The United States’ Use of Drones in the War on Terror: The (Il)Legality of Targeted Killings Under International Law

Abstract

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). 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 which have been used to conduct strikes and targeted killings. Drone strikes have been carried out by both the military as well as the C.I.A. 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 ware not based."

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. In fact, the United States’ 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. While many in the international community have criticized the United States’ expansive geographical use of drones against Al Qaeda forces, officials in the Bush administration have defended the drone program as consistent and conforming to international law. President Obama has continued this approach and has expanded the use of drones in the war on terror. Moreover, high-level officials in the Obama administration have offered detailed legal justifications for the legality of the American drone program.

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. Leon Panetta, the C.I.A. Director, has praised the drone program by stating that drones were “the only game in town.” On September 30, 2011, a C.I.A. operated drone targeted and killed an American citizen in Yemen, Anwar al-Awlaki. 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. His assassination marked the first time in history that an American citizen had been targeted abroad without any judicial involvement or proceedings in determining the guilt of such a citizen.

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 given at Northwestern University, Holder claimed that targeted killings of American citizens are legal under the following circumstances: if the targeted citizen is located abroad, if he is a senior operational leader of al Qaeda or associated forces, if he is actively engaged in the planning to kill Americans, if the US government has determined that the individual poses an imminent threat of violent attack against the US, if capture is not feasible, and if the operation would be conducted in a manner consistent with applicable law of war principles.

Despite the Obama Administration’s justifications, many have questioned the legality of the American use of drones in order to perform targeted killings of Al Qaeda members, and of United States citizens. Philip Alston, United Nations 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.” This article will highlight some of the most relevant issues surrounding the (il)legality of targeted killings under the current approach of the Obama administration. This article will conclude that most targeted killings are illegal under international law, and that only a very small number of such killings, performed under carefully crafted circumstances, could potentially comply with the relevant rules of ius ad bellum and ius in bello, only if one were to accept the premise that the United States is engaged in an armed conflict against Al Qaeda. This article will thus discuss 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 (II); the identity of targetable individuals and their status as combatants or civilians under international law (III); the legality of targeted killings under international humanitarian law (IV); and the location and status of drone operators (V).

Keywords: targeted killings, drones, international humanitarian law, use of force, citizenship