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be carried out from a safe distance from the battlefield removing risk to soldiers, the use of

Predator drones has greatly increased.

The main problem that the United States faces is that there are no or very few credible

human sources of intelligence on the ground, which leads to innocent civilian deaths. On his

third day of office, President Obama ordered C.I.A. drone strikes against Al-Qaeda targets in

Pakistan.4

While a small number of al-Qaeda operatives were killed by the drone attacks, the

attacks also killed a pro-government tribal leader and his entire family.5

In 2009 alone, it was

believed that 41 sanctioned drone strikes were responsible for the deaths of between three

hundred and twenty six and five hundred and thirty eight people in Pakistan alone.6

In the eyes of the international community, these drone strikes have led to serious

concerns about the international legality of the strikes. Professor Philip Alston, the Special

Rapporteur to the U.N. Human Rights Council, published a report on May 28, 2010, which

directly addressed the U.S.s use of drones in Afghanistan and Pakistan.7

Alston concluded

although the struggle against terrorism and the U.S. response is a legitimate aim, the increased

use of drones has impermissibly spread from armed combat to law enforcement of criminals,

leading to the displacement of clear legal standards with a vaguely defined license to kill, and the

creation of a major accountability vacuum.8 However, the growing sentiment remains that

targeted killings are okay under both international and domestic laws but only if the United

4

See, e.g., Mary Ellen OConnell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 , inSHOOTING TO KILL:THE LAW GOVERNING LETHAL FORCE IN CONTEXT (Bronitt, ed.) (forthcoming), available at

http://ssrn.com/abstract=1501144)5Id.6

Jane Mayer, The Predator War, The New Yorker, Oct. 26, 2009, available athttp://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer;7See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Human

Rights Council, 14th

Sess. [hereinafter Alston Report}, available athttp://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf8 Alston Report,supra note 7, at para. 3.


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will most likely increase their use of drones in order to maintain somewhat of a military

presences and to continue gathering intelligence.

The United States has executed drone strikes in Pakistan since 2004 when Taliban

fighters fled there from Afghanistan.13 While over 20 terrorists and or militants were reported to

be killed as the U.S. drone attacks increased, an estimated 750 to 1000 civilians, including

women and children perished.14

A January 13, 2006 an attack launched by a CIA-operated

unmanned Predator drone was targeting Ayman al-Zawahiri al-Qaedas second in command.15

In this case, U.S. officials say that their intelligence suggested al-Zawahiri was meeting with a

group of extremist associates however in the after math, Pakistani officials reported that al-

Zawahiri was not in the village and eighteen civilians were killed instead.16

The failure of the

attack and the high civilian casualties were highly criticized by then-President Prevez

Musharraf.17

While there have been attacks that appear to have been successful in eliminating specific

Taliban and al-Qaeda targets, they do nothing but polarize local sentiment against the U.S. due to

the number of innocent civilians killed. Despite the American justification of killing

international terrorists, the citizens of Pakistan are not impressed; a 2008 Gallup Pakistan poll

found that only 9% of Pakistanis approve of U.S. drone strikes within Pakistan and 67%

disapprove of the strikes. A majority of those polled also found the U.S. to be a larger threat to

13 OConnellsupra note 4, at 4. See alsoN.Y.Times. 6/19/2004 article, The Reach of War: Militants ex fighter for

Taliban dies in strike in Pakistan.14 Kaplan,supra note 115Id.16

Id.17 Gabriella Blum & Philip Heymann, 1 HARV.NATL SEC.J. 145, 150 (2010).


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Pakistan than India or the Pakistani Taliban.18

During a visit to Pakistan in October 2009,

Secretary of State Clinton was told that the Pakistanis living in the regions where the drone

strikes were occurring considered the drone strikes to essentially be terrorist actions against

Pakistani citizens.19

Despite this unpopularity, the U.S. government has shown no signs that it intends to

minimize or change its current drone campaign. The use of drones in the U.S.s international

activities seems to be increasing exponentially, as it protects the lives of American soldiers and is

a most efficient method of performing surveillance.

III. U.S. Policy Regarding Targeted Killings

In terms of domestic law, the main stumbling block to carrying out targeted killings is

Executive Order 12333issued in 1981 to protect both U.S. intelligence-gathering efforts and

constitutional rightswhich states, No person employed by or acting on behalf of the United

States Government shall engage in, or conspire to engage in, assassination.20

Official U.S.

Policy regarding international law has not always been embracing. While President Obama and

his administration has vehemently attempted to portray the U.S. in a more amicable light in the

international community, the general sentiment around the world is that the U.S. does what it

wants: In the Pursuit of al-Qaeda and Osama Bin Laden, U.S. officials find that the end almost

always justifies the means when it comes to targeted killings. However, during the current war

18 Id.19 Alex Rodriguez, Clintons Pakistan Visit Reveals Widespread Distrust of U.S., LOS ANGELES TIMES, Nov. 1,

2009, http://articles.latimes.com/2009/nov/01/world/fg-clinton-pakistan1.20

Executive Order 12333


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on terror, the U.S.s policy of counter-terrorism has relied upon international law as justifying

the means it has and will use against al-Qaeda and other terrorists abroad.

After the attacks of September 11, 2001, the world was faced with a new type of war as

the U.S. and the world sought legal justifications for what would become the war on terror.

The United Nations, on September 12, 2001, passed Resolution 1368 that states:

The Security Council,

Reaffirmingthe principles and purposes of the Charter of the United Nations,

Determinedto combat by all means threats to international peace and security caused by terrorist acts,Recognizingthe inherent right of individual or collective self-defence in

accordance with the Charter,

1. Unequivocally condemns in the strongest terms the horrifying terroristattacks which took place on 11 September 2001 in New York, Washington, D.C. and

Pennsylvania and regards such acts, like any act of international terrorism, as a

threat to international peace and security;. . . . 21

Article 1368 connected the terrorist attacks of September 11, 2011 to the right of the United

States [and any other country affected in the future] to the right of self-defense from armed

attack as protected under Article 51 of the UN Charter. Soon after, the U.S. Congress passed the

Authorization of Use of Military Force against Terrorism (AUMF). The AUMF authorized the

President to use all necessary and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred

on September 11, 2001, or harbored such organizations or persons, in order to prevent any future

acts of international terrorism against the United States by such nations, organizations or

persons.22

The U.S. Supreme Court has confirmed the use of the AUMF as self-defense against

terrorists as part of an armed conflict with such.23

21U.N. Sec. Coun. Res. 1368 (2001) (italics in original).

22 AUMF (2001).23SeeHamdi v. Rumsfeld, 542 U.S. 507, 535 (2004)Boumediene v. Bush, 553 U.S. 723, (2008);


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While President Bush and his Administration is responsible for the contemporary use of

predator drones, President Obama has continued their use in his Administrations continued

campaign against terrorism. During his Presidential campaign, Obama criticized the Bush

administration for not acting as aggressively to attack targets when the means (i.e., combat drone

strikes) were readily available. President Obama was not bluffing for campaign purposes about

increasing attacks on terrorist targets, as he ordered drone strikes against targets in Pakistan on

his third day in office.24

President Obama has since ordered a dramatic increase in drone

strikes against targets in Pakistan.25

The lack of use of attack drones is an attractive option for the government due to the

decreased level of danger to human troops and the increased ease with which targeted strikes and

killings can be executed. Compared with the monetary cost, political unpopularity and inherent

risk to human life involved with deploying troops to dangerous areas such as Afghanistan or

Iraq, relying on targeted drone strikes is a logical policy for Obama to pursue while addressing

the dangers of terrorists in said areas.

Harold Koh, the Legal Adviser to the U.S. Department of State, laid out the Obama

Administrations stance on International law.26

Koh stated that the United State is engaged in

armed combat with the Taliban and al-Qaeda as a response to the 9/11 attacks under the right to

self defense inherent in international law.27

Koh stated: "U.S. targeting practices, including

lethal operations conducted with the use of drones, comply with all applicable law, including the

24Id.

25 Blum & Heymann,supra note 17, at 151.26

Speech by Harold Hongju Koh, Legal Advisor, U.S. Department of State, to the Annual Meeting of the American

Society of International Law, The Obama Administration and International Law (Mar. 25, 2010) [hereinafter KohSpeech], available athttp://www.state.gov/s/l/releases/remarks/139119.htm.27Id.


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laws of war and that the U.S. is in "an armed conflict with al-Qaeda, the Taliban, and the

associated forces", and therefore has the lawful right to use lethal force to protect its citizens

"consistent with its right to self-defense" under international law.28

Koh identified three

elements that the U.S. considers when determining whether to authorize a specific targeted drone

killing: 1) the Imminence of the threat; 2) the Sovereignty of other States involved; and 3) the

Willingness and ability of those States to suppress the threat the target poses.29

Koh further

stated that the "rules" of U.S. targeting operations are consistent with principles of the laws of

war, citing the principles of distinction and proportionality and that the U.S. adheres to these

standards and takes great care in the "planning and execution to ensure that only legitimate

objectives are targeted, and that collateral damage is kept to a minimum."30

The question of what exactly defined an unlawful enemy combatant was clarified by

the U.S. Supreme Court in its decisions on some Guantanamo Bay cases and the enactment of

the Military Commissions Act (Hereafter MCA). The Court recognized that terrorists such as

al-Qaeda fighters could be considered enemy combatants engaged in armed conflict against the

U.S.31

Congress enacted the Military Commissions Act of 2006 (MCA) to provide military

tribunals for violations of laws of war.32

InBoumedine v. Bush, the D.C. Circuit held that under

the MCA and current U.S. law the definition of enemy combatant is an individual who was

part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in

28Id.

29Id.

30Id.

31See Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, infra.32 Military Commissions Act of 2006, 10 U.S.C.A. 948a et seq. (Supp. 2007).


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hostilities against the United States or its coalition partners. This includes any person who has

committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.33

Currently, the MCAs definition section, 948a, defines a privileged belligerent as an

individual belonging to one of the eight categories enumerated in Article 4 of the Geneva

Convention Relative to the Treatment of Prisoners of War.34

Section 948a(7) defines

unprivileged enemy belligerent as an individual who (A) has engaged in hostilities against the

United States or its coalition partners; (B) has purposefully and materially supported hostilities

against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the

alleged offense under this chapter.35 Finally, the MCA defines hostilities as any conflict

subject to the laws of war.36

Thus, currently, under U.S. law, an unlawful enemy combatant

in military actions is a current or past supporter or member of the Taliban or al-Qaeda who has

committed hostile acts towards the United States. The Obama Administration has

simultaneously asserted a commitment to international humanitarian law and the laws or war

while increasing drone strikes and other counter-terrorism based activities in countries where we

are not at war with the state actors, such as Pakistan and Afghanistan. While targeted drone

strikes have been criticized for civilian collateral damage, the alternative, full-scale warfare

would likely have far more civilian casualties and is ill suited for the pursuit of a small number

of terrorist actors.

IV. International Standards

33583 F.Supp. 2d 133 (D.D.C. 2008).

3410 U.S.C.A. 948a(6).

35 10 U.S.C.A. 948a(7).36 10 U.S.C.A. 948a(9).


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The one question that no one can answer with absolute certainty is what body of law

should govern targeted killings? U.S. law, by citing the laws of war and the Geneva

Conventions, hopes to be accepted within the legal concepts of necessity and proportionality, I

would think, and the U.S. would hope, that the laws of war would apply. However, it is

imperative to remember that Al-Qaeda is not a state actor nor acts on behalf of any state actor

and has no political power or authority. However the problem arises when non-state actors, such

as al-Qaeda, who are not states and thus are not held to the UN Charter and Geneva Conventions,

there are international norms that have become recognized as customary international law and

thus binding upon state actors, non-state actors, signatories and non-signatories alike. Whether

or not non-state actors like Al-Qaeda follow customary international is the dilemma the U.S.

faces as it seeks to combat an enemy who has no rules.

International law constitutes a large body of binding and non-binding sources of

international law and custom. Article 38(I) of the Statute of the International Court of Justice

states that sources of binding international law can be found in:

a. international conventions, whether general or particular, establishing rules expressly recognized by the

contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of

law.37

This conception of the sources of international law has been widely accepted being the

authoritative definition of the character of modern international law.38

Customary international

law reflects widespread state practices that are generally accepted as law.39

While not explicitly

37ICJ Statute Art. 38(I).

38 DAVID WEISSBRODT, ET AL, INTERNATIONAL HUMAN RIGHTS:LAW,POLICY, AND PROCESS, 412 (4th ed. 2009).39Id. at 876.


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written down or codified, a state may be bound by customary international law that derives from

the language of a treaty, even if the state is not bound by the particular treaty. Specifically, the

U.S. Supreme Court has held that customary international law is part of our law, and must be

ascertained and administered by the courts of justice of appropriate jurisdiction, as often as

questions of right depending upon it are duly presented for their determination.40

The Charter of the United Nations has outlined basic uses of force and self-defense as a

guide to the international community. The U.N. Charter recognizes that the use of force, while

unfortunate, is inevitable and Article 51 aims to provide for the right of member-states to self

defending, stating, Nothing in the present Charter shall impair the inherent right of individual or

collective self-defense if an armed attack occurs against a Member of the United Nations, until

the Security Council has taken measures necessary to maintain international peace and

security.41 This right to self-defense must be measured in light of Article 2(4)s prohibition on

the use of force against the territorial integrity or political independence of any State, or in any

other manner inconsistent with the Purposes of the United Nations.42

Thus, in order for armed

force to be used in the sovereign territory of another nation, the use must be 1) with the consent

of the nation or in a manner that does not otherwise violate their sovereignty under Article 2(4);

or 2) justified under Article 51s principle of self-defense. If actions of armed force are carried

out within the territory of a sovereign nation without their consent and not properly justified as

self-defense, the actions thus violate Article 2.

The notion of self-defense under the U.N. Charter has been the most prominent

international legal justification for use of armed force against non-state actors. The United States

40The Paquete Habana, 175 U.S. 677, 700 (1900);

41 U.N. Charter, art. 2, para. 4.42Id.


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invoked Article 51s right to self-defense when it began its military campaign against Al-Qaeda

following the attacks on September 1143

; Article 51s right to self-defense can only be invoked in

light of an armed attack,44

which raises the question of whether a non-state actor can carry out

an armed attack.45 With the recent wave of terrorist attacks around the world, the answer to the

questions is clearly yes, however international bodies, including the International Court of

Justice state that self-defense can only be taken in response to an attack by a state or groups

acting on behalf of one.46

However, legal scholars have recognized that attacks by non-state

actors independent of state involvement have risen to the level of armed attack held to justify

self-defense under Article 51; most prominently, as stated earlier, the U.N. Security Council took

specific note of the inherent right to self-defense in the immediate aftermath of the 9/11 attacks

carried out by Al-Qaeda, a non-state actor.

The basic norms of self-defense, under customary international law, find their roots in the

historic Caroline case.47

The Caroline case involved British military action, in 1837, against

Canadian rebels. In an attempt to prevent Canadian rebels from receiving supplies from private

U.S. citizens, British troops boarded the Caroline a private set it on fire and sent it crashing

over the Niagara Falls, killing two U.S. citizens.48

Heated corresponded commenced between

the U.S. and Britain, with the primary offence being British invasion and intrusion of U.S.

territory as the prime offense. The U.S. Secretary of State, Daniel Webster, recognized British

43 Koh Speech,supra note 26.44 U.N. Charter, art. 51.45 NOAM LUBELL, EXTRATERRITORIALUSE OF FORCE AGAINSTNON-STATE ACTORS,Oxford University Press, USA

p 31 (2010).46Id. (citing Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall

Case), Advisory Opinion, 2004 I.C.J. 107-13 (July 9)).47

LUBELL,supra note 45, at 34.48See, e.g., Jordan J. Paust, Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in

Pakistan, 19 J. OF TRANS.L.&POLY 237 (2010)


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right to act against the Canadian rebels for, if anything, matters of self-defense.49

It did not

matter that the Canadian rebels actions could not be marked as state actions of either the U.S. or

Canada for the notion of self-defense was still a right that Britain could properly invoke.50

However, Secretary of State Webster qualified his comments by stating that self-defense could

only be justified by necessity, which is instant, overwhelming, and leaving no choice of means,

and no moment for deliberation.51

Two important concepts in international law defining the appropriate limits of armed

force grew out of Websters stated doctrine of self-defense from the Caroline case; the principles

of necessity and proportionality.52 The International Court of Justice recognizes the principles of

necessity and proportionality as the applicable standards of limitation to acts of self-defense.53

The ICJ has stated that there is a specific rule whereby self-[defense] would warrant only

measures which are proportional to the armed attack and necessary to respond to it, a rule well

established in customary international law. . . This dual condition applies equally to Article 51

of the Charter, whatever the means of force employed.54

1. Necessity

The Caroline case is important as being one of the first instances to set out the concept of

necessity.55

Secretary of State Daniel Webster, in a letter to the British government following

the destruction of the Caroline, wrote that the act justified by the necessity of self-defense,

must be limited by that necessity, and kept clearly within it and that the necessity of that self-

49

Id. at 243.50 LUBELL,supra note 45, at 35.51Id.52Id. at 43.53Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 41 (July 8).54Id.55Id,


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[defense] is instant, overwhelming, and leaving no choice of means, and no moment for

deliberation.56

Obviously, the Caroline definition has not been applied literally nor unilaterally,

however necessity has, been applied to situations of relative immediacy and noted in cases where

nation-states wait days or even weeks before responding.57 However, it is imperative for all

participants to acknowledge that there needs to be an extremely timely correlation between the

armed attack and any measures that the attacked nation-state undertakes in self-defense.58

Because of all of the gray areas that still exist in armed relationships between state actors

and non-state actors, necessity may require the exhaustion of all other diplomatic responses, not

the least being an appeal to the host nation-state where the non-state actor is hiding.59

However, as the U.S. has experienced with its battle with Al-Qaeda, in many instances the non-

state actor does not have a home in a sole nation state that can provide remedy. Al Qaeda, under

the Taliban regime, found safe haven in Afghanistan. While the Taliban refused to cooperate

with the United Nations and the U.S. in handing over Al-Qaeda leadership to the United States,

the rebels, under the leadership of the Northern Alliance, allowed the United States almost full

access to enter Afghanistan and seek Osama Bin Laden and al-Qaeda. However, once the

Taliban were defeated, the new government in Afghanistan claimed to close its doors to Al-

Qaeda. No other country in the region (save a very select few) would be willing to risk the wrath

of the United States by willingly hosting such Al-Qaeda so diplomatic routes prove almost

impossible. The failure of the Taliban to cooperate thus properly triggered the concept of

necessity under the ICJs formulation, as well as the Article 51 conception to self-defense.

56 LUBELL,supra note 45, at 44 (quoting Letter, dated August 6, 1842, from Mr. Webster to Lord Ashburton,

Department of State, Washington).57

Id.58Id. at 4559Id. at 46.


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A new question that has arisen due to increased U.S. actions against Al-Qaeda both in

Afghanistan and on a global front regarding preventive measures. While few would dispute a

nations right to protect itself and its borders, especially when the threat is imminent, we

questions whether a nation-state has a right to take action in order to prevent hypothetical future

events? Does the United States have the right to rout out other terrorist organizations in order to

stop them from ever potentially targeting the U.S. or its citizens? Arguably, the Caroline case

was a case of pre-emptive self-defense, as the British troops were taking action intended to

curtail the Canadian rebels future capacity to wage attacks by destroying their supplies.60

The

Article 51 conception of self-defense, however, very explicitly only allows for self-defense in the

context of a response to an armed attack, which apparently provides for no preemptive action.61

Clearly, when an attack is imminent, however, there does not appear to have been much debate

regarding a nation-states ability to defend itself with preemptive attacks as to avoid any harm to

the nation-state or its citizens with full knowledge that an attack is very probably forthcoming

The potentially devastating results of armed attacks by non-state actors, such as the 9/11 attacks

or other future terrorist attacks, have led to the U.S. concluding that while [the] United States

will not use force in all cases to preempt emerging threats... in an age where the enemies of

civilization openly and actively seek the worlds most destructive technologies, the United States

cannot remain idle while dangers gather.62

60Id. at 56.

61See U.N. Charter, art 51.

62The National Security Strategy of the United States of America, The White House, September 2002,

http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.


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2. Proportionality

The concept of proportionality also finds its roots in Websters Caroline doctrine of self-

defense. Regarding the Caroline incident, Webster stated that the right to self-defense was

limited by the threat at hand; the response to any threat must be essential and proportional, and

all peaceful means of resolving the dispute [must] have been exhausted.63

Within the self-defense framework in situations of warfare, proportionality comes into

play when, for the sake of protecting a nation-state from the imminent threat, collateral damage

is done to civilians. When we are dealing with self-defense against non state actors, however,

the concern is whether the threat posed by the non-state actor warrants the energy and means

needed to face that threat.64

This balancing act raises many concerns with both domestic and

international critics of targeted killings. In the case of the Damodola attacks, was a potential

attack against Al-Zawhiri worth the eighteen innocent lives that resulted? Since he was not

killed, it is clear that their innocent lives destroyed did not equal the possibility of killing Al-

Qaedas second in command. But, if he was killed, how many innocent lives does his life equal?

As a mastermind of hundreds, if not thousands, of lives, if by killing him the U.S. could have

prevented thousand mores, than the innocent lives lost are an unfortunate but necessary casualty

of armed conflict.

In reality, the proportionality test is therefore much easier to formulate in principle than

to apply to a complex or uncertain set of circumstances. As a result, military commanders and

states have enjoyed a great deal of discretion in making these evaluations but face increased

63 LUBELL,supra note 45, at 6464Id, at 65.


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public pressure and scrutiny.65

In the case of Afghanistan, even though the U.S. and allied

military intervention went beyond the destruction of al Qaedas bases in that country and led to

the overthrow of the Taliban, it was nevertheless a proportionate action.66

Given the Talibans

opposition, there was never any possibility that the United States could destroy al Qaedas

presence in that country without affecting the outcome of the civil war that was already taking

place.67

B. International Humanitarian Law

International Humanitarian Law (IHL) is the body of international law that defines the

applicable legal human rights norms for nation-states involved in an armed conflict. The

Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY)

stated 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 within

a state and continued with [i]nternational humanitarian law applies from the initiation of such

armed conflicts and extends beyond the cessation of hostilities until a general conclusion of

peace is reached; or. . . a peaceful settlement is achieved.68

There does not need to be a formal

declaration of war or conflicts between nation-states or armed groups in order to qualify as an

armed conflict under IHL.69

The importance of formal declarations of war is an important

aspect of international legal jurisprudence in terms of conflicts between states and in adjudging

65See Jack M. Beard,Law and War in the Virtual Era, 103 AM.J.INTL L. 409, 428 (2009).66 CHRISTOPHERGREENWOOD,ESSAYS ON WAR IN INTERNATIONAL LAW 426 (2006).67Id. at 426.68

Id. See also Lubellsupra note 45 at 87.69See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in

the Field(August 12, 1949), 75 UNTS 31, entered into force October 21, 1950 (hereinafter1949 Geneva

Convention I) (the present Convention shall apply to all cases of declared war or of any other armed conflictwhich may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by

one of them.)


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internal uses of state emergency laws, but the necessary threshold to trigger IHL regarding

action against non-state actors is the existence of an armed conflict.70

Thus, in order to fall under IHL, non-state actors would have to be civilians who take

direct part in hostilities, and terrorist actors, such as al-Qaeda, can never qualify as

combatants under IHL rules of armed conflict. This inability to classify al-Qaeda fighters and

terrorists as combatants was one of the underlying reasons for the controversial nature of the

Guantanamo Bay cases (alleged human rights violations aside.) However, even though Al-

Qaeda members could not be classified as combatants under current IHL, they could be

civilians who take direct part in hostilities, who then lose the protections normally accorded to

civilians due to this illegal participation in armed conflict. Essentially, then, civilians taking

direct part in hostilities are in the gray area between civilian and combatant, and defining them as

unlawful combatants seems necessary to distinguish the fact that they neither are entitled to

civilian protections nor can they be considered proper combatants under current IHL. Thus,

when weighed with the standards of necessity and proportionality, targeted attacks against such

non-privileged civilians or unlawful combatants could satisfy requirements of IHL in a non-

international armed conflict.

C. Sovereignty

Sovereignty is undeniably implicated by the U.S. carrying out acts of armed combat and

self-defense against non-state actors within the borders of other legitimate nation states.

However, many legal scholars have noted that sovereignty of other nations is not an issue when

they consent, explicitly or implicitly, to the U.S. carrying out targeted killings within their

70LUBELL,supra note 45, at 88. Lubell notes that situations like the U.S. actions against Afghanistan early in the

2001 war where Afghanistans government was actually backing non-state actors such as al-Qaeda could have been

labeled as actual war.


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May 2, 2011

Exam Number: 339

19

borders.71

Arguably, when these nations cooperate through coordination and sharing of

intelligence,72

or are aware of the strikes but publicly deny such knowledge,73

the nations are

ratifying the strikes and thus there is no infringement upon their sovereignty. Pakistan, for

example, was consulted before any attack was made by attack drones upon its soil. However,

with fear that terrorist groups were warned in advance by certain sects of the government, the

United States started operating missions without Pakistans consent. Without specific

knowledge of whether the countries actually officially approve the actions or not, it is not

possible to conclusively determine whether sovereignty has been violated under international

law.

While carrying out law enforcement actions within another states territory without their

consent would be aper se violation of the UN Charter and potentially be an act of war which

could trigger a state of international armed conflict. In the case of Pakistan, conflict could arise

for the number of drone attacks conducted within its borders, however Pakistan is afraid to risk

the immense monetary aid they receive from the U.S and is assumed to give a broad implied

consent to the United States.. Yet, it must be noted that the state of Pakistan is not a theater of

war so justifying attacks done there is very different than actions performed in Afghanistan and

Iraq. While sovereignty issues could be a paper in itself. Thus, any targeted killing discussed

will be presumed to be executed with at least the implicit consent of the nation-state controlling

the relevant territory.

71Anderson,supra note 1, at 20;

72 Scott Shane, C.I.A. to Expand Use of Drones in Pakistan, NY Times, Dec. 4, 2009, available at

http://www.nytimes.com/2009/12/04/world/asia/04drones.html73

Kaplan,supra note 1. Despite the fact that NSA sources confirmed that Pakistani President Pervez Musharraf wasaware of the January, 2006 strike against Zawahiri, Pakistani Prime Minister Shaukat Aziz publicly denied advance

knowledge of the attack or that the U.S. had been granted permission to carry it out.


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Law 250 Terrorism

Professor Coll

May 2, 2011

Exam Number: 339

20

V. Conclusion

Drone strikes in Pakistan alone have been estimated to have killed over 1,800 people74;

while these strikes are likely necessary and proportionate to the grave threat they pose, these

attacks cannot continue without some measure of accountability. While military strikes resulting

in civilian casualties in the past have been justified due to a lack of knowledge, drone technology

has advanced to a point where the U.S. government can gather the exact numbers and identities

of possible civilian casualties.

Targeted killings are perfectly acceptable under international law and constitutionally if

we can ensure that those targeted are enemy combatants and that they are not operating as

civilians. Before acting, however, the United States must make sure it has excellent intelligence

so as to minimize the chances that the attacks inadvertently kill innocent people. U.S. officials

must also ensure that the benefits of eliminating the particular terrorists outweigh the political

and diplomatic fallout that is bound to happen. To prepare for such eventualities and keep its

options open, the U.S. government should improve its intelligence and rapid-strike capabilities in

countries where targeted killings might be necessary. It should also continue to develop and

deploy weapons, such as unmanned aircraft with limited-impact warheads that can kill suspects

without causing too much collateral damage. Even more important, Washington needs to develop

clear, transparent, and legitimate procedures for deciding when targeted killings are appropriate.

Unless the procedures for authorizing targeted killings are made clear, the United States risks

74Declan Walsh, Obamas Enthusiasm for Drone Strikes Takes Heavy Toll on Pakistans Tribesmen, GUARDIAN,

Oct. 7, 2010, http://www.guardian.co.uk/world/2010/oct/07/pakistan-drone-missile-obama-increased


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Law 250 Terrorism

Professor Coll

May 2, 2011

Exam Number: 339

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moving either too slowly when it decides to act (thereby allowing the target to escape) or too

quickly (bypassing appropriate deliberation or the careful vetting of intelligence). A public -

educated about the need for distasteful measures - would be more likely to tolerate them, even if

mistakes are made in the implementation of those measures. Unless the procedures are made

transparent they are unlikely to garner the legitimacy necessary to make them sustainable.

In the context of counter-terrorism and targeted killings, the lines between armed conflict

and law enforcement have blurred substantially. There does not seem to be a current consensus

under international law regarding what body of law should be applied to counter-terrorism

actions carried out within and among several states against non-state actors. The Obama

Administration seems to have implicitly recognized this by attempting to apply the rules of

armed conflict and laws of war to the war on terror while simultaneously recognizing that the

terrorists of al-Qaeda and its affiliates are acting outside of the laws of war and that enemy

unlawful combatants under U.S. law are arguably unlawful combatants under international

law.

How long and how far the United States can use the self-defense justification without

international push-back will be a test of time. Until that day, targeted strikes executed by the

U.S. military against al Qaeda and Taliban forces satisfy the criteria set forth in customary

international law, the U.N. Charter and U.S. law. The U.S. military and its coalition partners

need time and endurance to prevail in the counterinsurgency and counterterrorism situations in

Iraq, Afghanistan and the Horn of Africatargeted killing provides them the ability to endure

and strike, when necessary. With the current administrations increase in targeted killings over

the past two years, it does not appear these attacks will end in the near future. Moreover, U.S.


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Professor Coll

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Exam Number: 339

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military commanders face such challenges as force reduction, decreased budgeting and demands

for limited U.S. military casualties; these challenges only force commanders and mission

planners to utilize targeted killings instead of boots on the ground and other resources, saving the

lives of American soldiers at the potential cost of the lives of innocent civilians.

targeted killings1

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