in Afghanistan and Iraq. As early as October of 2001, the United States employed drones to perform reconnaissance in Afghanistan with hopes to find Osama Bin Laden.9 In November of 2001, armed drones were used, attacking al-Qaeda in the Afghan city of Jalalbad.10 Combat drones were also used for both recon and attacks during the United States invasion of Iraq in 2003. Saddam Hussein and his sons were the targets of multiple attacks.11 However, the U.S. failed to utilize the drones to accomplish its objectives and instead, fourteen civilians were killed from the strike.12 As the U.S. begins and continues to decrease its presence in Iraq and Afghanistan, they
OConnell, supra note 4, at 3. Id. 11 Kaplan, supra note 1. 12 Id.

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will most likely increase their use of drones in order to maintain somewhat of a military presences and to continue gathering intelligence. The United States has executed drone strikes in Pakistan since 2004 when Taliban fighters fled there from Afghanistan.13 While over 20 terrorists and or militants were reported to be killed as the U.S. drone attacks increased, an estimated 750 to 1000 civilians, including women and children perished.14 A January 13, 2006 an attack launched by a CIA-operated unmanned Predator drone was targeting Ayman al-Zawahiri al-Qaedas second in command.15 In this case, U.S. officials say that their intelligence suggested al-Zawahiri was meeting with a group of extremist associates however in the after math, Pakistani officials reported that alZawahiri was not in the village and eighteen civilians were killed instead.16 The failure of the attack and the high civilian casualties were highly criticized by then-President Prevez Musharraf. 17 While there have been attacks that appear to have been successful in eliminating specific Taliban and al-Qaeda targets, they do nothing but polarize local sentiment against the U.S. due to the number of innocent civilians killed. Despite the American justification of killing international terrorists, the citizens of Pakistan are not impressed; a 2008 Gallup Pakistan poll found that only 9% of Pakistanis approve of U.S. drone strikes within Pakistan and 67% disapprove of the strikes. A majority of those polled also found the U.S. to be a larger threat to
OConnell supra note 4, at 4. See also N.Y.Times. 6/19/2004 article, The Reach of War: Militants ex fighter for Taliban dies in strike in Pakistan. 14 Kaplan, supra note 1 15 Id. 16 Id. 17 Gabriella Blum & Philip Heymann, 1 HARV. NATL SEC. J. 145, 150 (2010).
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Pakistan than India or the Pakistani Taliban.18 During a visit to Pakistan in October 2009, 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.19 Despite this unpopularity, the U.S. government has shown no signs that it intends to minimize or change its current drone campaign. The use of drones in the U.S.s international activities seems to be increasing exponentially, as it protects the lives of American soldiers and is a most efficient method of performing surveillance.
III.
U.S. Policy Regarding Targeted Killings In terms of domestic law, the main stumbling block to carrying out targeted killings is
Executive Order 12333issued in 1981 to protect both U.S. intelligence-gathering efforts and constitutional rightswhich states, No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.20 Official U.S. Policy regarding international law has not always been embracing. While President Obama and his administration has vehemently attempted to portray the U.S. in a more amicable light in the international community, the general sentiment around the world is that the U.S. does what it wants: In the Pursuit of al-Qaeda and Osama Bin Laden, U.S. officials find that the end almost always justifies the means when it comes to targeted killings. However, during the current war
Id. Alex Rodriguez, Clintons Pakistan Visit Reveals Widespread Distrust of U.S., LOS ANGELES TIMES, Nov. 1, 2009, http://articles.latimes.com/2009/nov/01/world/fg-clinton-pakistan1. 20 Executive Order 12333
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on terror, the U.S.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. After the attacks of September 11, 2001, the world was faced with a new type of war as the U.S. and the world sought legal justifications for what would become the war on terror. The United Nations, on September 12, 2001, passed Resolution 1368 that states:
The Security Council, Reaffirming the principles and purposes of the Charter of the United Nations, Determined to combat by all means threats to international peace and security caused by terrorist acts, Recognizing the inherent right of individual or collective self-defence in accordance with the Charter, 1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;. . . . 21
Article 1368 connected the terrorist attacks of September 11, 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. Soon after, the U.S. Congress passed the Authorization of Use of Military Force against Terrorism (AUMF). The AUMF authorized the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.22 The U.S. Supreme Court has confirmed the use of the AUMF as self-defense against terrorists as part of an armed conflict with such.23
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U.N. Sec. Coun. Res. 1368 (2001) (italics in original). AUMF (2001). 23 See Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) Boumediene v. Bush, 553 U.S. 723, (2008);
While President Bush and his Administration is responsible for the contemporary use of predator drones, President Obama has continued their use in his Administrations continued campaign against terrorism. During his Presidential campaign, Obama criticized the Bush administration for not acting as aggressively to attack targets when the means (i.e., combat drone strikes) were readily available. President Obama was not bluffing for campaign purposes about increasing attacks on terrorist targets, as he ordered drone strikes against targets in Pakistan on his third day in office.24 President Obama has since ordered a dramatic increase in drone strikes against targets in Pakistan.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. Compared with the monetary cost, political unpopularity and inherent risk to human life involved with deploying troops to dangerous areas such as Afghanistan or Iraq, relying on targeted drone strikes is a logical policy for Obama to pursue while addressing the dangers of terrorists in said areas. Harold Koh, the Legal Adviser to the U.S. Department of State, laid out the Obama Administrations stance on International law.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.27 Koh stated: "U.S. targeting practices, including lethal operations conducted with the use of drones, comply with all applicable law, including the
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Id. Blum & Heymann, supra note 17, at 151. 26 Speech by Harold Hongju Koh, Legal Advisor, U.S. Department of State, to the Annual Meeting of the American Society of International Law, The Obama Administration and International Law (Mar. 25, 2010) [hereinafter Koh Speech], available at http://www.state.gov/s/l/releases/remarks/139119.htm. 27 Id.
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laws of war and that the U.S. is in "an armed conflict with al-Qaeda, the Taliban, and the associated forces", and therefore has the lawful right to use lethal force to protect its citizens "consistent with its right to self-defense" under international law. 28 Koh identified three elements that the U.S. considers when determining whether to authorize a specific targeted drone killing: 1) the Imminence of the threat; 2) the Sovereignty of other States involved; and 3) the Willingness and ability of those States to suppress the threat the target poses.29 Koh further stated that the "rules" of U.S. targeting operations are consistent with principles of the laws of war, citing the principles of distinction and proportionality and that the U.S. adheres to these standards and takes great care in the "planning and execution to ensure that only legitimate objectives are targeted, and that collateral damage is kept to a minimum."30 The question of what exactly defined an unlawful enemy combatant was clarified by the U.S. Supreme Court in its decisions on some Guantanamo Bay cases and the enactment of the Military Commissions Act (Hereafter MCA). The Court recognized that terrorists such as al-Qaeda fighters could be considered enemy combatants engaged in armed conflict against the U.S.31 Congress enacted the Military Commissions Act of 2006 (MCA) to provide military tribunals for violations of laws of war.32 In Boumedine v. Bush, the D.C. Circuit held that under the MCA and current U.S. law the definition of enemy combatant is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in
Id. Id. 30 Id. 31 See Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, infra. 32 Military Commissions Act of 2006, 10 U.S.C.A. 948a et seq. (Supp. 2007).
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hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.33 Currently, the MCAs definition section, 948a, defines a privileged belligerent as an individual belonging to one of the eight categories enumerated in Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War.34 Section 948a(7) defines unprivileged enemy belligerent as an individual who (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense under this chapter.35 Finally, the MCA defines hostilities as any conflict subject to the laws of war.36 Thus, currently, under U.S. law, an unlawful 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. 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, such as Pakistan and Afghanistan. While targeted drone strikes have been criticized for civilian collateral damage, the alternative, full-scale warfare would likely have far more civilian casualties and is ill suited for the pursuit of a small number of terrorist actors.
IV.
International Standards
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583 F.Supp. 2d 133 (D.D.C. 2008). 10 U.S.C.A. 948a(6). 35 10 U.S.C.A. 948a(7). 36 10 U.S.C.A. 948a(9).
The one question that no one can answer with absolute certainty is what body of law should govern targeted killings? U.S. law, by citing the laws of war and the Geneva Conventions, hopes to be accepted within the legal concepts of necessity and proportionality, I would think, and the U.S. would hope, that the laws of war would apply. However, 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. However the problem arises when non-state actors, such as al-Qaeda, who are not states and thus are not held to the UN Charter and Geneva Conventions, there are international norms that have become recognized as customary international law and thus binding upon state actors, non-state actors, signatories and non-signatories alike. Whether or not non-state actors like Al-Qaeda follow customary international is the dilemma the U.S. faces as it seeks to combat an enemy who has no rules. International law constitutes a large body of binding and non-binding sources of international law and custom. Article 38(I) of the Statute of the International Court of Justice states that sources of binding international law can be found in:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.37
This conception of the sources of international law has been widely accepted being the authoritative definition of the character of modern international law.38 Customary international law reflects widespread state practices that are generally accepted as law.39 While not explicitly
ICJ Statute Art. 38(I). DAVID WEISSBRODT, ET AL, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY, AND PROCESS, 412 (4th ed. 2009). 39 Id. at 876.
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written down or codified, a state may be bound by customary international law that derives from the language of a treaty, even if the state is not bound by the particular treaty. Specifically, the U.S. Supreme Court has held that customary international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.40 The Charter of the United Nations has outlined basic uses of force and self-defense as a guide to the international community. The U.N. Charter recognizes that the use of force, while unfortunate, is inevitable and Article 51 aims to provide for the right of member-states to self defending, stating, Nothing 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, until the Security Council has taken measures necessary to maintain international peace and security.41 This right to self-defense must be measured in light of Article 2(4)s prohibition on the use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.42 Thus, in order for armed force to be used in the sovereign territory of another nation, 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); or 2) justified under Article 51s principle of self-defense. 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, the actions thus violate Article 2. The notion of self-defense under the U.N. Charter has been the most prominent international legal justification for use of armed force against non-state actors. The United States
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The Paquete Habana, 175 U.S. 677, 700 (1900); U.N. Charter, art. 2, para. 4. 42 Id.
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invoked Article 51s right to self-defense when it began its military campaign against Al-Qaeda following the attacks on September 1143; Article 51s right to self-defense can only be invoked in light of an armed attack,44 which raises the question of whether a non-state actor can carry out an armed attack.45 With the recent wave of terrorist attacks around the world, the answer to the questions is clearly yes, however international bodies, including the International Court of Justice state that self-defense can only be taken in response to an attack by a state or groups acting on behalf of one.46 However, 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; most prominently, as stated earlier, the U.N. 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, a non-state actor. The basic norms of self-defense, under customary international law, find their roots in the historic Caroline case.47 The Caroline case involved British military action, in 1837, against Canadian rebels. In an attempt to prevent Canadian rebels from receiving supplies from private U.S. citizens, British troops boarded the Caroline a private set it on fire and sent it crashing over the Niagara Falls, killing two U.S. citizens.48 Heated corresponded commenced between the U.S. and Britain, with the primary offence being British invasion and intrusion of U.S. territory as the prime offense. The U.S. Secretary of State, Daniel Webster, recognized British
Koh Speech, supra note 26. U.N. Charter, art. 51. 45 NOAM LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS, Oxford University Press, USA p 31 (2010). 46 Id. (citing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Case), Advisory Opinion, 2004 I.C.J. 107-13 (July 9)). 47 LUBELL, supra note 45, at 34. 48 See, e.g., Jordan J. Paust, Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan, 19 J. OF TRANS. L. & POLY 237 (2010)
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right to act against the Canadian rebels for, if anything, matters of self-defense.49 It did not matter that the Canadian rebels actions could not be marked as state actions of either the U.S. or Canada for the notion of self-defense was still a right that Britain could properly invoke.50 However, Secretary of State Webster qualified his comments by stating that self-defense could only be justified by necessity, which is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.51 Two important concepts in international law defining the appropriate limits of armed force grew out of Websters stated doctrine of self-defense from the Caroline case; the principles of necessity and proportionality.52 The International Court of Justice recognizes the principles of necessity and proportionality as the applicable standards of limitation to acts of self-defense.53 The ICJ has stated that there is a specific rule whereby self-[defense] would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. . . This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.54
1. Necessity
The Caroline case is important as being one of the first instances to set out the concept of necessity.55 Secretary of State Daniel Webster, in a letter to the British government following the destruction of the Caroline, wrote that the act justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it and that the necessity of that selfId. at 243. LUBELL, supra note 45, at 35. 51 Id. 52 Id. at 43. 53 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 41 (July 8). 54 Id. 55 Id,
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[defense] is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.56 Obviously, the Caroline definition has not been applied literally nor unilaterally, however necessity has, been applied to situations of relative immediacy and noted in cases where nation-states wait days or even weeks before responding.57 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.58 Because of all of the gray areas that still exist in armed relationships between state actors and non-state actors, necessity may require the exhaustion of all other diplomatic responses, not the least being an appeal to the host nation-state where the non-state actor is hiding.59 However, as the U.S. has experienced with its battle with Al-Qaeda, in many instances the nonstate actor does not have a home in a sole nation state that can provide remedy. Al Qaeda, under the Taliban regime, found safe haven in Afghanistan. While the Taliban refused to cooperate with the United Nations and the U.S. in handing over Al-Qaeda leadership to the United States, the rebels, under the leadership of the Northern Alliance, allowed the United States almost full access to enter Afghanistan and seek Osama Bin Laden and al-Qaeda. However, once the Taliban were defeated, the new government in Afghanistan claimed to close its doors to AlQaeda. 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. The failure of the Taliban to cooperate thus properly triggered the concept of necessity under the ICJs formulation, as well as the Article 51 conception to self-defense.
LUBELL, supra note 45, at 44 (quoting Letter, dated August 6, 1842, from Mr. Webster to Lord Ashburton, Department of State, Washington). 57 Id. 58 Id. at 45 59 Id. at 46.
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A new question that has arisen due to increased U.S. actions against Al-Qaeda both in Afghanistan and on a global front regarding preventive measures. While few would dispute a nations right to protect itself and its borders, especially when the threat is imminent, 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.S. or its citizens? Arguably, the Caroline case was a case of pre-emptive self-defense, as the British troops were taking action intended to curtail the Canadian rebels future capacity to wage attacks by destroying their supplies.60 The Article 51 conception of self-defense, however, very explicitly only allows for self-defense in the context of a response to an armed attack, which apparently provides for no preemptive action.61 Clearly, when an attack is imminent, however, there does not appear to have been much debate regarding a nation-states 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, such as the 9/11 attacks or other future terrorist attacks, have led to the U.S. concluding that while [the] United States will not use force in all cases to preempt emerging threats... in an age where the enemies of civilization openly and actively seek the worlds most destructive technologies, the United States cannot remain idle while dangers gather.62
Id. at 56. See U.N. Charter, art 51. 62 The National Security Strategy of the United States of America, The White House, September 2002, http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.
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Law 250 Terrorism Professor Coll May 2, 2011 Exam Number: 339 2. Proportionality
The concept of proportionality also finds its roots in Websters Caroline doctrine of selfdefense. Regarding the Caroline incident, Webster stated that the right to self-defense was limited by the threat at hand; the response to any threat must be essential and proportional, and all peaceful means of resolving the dispute [must] have been exhausted.63 Within the self-defense framework in situations of warfare, proportionality comes into play when, for the sake of protecting a nation-state from the imminent threat, collateral damage is done to civilians. When we are dealing with self-defense against non state actors, however, the concern is whether the threat posed by the non-state actor warrants the energy and means needed to face that threat.64 This balancing act raises many concerns with both domestic and international critics of targeted killings. In the case of the Damodola attacks, was a potential attack against Al-Zawhiri worth the eighteen innocent lives that resulted? Since he was not killed, it is clear that their innocent lives destroyed did not equal the possibility of killing AlQaedas second in command. But, if he was killed, how many innocent lives does his life equal? As a mastermind of hundreds, if not thousands, of lives, if by killing him the U.S. could have prevented thousand mores, than the innocent lives lost are an unfortunate but necessary casualty of armed conflict. In reality, the proportionality test is therefore much easier to formulate in principle than to apply to a complex or uncertain set of circumstances. As a result, military commanders and states have enjoyed a great deal of discretion in making these evaluations but face increased
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LUBELL, supra note 45, at 64 Id, at 65.
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public pressure and scrutiny.65 In the case of Afghanistan, even though the U.S. and allied military intervention went beyond the destruction of al Qaedas bases in that country and led to the overthrow of the Taliban, it was nevertheless a proportionate action.66 Given the Talibans opposition, there was never any possibility that the United States could destroy al Qaedas presence in that country without affecting the outcome of the civil war that was already taking place.67 B. International Humanitarian Law International Humanitarian Law (IHL) is the body of international law that defines the applicable legal human rights norms for nation-states involved in an armed conflict. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) stated that an 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 [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; or. . . a peaceful settlement is achieved.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.69 The importance of formal declarations of war is an important aspect of international legal jurisprudence in terms of conflicts between states and in adjudging
See Jack M. Beard, Law and War in the Virtual Era, 103 AM. J. INTL L. 409, 428 (2009). CHRISTOPHER GREENWOOD, ESSAYS ON WAR IN INTERNATIONAL LAW 426 (2006). 67 Id. at 426. 68 Id. See also Lubell supra note 45 at 87. 69 See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (August 12, 1949), 75 UNTS 31, entered into force October 21, 1950 (hereinafter 1949 Geneva Convention I) (the 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 if the state of war is not recognized by one of them.)
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internal uses of state emergency laws, but the necessary threshold to trigger IHL regarding action against non-state actors is the existence of an armed conflict.70 Thus, in order to fall under IHL, non-state actors would have to be civilians who take direct part in hostilities, and terrorist actors, such as al-Qaeda, can never qualify as combatants under IHL rules of armed conflict. This inability to classify al-Qaeda fighters and terrorists as combatants was one of the underlying reasons for the controversial nature of the Guantanamo Bay cases (alleged human rights violations aside.) However, even though AlQaeda members could not be classified as combatants under current IHL, they could be civilians who take direct part in hostilities, who then lose the protections normally accorded to civilians due to this illegal participation in armed conflict. Essentially, then, civilians taking direct part in hostilities are in the gray area between civilian and combatant, and defining them as unlawful 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. Thus, when weighed with the standards of necessity and proportionality, targeted attacks against such non-privileged civilians or unlawful combatants could satisfy requirements of IHL in a noninternational armed conflict. C. Sovereignty Sovereignty is undeniably implicated by the U.S. carrying out acts of armed combat and self-defense against non-state actors within the borders of other legitimate nation states. However, many legal scholars have noted that sovereignty of other nations is not an issue when they consent, explicitly or implicitly, to the U.S. carrying out targeted killings within their
LUBELL, supra note 45, at 88. Lubell notes that situations like the U.S. actions against Afghanistan early in the 2001 war where Afghanistans government was actually backing non-state actors such as al-Qaeda could have been labeled as actual war.
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borders.71 Arguably, when these nations cooperate through coordination and sharing of intelligence,72 or are aware of the strikes but publicly deny such knowledge,73 the nations are ratifying the strikes and thus there is no infringement upon their sovereignty. Pakistan, for example, was consulted before any attack was made by attack drones upon its soil. However, with fear that terrorist groups were warned in advance by certain sects of the government, the United States started operating missions without Pakistans consent. Without specific knowledge of whether the countries actually officially approve the actions or not, it is not possible to conclusively determine whether sovereignty has been violated under international law. While carrying out law enforcement actions within another states 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. In the case of Pakistan, conflict could arise for the number of drone attacks conducted within its borders, however Pakistan is afraid to risk the immense monetary aid they receive from the U.S and is assumed to give a broad implied consent to the United States.. Yet, 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. While sovereignty issues could be a paper in itself. 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.
Anderson, supra note 1, at 20; Scott Shane, C.I.A. to Expand Use of Drones in Pakistan, NY Times, Dec. 4, 2009, available at http://www.nytimes.com/2009/12/04/world/asia/04drones.html 73 Kaplan, supra note 1. Despite the fact that NSA sources confirmed that Pakistani President Pervez Musharraf was aware of the January, 2006 strike against Zawahiri, Pakistani Prime Minister Shaukat Aziz publicly denied advance knowledge of the attack or that the U.S. had been granted permission to carry it out.
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V.
Conclusion Drone strikes in Pakistan alone have been estimated to have killed over 1,800 people74;
while these strikes are likely necessary and proportionate to the grave threat they pose, these attacks cannot continue without some measure of accountability. While military strikes resulting in civilian casualties in the past have been justified due to a lack of knowledge, drone technology has advanced to a point where the U.S. government can gather the exact numbers and identities of possible civilian casualties. 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. Before acting, however, the United States must make sure it has excellent intelligence so as to minimize the chances that the attacks inadvertently kill innocent people. U.S. officials must also ensure that the benefits of eliminating the particular terrorists outweigh the political and diplomatic fallout that is bound to happen. To prepare for such eventualities and keep its options open, the U.S. government should improve its intelligence and rapid-strike capabilities in countries where targeted killings might be necessary. It should also continue to develop and deploy weapons, such as unmanned aircraft with limited-impact warheads that can kill suspects without causing too much collateral damage. Even more important, Washington needs to develop clear, transparent, and legitimate procedures for deciding when targeted killings are appropriate. Unless the procedures for authorizing targeted killings are made clear, the United States risks
74
Declan Walsh, Obamas Enthusiasm for Drone Strikes Takes Heavy Toll on Pakistans Tribesmen, GUARDIAN, Oct. 7, 2010, http://www.guardian.co.uk/world/2010/oct/07/pakistan-drone-missile-obama-increased
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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). A public educated about the need for distasteful measures - would be more likely to tolerate them, even if mistakes are made in the implementation of those measures. Unless the procedures are made transparent they are unlikely to garner the legitimacy necessary to make them sustainable. In the context of counter-terrorism and targeted killings, the lines between armed conflict and law enforcement have blurred substantially. 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. The Obama Administration seems to have implicitly recognized this by attempting to apply the rules of armed conflict and laws of war to the war on terror while simultaneously recognizing that the terrorists of al-Qaeda and its affiliates are acting outside of the laws of war and that enemy unlawful combatants under U.S. law are arguably unlawful combatants under international law. How long and how far the United States can use the self-defense justification without international push-back will be a test of time. Until that day, targeted strikes executed by the U.S. military against al Qaeda and Taliban forces satisfy the criteria set forth in customary international law, the U.N. Charter and U.S. law. The U.S. military and its coalition partners need time and endurance to prevail in the counterinsurgency and counterterrorism situations in Iraq, Afghanistan and the Horn of Africatargeted killing provides them the ability to endure and strike, when necessary. With the current administrations increase in targeted killings over the past two years, it does not appear these attacks will end in the near future. Moreover, U.S.
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military commanders face such challenges as force reduction, decreased budgeting and demands for limited U.S. military casualties; these challenges only force commanders and mission planners to utilize targeted killings instead of boots on the ground and other resources, saving the lives of American soldiers at the potential cost of the lives of innocent civilians.
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Targeted Killings1

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

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

OConnell, supra note 4, at 3. Id. 11 Kaplan, supra note 1. 12 Id.

LUBELL, supra note 45, at 64 Id, at 65.

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