The has given the agency the green light

The events of 11
September 2001 constitute the starting point when the previously questionable
use of unmanned aerial systems – also referred as drones – by the United States
of America, not only has expanded exponentially in scope, location and
frequency but also gave rise to the adoption of a general policy acceptable to
the American public. The renowned “Global War on Terrorism” by the George W.
Bush administration involved open and covert military operations, new security
legislation 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 and
appropriate force against those nations, organizations, or persons he i.e. the
President determines planned, authorized, committed, or aided the terrorist
attacks”.1

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On 17 September
2001, President Bush reportedly signed a secret intelligence finding which
authorized 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 publicly
about the adopted strategy as countermeasures to the terrorist attacks,
commented that Osama Bin Laden was ‘wanted: dead or alive’. According to press
reports, senior CIA and administration officials summarized the presidential
finding as follows:

“The gloves are
off. The President has given the agency the green light to do whatever is
necessary. Lethal operations that were unthinkable pre-September 11 are now
under way.

… U.S. will
now target without warning al Qaeda and other international terrorists around
the world.”2

The targeted
killing policy of U.S.,as well as their allies in the “war on terror” military
campaign, is summarized perfectly in the example of the killing of six alleged
terrorists on 3 November 2002, by a U.S. Predator drone in Yemen:

  Over the desert near Sanaa, Yemen, a
Central Intelligence Agency –controlled Predator drone aircraft tracked an SUV
containing six men. One of the six, Qaed Salim Sinan al Harethi, was known to
be a senior al-Qaida lieutenant suspected of having played a major role in the
2000 bombing of the destroyer USS Cole. He was “on a list of high-value targets
whose 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 the
vehicle. The six occupants, including al-Harethi, were killed.3

This specific
attack in Yemen established the starting point for the United States’ use of
drones outside the armed conflict in Afghanistan and opened a discussion about
the legitimacy of the military force beyond the war zones of Afghanistan, Iraq
and Syria due to the fact that drones have already targeted and killed
suspected terrorists and militants in tribal regions of Pakistan, Yemen, Libya
and Somalia.

The existence of
the armed conflict is essential in order to analyze the legality of drone
strikes in the examined areas. The definition of the armed conflict is not
described precisely in the law of armed conflict (international humanitarian
law), despite the extensive use of the term in the 1949 Geneva Conventions or
the other treaties that constitute this branch of law. In 1995, the
International Criminal Tribunal for the Former Yugoslavia (ICTY) held that:

“An armed conflict
exists whenever there is a resort to armed force between States or protracted
armed violence between governmental authorities and organized armed groups or
between such groups within a State. International humanitarian law applies from
the initiation of such armed conflicts and extends beyond the cessation of
hostilities until general conclusion of peace is reached; or, in the case of
internal conflicts, a peaceful settlement is achieved. Until that moment,
international humanitarian law continues to apply in the whole territory of the
warring States or, in the case of internal conflicts, the whole territory under
the control of a party, whether or not actual combat takes place there.”4
This definition of ICTY in the Tadic case has been adopted ever since by other
international courts and tribunals.
Once the existence of armed conflict is established, international humanitarian
law applies equally to all sides participating to the conflict. It distinguishes
the armed conflicts as international armed conflict (IAC) or non-international
armed conflict (NIAC). The classification is essential to determine which set
of rules apply to the conflict: those for IAC that are found mainly in the four
1949 Geneva Conventions and Additional Protocol I or those for NIAC which are found
mainly in Article Three common to the four Geneva Conventions and Additional
Protocol II.5

Therefore, when the existence of the armed conflict is established and
undisputed, the legality of drone strikes under the rules and norms of IHL and
customary law is established.  However, due
to the increased U.S. operations ‘outside areas of active hostilities’6,
the question of the application of IHL still remains ambiguous in areas such as
Pakistan, Somalia and Yemen. Because of the ambivalence of the term, it is quite
unclear whether the targeted killing conducted by drones are examined under the
scope of International Humanitarian Law (IHL) – applied in armed conflict – or
International Human Rights Law (IHRL) – applied at all times, in peace and in
war. . These bodies of law may be distinct but in certain cases, they are complementary
as both concerned with the protection of the life, health and dignity of
individuals.

B. Providing
Definitions
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 is
not an established definition under international law and therefore the legal
veil that covers the term is not yet explicit.
However, the U.N. Special Rapporteur, Philip Alston, describes targeted killing
as
“the intentional, premeditated and deliberate use of lethal force, by States or
their agents acting under color of law, or by an organized armed group in armed
conflict, against a specific individual who is not in the physical custody of
the perpetrator.” He further proceeds adding that:
 “Targeted killings thus take place in a
variety of contexts and may be committed by governments and their agents in
times of peace as well as armed conflict, or by organized armed groups in armed
conflict. The means and methods of killing vary, and include sniper fire,
shooting at close range, missiles from helicopters, gunships, drones, the use
of car bombs, and poison.”7
The term of targeted killing came to the fore in 2000, after Israel made public
a policy of “targeted killings” of alleged terrorists in the Occupied
Palestinian Territories, aimed at “neutralizing terrorist organizations” by
“targeting wanted terrorists” suspected of initializing, planning, and
executing terrorist activities against Israeli citizens.8 As
the Israeli Defense Minister stated by efficiently summarizing the policy: “I
can tell you unequivocally what the policy is. If anyone has committed or is
planning 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 shooting
at us and killing us, our only choice is to strike back. A country under
terrorist threat must fight back.” And more directly, while visiting a military
command on the West Bank, Mr. Barak was quoted as saying, “The IDF is free to
take action against those who seek to harm us”.9
Although the term “targeted killing” gained popularity, other expressions for
such practice are, inter alia, assassination, pre-emptive or preventive
killings, extra-judicial executions, and extra-judicial killings but they are
used rarely due to the fact that they carry a certain legal prejudice and may
include different connotations prescribing a specific function of killing such
as its punishing or preventive function.10 After
the 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 of
intentionally killing certain terrorist suspects both within areas of active
hostilities and outside of them.
The definition of targeted killing contains its direction against the
individuals. Therefore, regardless of whether such operations are undertaken in
an inter-State context with a view to exercising the right of self-defense
against an armed attack, they should respect and apply the
international human rights rules and, where applicable, the rules of armed conflict.
11

Since taking
office in January 2009, President Barack Obama multiplied the number of
targeted killing by increasing the use of a relatively new technology: unmanned
aircraft systems, known as drones.12
In May 2013, President Obama addressed to the concerns of human rights
advocates who criticized openly and constantly the legality of the drone
strikes policy in a speech at the National Defense University. He stated that:

“As was true in
previous armed conflicts, this new technology drones raises profound
questions – about who is targeted, and why; about civilian casualties, and the
risk of creating new enemies; about the legality of such strikes under U.S. and
the international law; about accountability and morality.”13

Drones are considered
the main military and counterterrorism tools especially for U.S. targeted
killing operations, and therefore they must be defined in order to comprehend
completely the targeted killing policy.

Unmanned
Aircraft Systems (Drones)

Unmanned aerial
vehicles (UAVS), also known as drones, are aircrafts either controlled by
‘pilots’ from the ground or increasingly, autonomously following a
pre-programmed mission. While there are dozens of different types of
drones, they fall into two categories: those that are used for reconnaissance
and surveillance purposes and those that are armed with missiles and bombs.14 An
unmanned aircraft system (UAS) is a “system whose components include the
necessary equipment, network, and personnel to control an unmanned aircraft.” In
some cases, the UAS includes a launching element.15
Unmanned aircraft systems (UAS) have experienced explosive growth in recent
history and have proved to be an invaluable force multiplier for the Joint
Force Commander (JFC). UAS can provide both a persistent and highly capable
intelligence, surveillance, and reconnaissance (ISR) platform to troops
requiring a look “beyond the next hill” in the field or “around the next block”
in congested urban environments and, if necessary, also assist troops in
contact or perform strike missions against high value targets (HVTs) of
opportunity
UAS are evolving into multi-role platforms able to provide both ISR “persistent
stare” at targets over a large area and quick reaction strike at targets of
opportunity. They can be rapidly and dynamically re-tasked to other areas with
a higher priority, and are currently enjoying tremendous freedom of action in
uncontested airspace. Because of this, UAS are proliferating throughout the
theater of operations supporting both the JFC and ground combatant commanders.
To shape their battle space and make decisions affecting the outcome of their
engagements, commanders at all levels require situational understanding and UAS
can provide a variety of these components. They increase the situational
awareness (SA) of commanders through intelligence, surveillance,
reconnaissance, and target acquisition. Armed UAS provide commanders direct and
indirect fire capabilities to prosecute the close fight and influence shaping
of 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 UAS
typically perform enhanced targeting through acquisition, detection,
designation, suppression and destruction of enemy targets, and battle damage
assessment (BDA). MQ-1B, outfitted with Hellfire missiles, and MQ-9, loaded
with laser guided missiles and gravity weapons, are providing immediate strike
capability and have provided laser designation for a number of different
platforms. They, along with smaller hand-launched UAS, have located snipers,
improvised explosive devices (IEDs), mortar firing points, and fleeing
insurgents assisting the Commanders in winning the War on Terror. UAS
adaptability, versatility, and dependability have become indispensable to
successful joint combat operations.16

Although President
George W. Bush had only permitted the targeted killing of specific individuals,
in 2008 he authorized the practice of signature drone strikes against suspected
al-Qaeda and Taliban fighters in Pakistan. Also termed “crowd killing” or
terrorist attack disruption strikes by CIA officials, signature strikes target
anonymous suspected militants “that bear the characteristics of Qaeda or
Taliban leaders on the run.” Obama’s administration extended and expanded this
practice into Yemen, which “in effect counts all military-age males in a strike
zone as combatants . . . unless there is explicit intelligence posthumously
proving them innocent” 17
In March 2014 UN Special Rapporteur Ben Emmerson issued his final report
to the UN Human Rights Council on the impact of drone strikes on civilians. The
report argued that there was a ‘need to promote an international consensus on
the core legal principles applicable to the use of armed drones in
counter-terrorism operations.’18 In
June 2014, the Stimson Center published a key report into the use of
armed drones by the US. The report argues that :
 “The existence of weaponized UAVs did
not “cause” the United States to engage in targeted killings of terror suspects
outside of traditional territorially bounded battlefields, but it seems
reasonable to conclude that their existence enabled a significantly expanded US
campaign of targeted cross-border strikes against suspected terrorists. Analyst
Sarah Kreps, a former Air Force acquisitions officer now on the Cornell
University faculty, noted in April 2014 that “of the estimated 465
non-battlefield targeted killings undertaken by the United States since
November 2002, approximately 98 percent were carried out by drones.”19

Since it is already mentioned that targeted killings are by definition targeted
against individuals, the most important rule of international law that needs to
be secured first is the human right to life, which is applicable in situations
of peace and in armed conflict including, in principle, during hostilities.

 

 

1 Nils Melzer, Targeted Killing
in International Law (Oxford University Press 2009) 37-41.

2 Nils Melzer, Targeted Killing
in International Law (Oxford University Press 2009) 37-41.

3 Roland Otto, Targeted
Killings and International Law citing Gary Solis, “Targeted Killing and the
Law of Armed Conflict”, in: 60 Naval War College Review (2007), (Springer-Verlag
Berlin Heidelberg c2012) 6.

4 ICTY, The Prosecutor v. Dusko
Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction,
IT-94-1-A, 2 October 1995, para. 70

5 IHL treaties include: i) 1907
Hague Regulations (Convention (IV) respecting the Laws and Customs of War on
Land 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 the
Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12
August 1949

iii) Convention
(II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea. Geneva, 12 August 1949

iv) Convention
(III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949

v) Convention
(IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12
August 1949

vi) Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June
1977

vii) Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8
June 1977

viii)Protocol
additional to the Geneva Conventions of 12 August 1949, and relating to the
Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005

6 Procedures for Approving
Direct Action Against Terrorist Targets Located Outside the United States and
Areas of Active Hostilities (22 May 2013), available at: https://fas.org/irp/offdocs/ppd/ppg-procedures.pdf

7 Report of the Special Rapporteur on
extrajudicial, summary or arbitrary executions, Philip Alston, Study on
targeted killings, pp3-4.

8 Steven David, ‘Israel’s Policy of
Targeted Killing’ 2003 17(1) Ethics & International Affairs 116-118.

9 UN Commission on Human
Rights, Question of the Violation of Human Rights in the Occupied Arab
Territories, Including Palestine: Report of the human rights inquiry commission
established pursuant to Commission resolution S-5/1 of 19 October 2000, 1
March 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 in
International Law (Oxford University Press 2009) p.9-14.

11 Georg Nolte, Targeted Killing
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e415#law-9780199231690-e415.

12 Mary Ellen O’Connell, International
Law and Drone Attacks beyond Armed Conflict Zones in Cortright and
others (eds), Drones and the Future of Armed Conflict: Ethical,
Legal, and Strategic Implications (University of Chicago
Press 2015) 63.

13 Kate Martin, ‘Are US
Drone Strikes Legal? A Guide to the Relevant Legal Questions’ 2016, Center
for American
Progress  accessed
29 January 2018.

 

 

14 Chris Cole and Jim Wright, ‘What
are drones?’ (Drone Wars UK, January
2010)  accessed 29 January
2018.

15 US Department of Defense, ‘Unmanned
Systems Integrated Roadmap (fiscal years 2013-2038)’, Washington, DC, 2013, p.
4-6, available at :
accessed 29 January 2018.

16 US Department of Defense, ‘Unmanned
Systems Integrated Roadmap (fiscal years 2009-2034)’, Washington, DC, 2009, p.2
and p.30 available at: https://www.uvsr.org/Documentatie%20UVS/Publicatii-internationale/UnmannedSystemIntegratedRoadmap-2009.pdf,
accessed 29 January 2018.

17 Micah Zenko, Reforming US
Drone Strike Policies (Council Special Report) (Council on Foreign
Relations 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 Report
of the Special Rapporteur on the promotion and protection of human rights and
fundamental 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 Us
Drone Policy (2nd edn, The Stimson Center 2015) 28.

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