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Drone Strikes and Targeted Killing Policies: Are They Ever Lawful

May 27, 2015

Heather Clark, 4th Year LLB and sub-editor of the Human Rights portion of the Review, discusses the use of drone strikes and targeted killing policies in modern warfare.

The U.S. and Israeli governments have, in recent years, adopted targeted killing policies in which armed drones are fired at singled out individuals who are suspected of being involved in terrorism in Afghanistan, Pakistan, Yemen and Palestine. The increased use of these anticipatory security measures is largely attributed to the emergence of new security threats particularly since the devastating power of modern terrorist organisations was realised in the 9/11 attacks. Whilst modern counter-terrorism strategy may arguably render targeted killings desirable, the legality of such measures is challengeable. By applying United Nations law, international humanitarian law and international human rights law to the practice of targeted killings, the legality of these drone strikes will be determined.

 

THE CHARTER OF THE UNITED NATIONS

Whether deemed to be in a state of war or peace, a State can only use force within another State’s territory in exceptional circumstances provided for in the Charter of the United Nations.[1] The use of force is generally prohibited,[2] however, a State is entitled to use force in exceptional circumstances: where it is authorised by the UN Security Council;[3] authorised by the State on whose territory the attack is to occur; or conducted in self-defence against an armed attack.[4] Since targeted killings have neither been authorised by the host States nor by the Security Council, the practice will only be permissible if the terrorist activity is deemed to constitute an armed attack under article 51 of the Charter.

The International Court of Justice has concluded that since terrorist attacks are not attributable to a State, they do not constitute an armed attack.[5] Similarly, there is some academic support for this finding which classifies terrorist attacks as non-State, criminal activity.[6]  In spite of this however, the overwhelming academic majority are in agreement that an armed attack orchestrated by non-State actors will engage Article 51.[7] Indeed, the text of the provision does not require the perpetrator of the armed attack to be a State, as this would render States exceptionally vulnerable.

Therefore, whilst the law is far from clear it is at least arguable that a State targeted by terrorism can lawfully respond with force.[8] However, the use of lethal force must also comply with international humanitarian law if the parties are in a state of war and otherwise should comply with international human rights standards.

 

INTERNATIONAL HUMANITARIAN LAW

If the parties are deemed to be in a state of war, the primary legal regime to be applied is international humanitarian law.[9] In order to establish that the parties are in a state of war, it must firstly be demonstrated that they are involved in an international armed conflict or a non-international armed conflict.[10] The Geneva Conventions state that an international armed conflict arises between two or more States,[11] and thus, there is largely academic agreement that a State cannot be involved in an international armed conflict with a terrorist organisation which has no government support.[12] Yet classifying relations between a State and an overseas terrorist organisation as non-international is also problematic since the Geneva Conventions suggest that the conflict must be contained within one State to be classified as non-international.[13]

Assuming that a State can be deemed to be in armed conflict with an overseas terrorist organisation – which seems highly unlikely in the current legal framework – targeted killings must further be in keeping with obligations under the principle of jus in bello. Parties to an armed conflict must distinguish between combatants and civilians,[14] and accordingly, cannot attack civilians unless and for such time as they take a direct part in the hostilities.[15] Terrorists cannot be described as combatants as they do not operate according to the laws and customs of war, do not wear a distinctive combatant symbol and rarely carry arms openly or subject themselves to a line of command.[16] By default, terrorists are therefore civilians,[17] and can only be targeted in such a time that they directly take part in the hostilities.

The scope of this definition is the subject of much academic debate and as a result it is unclear when terrorist suspects are out-with civilian protection and can therefore be targeted. Many scholars suggest that persistent involvement in hostilities is not sufficient to lift civilian protection indefinitely.[18] Therefore, contrary to the assertions of the US government,[19] affiliation and continued engagement with terrorist activities will not warrant the use of targeted killing unless the individual is directly involved in an act of terrorism at the time of the attack. Furthermore, an individual cannot be targeted solely because of suspected affiliation or ongoing involvement with a terrorist organisation rather they must be shown to be directly involved in an attack. Targeting an individual who, to the average observer, is an innocent civilian arguably crosses into the realms of illegality or at the very least comes dangerously close to it.[20]

Targeted killings are permissible under international humanitarian law when used against individuals who are at the time of the attack, directly taking part in hostilities during an armed conflict. Only in these very exceptional circumstances will a targeted killing be justified as a legitimate act of war and seemingly, modern policies of targeted killings do not meet these strict standards. Furthermore, it is arguably an unjustifiable stretch of the law to suggest that a State could be involved in an international or indeed a non-international armed conflict with a terrorist organization. Therefore, international humanitarian law is rarely, if ever, applicable to the use of targeted killings.[21]

 

INTERNATIONAL HUMAN RIGHTS LAW

Arguably, international humanitarian law is not applicable in the majority of cases since the parties cannot be considered in a state of ‘legal war’, even if armed violence was taking place. Rather, the legality of targeted killings should be determined within a law enforcement model and therefore, must comply with international human rights standards.[22] 

All international human rights treaties provide for the right to life, yet nowhere is the right given absolute protection.[23] Indeed, the International Covenant on Civil and Political Rights (ICCPR) only protects against arbitrary deprivation of life,[24] and similarly the European Convention on Human Rights (ECHR) allows derogation in certain circumstances where such force is absolutely necessary.[25] Although the derogations in the ICCPR and the ECHR have differing definitions, there is general academic agreement that the two will produce analogous results in this context.[26] The use of lethal force will only be lawful where it is absolutely necessary to defend other persons against unlawful violence;[27] there is an immediate threat posed to the intended victims,[28] where arrest is not possible or would not prevent the realisation of the threat.[29] Further, targeted killings ought to be carried out with the sole purpose of preventing an imminent attack; it is certainly incompatible to adopt such a policy with the aim of deterring terrorist organisations or punishing those who have allegedly carried out an act of terrorism.[30] Many academics further suggest that human rights standards impose a procedural obligation on states to investigate after the strike to determine whether in fact the attack was lawful.[31]

Arguably, the modern use of targeted killings by the U.S. and Israeli governments violates the right to life under human rights standards. Where the individual intends or prepares to carry out the attack, the use of lethal force is not proportionate as there is still opportunity to stop the perpetrator before he carries out the threat and thus, the attack is not imminent.[32] Although the U.S. and Israel may argue that lethal force is only adopted at the last opportunity after which, it may no longer be possible to halt the attack, this does not conform to the immediacy doctrine since there is no immediate threat to the victim at this stage,[33] and thus, the use of lethal force is unlawful. It has been suggested that some drone attacks serve a punitive purpose as they target those previously involved in terrorism rather than aiming to halt an immediate threat,[34] which is certainly incompatible with the right to life.

It seems therefore, that targeted killings cannot be justified under the traditional legal frameworks. As States are rarely considered to be in a state of war with terrorist organisations, traditional principles of international humanitarian law are not applicable. Even if applicable, such principles would not justify the use of targeted killings since suspected terrorists are civilians who are attacked at times when they are not directly taking part in the hostilities. Therefore, for the use of targeted killings to be lawful they must conform to international human rights standards and accordingly, can only violate the right to life where lethal force is absolutely necessary to prevent the realisation of an imminent threat of serious unlawful violence. Yet, it is not in these truly exceptional circumstances in which the U.S and Israel deploy armed drones. There seems to be a relaxed standard of immediacy at the very least and at worst, a punitive element to the drone policies aimed not at preventing a future attack but punishing the perpetrators of a former attack.

The law as it stands suggests that modern use of targeted killing is predominately illegal, yet the continuing practice has been met with no repercussions from the international community. Have the voices of human rights activists been silenced by those who demand unfettered power on the grounds of national security, or is there public and political consensus that lethal force is a necessary response to new security threats? Wherever we stand, what is clear is that a new legal order is necessary to properly regulate the use of drone strikes – whether such a new legal order should make allowance for targeted killings or sanction those who adopt such a policy is up for debate.

 

[1] Amnesty International, ‘Will I be Next?’ U.S. Drone Strikes in Pakistan, (2013), 47, available at: http://www.amnestyusa.org/research/reports/will-i-be-next-us-drone-strikes-in-pakistan (last accessed: 2/10/2014).

[2] Article 2(4).

[3] Article 42.

[4] Article 51.

[5] ICJ, Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, 43 ILM (2004) 1009, para. 139.

[6] M. O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan 2004-2009 (Notre Dame, 2010), 14.

[7] J. Paust, ‘Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan’ (2009) Journal of Transnational Law & Policy 19(2), 237.

[8] D. Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ The European Journal of International Law 16(2), 171, 186.

[9] Advisory Committee on Issues of Public International Law, Advisory Report No. 23 on the Use of Armed Drones (The Hague, 2013), 15.

[10] Ibid. 16.

[11] The Geneva Conventions 1949, Common Article 2.

[12] Kretzmer, ‘Targeted Killing of Suspected Terrorists’, 189.

[13] The Geneva Conventions 1949, Common Article 3.

[14] Additional Protocol I to The Geneva Conventions 1949, Article 48.

[15] Ibid. Article 51.

[16] The Third Geneva Convention 1949, Article 4(2).

[17] Additional Protocol I to The Geneva Conventions 1949, Article 50.

[18] N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Geneva, 2009), 44-45.

[19] Kretzmer, ‘Targeted Killing of Suspected Terrorists’, 173.

[20] G. Nolte, ‘Preventive Use of Force and Preventive Killings: Moves into a Different Legal Order’ (2004) Theoretical Inquiries in Law 5, 111, 124.

[21] Paust, ‘Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan’, 259-260.

[22] R. Otto, Targeted Killings and International Law: With Special Regard to Human Rights and International Humanitarian Law (Heidelberg, 2011), 536 and N. Melzer Targeted Killing in International Law (New York, 2008), 224-225.

[23] Kretzmer, ‘Targeted Killing of Suspected Terrorists’, 177.

[24] Article 6(1).

[25] Article 2.

[26] Kretzmer, ‘Targeted Killing of Suspected Terrorists’, 177.

[27] ECHR, Article 2(2)(a).

[28] Nolte, ‘Preventive Use of Force and Preventive Killings’, 117.

[29] Otto, Targeted Killings and International Law, 82.

[30] Melzer, Targeted Killings in International Law, 222.

[31] Advisory Committee on Issues of Public International Law, Advisory Report No. 23, 5.

[32] Otto, Targeted Killings and International Law, 87-88.

[33] Nolte ‘Preventive Use of Force and Preventive Killings’, 115.

[34] Amnesty International, Will I be Next?’ U.S. Drone Strikes in Pakistan, 44.

 

 

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