CYIL vol. 11 (2020)

CYIL 11 (2020)

LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW

1. Introduction Targeted killings have become a foreign policy concept which implies “counter terrorism strikes”.They are used, particularly, by theU.S. and Israel against alleged terrorists.Targeted killings operations have been used in armed conflicts in Afghanistan and are also conducted by the U.S. in Pakistan, Yemen, Somalia, and elsewhere. Targeted killing policies or “program” have been mostly justified as a legitimate response to terrorist attacks. Most targeted killings have been carried out by armed unmanned aerial vehicles (drones), which may cause unintended “collateral” damages to civilians. The era of drone warfare was probably opened… In regard to targeted killings, there are many controversies about the legality of these actions, especially in cases of targeted killings for political aims. The Special Rapporteur Ph. Alston in his “Study on targeted killings” confirmed that “ A few States have adopted policies, either openly or implicitly of using targeted killings, including in the territories of other States. ” 1 In connection with policies of targeted killings, many legal questions have arisen. The notions of “armed conflict” or “self-defense against terrorist acts” are very substantial from the view of jus ad bellum . The use of lethal force against individuals outside zones of hostilities constitute an unlawful extrajudicial killing or assassination. Very controversial, is the use of force in self-defense against non-state actors in a foreign state’s territory without the consent of this state in violations of its sovereignty. There is also a legal problem with the correct determination that the state is “ unable ” or “unwilling ” to address the “ threats ” posed by the non- state actors in its territory. The use of drones for targeted killing outside any battlefield and its legal justifications have thus been, often very questionable and controversial. The rules governing resort to force form the central problem of today’s international law order. The jus ad bellum under international customary law requires, among others, the preservation of two principles, that of necessity and proportionality . The U.S. program of targeted killings began in the aftermath of the 11 September 2001 terrorist attacks. Targeted killings attracted enormous controversy and public concern. The most critical comments condemned targeted killings as a “ summary execution” , “extrajudicial killings ”, or “assassination” . The U.S. officials offered different legal justifications for the use of lethal force in targeted killings. One of them relies on the claim that the U.S. is engaged in a continuing armed conflict . The justification for its targeted killings in the territory of a third state relates a rule referenced in the so-called “ Caroline case ” of 1842. There are serious studies which cast doubt on the legality of targeted strikes on individuals or groups not linked to the terrorist attack of 11 September 2001. The opponents and critics of targeted killings and drone strikes maintain that this practice “ undermine[s] respect for the rule of law and international legal protection and may set dangerous precedent. ” 2 International law prohibits to kill, injure, or capture an adversary by perfidy. Some international law scholars condemn all targeted killings as “ unlawful ”, others have asserted that drone strikes are “ assassinations ” and thus impermissible under international law. 3 Targeted killings under Obama were indicated to be even worse than “Bush’ torture” on account of the policy killing “innocent bystanders”. 4 Conversely, there are 1 Doc. A/HRC/14/24/Add. 6, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum, Study on targeted killings, p. 3. 2 Living under Drones, Death, Injury and Trauma, International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, 2012, p. VIII. 3 Blog LAWFARE, Legality of Targeted Killing Program under International Law. See: https://www.lawfareblog. com/legality-targeted-killing-program-under-international-law . 4 O’CONNELL, M. E., Why Obama’s targeted killing is worse than Bush’s torture , the Guardian, 26 March 2012, https://www.theguardian.com/commentisfree/cifamerica/2012/jan/20/why-obama-targeted-killing-is-like- bush-torture, visited on 15 April 2020.

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