The United States' Use of Drones in the War on Terror: The (Il)legality of Targeted Killings under International Law
Sterio, Milena, Case Western Reserve Journal of International Law
After the terrorist attacks of September 11, 2001, the United States government began to use drones against al-Qaeda targets. According to several media reports, the United States developed two parallel drone programs: one operated by the military, and one operated in secrecy by the CIA. Under the Obama Administration, the latter program developed and the number of drone attacks in countries such as Pakistan and Yemen has steadily increased. Because the drone program is operated covertly by the CIA, it has been impossible to determine the precise contours of the program, its legal and normative framework, and whether its operators have been lawfully implementing the program. This article focuses on four distinct issues linked to the United States' use of drones: the definition of the battlefield and the applicability of the law of armed conflict; the identity of targetable individuals and their status as combatants or civilians under international law; the legality of targeted killings under international humanitarian law; and the location and status of drone operators. This article concludes that the Obama Administration, as well as any future administrations, should consider installing military-led drone operations, which would be subject to public scrutiny to ensure that the rule of law remains the guiding principle of the United States' use of force abroad.
CONTENTS I. INTRODUCTION AND BACKGROUND ON THE USE OF DRONES II. WHAT AND WHERE IS THE BATTLEFIELD? WHICH LAWS APPLY? III. WHO ARE THE TARGETS? IV. LEGALITY OF DRONE STRIKES UNDER Jus IN BELLO? V. LOCATION AND IDENTITY OF DRONE OPERATORS VI. CONCLUSION
I. INTRODUCTION AND BACKGROUND ON THE USE OF DRONES
After the terrorist attacks of 9/11, President George W. Bush, in his capacity as Commander-in-Chief, authorized the use of drones against leaders of al-Qaeda forces, pursuant to Congress' Authorization for Use of Military Force (AUMF). (1) Pursuant to AUMF, drones could be utilized against al-Qaeda forces to target or to kill enemies. It has been reported that the United States possesses two types of drones: smaller ones, which predominantly carry out surveillance missions, and larger ones, which can carry hellfire missiles and have been used to conduct strikes and targeted killings. (2) Drone strikes have been carried out by both the military as well as the CIA. As Jane Mayer famously noted in her article:
The U.S. government runs two drone programs. The military's version, which is publicly acknowledged, operates in the recognized war zones of Afghanistan and Iraq, and targets enemies of U.S. troops stationed there. As such, it is an extension of conventional warfare. The C.I.A.'s program is aimed at terror suspects around the world, including in countries where U.S. troops are not based. (3)
Moreover, although the President had designated Afghanistan and its airspace as a combat zone, the United States has used drones in other areas of the world, such as Yemen, where al-Qaeda forces have been targeted and killed. (4) In fact, the U.S. approach for the use of drones is that members of al-Qaeda forces may be targeted anywhere in the world: that the battlefield follows those individuals who have been designated as enemies due to their affiliation with al-Qaeda. (5) While many in the international community have criticized the United States' expansive geographical use of drones against al-Qaeda forces, (6) officials in the Bush Administration have defended the drone program as consistent and conforming to international law. (7) President Obama has continued this approach and has expanded the use of drones in the war on terror. (8) Moreover, high-level officials in the Obama Administration have offered detailed legal justifications for the legality of the American drone program.
Harold Koh, State Department Legal Advisor, justified the use of drones at the American Society of International Law Annual Meeting on March 25, 2010, arguing "it is the considered view of this Administration . …