The United States' use of drones in the War on Terror: the (il)legality of targeted killings under international law.

• Author: Sterio, Milena
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

After the terrorist attacks of September 11, 2001, the United States government began to use drones against al-Qaeda targets. According to several media reports, the United States developed two parallel drone programs: one operated by the military, and one operated in secrecy by the CIA. Under the Obama Administration, the latter program developed and the number of drone attacks in countries such as Pakistan and Yemen has steadily increased. Because the drone program is operated covertly by the CIA, it has been impossible to determine the precise contours of the program, its legal and normative framework, and whether its operators have been lawfully implementing the program. This article focuses on four distinct issues linked to the United States' use of drones: the definition of the battlefield and the applicability of the law of armed conflict; the identity of targetable individuals and their status as combatants or civilians under international law; the legality of targeted killings under international humanitarian law; and the location and status of drone operators. This article concludes that the Obama Administration, as well as any future administrations, should consider installing military-led drone operations, which would be subject to public scrutiny to ensure that the rule of law remains the guiding principle of the United States' use of force abroad.

CONTENTS I. INTRODUCTION AND BACKGROUND ON THE USE OF DRONES II. WHAT AND WHERE IS THE BATTLEFIELD? WHICH LAWS APPLY? III. WHO ARE THE TARGETS? IV. LEGALITY OF DRONE STRIKES UNDER Jus IN BELLO? V. LOCATION AND IDENTITY OF DRONE OPERATORS VI. CONCLUSION I. INTRODUCTION AND BACKGROUND ON THE USE OF DRONES

After the terrorist attacks of 9/11, President George W. Bush, in his capacity as Commander-in-Chief, authorized the use of drones against leaders of al-Qaeda forces, pursuant to Congress' Authorization for Use of Military Force (AUMF). (1) Pursuant to AUMF, drones could be utilized against al-Qaeda forces to target or to kill enemies. It has been reported that the United States possesses two types of drones: smaller ones, which predominantly carry out surveillance missions, and larger ones, which can carry hellfire missiles and have been used to conduct strikes and targeted killings. (2) Drone strikes have been carried out by both the military as well as the CIA. As Jane Mayer famously noted in her 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. (3) Moreover, although the President had designated Afghanistan and its airspace as a combat zone, the United States has used drones in other areas of the world, such as Yemen, where al-Qaeda forces have been targeted and killed. (4) In fact, the U.S. approach for the use of drones is that members of al-Qaeda forces may be targeted anywhere in the world: that the battlefield follows those individuals who have been designated as enemies due to their affiliation with al-Qaeda. (5) While many in the international community have criticized the United States' expansive geographical use of drones against al-Qaeda forces, (6) officials in the Bush Administration have defended the drone program as consistent and conforming to international law. (7) President Obama has continued this approach and has expanded the use of drones in the war on terror. (8) Moreover, high-level officials in the Obama Administration have offered detailed legal justifications for the legality of the American drone program.

Harold Koh, State Department Legal Advisor, justified the use of drones at the American Society of International Law Annual Meeting on March 25, 2010, arguing "it is the 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." (9) In his speech, Koh cited both domestic law (AUMF) and international law as proof that the United States is engaged in armed conflict with al-Qaeda, the Taliban, and "associated forces." (10) Targeted killings, according to Koh, are justified because they are performed in accordance with the laws of war. (11) In other words, the United States conducts targeted strikes consistent with the well-known principles of distinction and proportionality to ensure that the targets are legitimate and collateral damage minimized. (12)

Koh offered four reasons supporting the legality of targeted drone killings. First, enemy leaders are legitimate targets because they are belligerent members of an enemy group in a war with the United States. (13) Second, drones can constitute appropriate instruments for such missions, so long as their use conforms to the laws of war. (14) Third, enemy targets are selected through "robust" procedures; as such, they require no legal process and are not "unlawful extrajudicial" killings. (15) Finally, Koh argued that using drones to target "high level belligerent leaders" does not violate domestic law banning assassinations. (16)

The Obama Administration has continued to use drones in Pakistan, as well as in Yemen. Increasingly, however, the American drone program has been run by the CIA. (17) Leon Panetta, the CIA Director, has praised the drone program stating that drones were "the only game in town." (18) On September 30, 2011, a CIA-operated drone targeted and killed an American citizen in Yemen, Anwar aloAwlaki. (19) Al-Awlaki had been accused of holding prominent roles within the ranks of al-Qaeda and had been placed on a hit list, authorized by President Obama. (20) His assassination marked the first time in history an American citizen had been targeted abroad without any judicial involvement or proceedings to determine guilt of any crime.

In a subsequent speech, Attorney General Eric Holder confirmed the Obama Administration's view on the legality of targeted killings, including killings of American citizens. On March 5, 2012, in a speech at Northwestern University, Holder claimed targeted killings of American citizens are legal if the targeted citizen is located abroad, a senior operational leader of al-Qaeda or associated forces, actively engaged in planning to kill Americans, poses an imminent threat of violent attack against the United States (as determined by the U.S. government), and cannot be captured; such operations must be conducted in a manner consistent with applicable law of war principles. (21)

Despite Koh's and Holder's justifications, many have questioned the legality of the American use of drones to perform targeted killings of al-Qaeda members and of U.S. citizens. Philip Alston, UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, has famously stated his concerns that drones "are being operated in a framework which may well violate international humanitarian law and international human rights law." (22) This article highlights some of the most relevant issues surrounding the (il)legality of targeted killings under the current approach of the Obama Administration. This article concludes that most targeted killings are illegal under international law; only a very small number of such killings, performed under carefully crafted circumstances, could potentially comply with the relevant rules of jus ad bellum and jus in bello, and only if one accepts the premise that the United States is engaged in an armed conflict against al-Qaeda. This article discusses the following issues related to the use of drones to perform targeted killings: the definition of the battlefield and the applicability of the law of armed conflict (Part II); the identity of targetable individuals and their status as combatants or civilians under international law (Part III); the legality of targeted killings under international humanitarian law (Part IV); and the location and status of drone operators (Part V).

2. WHAT AND WHERE IS THE BATTLEFIELD? WHICH LAWS APPLY?

   Under the Bush Administration approach, the United States post 9/11 was engaged in a global war against terrorists. Under this expansive approach, the war had no geographic constraints, and the battlefield was of a global nature. (23) In other words, the war followed the terrorist enemies, and wherever they were located was where the battlefield could be temporarily situated. According to the Bush Administration, as well as the U.S. Supreme Court case Hamdan v. Rumsfeld, the United States was at war against al-Qaeda and Taliban forces, and the applicable laws were the laws of war. (24) Thus, military force, including the use of drones, could be used if consistent with the laws of war.

   Under the Obama Administration, the rhetoric has slightly changed: the United States is no longer engaged in a global war on terror but rather, in a war against al-Qaeda, the Taliban, and associated forces. (25) However, the Obama Administration, by conducting drone strikes in a variety of locations, including Pakistan and Yemen, has followed the Bush Administration view of the global battlefield. The Obama Administration believes, like the Bush Administration, that the laws of war apply to the use of drone strikes because the United States is engaged in an armed conflict. (26) Moreover, the Obama Administration has claimed drones can be used in countries that harbor terrorist enemies and are unwilling or unable to control territory where such enemies are located. (27) This rationale would likely exclude places like England and France from the possible definition and localization of the battlefield, but would purport to justify the use of drones in places like Pakistan and Yemen, where remote territories...