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Targeted Killings1
Transcript of Targeted Killings1
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Law 250 Terrorism
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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
4
See, e.g., Mary Ellen OConnell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 , inSHOOTING TO KILL:THE LAW GOVERNING LETHAL FORCE IN CONTEXT (Bronitt, ed.) (forthcoming), available at
http://ssrn.com/abstract=1501144)5Id.6
Jane Mayer, The Predator War, The New Yorker, Oct. 26, 2009, available athttp://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer;7See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Human
Rights Council, 14th
Sess. [hereinafter Alston Report}, available athttp://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf8 Alston Report,supra note 7, at para. 3.
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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 al-
Zawahiri 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
13 OConnellsupra note 4, at 4. See alsoN.Y.Times. 6/19/2004 article, The Reach of War: Militants ex fighter for
Taliban dies in strike in Pakistan.14 Kaplan,supra note 115Id.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
18 Id.19 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,
Reaffirmingthe principles and purposes of the Charter of the United Nations,
Determinedto combat by all means threats to international peace and security caused by terrorist acts,Recognizingthe inherent right of individual or collective self-defence in
accordance with the Charter,
1. Unequivocally condemns in the strongest terms the horrifying terroristattacks 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
21U.N. Sec. Coun. Res. 1368 (2001) (italics in original).
22 AUMF (2001).23SeeHamdi v. Rumsfeld, 542 U.S. 507, 535 (2004)Boumediene v. Bush, 553 U.S. 723, (2008);
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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
24Id.
25 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 KohSpeech], available athttp://www.state.gov/s/l/releases/remarks/139119.htm.27Id.
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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
InBoumedine 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
28Id.
29Id.
30Id.
31See 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
33583 F.Supp. 2d 133 (D.D.C. 2008).
3410 U.S.C.A. 948a(6).
35 10 U.S.C.A. 948a(7).36 10 U.S.C.A. 948a(9).
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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
37ICJ Statute Art. 38(I).
38 DAVID WEISSBRODT, ET AL, INTERNATIONAL HUMAN RIGHTS:LAW,POLICY, AND PROCESS, 412 (4th ed. 2009).39Id. 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
40The Paquete Habana, 175 U.S. 677, 700 (1900);
41 U.N. Charter, art. 2, para. 4.42Id.
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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
43 Koh Speech,supra note 26.44 U.N. Charter, art. 51.45 NOAM LUBELL, EXTRATERRITORIALUSE OF FORCE AGAINSTNON-STATE ACTORS,Oxford University Press, USA
p 31 (2010).46Id. (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 34.48See, 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 self-
49
Id. at 243.50 LUBELL,supra note 45, at 35.51Id.52Id. at 43.53Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 41 (July 8).54Id.55Id,
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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 non-
state 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 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. 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.
56 LUBELL,supra note 45, at 44 (quoting Letter, dated August 6, 1842, from Mr. Webster to Lord Ashburton,
Department of State, Washington).57
Id.58Id. at 4559Id. 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
60Id. at 56.
61See U.N. Charter, art 51.
62The 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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2. Proportionality
The concept of proportionality also finds its roots in Websters Caroline doctrine of self-
defense. 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 Al-
Qaedas 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
63 LUBELL,supra note 45, at 6464Id, 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
65See Jack M. Beard,Law and War in the Virtual Era, 103 AM.J.INTL L. 409, 428 (2009).66 CHRISTOPHERGREENWOOD,ESSAYS ON WAR IN INTERNATIONAL LAW 426 (2006).67Id. at 426.68
Id. See also Lubellsupra note 45 at 87.69See, 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 (hereinafter1949 Geneva
Convention I) (the present Convention shall apply to all cases of declared war or of any other armed conflictwhich 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 Al-
Qaeda 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 non-
international 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
70LUBELL,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 aper 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.
71Anderson,supra note 1, at 20;
72 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.html73
Kaplan,supra note 1. Despite the fact that NSA sources confirmed that Pakistani President Pervez Musharraf wasaware 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
74Declan 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.