CYIL vol. 11 (2020)

CYIL 11 (2020) LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW For that reason, the U.S. maintained that the jus ad bellum trigger is automatically satisfied, based on existence of continuing non-international armed conflicts (NIAC). Harold Koh in his lecture on “The Obama Administration and International Law” on 25 March 2010 to the American Society of International Law audience clearly declared that the U.S. targeting practices including lethal operations conducted with the use of unmanned aerial vehicles “ comply with all applicable law including the laws of war ”. He also stated that the U.S. “is in an armed conflict with Al-Qaeda as well as the Taliban and associated forces ” and may use force consistent with its “ inherent right of self-defense under international law ”. He repeated that the U.S. in this “ ongoing armed conflict ” has the authority under international law and responsibility to its citizens to use force, including lethal force, to defend itself, by “ targeting persons such as high level- Al-Qaeda leaders, who are planning attacks ”. In his view a particular leader of an enemy force is “belligerent” and therefore “lawful target under international law”. 51 J. Brennan declared on 16 September 2011 that the U.S. “ reserves the right to take unilateral action in foreign territories if or when other governments are unwilling or unable to take the necessary actions themselves ”. 52 E. Holder also claimed the right of the U.S. to “unilaterally” use force in a foreign territory “with the consent of the nation involved or after determination that the nation is unable or unwilling to deal effectively with a threat to the United States ”. 53 U.S. administration officials have two main, closely connected legal justifications for the use of lethal force in targeted killings. The first one consists in “ armed conflict ” with Al-Qaeda, the Taliban and “associated forces”. The second one is an invocation of the “ right of self- defense ” against “ imminent threats ” to its national security. These arguments are, as a rule, used in common. N. Melzer mentioned two “ normative paradigms ” for legal regulations of targeted killings. The “ hostilities paradigm” governs the targeted killing as an integral part of hostilities, including any person “not entitled to the protection against direct attack”. All other targeted killings, whether at home or abroad, are in his view governed by the “l aw enforcement paradigm ”. 54 The justifications by the U.S. administration, however, are not clear enough with regard to the concept of the alleged “armed conflict”, the notion and content of the “imminent threat” or the term “associated forces” to Al-Qaeda. The armed conflict justification should enable targeting individuals in hostilities on the basis of their status as combatants. The self-defense justification of targeting individuals is based on “imminent threat” to U.S. security, interests, and lives of citizens. The present administration of president D. Trump has been strongly criticized from within the U.S. for its disrespect of international law, particularly by opponents from the Democratic party and officials in Obama’s administration. H. Koh e.g. repeatedly raised “looming” 51 KOH, H. H., The Obama Administration and International Law Speech, Washington D.C., 25 March 2010, available at: https://2009-2017.state.gov/s/l/releases/remarks/139119.htm. 52 BRENNAN, J., Strengthening our Security by Adhering to our Values and Laws , available at: https:// obamawhitehouse.archives.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security- adhering-our-values-an. 53 HOLDER, E., Speech at Northwestern University School of Law , 5March 2012, available at: https://www.justice. gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law, see also Remarks of J. O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, on “ Strengthening our Security by Adhering to our Values and Laws ”, Harvard Law School, Cambridge, Massachusetts, 16 September 2011, https://obamawhitehouse.archives.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our- security-adhering-our-values-an. 54 MELZER, N, supra note 10, p. 426.

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