CYIL vol. 11 (2020)

CYIL 11 (2020) LEGALITY OF TARGETED KILLINGS UNDER INTERNATIONAL LAW “ ambiguities” in interpretation of international law, generality in end-use requirements for recipients of drones, and “ willingness to allow international norms to arise from the practices of countries”, including those of the United States. 60 This study criticized the “ lack of transparency and clarity ” in the U.S. government’s policies for drones and targeted killing. The study attempts to define the legitimate “ extraterritorial use of military forces” . Compliance with the UN Charter is considered necessary, but “not sufficient as a condition to establish the legality of drone operations”. The authors maintain that international law principles for construing self-defense extend somewhat beyond responding to armed attacks and include “ anticipatory responses” to “ imminent threats ” of an armed attack. 61 The study supports the idea of “anticipatory” self-defense. 7. Targeted killings and Jus ad Bellum The use of armed force is prohibited according Article 2(4) of UN Charter and under international customary law as well. The prohibition of the use of force is considered to be a peremptory norm of international law (jus cogens). The only exceptions to the use of force are individual or collective self-defense and military actions realized or “authorized” by the UNSC. According to Article 51 and customary international law, a state may use force in self-defense, when an armed attack occurs. Besides, Article 51 of the UN Charter was formulated with regard to inter-states armed conflicts and not to restrain the use of force by terrorists or other non-state groups in internal armed conflicts. The rules on use of force were confirmed by consensus e.g. at the 2005 World Summit in New York. 62 The use of force is generally prohibited by Article 2(4) of the UN Charter. There is a common view that certain minimal use of force such as a single shot across boundary does not come within the scope of this Article. The prohibition of the use of force also relates indubitably to the use armed drones and targeted killings. Article 51 of the UN Charter confirmed that states have the inherent right to individual or collective self-defense “if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. Chapter VII of the UN Charter authorized the UNSC to act with respect to threats to peace, breaches of peace, and acts of aggression. 7.1 The notion of an “armed attack” There are differing views as to what constitute an armed attack and when it starts and ends. These disagreements have a serious impact on the conception of self-defense under the 1974 Definition of Aggression . An armed attack may also be pursued by “ armed bands, groups, irregulars or mercenaries, who are send by or on behalf another state and their armed acts are of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces or its substantial involvement therein ”. 63 The International Court of Justice (ICJ) in the Nicaragua case fully confirmed this stipulation on “armed attack”, stating that there appears now to 60 DAVIS, L. E., McNERNEY, M., GREENBERG, M. D., Clarifying the Rules for Targeting Killing , RAND Corporation, 2016, available at: https://www.rand.org/pubs/research_reports/RR1610.html. 61 Ibid, pp. 2-3. 62 UNGA, 2005, World Summit Outcome, 60th Session, UN Doc., A/60/L. 1, 15 September 2005, available at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_ RES_60_1.pdf. 63 UNGA resolution 3314/XXIX, Annex, Definition of Aggression, Article 3(g), available at: http://hrlibrary.umn. edu/instree/GAres3314.html.

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