Legality of Targeted Killing Program under International Law

I. Introduction

Academics, policymakers, the media, and others regularly debate the international legality of the U.S. government’s targeted killing program. That debate centers on the permissibility of USG targeting under two international legal frameworks: jus ad bellum (which governs the decision of whether or not to use force) and jus in bello (which governs the way that warfare, once undertaken, is conducted). Each of these areas of discussion will be discussed in turn.

 

II. Jus Ad Bellum

Scholars frequently debate whether the USG’s targeting policy is a permissible use of force under international law. At least according to the U.N. Charter, that the use of force is legitimate only if undertaken in self-defense or authorized by the United Nations.

A. The U.S. Government's Position: The U.S. is Engaged in a NIAC and Thus May Use Force Against Enemy Belligerents

The USG has taken the position (for instance, in speeches by President ObamaEric Holder, John Brennan, and Harold Koh) that there is a valid and ongoing non-international armed conflict (NIAC) between the United States, the Taliban, Al Qaeda, and associate forces, which consequently permits the USG to engage in at-will targeting of enemy belligerents. President Obama (in his May 23, 2013 speech on counterterrorism) recently reemphasized that view, stating that under both domestic and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. Based on that assertion, the USG claims that a jus ad bellum analysis need not be undertaken with respect to each individual targeting strike, as the jus ad bellum trigger is automatically satisfied more generally based on the existence of a continuing NIAC.

This, however, is a highly contested point. Some, such as Andrew Orr, have argued that the hostilities between the United States and al Qaeda do not rise to the level of an "armed conflict." Others, for instance, argue that, even in armed conflict, the act of targeting inherently violates international law, though Harold Koh has disputed that claim. And others, such as Philip Alston, assert that, even if in some form of NIAC, the USG has undertaken impermissible strikes beyond the scope of any existing conflict (for instance, in Pakistan against certain targets).

B. The U.S. Government's Alternative Position: Self-Defense

Some claim (including the USG, albeit only as a secondary, alternative argument) that the USG targeted killing program is a valid exercise of the United States’ self-defense rights under U.N. Charter. For example, Avery Plaw, Matthew Fricker and Brian Glyn Williams, as well as Dana Priest, have reported the argument that the USG’s targeting policy is consistent with the international law requirements for the use of self-defensive force.

And Attorney General Eric Holder has explained that the nations in which USG targeting has occurred have consented to the USG’s strikes or have been unwilling or unable to quell the threat at issue. As a presidential candidate, now-President Obama made statements supportive of this standard. However, others, such as Curtis Doebbler, have asserted that countries like Pakistan have not consented to the United States’ use of force within their borders, thus rendering at least some part of the USG’s targeting program invalid. On the other hand, Philip Alston has asserted that consent is not required, particularly where a nation is unable or unwilling to prevent insurgents from hiding and plotting attacks from within its borders. Likewise, Gabriella Blum and Philip Heymann – citing the Parks Memorandum – have explained that even outside of an armed conflict, the USG’s targeting policy may be justified as an exceptional use of force in self-defense alongside peacetime law enforcement.

However, Mary Ellen O’Connell disputes such claims, instead arguing that in the absence of an armed conflict, the USG may not engage in targeted killings in a foreign country, even if that country expressly consents to the USG’s acts. But others (in addition to the more general criticisms of O’Connell’s stance mentioned above) disagree with that proposition in particular. Specifically, Michael Lewis and Vincent Vitkowsky have argued that O’Connell’s boundary-based argument – rather than deriving from international law – actually degrades international legal principles and gives insurgents an inherent strategic advantage.

Others maintain that the United States has failed to fulfill its international legal obligations regarding self-defensive force in other ways. For instance, some claim that the USG impermissibly failed to report to the U.N. Security Council the USG’s carrying out of the U.S. drone program in Pakistan. In addition, some argue it is impermissible for the USG to claim self-defense rights against non-state actors. But, Harold Koh, and Sean Murphy have asserted that states today have tended to permit or at least tolerate the use of self-defensive force against non-state actors. Moreover, Robert Chesney and others justify the USG targeted killing program on the ground that the use of force against non-state actors is permissible where the nation in which the targeting occurred effectively consents to the operations.

C. Other Legal Limitations

Mary Ellen O’Connell has argued that the USG targeting program violates the necessity and proportionality requirements of jus ad bellum, but others, such as Harold Koh and John Brennan, have disputed that assertion.

O’Connell has also claimed that the USG must exhaust all measures to arrest terror suspects before targeting is permissible, that the USG has not done so, and that thus the USG targeting program violates international law. Again, though, Koh, Brennan, and others have countered that argument. Most recently, Eric Holder (in a May 22, 2013 letter to Patrick Leahy, Chairman of the Senate's Committee on the Judiciary) and President Obama (in fact sheets, available here and here, accompanying his May 23, 2013 speech on counterterrorism) reiterated that the USG has a strong preference for detention and prosecution of terrorists over the use of lethal force against them. But, these materials assert that the USG has undertaken a policy of using lethal force only when it is not feasible to capture a terrorist suspect not simply for legal reasons, but for policy considerations as well. For instance, one fact sheet stated that "[t]he policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect, because capturing a terrorist offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots."

 

III. Jus In Bello

Many have debated whether targeted killings---both certain operations and the targeting tactic more generally---violate international humanitarian law, the law governing the use of force once undertaken.

A. International Law's Prohibition on Assassinations

Philip Alston has explained that the international community generally condemns targeted killings as unlawful. And Gabor Rona, Jane Mayer, and Alston have all set forth variations of the argument that USG targeting policy degrades international humanitarian law or undermines the legal framework meant to protect human rights in armed conflict.

More specifically, Christine Gray has asserted that drone strikes are assassinations and thus are impermissible under international law. But others, including the Parks Memorandum, dispute that claim, and instead draw a distinction between illegal assassinations and the lawful targeting in armed conflict of those who are a direct threat to the United States. Attorney General Holder has made this point too

B. Distinction, Proportionality, Humanity & Necessity

Molly McNab and Megan Matthews have argued that drones are inherently indiscriminate and thus necessarily violate the international law principle of distinction, but John Brennan has publicly disputed this claim, arguing that the use of drones and other technology allows the USG to comply with the rule of “distinction” better than ever before.

O’Connell has argued that drone strikes violate the international legal principle of “proportionality.” John Brennan and Jeh Johnson, however, have publicly stated that the USG targeting program conforms to the proportionality rule.

Brennan has likewise stated that U.S. targeted killings comply with the international legal requirement of “humanity,” as the USG has chosen to use weapons that do not inflict unnecessary suffering, though O’Connell protests to the contrary. John Brennan and Stephen Preston have stated that USG targeting policy complies with the international legal principle of “necessity,” though, again, others dispute this.

Lastly, O’Connell, Sean Murphy, and Jordan Paust have argued that the USG’s targeting program violates the principle of “necessity,” as the U.S. has conducted operations against targets of questionable military value. Again, the USG disputes that claim, and John Brennan has described Al Qaeda members and associated forces as lawful targets under international law.

Addressing all of the above legal principles, the White House's May 23, 2013 Fact Sheet - U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities - states that compliance with these four jus in bello rules is an integral component of the overall standard that the USG uses in deciding whether or not to undertake a targeting operation against a particular terrorist target. That sheet asserts specifically: "[L]ethal force will be used outside areas of active hostilities only when the following preconditions are met: First, there must be a legal basis for using lethal force"; "Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons"; "Third, the following criteria must be met before lethal action may be taken:  (1) Near certainty that the terrorist target is present; (2) Near certainty that non-combatants will not be injured or killed; (3) An assessment that capture is not feasible at the time of the operation; (4)  An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and (5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons"; and "Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally - and on the way in which the United States can use force."

 

C. Use of Drone Technology Under International Law

While some claim that the use of drone technology, in particular, to conduct targeted killings inherently violates international law, others, including Philip Alston and Harold Koh, have countered that the use of unmanned aerial vehicles (UAV) should not be governed by an alternative legal regime from other weapons.

 

IV. Further Reading

 

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