CYIL vol. 11 (2020)

CYIL 11 (2020) LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW defense in Afghanistan in response to the 9/11 attacks. Three weeks after the U.S. began its military action against Taliban and Al-Qaeda, a classified “intelligence finding” was issued that authorized CIA to pursue and intense effort “to end bin Laden leadership of Al-Qaeda ”. Despite the prohibition of assassination in the Executive Order, S. D. Murphy argues that a president may amend any executive order by subsequent order or directive. Moreover, he stated that the executive order was intended to prohibit the killing of “ government officials ”, not nongovernmental persons, such as bin Laden. 40 The UNSC resolution 1368 was adopted just one day after 11 September 2001, following a joint British and French initiative, unanimously called on the states to cooperate on bringing the perpetrators of the terrorist attack to justice . It is often said that these resolutions were labelling international terrorism as “ a threat to peace and security ”, which legitimized U.S. military actions against the Taliban and Al-Qaeda as an act of “ self-defense ”. NATO for the first time has invoked Article 5 of the North Atlantic Treaty. It was also the first time when such approval was taken against a non- state entity. Two weeks later, on 28 September 2001 based on the request of the U.S., the UNSC adopted resolution 1373 on a regime of obligatory sanctions against terrorism. 41 With regard to the SC resolutions, a question may arise, if these resolutions and the following practice have already changed the content of the right to self-defense and if they contributed to establishment of a new customary law. In both resolutions, there is no explicit stipulation on self-defense against terrorist attacks . Both resolutions either “recognize” or “reaffirm” the inherent right of individual or collective self-defense, without direct attribution of the right of self-defense of countries in their fight against terrorism of non-state actors. The Bush administration treated terrorists as “unlawful combatants”, justifying targeted killing of them, even outside the battlefield. These persons, for the U.S. “unlawful” or “illegal” combatants, were denied the rights accorded to prisoners of war if captured. International law does not know the term of “unlawful combatants”, which was used to remove these persons of legal protection according the Geneva Conventions. The U.S. took this position on the basis of the “global war” on terror, even outside the battlefield in Afghanistan, for strikes in Pakistan, Yemen, Somalia, and elsewhere. The Bush administration policies insisted that the U.S. may target and kill Al-Qaeda members wherever they are found. 42 On 22 May 2013 president Obama approved the classified Presidential Policy Guidance (PPG), establishing procedures for approving direct action against terrorist targets located outside the United States and areas of active hostilities. 43 This guidance maintained that “any direct action must be considered “lawfully” and taken against “lawful targets”. Lethal action should be taken in an effort “to prevent terrorist attacks against U.S. persons only when capture of an individual is not feasible and no other reasonable alternatives exist to effectively address the threat”. Moreover, the guidance stipulates that “international legal principles, including respect for a state’s sovereignty and the laws of war impose important constraints on the ability of the United States to act unilaterally- and on the way in which the United States can use force in foreign Session of 107 th Congress , 20 September 2001, available at: https://edition.cnn.com/2001/US/09/20/gen.bush. transcript/. 40 Supra note 20, p. 249. 41 See Doc. UNS/RES/1368/2001, Doc. UNS/RES/1373/2001. 42 KOH, H. H., The Trump Administration and International Law, Yale Law School Legal Scholarship Repository, 56 Washburn Law Journal , p. 420. 43 See http://academia.edu/upgrade?future=serchmatrigger=mentions-view=download-onsite-pingafter_upgrade_ path=%2Fmentions.

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