The events of 11September 2001 constitute the starting point when the previously questionableuse of unmanned aerial systems – also referred as drones – by the United Statesof America, not only has expanded exponentially in scope, location andfrequency but also gave rise to the adoption of a general policy acceptable tothe American public. The renowned “Global War on Terrorism” by the George W.Bush administration involved open and covert military operations, new securitylegislation and efforts to block the financing of terrorism worldwide.
On 14 September 2001, three days after the attacks in New York and Washington,US Congress authorized the President to use:”all necessary andappropriate force against those nations, organizations, or persons he i.e. thePresident determines planned, authorized, committed, or aided the terroristattacks”.1On 17 September2001, President Bush reportedly signed a secret intelligence finding whichauthorized the CIA to undertake ‘lethal covert operations’, meaning the targeted killing of specific individuals,thus annihilating the al-Qaida network. The U.
S. President speaking publiclyabout the adopted strategy as countermeasures to the terrorist attacks,commented that Osama Bin Laden was ‘wanted: dead or alive’. According to pressreports, senior CIA and administration officials summarized the presidentialfinding as follows:”The gloves areoff.
The President has given the agency the green light to do whatever isnecessary. Lethal operations that were unthinkable pre-September 11 are nowunder way. … U.S. willnow target without warning al Qaeda and other international terrorists aroundthe world.”2The targetedkilling policy of U.
S.,as well as their allies in the “war on terror” militarycampaign, is summarized perfectly in the example of the killing of six allegedterrorists on 3 November 2002, by a U.S. Predator drone in Yemen: Over the desert near Sanaa, Yemen, aCentral Intelligence Agency –controlled Predator drone aircraft tracked an SUVcontaining six men. One of the six, Qaed Salim Sinan al Harethi, was known tobe a senior al-Qaida lieutenant suspected of having played a major role in the2000 bombing of the destroyer USS Cole. He was “on a list of high-value targetswhose elimination, by capture or death, had been called for by President Bush.”The United States and Yemen had tracked al-Harethi’s movements for months. Now,away from any inhabited area, the Predator fired a Hellfire missile at thevehicle.
The six occupants, including al-Harethi, were killed.3This specificattack in Yemen established the starting point for the United States’ use ofdrones outside the armed conflict in Afghanistan and opened a discussion aboutthe legitimacy of the military force beyond the war zones of Afghanistan, Iraqand Syria due to the fact that drones have already targeted and killedsuspected terrorists and militants in tribal regions of Pakistan, Yemen, Libyaand Somalia.The existence ofthe armed conflict is essential in order to analyze the legality of dronestrikes in the examined areas. The definition of the armed conflict is notdescribed precisely in the law of armed conflict (international humanitarianlaw), despite the extensive use of the term in the 1949 Geneva Conventions orthe other treaties that constitute this branch of law.
In 1995, theInternational Criminal Tribunal for the Former Yugoslavia (ICTY) held that:”An armed conflictexists whenever there is a resort to armed force between States or protractedarmed violence between governmental authorities and organized armed groups orbetween such groups within a State. International humanitarian law applies fromthe initiation of such armed conflicts and extends beyond the cessation ofhostilities until general conclusion of peace is reached; or, in the case ofinternal conflicts, a peaceful settlement is achieved. Until that moment,international humanitarian law continues to apply in the whole territory of thewarring States or, in the case of internal conflicts, the whole territory underthe control of a party, whether or not actual combat takes place there.
“4This definition of ICTY in the Tadic case has been adopted ever since by otherinternational courts and tribunals. Once the existence of armed conflict is established, international humanitarianlaw applies equally to all sides participating to the conflict. It distinguishesthe armed conflicts as international armed conflict (IAC) or non-internationalarmed conflict (NIAC). The classification is essential to determine which setof rules apply to the conflict: those for IAC that are found mainly in the four1949 Geneva Conventions and Additional Protocol I or those for NIAC which are foundmainly in Article Three common to the four Geneva Conventions and AdditionalProtocol II.5Therefore, when the existence of the armed conflict is established andundisputed, the legality of drone strikes under the rules and norms of IHL andcustomary law is established. However, dueto the increased U.S.
operations ‘outside areas of active hostilities’6,the question of the application of IHL still remains ambiguous in areas such asPakistan, Somalia and Yemen. Because of the ambivalence of the term, it is quiteunclear whether the targeted killing conducted by drones are examined under thescope of International Humanitarian Law (IHL) – applied in armed conflict – orInternational Human Rights Law (IHRL) – applied at all times, in peace and inwar. . These bodies of law may be distinct but in certain cases, they are complementaryas both concerned with the protection of the life, health and dignity ofindividuals.B.
ProvidingDefinitions Armed conflict / areas of active armed hostilities – Unmanned Aircraft Systems(UAS) – Targeted killing Definition of Targeted Killings Despite the fact that the term “targeted killing” is repeatedly used, there isnot an established definition under international law and therefore the legalveil that covers the term is not yet explicit.However, the U.N. Special Rapporteur, Philip Alston, describes targeted killingas “the intentional, premeditated and deliberate use of lethal force, by States ortheir agents acting under color of law, or by an organized armed group in armedconflict, against a specific individual who is not in the physical custody ofthe perpetrator.
” He further proceeds adding that: “Targeted killings thus take place in avariety of contexts and may be committed by governments and their agents intimes of peace as well as armed conflict, or by organized armed groups in armedconflict. The means and methods of killing vary, and include sniper fire,shooting at close range, missiles from helicopters, gunships, drones, the useof car bombs, and poison.”7The term of targeted killing came to the fore in 2000, after Israel made publica policy of “targeted killings” of alleged terrorists in the OccupiedPalestinian Territories, aimed at “neutralizing terrorist organizations” by”targeting wanted terrorists” suspected of initializing, planning, andexecuting terrorist activities against Israeli citizens.8 Asthe Israeli Defense Minister stated by efficiently summarizing the policy: “Ican tell you unequivocally what the policy is.
If anyone has committed or isplanning to carry out terrorist attacks, he has to be hit… It is effective,precise and just.” At a meeting of the Foreign Affairs and Defence Committee,Prime Minister Ehud Barak put the claim more broadly: “If people are shootingat us and killing us, our only choice is to strike back. A country underterrorist threat must fight back.
” And more directly, while visiting a militarycommand on the West Bank, Mr. Barak was quoted as saying, “The IDF is free totake action against those who seek to harm us”.9Although the term “targeted killing” gained popularity, other expressions forsuch practice are, inter alia, assassination, pre-emptive or preventivekillings, extra-judicial executions, and extra-judicial killings but they areused rarely due to the fact that they carry a certain legal prejudice and mayinclude different connotations prescribing a specific function of killing suchas its punishing or preventive function.10 Afterthe terror attacks of 11 September 2001, the United States of America (US)proclaimed a doctrine of preventive function of targeted killings under the”global war on terror” military policy.
This has led to a practice by the US ofintentionally killing certain terrorist suspects both within areas of activehostilities and outside of them. The definition of targeted killing contains its direction against theindividuals. Therefore, regardless of whether such operations are undertaken inan inter-State context with a view to exercising the right of self-defenseagainst an armed attack, they should respect and apply theinternational human rights rules and, where applicable, the rules of armed conflict.11 Since takingoffice in January 2009, President Barack Obama multiplied the number oftargeted killing by increasing the use of a relatively new technology: unmannedaircraft systems, known as drones.12In May 2013, President Obama addressed to the concerns of human rightsadvocates who criticized openly and constantly the legality of the dronestrikes policy in a speech at the National Defense University. He stated that:”As was true inprevious armed conflicts, this new technology drones raises profoundquestions – about who is targeted, and why; about civilian casualties, and therisk of creating new enemies; about the legality of such strikes under U.S.
andthe international law; about accountability and morality.”13Drones are consideredthe main military and counterterrorism tools especially for U.S. targetedkilling operations, and therefore they must be defined in order to comprehendcompletely the targeted killing policy.UnmannedAircraft Systems (Drones)Unmanned aerialvehicles (UAVS), also known as drones, are aircrafts either controlled by’pilots’ from the ground or increasingly, autonomously following apre-programmed mission.
While there are dozens of different types ofdrones, they fall into two categories: those that are used for reconnaissanceand surveillance purposes and those that are armed with missiles and bombs.14 Anunmanned aircraft system (UAS) is a “system whose components include thenecessary equipment, network, and personnel to control an unmanned aircraft.” Insome cases, the UAS includes a launching element.15Unmanned aircraft systems (UAS) have experienced explosive growth in recenthistory and have proved to be an invaluable force multiplier for the JointForce Commander (JFC). UAS can provide both a persistent and highly capableintelligence, surveillance, and reconnaissance (ISR) platform to troopsrequiring a look “beyond the next hill” in the field or “around the next block”in congested urban environments and, if necessary, also assist troops incontact or perform strike missions against high value targets (HVTs) ofopportunityUAS are evolving into multi-role platforms able to provide both ISR “persistentstare” at targets over a large area and quick reaction strike at targets ofopportunity. They can be rapidly and dynamically re-tasked to other areas witha higher priority, and are currently enjoying tremendous freedom of action inuncontested airspace.
Because of this, UAS are proliferating throughout thetheater of operations supporting both the JFC and ground combatant commanders.To shape their battle space and make decisions affecting the outcome of theirengagements, commanders at all levels require situational understanding and UAScan provide a variety of these components. They increase the situationalawareness (SA) of commanders through intelligence, surveillance,reconnaissance, and target acquisition. Armed UAS provide commanders direct andindirect fire capabilities to prosecute the close fight and influence shapingof the battlefield, while being able to re-role into any component of the Find,Fix, Track, Target, Engage, and Assess kill chain. Other functions that UAStypically perform enhanced targeting through acquisition, detection,designation, suppression and destruction of enemy targets, and battle damageassessment (BDA). MQ-1B, outfitted with Hellfire missiles, and MQ-9, loadedwith laser guided missiles and gravity weapons, are providing immediate strikecapability and have provided laser designation for a number of differentplatforms.
They, along with smaller hand-launched UAS, have located snipers,improvised explosive devices (IEDs), mortar firing points, and fleeinginsurgents assisting the Commanders in winning the War on Terror. UASadaptability, versatility, and dependability have become indispensable tosuccessful joint combat operations.16Although PresidentGeorge W. Bush had only permitted the targeted killing of specific individuals,in 2008 he authorized the practice of signature drone strikes against suspectedal-Qaeda and Taliban fighters in Pakistan. Also termed “crowd killing” orterrorist attack disruption strikes by CIA officials, signature strikes targetanonymous suspected militants “that bear the characteristics of Qaeda orTaliban leaders on the run.” Obama’s administration extended and expanded thispractice into Yemen, which “in effect counts all military-age males in a strikezone as combatants . .
. unless there is explicit intelligence posthumouslyproving them innocent” 17In March 2014 UN Special Rapporteur Ben Emmerson issued his final reportto the UN Human Rights Council on the impact of drone strikes on civilians. Thereport argued that there was a ‘need to promote an international consensus onthe core legal principles applicable to the use of armed drones incounter-terrorism operations.’18 InJune 2014, the Stimson Center published a key report into the use ofarmed drones by the US.
The report argues that : “The existence of weaponized UAVs didnot “cause” the United States to engage in targeted killings of terror suspectsoutside of traditional territorially bounded battlefields, but it seemsreasonable to conclude that their existence enabled a significantly expanded UScampaign of targeted cross-border strikes against suspected terrorists. AnalystSarah Kreps, a former Air Force acquisitions officer now on the CornellUniversity faculty, noted in April 2014 that “of the estimated 465non-battlefield targeted killings undertaken by the United States sinceNovember 2002, approximately 98 percent were carried out by drones.”19Since it is already mentioned that targeted killings are by definition targetedagainst individuals, the most important rule of international law that needs tobe secured first is the human right to life, which is applicable in situationsof peace and in armed conflict including, in principle, during hostilities. 1 Nils Melzer, Targeted Killingin International Law (Oxford University Press 2009) 37-41.2 Nils Melzer, Targeted Killingin International Law (Oxford University Press 2009) 37-41.3 Roland Otto, TargetedKillings and International Law citing Gary Solis, “Targeted Killing and theLaw of Armed Conflict”, in: 60 Naval War College Review (2007), (Springer-VerlagBerlin Heidelberg c2012) 6.4 ICTY, The Prosecutor v.
DuskoTadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction,IT-94-1-A, 2 October 1995, para. 705 IHL treaties include: i) 1907Hague Regulations (Convention (IV) respecting the Laws and Customs of War onLand and its annex: Regulations concerning the Laws and Customs of War on Land.The Hague, 18 October 1907),ii) Convention (I) for the Amelioration of theCondition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12August 1949iii) Convention(II) for the Amelioration of the Condition of Wounded, Sick and ShipwreckedMembers of Armed Forces at Sea. Geneva, 12 August 1949iv) Convention(III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949v) Convention(IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12August 1949vi) ProtocolAdditional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of International Armed Conflicts (Protocol I), 8 June1977vii) ProtocolAdditional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of Non-International Armed Conflicts (Protocol II), 8June 1977viii)Protocoladditional to the Geneva Conventions of 12 August 1949, and relating to theAdoption of an Additional Distinctive Emblem (Protocol III), 8 December 20056 Procedures for ApprovingDirect Action Against Terrorist Targets Located Outside the United States andAreas of Active Hostilities (22 May 2013), available at: https://fas.
org/irp/offdocs/ppd/ppg-procedures.pdf7 Report of the Special Rapporteur onextrajudicial, summary or arbitrary executions, Philip Alston, Study ontargeted killings, pp3-4.8 Steven David, ‘Israel’s Policy ofTargeted Killing’ 2003 17(1) Ethics & International Affairs 116-118.9 UN Commission on HumanRights, Question of the Violation of Human Rights in the Occupied ArabTerritories, Including Palestine: Report of the human rights inquiry commissionestablished pursuant to Commission resolution S-5/1 of 19 October 2000, 1March 2001, E/CN.
4/2001/121,p.17 (para.54) available at:http://www.refworld.org/docid/3ae6b139c.html accessed 28 January 2018.10 Nils Melzer, Targeted Killing inInternational Law (Oxford University Press 2009) p.
9-14.11 Georg Nolte, Targeted Killinghttp://opil.ouplaw.com/view/10.
1093/law:epil/9780199231690/law-9780199231690-e415#law-9780199231690-e415.12 Mary Ellen O’Connell, InternationalLaw and Drone Attacks beyond Armed Conflict Zones in Cortright andothers (eds), Drones and the Future of Armed Conflict: Ethical,Legal, and Strategic Implications (University of ChicagoPress 2015) 63.13 Kate Martin, ‘Are USDrone Strikes Legal? A Guide to the Relevant Legal Questions’ 2016, Centerfor AmericanProgress org/issues/security/reports/2016/04/01/134494/are-u-s-drone-strikes-legal/> accessed29 January 2018. 14 Chris Cole and Jim Wright, ‘Whatare drones?’ (Drone Wars UK, January2010) pdf>accessed 29 January 2018.16 US Department of Defense, ‘UnmannedSystems Integrated Roadmap (fiscal years 2009-2034)’, Washington, DC, 2009, p.2and p.30 available at: https://www. uvsr.org/Documentatie%20UVS/Publicatii-internationale/UnmannedSystemIntegratedRoadmap-2009.pdf,accessed 29 January 2018.17 Micah Zenko, Reforming USDrone Strike Policies (Council Special Report) (Council on ForeignRelations Press 2013) 12-13, available at: https://www.cfr.org/report/reforming-us-drone-strike-policies,accessed 29 January 2018. 18Human Rights Council , Ben Emmerson Reportof the Special Rapporteur on the promotion and protection of human rights andfundamental freedoms while countering terrorism, A/HRC/25/59, February 2014, p.19-22.19 Gen. John P. Abizaid (Ret.)and Rosa Brooks, Recommendations and Report of the Task Force on UsDrone Policy (2nd edn, The Stimson Center 2015) 28.
org/issues/security/reports/2016/04/01/134494/are-u-s-drone-strikes-legal/> accessed29 January 2018. 14 Chris Cole and Jim Wright, ‘Whatare drones?’ (Drone Wars UK, January2010) pdf>accessed 29 January 2018.16 US Department of Defense, ‘UnmannedSystems Integrated Roadmap (fiscal years 2009-2034)’, Washington, DC, 2009, p.2and p.30 available at: https://www. uvsr.org/Documentatie%20UVS/Publicatii-internationale/UnmannedSystemIntegratedRoadmap-2009.pdf,accessed 29 January 2018.17 Micah Zenko, Reforming USDrone Strike Policies (Council Special Report) (Council on ForeignRelations Press 2013) 12-13, available at: https://www.cfr.org/report/reforming-us-drone-strike-policies,accessed 29 January 2018. 18Human Rights Council , Ben Emmerson Reportof the Special Rapporteur on the promotion and protection of human rights andfundamental freedoms while countering terrorism, A/HRC/25/59, February 2014, p.19-22.19 Gen. John P. Abizaid (Ret.)and Rosa Brooks, Recommendations and Report of the Task Force on UsDrone Policy (2nd edn, The Stimson Center 2015) 28.
pdf>accessed 29 January 2018.16 US Department of Defense, ‘UnmannedSystems Integrated Roadmap (fiscal years 2009-2034)’, Washington, DC, 2009, p.2and p.30 available at: https://www.
uvsr.org/Documentatie%20UVS/Publicatii-internationale/UnmannedSystemIntegratedRoadmap-2009.pdf,accessed 29 January 2018.17 Micah Zenko, Reforming USDrone Strike Policies (Council Special Report) (Council on ForeignRelations Press 2013) 12-13, available at: https://www.cfr.org/report/reforming-us-drone-strike-policies,accessed 29 January 2018.
18Human Rights Council , Ben Emmerson Reportof the Special Rapporteur on the promotion and protection of human rights andfundamental freedoms while countering terrorism, A/HRC/25/59, February 2014, p.19-22.19 Gen.
John P. Abizaid (Ret.)and Rosa Brooks, Recommendations and Report of the Task Force on UsDrone Policy (2nd edn, The Stimson Center 2015) 28.