The Legality of Drone Strikes for Targeted Killings in the International
“War on Terror”: Standards of Jus ad Bellum & Jus in Bello in International
Law as Compared to American Standards
Melissa Cahir
Public International Law Master’s Track Supervisor: Dr. Maarten den Heijer Date of Submission: Monday October 22, 2018
Abstract
Following the horrific terrorist attacks perpetrated by Osama Bin Laden and al-Qaeda against America on September 11, 2001, President George W. Bush and his cabinet took a hardline approach against any and all possible terrorists and their allies. An integral part of the new approach waged against terrorists in the international war on terror was the American drone program. Under this campaign, America began to
organize and engage in highly sophisticated targeted killings using drones, also known as “UAV’s” or “unmanned aerial vehicles”. The largely accepted rules of engagement under international humanitarian law were at odds with many of the tactics and strategies employed during the inception of this program. Drone strikes launched to target potential terrorist enemies and the possible for collateral damage that ensued was something that had never been dealt with in the international community with such heightened intensity.
The original Geneva Convention for the “amelioration of the condition of the wounded in armies in the field” was adopted in 1864, and was the beginning of modern international humanitarian law (IHL). All of the treaties and principles that followed characterize the principle of war as one that is carried out within certain boundaries that must be upheld in order to preserve the dignity of human life. There exists a collective lexicon accepted by states and other actors in order to promote equitable and foreseeable application of international law. There is no separate judiciary set up to enforce the law, so states must develop and abide by specific interpretations of the law. It is of paramount importance that states behave in a way that is non-arbitrary and transparent, while
maintaining an adequate level of predictability and accountability. 150 years has passed since the adoption of the original Geneva Convention, and within that span of time the backdrop of warfare has changed significantly. With the spearheading of the American drone program, an entire host of new analyses and elucidations that flew in the face of traditionally accepted notions of international humanitarian law and the rules of engagement were brought to the forefront.
The American drone program represents a great challenge to international law under both the Bush and Obama Administrations, because it has been conducted using new, never before seen technologies, which challenge the traditional rules of warfare. As
such, there must be a reexamination into issues such as “What constitutes self-defense of a State?” and “Where are the boundaries of the “battlefield” in a global war on terror?” These questions must be assessed through a new lens in order for the program to be deemed legal and in accordance with international law.
Jus ad bellum refers to the requirements that must be met for a State to use armed force or resort to war. The United Nations Charter of 1945 dictates the prohibition of the use of force between States, including the two exceptions of self-defense and UN
authorized force. This is the foundation of jus ad bellum. Jus in bello is synonymous with IHL, as its objective is to regulate the way parties in an armed conflict conduct themselves, with the goal of minimizing harm to humans and protecting and helping all victims of armed conflict.
Furthermore, the rules of proportionality, necessity, discrimination, armed international versus non-international armed conflicts, need to be reevaluated to ensure that the United States drone program complies with the international law in order to be considered “legal” in the international arena. It is imperative that the U.S. adheres as closely as possible to established international laws in this largely unchartered and contemporary landscape of modern warfare, even though we will see, at times, that they are vague and ambiguous. The central tenet of the research compiled here is the question of whether the United States drone program has been conducted in accordance with the standards under jus ad bellum and jus in bello in the Global War on Terror?
Table of Contents: I. Jus Ad Bellum: “Right to War”
A. Standards Under International Law………
B. Standards Under U.S. Policy………
C. Jus Ad Bellum: Is the American War on Terror, and the use of Drones, Justified and Lawful Under International Law?...
i. Necessary State Consent ii. Acting without State Consent II. Jus in Bello: “The Law in Waging War”
A. Standards Under International Law……….. i. Distinction
ii. Proportionality
iii. Pakistan and the U.S. Drone Program: An Issue of Tacit Consent Rising to the Level of “Substantial
Permission” or a Violation of State Sovereignty?
B. Standards Under U.S. Policy & the Bush Administration…………..
C. Jus in Bello: Did the American Drone Program Adhere to the Principles of the “Laws of War” as it continued under Obama?...
III. Rapidly Developing Drone Technology
A. Drone Use on the Battlefield Under International Law
B. The Right to Self-Defense & the Use of Drones Under International Law IV. The Expansion of the Battlefield & the American Drone Program Under the Bush
Administration’s Global War on Terror
A. The Continued Expansion Under the Obama Administration……….. V. Targeted Killing of United States’ Citizens: Violation of Due Process or
Successful Military Operation?...
I. JUS AD BELLUM: “The Right to War”
A. Jus ad Bellum: Standards Under International Law
Jus ad bellum governs the resort to force by states, and thus dictates whether or not the American drone program is justified in resorting to unmanned aerial vehicle operations to carry out targeted killings. The guidelines that must be followed in order for a drone strike to be considered legal and in accordance with international law under jus ad bellum are detailed in the relevant articles and provisions of the United Nations (UN) Charter. Article 2(4) governing the resort to the use of force by states provides “That…all Members [of the United Nations] shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations‟.1 This treaty norm is established in customary international law and is also jus cogens in nature.2 Provisions on the use of force in Article 2(4), address both the use of force and the threat of the use of force.3 UN Charter Article 2(4) is heavily relied upon to determine whether targeted killings and drone attacks under the drone program are legitimate in the eyes of the international community.4
Article 51 of the UN Charter preserves a states’ inherent right of self-defense under international law, and provides an immunity from this restraint.5 It enables states to employ military action in self-defense, but it also serves as a limitation on what type of
1 U.N. Charter art. 2, para. 4.
2 See discussion of the issue by the International Court of Justice in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US), 1986 ICJ Rep. 14, paras 187-191 (27 June) (hereinafter
Nicaragua); On the jus cogens nature of the norm, see Draft Articles on the Law of Treaties, Report of the International Law Commission, 18th Session [1996] II ILC Yearbook p 247.
3 Ibid.
4 U.N. Charter art. 2, para. 4.
force may be utilized and to what degree in order to prevent an abuse of the right. Article 51 of the Charter states the following:
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 the measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.6
If a state violates Article 2(4), due to disproportionate armed offenses, the leader of the aggressor state must take responsibility for the military actions.7 Laid out in Articles 39 and 42 of the Charter, is the authority for the United Nations Security Council to use force against any aggressors that violate Article 2(4). Article 39 states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”8 These are all issues that a state must keep in the forefront when deciding the type and extent of force that they might use in in order to defend themselves, and whether or not to allow a state to conduct operations on their territory, for the third state or by requesting aid. A state involved in an internal conflict may freely request assistance from another state against an aggressive insurgent population. This is reflective of customary international law and is of jus cogens by nature. Acting outside of the consent of the host state is a violation of international law. Furthermore, a host state 6 Id.
7 Jasmine Moussa, Can Jus ad Bellum Override Jus in Bello?: Reaffirming the Separation of the Two
Bodies of Law, 90 Int’l Rev. of the Red Cross 872, 973–74 (2008).
cannot allow any type of attack that would violate and human rights or humanitarian law norms.
B. Jus ad Bellum: Standards Under U.S. Policy
The principle of self-defense is the rationale under which the United States justified its military action in Afghanistan to a plethora of international critics. To do so, the U.S. deliberately chose to characterize the 9/11 terrorist attacks by al-Qaeda as an armed attack. The United States did this by manipulating and disregarding facts, such as the fact that the individuals who committed the atrocious terrorist attacks remained unidentified, non-State actors, while simultaneously disregarding the customary international law requirements of proportionality and necessity.
In 2002, President Hamid Karzai was elected into power, replacing the Taliban, and the United States’ strategy in regards to operations in Afghanistan changed
drastically. President Karzai formally invited the international armed forces that were already inside the Afghani territory, including the United States, to fight to eliminate the insurgent groups.9 Thus, under international law, the United States had the legal authority to launch attacks against targets using drone strikes only inside the boundaries of
Afghanistan.
The U.S., however, has also conducted airborne drone strikes off the battlefield, where there are no aggressions or skirmishes and where the consent of the state has not been given. The United States failed to follow this restriction regarding boundary
limitations and state consent, and is known to have used unlawful, lethal force in the form of targeted killings through the use of drone strikes to combat various suspected terrorist groups and individuals throughout Pakistan. These operations conducted outside of Afghan borders in the country of Pakistan without consent of the state are deemed to be internationally unlawful.
C. Jus Ad Bellum: Is the American Drone Program Justified and Lawful
Under International Law?
The United Nations outlines very detailed principles and requirements to guide governments on the permissible use of force on individual state citizens and rebels.10
9 Global Anti-Terrorism Law and Policy 465 (Victor V. Ramraj et al eds., 2d ed. 2012).
In spite of these very clear-cut and internationally accepted principles, the Bush
Administration came up with a justification in order to defend and make military action “legal” in the eyes of the international community, based on the United States’ “Global War on Terror”. Under this rationale, the United States has asserted that the 9/11 attack was tantamount to a significant use of force, as is deemed necessary by the Charter.
The terminology under which each administration conducted military operations using drone strikes has a significant amount of meaning, as it is through the
characterization of these military campaigns that enable the drone strikes and targeted killings to be carried out under a specific legal framework. The Bush Administrations’ “Global War on Terror” and the Obama Administrations’ “War against al-Qaeda, the Taliban, and associated forces” were constructed very carefully in order to validate to the international community that the United States, in fact, was engaged in an armed conflict against al-Qaeda and associated forces, thus triggering the application of the laws of war.11
Therefore, the U.S. can subsequently take any measures the state deems as necessary to defeat al-Qaeda and its affiliated, regardless of geographic location, and without the same limitations that would be strictly imposed under international law. The Obama Administration adopted the notion of the United States’ “armed conflict with al-Qaeda and associated forces” in order to provide a rationalization for the use of force under the auspices of doing so under the “right of self-defense”.12
On the flipside, it is also possible to contend, “al-Qaeda’s campaign against the United States does not trigger the right of self-defensive force “.13 This argument is has 11 One must ask whether the United States is partaking in an international armed conflict in this instance. If the answer is no, then an additional inquiry here is whether the United States is engaged in an internal armed conflict with al-Qaeda, the Taliban, and associated terrorist groups. If the latter is the case, then the armed conflict that is not characterized as international, but as an internal conflict between the United States, al-Qaeda, etc., then this type of conflict would be governed by custom, domestic law, Common Article 3 of the Geneva Conventions, and the second Additional Protocol to the Geneva Conventions. The 1907 Hague Conventions, the four Geneva Conventions of 1949, customary law, and the first
Additional Protocol to the Geneva Conventions, on the other hand, govern international armed conflicts. It should be noted that the Obama Administration has taken the position that the United States is engaged in a non-international armed conflict against al-Qaeda, Taliban, and their associated forces. See Koh, supra note 9, at 12.
12 Leanne Pigot, The “Bush Doctrine” and the Use of Force in International Law, in The Impact of 9/11 and the New Legal Landscape: The Day That Changed Everything? 241, 246 (Matthew J. Morgan ed., 2009).
13 Andrew C. Orr, Note, Unmanned, Unprecedented, and Unresolved: The Status of American Drone
traction “because al Qaeda has not launched a full scale military offensive.”14 Additionally, a-Qaeda is not officially a state, and it is a well-founded principle in international law that only states are permitted to engage in armed conflicts with other states, which could subsequently prompt the stat to invoke their right to self-defense under that international law principle.15
The definition of armed conflict that is used when deciding whether or not the use of force may be justified, as set forth by the International Law Association, is that it must include the presence of a well-organized group that is fighting with other groups at a high level of intensity.16 Of great significance to the American drone program, is that isolated attacks by armed terrorist groups do not rise to the level of an armed conflict, so the vast majority of targeted killings by drone strikes are implemented in contravention of this very important requirement.
Under Obama, the United States was actively thwarting any possible future terrorist attacks around the globe being perpetrated by non-state actors by using the notion of “pre-emptive self-defense”.17 This concept is in direct violation of the principles and values that have been established in customary international law. The rules of jus ad bellum are outlined under the laws of war, and as such, provide guidelines and necessary requirements as to whether military action is employed lawfully. In particular, under the concept of jus ad bellum, there are two specific requirements that must be fulfilled in order to ensure that targeted killings are justified and internationally lawful.
Obama’s Legal Advisor, Harold Koh, outlined four explanations to bolster the United States’ argument in favor of the legality of drone use for targeted killings.18 The first justification used to legitimize targeted drone killings is that by proxy, enemy combatant leaders are themselves at war with the U.S. because they are members of a 14 Id.
15 .Sikander Ahmed Shah, War on Terrorism: Self-Defense, Operation Enduring Freedom, and the
Legality of U.S. Drone Attacks in Pakistan, 9 Wash. U. Global Stud. L. Rev. 77, 93–94 (2010).
16 Kosovo: A Precedent? The Declaration of Independence, The Advisory Opinion, and Implications for
Statehood, Self-Determination, and Minority Rights 242 (James Summers ed., 2011).
17 William F. Grover & Joseph G. Peschek, The Unsustainable Presidency: Clinton, Bush, Obama, & Beyond 88 (2014).
18 Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Address at the Annual Meeting of the American Society of International Law 14, available at
belligerent, enemy organization that is at war with the United States.19 The second reason addresses whether a drone is a proper instrument for targeted killing missions, and Koh recited that they were appropriate because they were in conformance with the laws of war.20 The third defense addressed the issue of the subjects of the targeted killings, and whether or not they require legal process under international and domestic law. Koh stated that the enemy targets of the drone strikes were designated as such under a thoroughly “robust” vetting system, and that due to these safeguards and procedures implemented, the missions could not be considered “extrajudicial killings” under the ambit of international law or laws of war.21 Lastly, Koh noted that there is a significant difference between the United States using drones to target “high level belligerent leaders” while involved in an international war on terror, and thus, this targeting of individuals does not violate domestic law banning assassinations.22
i. Necessary Consent of the State
Whether or not a State has consented to the use of drone strikes within it’s borders is of extreme importance when calculating whether the American drone program is acting within a lawful scope under international law. It must be noted, that a State is not
permitted to use force without an ongoing, armed conflict within it’s own borders. It also must be addressed, that even where an armed conflict is present, the State must maintain and follow the international law guidelines of necessity and proportionality when
engaging in armed attacks.
Whether or not a State has given consent to the American drone strike program is of extreme importance when deciding whether or not the United States is acting lawfully under international law. It should be noted, that a State is prohibited from resorting to the use of force without an actual ongoing armed conflict, even inside of its’ own borders. Another pre-requisite that must be taken into account when a State is seeking to take action in an armed conflict is that even if there is an armed conflict, the use of drone strikes must fall under the international law principles of necessity and proportionality. 19 Id.
20 Id.
21 Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Address at the Annual Meeting of the American Society of International Law 14, available at
http://www.state.gov/documents/organization/179305.pdf (Mar. 25, 2010).
Some, including counterterrorism expert David Kilcullen, promulgated the idea that drone use should not be permitted in military operations in the pursuit of military objectives because drone strikes, by nature, do not follow the legal requirement of
proportionality under international law.23 It has been statistically shown that drone strikes kill a far greater amount of people in an attack than the intended military target.
Typically, the target tends to be one individual who is a member of a terrorist group, and oftentimes, in that one strike, another ten civilians are assassinated per attack.24
ii. Acting Without State Consent
There are a host of issues with regard to the United States use of drone strikes inside a state whereby consent has not been authorized by the targeted states. When the United States conducts drone strikes through the use of unmanned aerial vehicles it is in violation of the host State sovereignty. Furthermore, it is in direct violation of U.S. policy. In spite of this, the drone strikes without consent have continued, with the United States contention that consent was given by all of the states involved. Obama went so far as to assert that the American drone program and subsequent strikes have operated with the “full consent and cooperation” of any of the states who served as so-called “host” states where the operations took place.25
iii. Pakistan and the U.S. Drone Program: An Issue of Tacit Consent Rising to the Level of “Substantial Permission” or a Violation of State Sovereignty? David Sanger wrote in his book, Confront and Conceal, that the prime minister of Pakistan, Yusuf Gillani , stated to the U.S. ambassador in 2018 that “I do not care if you conduct the drone attacks, as long as you get the right people.”26
It has been a long-standing contention of the United States that Pakistan has aided the American drone program by allowing the U.S. to launch their drones from airbases located around Pakistan. In addition, the U.S. has stated that Pakistan also went one step even further, by assisting the U.S. military and intelligence agencies to locate suspected 23 David Akerson, Applying Jus in Bello Proportionality to Drone Warfare, 16 Or. Rev. Int’l L. 173, 179 (2014)
24 Neta Crawford, Accountability for Killing: Moral Responsibility for Collateral Damage in America’s
Post-9/11 Wars 209 (2013)
25 Byron Tau, Brennan: Drones ‘Necessary’, Politico (Apr. 30, 2012), http://www.politico.com/ story/2012/04/brennan-drones-necessary-not-vengeance-075751.
26 David E. Sanger, Confront and Conceal: Obama’s Secret Wars and Surprising Use of American
terrorist targets, and authorized targeted killings by drone strikes in certain areas under the CIA and military.
In 2012, the New York Times blew the whistle on Pakistan by releasing the names of Pakistani individuals who were actually hired by the Pakistani government and
intelligence agencies to operate the drone attacks, identify potential targets, and map out routes for the strikes. This information release followed a long-standing assertion of the United States that they and Pakistan actually had a joint drone program. The government of Pakistan officially declared these allegations as false, but the individuals themselves largely agreed that this was indeed the case, thus contradicting the officials’ stance. In addition, the Pakistani government made a statement directly opposing the American drone program operating on Pakistani soil without consent.
In it’s defense, the United States fired back at the international criticism, stating that although there was no explicit consent given by the government, military officials, or intelligence officials, the U.S. was given tacit consent by Pakistan. This basically boiled down to the notion that because Pakistan did not stand up in opposition of the unmanned aerial vehicle attacks that were being launched from airbases all around the country, then they essentially enabled and endorsed the American drone program operating inside it’s borders.27
Not only does Pakistan “look the other way”, but also they actively clear airspace in areas that are being targeted by the American drone program. They are made aware of these targeted areas through a fax sent by the Central Intelligence Agency to Pakistan’s Intelligence service on a monthly basis, chronicling a timeline and showing the
geographic locations where the United States is preparing to launch the drone strikes. It is on the aforementioned bases that the United States contends that Pakistan has given tacit consent to the American drone program conducting unmanned aerial vehicle strikes in and around the sovereign nation.28
The issue of whether or not tacit consent given by Pakistan amounts to the type of consent that would meet the requirement under international law to deem the American drone program lawful, has been the topic of much discussion. Legal Consultant to the 27 Conflict and Peace in Eurasia 170 (Debidatta Mahapatra ed., 2013).
28 Adam Entous et al., U.S. Unease over Drone Strikes, Wall Street J. (Sept. 26, 2012, 6:59 AM), https://www.wsj.com/articles/SB1000087239639044410040457764152085801145)
United States State Department, Harold Koh, asserted that drone strikes without specific permission rise to the level of an act of war against a sovereign state.29 Thus, he
maintained that the tacit consent given by the Pakistan government rose to meet the threshold of substantial permission necessary for the American drone program to conduct its operations in the territory.30
An investigation conducted by the Bureau of Investigative Journalism concluded that Pakistan denied giving the United States consent for unmanned aerial vehicle targeted attacks, and had never established any form of tacit consent with the U.S.31 In 2012, the Pakistan government made a swift, unanimous, and official command declaring the immediate cessation of United States drone attacks throughout the Pakistani
territory.32 In spite of the clear-cut opposition of Pakistan against the American drone program, the United States has continually ignored the Pakistani requests to cease any and all drone strike operations.33 The United Nations made an official statement asserting that any continuing unmanned aerial vehicle attacks deployed by the United States in Pakistan is a clear violation of state sovereignty.34
II. JUS IN BELLO: “The Laws of Waging War”
A. Jus in Bello: Standards Under International Law
Jus in bello applies in the event of an international or non-international armed conflict. Fighting that rises to the standard of an armed conflict triggers international humanitarian law, and anything that fails to meet this threshold would be overseen by human rights norms and any appropriate domestic laws. The International Court of Justice (ICJ) has ruled that if one state uses force against another state, the “attacked state 29 Id.
30 Id.
31 Chris Woods, Pakistan ‘Categorically Rejects’ Claim That It Tacitly Allows U.S. Drone Strikes, The Bureau of Investigative Journalism (Sept. 28, 2012), https://www.thebureauinvestigates.com/ stories/2012-09-28/pakistan-categorically-rejects-claim-that-it-tacitly-allows-us-drone-strikes.
32U.N., Pakistan Presses On It’s [sic] Demand for End to Illegal Drone Strikes, The News (July 2, 2016),
https://www.thenews.com.pk/latest/132367-Pakistan-presses-demand-end-illegal-drone-strikes.
33 Id.
34 U.N. Official Says U.S. Drones Breach Pakistan Sovereignty, N.Y. Times (Mar. 15, 2013), http://www.nytimes.com/2013/03/16/world/asia/un-official-denounces-us-drone-use-in-pakistan.html.
can use force against the aggressor in line with the right of self-defense. The aggressor states’ action must rise to the requirement of a substantial use of force, instead of a simple, insignificant episode. The use of force in self-defense must follow the international law doctrines of “proportionality” and “necessity”.35
i. Distinction
The rule on distinction is one of the most important rules in International Humanitarian Law. Applying this principle in an international conflict is much more simple than applying it in an armed conflict of a non-international character. The use of drone strikes was confirmed in two international armed conflicts. NATO against Libya in 2011, and the USA and its allies against the Taliban in Afghanistan between 2001-2002.36 Aside from these operations, it is clear that the majority of drone strikes during armed conflict have occurred in conflicts that are non-international in character. The applicable rule on distinction – between lawful military objectives and civilians and civilian objects – is typically that which governs the conduct of hostilities in armed conflicts of a non-international character. Military targets, including civilians ‘participating directly in hostilities’, may lawfully be targeted by attacks under provisions of Common Article 3 to the four Geneva Conventions, as supplemented by customary international law (and, where applicable, Art. 13(3) of 1977 Additional Protocol II).37
ii. Proportionality
In the case that civilians are harmed or killed during a drone attack on a lawful target, the jus in bello principle of proportionality is applied. International Humanitarian Law does not permit a targeted attack that may cause “incidental loss of civilian life,
35 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶ 41 (July 8).
36 The conflict against the Taliban changed in character as a result of the democratically elected President Hamid Karzai. With respect to the qualification of the armed conflicts in Afghanistan, see, e.g.,
37 The USA is not a State Party to the Protocol and Afghanistan is. In the event that the USA decided to adhere to the Protocol, it might argue that based on Article 1 of the Protocol this instrument would apply only to Afghanistan and/or would exclude its extraterritorial application to attacks in Pakistan. This is because under its Article 1, the Protocol applies ‘to all armed conflicts ... which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’ See, e.g.,
The Rule of Law in Armed Conflicts (RULAC) project, Australia profile, Qualification of Armed Conflicts
section, available at: http://www.geneva-academy.ch/RULAC/ applicable international_law.php? id_state=16.
injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.38
Targeted killings may be considered lawful, in spite of the fact that civilian lives may be lost, or property destroyed. The question under the principle of proportionality, is whether the harm to civilians or their property would be considered excessive in light if the military objective that would be accomplished if the attack was successful? Also, proportionality is calculated from the viewpoint of the individual drone operator or pilot under the circumstances at the time. As a matter of law, whether the attack turned out to actually cause more or less damage (excessive or less successful) is not the issue so much as what the attacker reasonably believed to be the outcome at the time they engaged.
Whether or not drones are the weapon of choice becomes relevant under IHL as there is a requirement to take “precautions in attack”. This prerequisite states that in calculating an impending attack, one must take care to avoid unnecessary casualties or damage to the civilian population. According to the International Committee of the Red Cross (ICRC) study published in 2005, many of the rules on precautions in attacks were codified in 1977 Additional Protocol I, are of a customary nature and are applicable in non-international armed conflict, and in international armed conflicts.39 Central among the rules is the obligation to take ‘constant care’ in the conduct of military operations to ‘spare the civilian population, civilians, and civilian objects’. In this regard, ‘all feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians, and damage to civilian objects’.40
Article 57 of the Protocol provides that those who plan or decide to attack must “tale all feasible precaution in the choice of means and methods of attack.”41 When preparing for an armed attack, the attacker has to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects”.42 If the attacker has a reasonable belief that the target is a member of the enemy group, or takes part in
38 AP I, supra n 37, Arts. 52.5(b), 57.2(a)(iii) and 57.2(b); AMW Manual, supra n 27, Rule 14; NWP, supra n 37, para 8.3.1.
39 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, ICRC and Cambridge University Press, 2005.
40 ICRC’s Study on Customary International Humanitarian Law, note 21, Rule 15.
41 1977 Additional Protocol (AP) I, Art. 57(2)(a)(ii).
hostilities, then it is considered lawful.43 The attacker must take “feasible” steps, which are all steps “practicable or practically possible, taking into account all circumstances prevailing at the time”.44 The attacks cannot possibly be 100% foolproof, but must make sense from a military perspective. The benefits of using drones in targeted attacks must be pretty definitive, and outweigh any speculative excess of collateral damage. Under Rule 14 of the ICRC’s study of customary international humanitarian law, “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” We must next determine what is excessive? In the ICRC-published commentary on Article 51(5) of the 1977 Additional Protocol I, it states that: “…the disproportion between losses and damages caused and the military advantages anticipated raises a delicate problem; in some situations there will be no room for doubt, while in other situations there may be reason for hesitation. In such situations the interests of the civilian population should prevail.”45
B. Jus in Bello: Standards Under the U.S. Approach & the Bush Administration
The United States has adopted the stance that terrorist activities around the globe should be characterized as non-international armed conflicts.46 Military operations outside of U.S. borders, including targeted killings using drones, conducted during an armed conflict, must always comply with applicable International Humanitarian Law. 43 Civilians directly participating in hostilities lose their immunity status from the attack. AP I, supra n 37, Art. 51.3; AMW Manual, supra n 27, Rule 28; NWP, supra n 37, para 8.2.2.
44 See e.g., AMW Manual, supra n 27, Rule 1(q); Declarations made by States at the time of ratification, in Roberts and Guelff (eds) 2000, pp 498-512; Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Amended Protocol II) Art. 3(10), 3 May 1996, S. Treaty Doc. No. 105-1 (1997).
45 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional
Protocols, ICRC, Geneva, 1987, paras. 1979–1980.
46 At the meeting of the American Society of International Law in 2010, State Department Legal Advisor Harold Koh asserted that “the United States is in an armed conflict with al Qaeda‟. Koh statement, supra n 5. Although he did not indicate clearly whether the conflict was international or non-international,
references to Common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II to those conventions suggest the US views the conflict as non-international. Further, the United States Supreme Court, in the case of Hamdan v Rumsfeld, has opined that such conflicts are not of an international character‟. Hamdan v Rumsfeld, 548 US 557, 630-631 (2006). Finally, in a Statement to the UN Human Rights Council, the United States asserted that the conflict with al-Qaeda was non-international in nature. Report of the United States of America Submitted to the UN High Commissioner for Human Rights In Conjunction with the Universal Periodic Review, UN Doc. A/HRC/WG.6/9/USA/1, 23 August 2010, at para 84.
Following the horrific terrorist attacks of September 11, 2001 in New York City, the 42nd President of the United States of America and Commander-in-Chief, George W. Bush, made a groundbreaking decision to employ the use of unmanned aerial vehicles (UAV’s), also known as drones, to fight against the leaders of al-Qaeda forces across the globe. This authorization was handed down pursuant to the ‘Authorization for Use of Military Force’ (AUMF) that was passed by Congress on September 18, 2011. The AUMF does not specifically mention the use of drone strikes against terrorists, but has been used to justify the legality of the use of drones against any and all al-Qaeda forces to target, disable, and kill terrorist enemies of the State. The joint resolution resolved by the Senate and House of Representatives of the United States in Congress assembled.
A week after the 9/11 terrorist attacks, the U.S. revealed the “Bush Doctrine” when President Bush stated: “Our war on terror begins with al-Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated. Either you are with us or you are with the terrorists.”47 Perhaps the most impactful statement in the doctrine was captured in the President’s statement that “…we will make no distinction between the terrorists who committed these acts and those who harbor them.”48 In his infamous speech before Congress, Bush said, “…from this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.”49 Clearly, this was an enormous departure from the seminal international law case, Nicaragua. However, this doctrine pulled directly from the affirmative obligation laid out in the International Court of Justice in the Corfu Channel case, whereby the court held that every state not knowingly allow “…its territory to be used for acts contrary to the rights of other States.50 The “unwilling or unable” test is rooted firmly in the customary law of neutrality. This helped to legitimize
47 See President Bush’s seminal speech on September 20, 2001, to the joint session of Congress, quoted in Olumide K. Obayemi, Legal Standards Governing Pre-Emptive Strikes and Forcible Measures of
Anticipatory Self-Defense under the U.N. Charter and General International Law, 12 Annual Survey of
International & Comparative Law 19 (2006).
48 George W. Bush, Address to the Nation on Terrorist Attacks, September 11, 2011 quoted in Davis Brown, Use of Force Against Terrorism after September 11th: State Responsibility, Self-Defense and Other
Responses, 11 Cardozo Journal of International and Comparative Law 1, 17 (2003).
49 Address to a Joint Session of Congress and the American People, September 20, 2011 quoted in Greg Travalio and John Altenburg, Terrorism, State Responsibility, and the Use of Military Force, 4 Chicago Journal of International Law 98, 108 (2013)
the United States’ use of drones in targeted killings as a mode of self-defense against non-state actors located in a foreign country.51
The U.S. government reportedly operates two different types of drones for two distinct purposes. Both the Central Intelligence Agency (CIA) and the U.S. military forces employ drone strikes. The first type is a smaller drone that is operated to carry out surveillance type missions. This drone is used predominantly to obtain information regarding the location of possible enemy targets. The second type of drones are significantly larger and are typically used to carry hellfire missile used to implement strikes and targeted killings. As Journalist Jane Mayer noted in her New Yorker article:
“The U.S. government runs two drone programs. The military’s version, which is publicly acknowledged, operates in the recognized war zones of Afghanistan and Iraq, and targets enemies of U.S. troops stationed there. As such, it is an extension of conventional warfare. The C.I.A.’s program is aimed at terror suspects around the world, including in countries where U.S. troops are not based.”52
The U.S. approach for the use of drones in targeted killings is a bit of a slippery slope. The mentality is that there is a worldwide theater of war against al-Qaeda and its affiliates. The battlefield is not in one, distinct geographic location, but varies depending on the location of individuals who are known associates of the terrorist organization, and therefore the U.S. may use drones in targeted attacks anywhere in the world. The United States expanded their drone operations against al-Qaeda forces across the globe under Bush, and this unprecedented move was met with a substantial amount of criticism in the international community. The targets included any individuals who were deemed terrorist enemies by the United States due to their association with al-Qaeda. This approach was regarded by most as vague and enabled the U.S. to operate in numerous countries where there were supposed al-Qaeda combatants, leaders, and operations. In spite of this
international opposition, the Bush Administration continually defended the use of drones in this fashion as being lawful under international law.
51 Ashley S. Decks, Unwilling or Unable” Toward a Normative Framework for Extraterritorial
Self-Defense, 52 Virginia Journal of International Law 483, 497 (2012).
52 Jane Mayer, The Predator War: What Are the Risks of the C.LA.'s Covert Drone Program?, The New Yorker, http://www.newyorker.co m/reporting/2009/10/26/091026fafactmayer (Oct. 26, 2009).
In addition, the Bush Doctrine did not only execute anticipatory self-defense, striking an enemy while they prepared for a specific attack, but this administration also authorized “preventive self-defense”, whereby a drone would be used to strike an enemy without evidence of an imminent attack. Top al-Qaeda officials were the targets of drone strikes under the Bush Administration in countries such as Afghanistan, Yemen, Somalia, Pakistan, and Iraq, among others.
The notion of preventive self-defense was deemed acceptable due to the ever-changing landscape of the terroristic threat posed by al-Qaeda.53 Namely, al-Qaeda and its associates are well-funded, have access to chemical, biological, and nuclear weapons, attack without warning, target civilians, and have committed a series of previous attacks on the United States, while spreading propaganda regarding the imminence of future attacks. Thus, it is reasonable under international law to categorize a terrorist attack by al-Qaeda or one of their affiliates as “continuing” or “imminent” under the Caroline standard.54
C. Jus in Bello: Did the American Drone Program Adhere to the Principles
of the “Laws of War” as it Continued under Obama? The UAV program not only continued under the Obama Administration, but also appeared to gain momentum as an effective weapon in the global war on terror. Leon Panetta served under the Obama Administration as CIA Director, and was quoted as saying that due to the accuracy and their overall effectiveness, drones rapidly became “the only game in town in terms of confronting or trying to disrupt the al-Qaeda
leadership.”55 This statement showed that the new administration was not only willing to embrace the Bush Doctrine, but it pointed to an upcoming increase in the use of drones for targeted killings in the American war on terror.56 Additionally, the new administration
53 The National Defense Strategy of the United States of America, U.S. Department of Defense, March 2005, p. 9.
54 Greg Travalio and John Latenberg, Terrorism, State Responsibility, and the Use of Military Force, 4 Chicago Journal of International Law 98, 112 (2203). Contra Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Study on Targeted Killings, para. 45, Human Rights Council, UN Doc.a/HRC/14/24/add.6 (May 28, 2010) (characterizing preventive self-defense as “deeply contested and lacking support under international law”).
55 U.S. Air Strikes in Pakistan Called 'Very Effective,' CNN politics (May 18, 2009), http://www.cnn.
com/2009/POLITICS/05/18/cia.pakistan.airstrikes
promulgated extremely articulate and detailed legal defenses by top-level officials, such as State Department Legal Advisor Harold Koh, in order to refute any questioning as to the legality of the targeted killings committed under the American drone program. Koh addressed the use of drones at the American Society of International Law Annual Meeting in the spring of 2010, stating that “…it is considered view of this
Administration…that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”57 Additionally, Koh cited both international law, as well as domestic law under the AUMF, as evidence that the United States is involved in an ongoing international armed conflict against the terrorist forces of al-Qaeda, the Taliban, and any other known or suspected “associated forces”.58
Koh affirmed that in fact the United States was justified in its so-called “targeted killings” by the use of drones, because of the way in which the missions were conducted. He stated that the American drone program was acting legally and in accordance and within its rights of the international laws of war. He defended this position by defending the programs’ strikes as consistent with the seminal concepts of proportionality and distinction. Following Koh’s speech at the American Society of International Law, Mark Hosenball published an article for Newsweek detailing Koh’s vehement public defense of drone missile attacks.59 According to Hosenball, Koh disclosed the two principles that were at play when conducting and carrying out drone operations. Those are the notions of “distinction” and “proportionality.”60 In doing so, he argued, the U.S. sought to ensure that the drone targets were as accurate as possible and collateral damage was kept to a minimum.
“Distinction,” he said, means a strike must be limited to military targets; civilians or their property “shall not be the object” of any attack. “Proportionality,” he said, means that no attack should be launched that is expected to cause
57 Harold Hongju Koh, Legal Adviser, U.S. Dep’t of State, Address at the Annual Meeting of the American Society of International Law 14, available at
http://www.state.gov/documents/organization/179305.pdf (Mar. 25, 2010).
58 Id.
59 Mark Hosenball, “Obama Administration Official Publicly Defends Drone Attacks,” Newsweek, Mar. 26, 2010
“excessive” damage or loss of live to civilians or their property, in comparison to the “direct military advantage anticipated.”61
Hosenball also reported on Koh’s response to whether or not individuals who are involved in targeted killings, have the right to due process of the law under international and United States domestic law? To this, Koh stated, “Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”
Koh also stated that the attacks of 9/11 triggered the U.S. right of self-defense against al-Qaeda and any other terrorist entities in the following passage: “…the United States is in an armed conflict with al-Qaeda, as well as Taliban forces, …and my use force consistent with its inherent right to self-defense under international law.” This assertion was in line with the previous
administration’s characterization of an international- scale, “global war” against al-Qaeda and any affiliated terrorist enemies of the United States.”
III. RAPIDLY DEVELOPING DRONE TECHNOLOGY
Under Bush, the American armed drone program began to implement and create new, high tech unmanned Predator drones. The MQ-1B Predator has a range of around 700 miles to support ground forces, has the ability to strike very specific targets, and is also used for surveillance operations. These drones are capable of launching laser-guided Hellfire missiles that have laser navigational technology to attack targets from significant distances away. This missile is extremely accurate and can targeted individuals, as well as vehicles and other targets.62 This was seen as a huge win for the United States military, because the Predator drones were able to save countless pilots’ lives. In addition, these highly technologically equipped drones can stay in flight up to ten times longer, and only
61 Id.
62 United States Air Force, Factsheet – MQ-1B, 20 July 2018, available at http://www.af.mil/information/factsheets/factsheet.asp?fsID=122.
cost approximately one-twentieth as much as standard combat aircraft used in military missions.63
Although the drones are a bit slower, and thus more defenseless than their combat plane counterpart, they were not viewed as an imminent threat to military forces.
However, these qualities enabled it to be used against non-state actors that arise out of failed states.64 In addition, the United States also deploys the MQ-9, which is also known as the Reaper. It is quite like the MQ-1 or Predator in functionality and overall design, but it is able to carry heavier weaponry and bombs. The Reaper can stay in flight for an extended period of time, and has a medium-to-high altitude system with a range over 1,000 miles.65 With these enormous advantages, the use of these types of drones began to rapidly increase, and soon the U.S. will have more unmanned than manned aerial
vehicles. Some of the other states that are working to ramp up their drone programs include Brazil, China, Georgia, Israel, Iran, Russia, and Turkey.66
The next generation in drone technology is honing in on improving reliability, the level of precision during launch attacks, and the ability to increase the level of automated attacks. More refined assessments of targets for long periods of time, without any risk to pilots, enable a greater degree of accuracy and also decreases the chances of collateral damage to the civilian population. When armed drones are equipped with extremely accurate weapons, the necessity for a re-strike is minimal, which decreases the likelihood of collateral damage. At this time, artificial intelligence is used in the drone programs simply to advise whether or not a person should decide to continue on and launch an attack. With the advent of future technology, the drone computers might be
pre-programmed to launch an attack automatically, once specific requirements are met. This would alleviate the need for humans to make real-time decisions, and is sure to introduce
63 Michael W. Lewis, Drones and Boundaries of the Battlefield, 47 Texas International Law Journal 293, 296 (2012).
64 Lewis, supra at 298.
65 United States Air Force, Factsheet – MQ-9 Reaper, 18 July 2018, available at http://www.af.mil/information/factsheets/factsheet.asp?fsID=6405.
66 See Report of the Special Rapporteur, supra note 2; and Iran Muscles into the UAV Battlefield, Oct. 5, 2010, UPI.com, http://www.upi.com/Business_News/Security-Industry/2010/10/05/Iran-muscles-into-the-UAV-battlefield/UPI-47421286303914.
a whole new host of questions regarding accuracy, necessity, proportionality, etc., of targeted killings.67
A. DRONE USE ON THE BATTLEFIELD UNDER INTERNATIONAL LAW The definition under international law of an armed conflict is of paramount importance when examining the right to deploy unmanned aerial vehicles and similar weapons used in the American drone program. The International Law Association conducted a study and compiled a report using extensive state practice that outline the criteria which would distinguish between military action taken in a situation of armed conflict versus the type of conflict falling short of armed conflict, whereby States would employee law enforcement operations. Distinguishing between the two has been murky at best, but is extremely important, as the rules governing the two scenarios are vastly different. The study by the International Law Association was conducted over a period of five-years. A committee of eighteen experts hailing from fifteen countries were assembled to put together a definition of “armed conflict” that is in accordance with international law. On August 19, 2010, the Association published its report that stated:
“The Committee…undertook extensive research into hundreds of violent situations since 1945 and identified significant state practice and opinion juris
establishing that as a matter of customary international law a situation of armed conflict depends on the satisfaction of two essential minimum criteria, namely:
a. the existence of organized armed groups b. engaged in fighting of some intensity68
The United States had to show that there was ongoing, organized armed fighting, rather than simply put out a declaration, and that fighting had to meet a threshold of intensity in order to justify killing under a lower threshold of necessity than is relegated to police forces. In addition, drones may be used lawfully before an armed conflict in several situations.
The first situation, under which an unmanned aerial vehicle targeted strike may take place before an armed conflict, is when a State must initiate an act of self-defense 67 Peter W. Singer, In the Loop? Armed Robots and the Future of War, Brookings (Jan. 28, 2009),
http://brookings.edu/articles/2009/0128. A landmine is a type of weapon that operates automatically, and will only detonate under specific conditions.
68 See International Law Association, Use of Force Committee, Final Report on the Meaning of Armed Conflict in International Law (Aug. 2010), available at http://www.ila-hq.org.
under Article 51 of the United Nations Charter.69 The second instance occurs when the United Nations Security Council passes an authorization. The third situation occurs when the government of a State seeks to quell armed conflict that is occurring internally; and, lastly, when a third-State is summoned to aid a State government in suppressing an armed conflict that is occurring internally.70
B. THE RIGHT TO SELF-DEFENSE AND THE USE OF DRONES UNDER INTERNATIONAL LAW
The United States must take into consideration the rules governing the resort to the use of military force in self-defense under Article 51 of the United Nations Charter. In addition, there have been numerous seminal decisions handed down by international tribunals and courts alike. Of particular importance is the Nicaragua case handed down by the International Court of Justice (hereinafter, “ICJ”), which held that, “an attack giving rise to the right of self-defense must rise to the threshold of a “significant
attack”.”71 This is in contrast to, for example, the shipment of weapons to armed terrorist combatants.72
There ICJ has made a clear standard in other cases that in order for a State to lawfully engage in an exercise of military force while in the territory of a third State, the other State must have been deemed as responsible for a “significant” armed attack. The single most import and pertinent case that has been handled by the ICJ in regards to the right to use drones can be found in the case of Congo v. Uganda73. It is in that case that
the ICJ found that Uganda was engaged in an unlawful use of force on the Congo territory, in an effort to thwart many years of cross-border invasions by various armed factions that were based in Congo.74 The ICJ held that Congo could not be held legally 69 Statement of Ambassador James B. Cunningham, U.S. Deputy Representative to the United Nations, Transcript of the 4370th meeting of the Security Council, at 3, U.N. Doc. S/PV.4370 (September 12, 2001).
70 Id.
71 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168, 170 (Dec. 2005).
72 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶ 41 (July 8).
73 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168, 170 (Dec. 2005).
liable for the illegal incursions and attacks of the armed groups.75 Essentially, this boiled down to the fact that the Congo did not control the armed groups, and could therefore not be held responsible.76 Furthermore, even when the Republic of Congo failed to intervene and take action to curtail the incursions of the armed groups, Uganda’s use of force on that territory was still unjustified.77
Moreover, the ICJ in the Nicaragua and Nuclear Weapons decisions that even where a state may be held responsible for a so-called significant attack, the right to self-defense may only be triggered if the use of force meets the threshold of necessary to accomplish the purpose of defense. The Court also added that the purpose of defense could not be conducted if there was a disproportionate amount of collateral damage, in regards to loss of live in the civilian population or destruction of property. Self-defense cemented this notion of proportionality, which would permit measures proportional to the armed attack, and necessary in order to adequately respond to it. This is an unambiguous rule that was well established in customary international law, and the dual condition is also applicable to Article 51 of the United Nations Charter in regards to the military means used to accomplish the task.78
The United States took the position back in 2001 that the Taliban regime, and thus, the State of Afghanistan, was to be held legally responsible for the terrorist group, al-Qaeda. This was due to the fact that the United States sought to shield their drone program and other military operations from criticism or unlawfulness, under the law of self-defense. This move made the use of military force by the United States in the post 9/11 timeframe and against the state of Afghanistan “lawful" under international law. Shortly thereafter, in 2002, the right to the use of self-defense in the country of
Afghanistan ended with the election of Afghan leader Hamid Karzai.79
To this day, the United States and countless forces hailing from countries across the globe remain in Afghanistan at the invitation of President Karzai to maintain public order, and prevent an insurgency from occurring again.80 As it is rooted deeply in 75 Id.
76 Id.
77 Id.
78 U.N. Charter art. 51
79 Global Anti-Terrorism Law and Policy 465 (Victor V. Ramraj et al. eds., 2d ed. 2012)
international law, this presence and lawful use of force regarding a potential insurrection in Afghanistan must be limited, geographically, to Afghanistan and must also meet the criteria that the invitation from the President remains.81
There has been much speculation and discussion regarding the use of drones in situations such as this as being analogous to a right for war ships at sea to implement a right to self-defense.82 Theoretically, in the aforementioned scenario, if one of the war ships were to be attacked, then a counter-attack may be launched under the unit’s right of self-defense by all ships of the unit against all of the attacking ships.83 There is very little authority in existence to support the application of the unit right of self-defense outside of the scope of an armed conflict, including at sea.84
IV. THE EXPANSION OF THE BATTLEFIELD & THE AMERICAN DRONE PROGRAM UNDER THE BUSH ADMINISTRATION’S GLOBAL WAR ON TERROR
In the post-9/11 Bush era, the United States’ approach to defeat its terrorist enemies was that of a “Global War on Terror”.85 This was the first time that the U.S. had taken such an extensive approach to war or armed conflict, as this label gave the country free reign to conduct operations virtually anywhere in the world, without geographic limitations, with an international battlefield of sorts.86 The global war on terror became attached to individual enemy terrorists who were moving all over the world, and
wherever they were located at the time the United States’ found the terrorist enemies, that would became the so-called “temporary battlefield”. Not only did the Bush
Administration promulgate this aggressive approach, but the Supreme Court of the United States also supported this approach in the holding of the seminal case of Hamdan v. Rumsfeld. That case cemented the approach that the United States was at war against Taliban and al-Qaeda forces, and that the laws of war were applicable under the
81 Id.
82 John E. Noyes, United Self-Defense at Sea: Views from the United States and the International Court
of Justice, in The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution,
Fisheries, Crimes at Sea and Trafficking of Weapons of Mass Destruction 185.
83 Id.
84 Id.
85 Peter L. Bergen & Jennifer Rowland, World of Drones: The Global Proliferation of Drone Technology, in Drone Wars, supra note 2, at 300, 300.
86 See, e.g., O’Connell, supra note 6, at 595. (Under the Bush Administration, “we could kill al-Qaeda members if they were in the U.S., Germany, Switzerland, and elsewhere…”).
circumstances.87 These defenses were used to justify the use of American military force, which included the use of unmanned aerial vehicles for targeted killings, as being consistent with the laws of war.
A. THE CONTINUED EXPANSION OF THE BATTLEFIELD THROUGH THE USE OF TARGETED KILLINGS UNDER OBAMA IN THE
GLOBAL WAR ON TERROR
The Obama Administration designated Afghanistan and its airspace as a combat zone. Despite the lack of declaration as a “combat zone”, the United States has
continually launched drone attacks in many other regions in the world. This includes Yemen, where al-Qaeda leaders and affiliates have been targeted and annihilated using drone warfare.88 This is another slippery slope that the United States has tread, insofar as the idea that the U.S.’s approach is one whereby they may use drones against members of al-Qaeda essentially located anywhere in the entire world.89 This worldwide battlefield has been expanded to include any and all known or suspected members of al-Qaeda or any related terrorist organization that may pose a threat to the U.S.
The United States has been met with relatively extensive amounts of international criticism for this expanded approach to targeted killings. The criticism against the U.S.’s use of drones against al-Qaeda forces came from various sources, including international law scholars, like Hina Shamsi.90 In her widely read remarks, she demanded the United States provide a very specific, detailed analysis of the justification for the U.S.’s killings overseas for public scrutiny.91 Another one of the biggest critics of the drone program has been Professor Mary Ellen O’Connell.92
87 See, e.g., Vogel, supra note 2, at 107 (Under Bush and Obama, “the Executive Branch…characterized the current conflicts to be armed conflicts, governed primarily by the lex specialis of the laws of war”);
Hamdan v. Rumsfeld, 548 U.S. 557, 630-31 (2006) (this seminal case characterized the ongoing conflict
with al-Qaeda and its forces as armed conflict, thus the laws of war applied); see also Boumediene v. Bush, 553 U.S. 723, 771 (2008); Hamdi v. Rumsfeld, 542 U.S. 507, 518-19 (2004).
88 Michael W. Lewis & Vincent J. Vitkowsky, The Use of Drones and Targeted Killings in
Counterterrorism, 12 Engage: J. Federalist Society Prac. Groups 73, 73, (2011)
89 See id. (noting that under this approach, “al-Qaeda terrorists who continue to plot attacks may, in some circumstances, be lawful targets subject to an armed attack regardless of where they are geographically located”).
90 Hina Shamsi, Afghanistan, Pakistan, and the Modern Challenges to Use of Force Law, 104 Am. Soc’y Int’l L. Proc. 161, 166-68 (2010).
91 Id.
92 Mary Ellen O’Connell, Remarks, The Resort to Drones Under International Law, 39 Denv. J. Int’l L. & Pol’y 585, 592 (2010).
In spite of the overwhelming criticisms, top-level officials under the Bush Administration continued to vehemently deny any wrongdoing, and defended the American drone program as “in accordance with international law”.93 The Obama
Administration also mounted a robust defense to their continued and rapidly growing use of drones for targeted killings of terrorists in the United States’ global war on terror.94 Thus, for two consecutive administrations, the American drone program flourished and thrived to be the largest and deadliest use of unmanned aerial vehicles by a landslide in the international community.
V. TARGETED KILLING OF UNITED STATES’ CITIZENS: VIOLATION OF DUE PROCESS TANTAMOUNT TO A CRIMINAL ACT, OR
SUCCESFUL MILITARY ACTION IN THE WAR ON TERROR?
U.S. citizen Anwar al-Aulaqui was killed in 2011 in a United States drone strike operation, along with U.S. citizen Samir Khan. Later, in 2013, there was a leak of the White Paper that gave a detailed outline of the legal basis for the targeted assassination of these United States citizens. Al-Aulaqui was the intended target of the drone attack, and Samir Khan was an accidental fatality. Al-Aulaqui was a cleric who had evolved into more of an Islamic extremist, spreading radicalism from the United States around the globe. The leaked document cited Harold Koh’s speech given in 2010 before the American Society of International Law, to support its legal standing, among other arguments they advanced, to justify committing this act.
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, argued that, “outside the context of armed conflict, the use of drones for targeted killings is almost never likely to be legal‟.95 In addition, Jeremy Scahill, investigative reporter and author, wrote a telling account of Harold Koh’s role in the targeted killing of al-Aulaqi in his book released in 2013, “Dirty Wars: The World is a Battlefield”. Scahill documented that in his capacity of Obama’s Legal Advisor. “Harold Koh wanted to lay out the case publicly before Aulaqi was killed” in order to thwart any possible criticism of the Obama Administration’s decision to target an American citizen for assassination
93 See Lewis & Vitkowsky, supra note 4, at 74.
94 Supra at 73.
95 Report of the Special Rappoteur on Extrajudicial, Summary or Arbitrary Executions, Study on Targeted Killings, 28 May 2010, UN Doc. A/HRC/14/24/Add.6, at para 85.
shrouded in a veil of secrecy and without due process (a trial). According to Mr. Scahill, “In advance of his public speech, the CIA and military gave Koh access to their intel on Aulaqi. Koh settled in for a long day of reading in the Secured Classified Intelligence Facility. According to [Daniel] Klaidman, whose book [Kill or Capture] was based almost entirely on leaks from administration officials, Koh ‘had set his own legal
standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it.”96 The Obama Administration used Legal Advisor Koh’s “stamp of approval”
for the al-Aulaqi killing. According to Scahill, the administration benefitted from this because his previous reputation as a “liberal, pro-human rights, pro-civil liberties lawyer” was an incredibly valuable defense against any possible criticisms.97
Daniel Klaidman published Kill or Capture: The War on Terror and the Soul of
the Obama Presidency, in which he detailed the United States Government’s procedures
for handling individuals suspected of playing supporting roles to terrorists in furtherance of their plans to target the U.S. in terrorist missions.98 He largely addressed the Obama
Administration’s decision to authorize targeted killings on U.S. citizen Anwar al-Alaqi via the use of missiles launched by unmanned aerial vehicles.99 Klaidman also discussed
Harold Koh’s role in defending targeted killings in his position as White House Legal Advisor by stating that Koh began lobbying Secretary Clinton and the White House to let him make a speech in defending the targeted drone killings. It benefitted the White House agenda to make Harold Koh the front man of the CIA’s drone program.100 The military
was also in support of this idea. It was an inside joke that they branches coined the nickname ‘Killer Koh’ for the State Department Legal Advisor.
VI. CONCLUSION
96 Jeremy Scahill, Dirty Wars: The World is a Battlefield 371 (2013).
97 Id.
98 Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency (2012);
see also, see also, Philip Alston, Harold Koh and the Battlefield of the Dueling Petitions, Just Security, Apr. 20, 2015.
99 Id.
