Drones at War: An Introduction to the Law and Debate of “Targeted Killing”

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Category: Human Rights, International Law & Diplomacy, Public
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Thank you to Dean O’Hear for inviting me to write this month as the alumni blogger.

For the past few weeks, public attention has focused on the President’s decisions regarding the lethal targeting of known terrorists and other non-state hostile actors.  Although the issue may be relatively new to the public, it has long been a source of debate among legal experts in the area of international humanitarian law – also known as the Law of Armed Conflict or LOAC – and international human rights law (IHRL).  The debate largely centers on what is called “Targeted Killing.”  The intent of this post is not to discuss the legality of Targeted Killing itself, but to instead point readers to detailed sources to help readers start studying the Targeted Killing debate or the Law of Armed Conflict more generally.

Without exception, anyone interested in the subject must certainly start by reading the Targeted Killings case from Israel in 2005.  Beyond the Targeted Killings case, there is a growing body of treatment by scholars such as Kenneth Anderson, Laurie Blank, Amos Guiora, Nils Melzer, Mary Ellen O’Connell, and many, many more – far too many to list exhaustively.  One method may be to read one, and then follow up by reading the sources they cite or refute.  The United Nations released a study on the phenomenon as well, available here.

The question of Targeted Killing presents a number of pressing issues in the area of LOAC and IHRL, especially highlighting the tension between them.  The traditional view maintains that LOAC is the lex specialis during periods of armed conflict.  However, a growing view among some is that LOAC and IHRL work together, with IHRL filling in the gaps where LOAC is silent. See ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ rep. 226, para 25 (Nuclear Weapons).

Notwithstanding the tension between LOAC and IHRL, Targeted Killing seems to also raise questions about the technology that has come to be almost synonymous with Targeted Killing: drones, the Unmanned Aerial Systems (UAS).  For great review and commentary on drones, consider reading Chris Jenks here, Mary Ellen O’Connell here, and Kenneth Anderson’s recent review of drones in Libya here, where he notes on page 17:

Drones appear to have acquired strange new respect in Libya that they have not so far enjoyed in Pakistan or Afghanistan; one hopes it does not indicate a human rights pivot on drones on the basis of suddenly seeing their utility in humanitarian intervention but not ordinary conflict or in conflicts one likes versus conflicts one does not.  The standard of care for the conduct of hostilities is supposed to be the same no matter what the motive for fighting—national security interest or humanitarian altruism.  The speed and timing of this sudden new acceptance of drones in Libya raise questions as to what drove the change of heart.

But as intense as the Targeted Killing debate may burn, there’s a richer and more practically significant discipline within LOAC known as the Law of Targeting.

The Law of Targeting focuses on the cardinal principles of LOAC, distinction and humanity, as well as the often misunderstood principle of proportionality.  For great introductions to the Law of Armed Conflict, readers can download the U.S. Army Field Manual on the Law of Land Warfare, the U.S. Navy Commander’s Handbook on the Law of Naval Operations, or the United Kingdom’s Joint Service Manual on the Law of Armed Conflict.   If you are interested in some of its historical antecedents, W. Hays Parks provides a detailed review of the law in Air War and the Law of War, 32 A.F. L. Rev 1 (1990).

For a thorough analysis of the law of targeting as applied to the War in Afghanistan, consider reviewing Michael N. Schmitt, in Chapter XI of Volume 85 of the International Law Studies series published by the U.S. Naval War College.  Commonly called the “Blue Books,” the International Law Studies are a great publicly available resource on legal issues during military operations.  Additionally, the Military Law Review often publishes a single volume each year dedicated to International and Operational Law matters.

Finally, if any readers are interested in the day-to-day of targeting developments, the Long War Journal is a pretty good resource when it comes to monitoring events in Afghanistan, including kinetic strikes from UAS.  For broader policy issues regarding counterinsurgency and national security, Andrew Exum’s blog is a must.  Ultimately, if the intersection of law and national security is your cup of tea, especially the prosecution of terrorists in federal court or by military commission, you can’t go wrong with starting each day perusing lawfareblog.com.

Accordingly, if recent news articles about the President and targeting have raised questions for you, there’s a lot out there where you can find start to find answers.  The Social Science Research Network is a great tool for starting research, whether you search by author or subject.  And if this area of law interests you, perhaps consider reading more about international and operational law from some of the sources mentioned.

DISCLAIMER:

Jack Vrett, J.D. 2009, is a Captain in the United States Army currently assigned as the Chief of International and Operational Law for the 101st  Airborne Division (Air Assault).  The opinions and conclusions of this post, as well as its flaws, are solely attributable to the author. They do not necessarily reflect the views of the Judge Advocate General, the 101st Airborne Division (Air Assault), the United States Army, the United States Department of State, or any other federal entity.

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One Response to “Drones at War: An Introduction to the Law and Debate of “Targeted Killing””

  1. Nick Zales Says:

    There can be no justification for the administration’s drone warfare program. Far from being used for “targeted killing” of “terrorists,” innocent women and children are being killed too. Who exactly are we at war with?

    Nobody likes terrorists, but using drones that indiscriminately kill innocent people is an abomination to anyone with Christian morals and values as well as the rule of law.

    Likewise, the drone program is now being carried out over the United States. No one is being killed. Instead, the program is being used to spy on American citizens. As a Christian I find the drone program offensive; as a lawyer I find it illegal.

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