Jillian LaBruzzoPolitical Science 391E

Rules of WarProfessor Charli Carpenter

April 27, 2016

Drones and Targeted Killing Under International Law

In the last decade, the United States has increasingly relied on weaponized, unmanned aerial vehicles (UAV), or drones, to unilaterally conduct “targeted killings” abroad. The strikes are often carried out with the tacit consent of the sovereign state, against suspected terrorists residing within their borders. In 2010, Philip Alston, a UN Special Rapporteur, stated that drones, “are being operated in a framework which may well violate international humanitarian law and international human rights law.”1 The lawfulness of targeted strikes remains highly controversial to this day. In this paper, I seek to clarify why targeted killing continues to be so contentious in the international legal community. I will first argue that the permissibility of strikes remains so controversial, because there is no broad consensus about how to define the state of conflict between the US and non-state terrorist organizations. Without a conflict paradigm, there is no way to conclusively determine what legal regime to judge drone strikes under. In the latter part of my paper, I focus on the lack of transparency surrounding US drone operations, and how that makes it difficult to ascertain whether targeted killing complies with war law.

I. Introduction

The United States justifies its targeted killing program as a necessary tool for fighting an asymmetrical armed-conflict against foreign terrorist organizations.2 The dubious nature of US counterterrorism efforts is compounded by the fact that neither “terrorist,” nor “targeted killing,” is defined under international law.3 A UN report found that, not only is targeted killing undefined, but its principles do not comport with any widely accepted legal framework.4 The phrase, “targeted killing,” came into common parlance, as it was the terminology used by states that carry out drone strikes to euphemistically describe their actions. The term can extend to a multitude of different scenarios, and can apply to actions in both times of war and peace.5 The report further concluded that, “The common element in all these contexts is that lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance by the perpetrator.”6 Premeditated lethal force is only permitted during wartime. As such, unless the US is at war with al-Qaeda, targeted killings amount to extrajudicial executions.

1 Alston, Philip. "Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions." UN Human Rights Office of the High Commissioner. June 26, 2014. 2 Alston, 3.3 Alston, 3.4 Alston, 3.5 Alston, 3.6 Alston, 4.

LaBruzzo 2The ill-defined nature of drone strikes exposed a wide chasm in the international legal

community. Much of the literature debating the legality of drones was written before the United States expanded its drone program to aggressively target Daesh, al-Shabab, and other terrorist groups. Therefore, I will focus predominantly on US strikes against al-Qaeda and its affiliates. Among international legal scholars, the primary points of contention generally stem from divergent understandings about what constitutes an armed-conflict and whether the US is legitimately engaged in one against international terrorist organizations. Those who deem targeted strikes as legal tend to predicate their arguments on the premise that the US is actively at war with foreign terrorist groups, and thus has a right to self-defense.7 There is more variation amongst the academics who contest the legality of targeted killings. Some accept the notion that the United States is in an armed-conflict, but posit that US actions do not adhere to the jus in bello requirements that govern military engagement.8 Another school of thought contends that actions by foreign, non-state terrorist groups do not rise to the status of armed-conflict.9 The more cautious tend to qualify their opposition on the grounds that, although drone strikes are probably unlawful, the deliberative process remains too secretive to make a concrete determination.10

2. Legal Regimes

International armed conflicts fall under the purview of International Humanitarian Law (IHL), codified by the Geneva Conventions of 1949.11 IHL stems from jus in bello, or war law, which does not strive to prevent armed conflicts from occurring. Instead, it seeks to limit the suffering, by placing restrictions on permissible conduct once hostilities commence. In order to adhere to IHL, a state must meet the jus in bello requirements of distinction, necessity, and proportionality.12 A warring party must demonstrate that its offensive endeavors are out of strategic necessity. All actors must take the precautions necessary to distinguish civilian from military targets. By default, if it is unclear whether a person is a combatant or civilian, they are automatically granted civilian status. IHL does not prohibit civilian casualties, but it does require that any collateral damage must be proportional to the anticipated military gain.13

Human Rights Law (HRL) applies during peacetime and non-international armed conflicts. Its standards derive from the Universal Declaration of Human Rights (UDHR), which, among other things, guarantees the right to life and due process. In 1977, Protocol II (Geneva Conventions) passed, cataloging basic requirements for humane treatment of civilians in times of conflict. IHL offers more expansive protections than HRL, but it does not apply to anything below the level of international war. Molly McNab summarizes the relationship as, “…human

7 Kretzmer, David. "Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?" European Journal of International Law 16, 2 (2005): 183.8 Andreias, V.A. "Anticipatory Self-defense in International Law: Legal or Just a Construct for Using Force?" Tilburg University Law School : 9.9 O'Connell, Mary Ellen. "Remarks: The Resort to Drones Under International Law." Denver Journal of International Law & Policy 39 (2011): 597.10 Sterio, Milena. "Case Western Reserve." Journal of International Law 45, no. 1 (2012): 204..11 International Committee of the Red Cross (ICRC). "Advisory Service on International Humanitarian Law.". July 2004. doi:10.1007/978-90-6704-747-0.12 ICRC 2004.13 ICRC 2004.

LaBruzzo 3rights law governs where gaps exist in IHL.”14 In order to know whether drone strikes fall under the auspices of IHL or HRL, requires a concrete determination of the nature of hostilities between the US and al-Qaeda. The lack of consensus on the status of conflict means drone strikes fall into somewhat of a nebulous, legal gray area. This enables the US to conduct unilateral strikes without the legal constraints imposed by treaty law or international institutions.

3. Self-Defense Under the United Nations Charter

The right to territorial integrity is inviolable under the Charter of the United Nations. It requires that all states must respect the sovereignty of other members and asserts that every country remains equal under the Charter. Article 2(4) further stipulates that no state is permitted to use force within the boundaries of any other state.15 Article 51 articulates that the only exception is if a state has suffered from an “armed attack,” in which case, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense.”16 The precise meaning of these provisions is manifestly divisive in legal analyses assessing drones. The main points of contestation arise from how to define an armed attack, and whether the actions of a non-state actor provide enough grounds for the state they reside in to lose their entitlement to sovereign borders. Jordan Paust argues that, “self-defense supersedes territorial integrity.”17 Those who adhere to this view, often mention that terrorist cells recruit and plan attacks in foreign countries, prior to launching offensives against the US and its allies. It is the onus of every state to use whatever means required to prevent terrorists from seeking refuge within their borders. In the case of Pakistan, they failed to apprehend al-Qaeda operatives, so with that they relinquished any expectation of territorial integrity by the states targeted by acts of violence.18 Rosa Brooks is highly critical of this rationale, countering that, “This is a legal theory that more or less eviscerates traditional notions of sovereignty, and has the potential to significantly destabilize the already shaky collective security regime created by the UN Charter.”19 The Charter provides the foundational framework for international law. The increasing use of unilateral, preemptive strikes in foreign states directly contradicts many of the core principles contained in it. The UN remains one of the only institutions capable of exerting a semblance of order in the international system, so repeatedly undermining its rules of engagement serves to weaken its authority.

International legal experts, who support targeted killings, often believe in an “expansionist” understanding of the Article 51. They argue for a more fluid and less literal interpretation, with a focus on the Charter’s acknowledgement of an “inherent right” to self-

14 McNab, Molly, and Megan Matthews. "Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships Between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law." Denver Journal of International Law and Policy 39 (Fall 2011): 668.15 United Nations. "Charter of the United Nations." 24 October 1945: 3. 16 UN, 10.17 Jordan J. Paust, “Permissible Self-Defense Targeting and the Death of bin Laden,” Denver Journal of International Law and Policy 39 (2011): 56918 Orr, Andrew C. "Unmanned, Unprecedented, and Unresolved: The Status of American Drone Strikes in Pakistan Under International Law." Cornell International Law Journal 44 (2011): 736.19 Brooks, Rosa. "Drones and the International Rule of Law." Georgetown University Law Center 2013: 96.

LaBruzzo 4defense.20 The expansionist school of thought points to the preamble of the UN Charter, which declares the purpose of the UN is to maintain security and peace worldwide.21 V.A. Andreias, summarizes this perspective, in that, “Wouldn’t waiting for an attack to happen and then reacting in self-defense shift the purpose from maintaining peace to restoring peace?”22 Thus, preemptive self-defensive measures are a customary right, which align with the overall intent of the UN Charter. Tom Ruys, further argues that technological innovations make it impossible to take a strictly literal approach to the Charter.23 He uses nuclear proliferation to demonstrate the potential danger that can occur if a state waits until after an attack to take defensive measures. At that point, it would have already suffered catastrophic damage before being able to legally employ any preventive action.24 At the other end of the spectrum, “restrictionists” believe states should adhere to the ordinary meaning of the Charter. Similar to expansionists, they justify their rationale using the preamble of the Charter. However, restrictionists stress the importance of the first sentence of the preamble, which states the purpose of the UN is, “to save succeeding generations from the scourge of war.”25 They reject a state’s unilateral right to determine what constitutes an imminent danger, instead believing that any question of self-defense should be brought before the UN Security Council.26 Otherwise, there is a potential for states to use anticipatory self-defense as an excuse to launch offensive attacks. The examples provided by these two schools of thought, ultimately comes down to seemingly irreconcilable opinions on the pertinence of the UN Charter. Restrictionists believe in a literal, ordinary understanding, whereas expansionists believe in a more interpretive, customary reading.

4. Self-Defense Under Customary Law

Customary International Law (CIL) allows for a broader interpretation of “self-defense,” compared to the narrow definition contained in Article 51 of the UN Charter. Article 51 explicitly identifies exertion of force in response to a direct armed attack as the only permissible jus ad bellum, or reason a state can legitimately declare war.27 CIL takes a more lenient approach to self-defense. Unlike the UN Charter, CIL is not backed by any treaty or institution, yet it is still considered universally binding. CIL stems from international norms, established by the support and consistent practice of a majority of states.28 A tradition of customary law permits a state to violate the territorial integrity of another state it is not at war with, as long as it can meet four preconditions.29 In order to launch a preemptive strike, a state must demonstrate that:

20 Andreias, 9.21 UN.22 Andreias, 9.23 Tom Ruys, 'Armed Attack' and Article 51 of the UN Charter: Evolutions in Customary Law and Practice. Cambridge: Cambridge University Press (2010): 257.24 Ruys, 25725 UN/26 Andreias, 11.27 Nabulsi, Karma. "Jus Ad Bellum / Jus in Bello." Crimes of War. Online at: http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/.28 McNab, 664

LaBruzzo 5(i) it is acting in self-defense(ii) the attack is substantial and military (i.e., not an ‘isolated armed incident’)(iii) the offending nation is complicit, unwilling, or unable to prevent further

attacks(iv) the attack is widespread and imminent.30

CIL’s implicit permission for anticipatory aggression stems from the “Caroline Case.” In 1838, British naval forces destroyed a ship, named the Caroline, while in American territory.31 The British government justified the attack, saying the ship was carrying goods to people actively fighting the British in an armed rebellion in Canada. The US Secretary of State denounced the attack, stating that it could only be justified if the British could prove that, “…a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”32 Expansionists often point to the Caroline case to defend their customary interpretation of Article 51. Restrictionists counter that the Caroline incident occurred over a hundred year before the signing of the UN Charter. During that period, there were no international laws restricting inter-state wars.33 Although that may be the case, the Caroline doctrine established the principle of anticipatory self-defense, which henceforth altered the contours of customary law.

Customary law may provide a rationale for preemptive strikes, but it does not provide any legitimate means of oversight. Amnesty International published a report, stating that the Obama administration uses a “radical re-interpretation of the concept of ‘imminence,’” to allow the US to carry out unilateral strikes in the name of self-defense.34 In a similar vein, Brooks notes that this CIL provision does little to address the actual legality of targeted killings, and instead forces a reevaluation of what precisely an “imminent threat” entails.35 She extrapolates that previously the international community agreed that for a threat to be imminent, it must be “…one that is concrete and immediate, rather than speculative or remote.”36 Guiora takes a less nuanced approach, saying that, “States, in order to adequately defend themselves, must be able to take the fight to the terrorist before the terrorist takes the fight to it.”37 The difficultly then becomes finding a model of oversight that can constrain and ensure that all preemptive strikes fit in accordance with the criteria enumerated in CIL. Brooks explains how conceivably, the US could inform Pakistan it suspects a person residing within its borders of plotting an attack. If Pakistan does not find the evidence convincing and dissents, the US can claim that, “Pakistan is, ipso facto, ‘unwilling or unable to suppress the threat posed by the individual being targeted.’”38 In its capacity as a hegemonic power, the US can unilaterally violate the sovereignty of any state, as

29 Guiora, Amos N. "Anticipatory Self-Defence and International Law--A Re-Evaluation." Journal of Conflict and Security Law 13, 1 (2008): 9. doi:10.1093/jcsl/krn01730 Guiora, 9.31 The Avalon Project. "British-American Diplomcay: The Caroline Case.". Lillian Goldman Law Library (2008).32 The Avalon Project.33 Andreias, 11.34 Amnesty International. “USA: 'Targeted Killing' Policies Violate the Right to Life." June 2012: 1. 35 Brooks, 93.36 Brooks, 93.37 Guiora, 9.38 Brooks, 96.

LaBruzzo 6the, “United States is the self-appointed arbiter of whether a state is ‘unwilling or unable.’”39 Under this legal framework, the standards for jus ad bellum become increasingly moot. A drone strike may not necessarily be unlawful, but a new international norm is developing, where states tacitly agree that the US has the independent authority to dictate the rules of engagement.

5. The Law Enforcement Model

Under HRL, military tactics can only be employed when state ascends into a recognized armed conflict (AC), or defending itself from an armed attack by another country.40 Common Article 3 (Geneva Conventions) establishes two metrics for determining an AC. Hostilities must rise above a certain degree of intensity, and both belligerent parties must possess organized military forces.41 If a situation does not exceed the level of an AC, the law enforcement model must be followed. This does not limit counterterrorism efforts to the police force. The US can still project its full military might towards combating terrorism.42 However, all actions must follow police protocol, rather than martial law. This requires that all efforts must be made to apprehend a suspect. Unless a suspected terrorist imperils the lives of people in their direct vicinity, they must receive due process in court. Lethal force can still be used if necessary, but “…killing may not be the sole objective.”43 Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR), determined that in accordance with human rights law, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”44 Due process and the right to life are core components of HRL, and serve as the basis of police procedure in times of peace.

The law enforcement model does not appear that popular, but both its proponents and detractors defend their opinions vociferously. One rationale contends that al-Qaeda does not meet the criteria of an organized belligerent party, as it consists of loosely organized affiliates. O’Connell builds upon this, stating that, “The isolated terrorist attack, regardless of how serious the consequences, is not an armed conflict because armed conflict requires a certain intensity of fighting.”45 The random and isolated nature of attacks lead Sterio to suggest that, the US “is not fighting a true war, but chasing terrorists.”46 She references another ICCPR determination on the right to life, which stipulates that this right is inalienable, even “in time of public emergency which threatens the life of the nation.”47 Sterio notes that strikes on al-Qaeda are not born out of

39 Brooks, 96.40 McNab, 668.41 International Committee of the Red Cross."Non-international Armed Conflict.". May 30, 2012.42 McNab, 669.43 McNab, 670.44 Office of the UN High Commissioner for Human Rights. "Article 6(1) of the International Covenant on Civil and Political Rights Human Rights" .30 April 1982.45 O'Connell, 597.46 Sterio, 204.47 Office of the UN High Commissioner for Human Rights. "Article 4(2) of the International Covenant on Civil and Political Rights Human Rights" .31 August 200).

LaBruzzo 7imminent danger, but rather an attempt to “neutralize” operatives.48 In such cases, that amounts to state-sponsored assassination.

Opponents of the law enforcement model stress that police are ill-equipped to handle terrorist attacks. They make little mention of the fact that the system does not preclude additional support units. Rather, they tend to stress that while terrorism may not fall within the traditional scope of continuous fighting, it is still emblematic of an ongoing struggle. Kretz, argues that organized and persistent threats necessitate the armed conflict model, “…which is not based on notions of imminent danger from the specific person targeted, but on notions of the danger posed by the group to which the person belongs.”49 He believes this gives the US the requisite jus ad bellum to declare war, thus they are allowed to use warlike tactics, regardless of the category the situation falls under. He disputes the idea of an arbitrary deprivation of life, by describing the “last window opportunity to frustrate further terrorist attacks.50” Under this hypothesis, the threat of violence may not be imminent, but there may be limited opportunities to preempt it. Therefore, lethal force must be used when the chance arises, because there may not be a possibility to prevent harm from occurring later.51 Similarly, while Orr acknowledges that the situation may not amount to a classic armed conflict, the complexity and capabilities of groups like al-Qaeda renders the law enforcement model obsolete.52 He posits that while there remains an inherent difficulty in classifying modern terrorist organizations, “…groups like al Qaeda are really game changers in the world of international law, much like the internet was a game changer in the world of information and communication.”53 The overarching idea trends toward the belief that al-Qaeda operatives pose such a large threat, that self-defense trumps any concerns about due process.

6. A Global Battlefield

Former President George Bush’s declaration of a “global war on terror,” essentially turned the entire world into a potential battlefield. O’Connell summarized it as, “…the war followed the terrorist enemies, and wherever they were located was where the battlefield could be temporarily situated.54 Amnesty International concurred, pointing out that this allows the US to inflict lethal force wherever it chooses, with no regard to human rights standards.55 After the initial invasion, the Bush administration articulated as much, albeit less directly. Secretary of Defense Donald Rumsfeld, argued that because al-Qaeda was a non-state terrorist group, neither IHL nor HRL applied.56 However, while Bush declared war on an abstract entity, he explicitly said the US was also at war with al-Qaeda and the Taliban regime.57 Targeting the government of

48 Sterio, 205.49 Kretzmer, 183.50 Kretzmer, 182.51 Kretzmer, 182.52 Orr, 752.53 Orr, 752.54 O’Connell 2011, 595.55 Amnesty International: 1.56 Radin, Sasha. "Global Armed Conflict? The Threshold of Extraterritorial Non-International Armed Conflict." International Law Studies 89 (2013): 701-702,57 Sterio, 202.

LaBruzzo 8Afghanistan meant that at the time, the situation amounted to an international armed conflict. It therefore fell under the auspices of IHL. After coming into office, President Obama clarified the US position. He stated the US was not in a global war, but rather only at “war against al-Qaeda, the Taliban, and associated forces.”58 While rhetorically limiting the scope of the conflict, he furthered reduced the clarity surrounding the nature of the conflict. By that time, the Taliban no longer ruled Afghanistan. There was no longer any legitimate enemy state, which obfuscated the nature of the conflict. By traditional metrics, it ceased to be an international armed conflict, meaning that IHL no longer applied. Drone strikes carried out henceforth could no longer be justified as a legitimate use of force against enemy combatants.

7. International Armed Conflict and Non-International Armed Conflict

If the hostilities between the US and terrorist organizations do amount to war, it is vitally important to determine whether it falls into the category of international or non-international armed conflict. The US and al-Qaeda do not fit well into either state-centric paradigm, based on current models. Common Article 3 of the Geneva Conventions and Additional Protocol II define an international armed-conflict (IAC) as involving two states, while a non-international armed conflict (NIAC) involves a single state battling internal opposition.59 If a conflict is international in nature, conduct is judged under IHL. Even if it is accepted as an armed-conflict, if it is non-international, HRL and the law enforcement model still apply.60 O’Connell argues for a strict interpretation. Since al-Qaeda is a non-state actor, no number of casualties can ever escalate the situation to the level of AC.61 An alternate school of thought contends that the use of force within the sovereign territory of another state, without its express consent, automatically makes the situation an IAC.62

8. Jus in Bello and International Humanitarian Law

Setting aside considerations of territorial sovereignty, if the situation has escalated to the level of an IAC, targeted strikes would be legal under international law. Killing enemy combatants in wartime is permissible, even if it causes collateral damage.63 However, as aforementioned, all drone strikes must fit the requirements of necessity, distinction, and proportionality. In addition to targeted killing, in 2008, the US began a policy of “signature strikes.” Signature strikes allow drone operators to target unnamed people, based on human intelligence and “patterns of life” observed through aerial surveillance.64 The difference in terminology is significant - the US broadened the net so far, that it could no longer refer to

58 Sterio, 203.59 International Committee of the Red Cross."ICRC Opinion Paper.", March 2008.60 ICRC 2008.61 O’Connell 2011, 597.62 Milanovic, Marko. "What Exactly Internationalizes an Internal Armed Conflict?" EJIL Talk. May 07, 2010.63 ICRC 2008.64 Mary Ellen O'Connell. “The Right to Life in War and Peace: A Legal and Moral Critique of Targeted Killing.” Institute of Theology and Peace. 15 Aug. 2012.

LaBruzzo 9strikes as “targeted.” Since IHL requires civilian status be granted to anyone not clearly partaking in hostilities, signature strikes raise serious questions about whether US drone policy can adhere to the distinction principle. Condemning a person to death, based merely on aerial footage indicating their lifestyle patterns may fit a general profile, seems incongruous with IHL.

An Amnesty International report, from 2012, cites a statistic by the Bureau for Investigative Journalism, which estimates that between 2,854 to 4,175 people have been killed in drone strikes.65 The US argues that the majority of people killed in strikes are legitimate targets. However, Amnesty contends that the criteria the US uses to decide if a person killed is a legitimate target, follows a “guilty until proven innocent approach.”66 When determining whether a casualty was a combatant or a civilian, the US default is to classify any male of military age killed in a strike as a terrorist, unless there is strong evidence to the contrary.67 Even if the US is legitimately at war, the methodology used to determine collateral damage makes it even more difficult to ascertain whether targeted killings meet the jus in bello requirement of distinction.

The abstract nature and secrecy surrounding US drone policy also obfuscates whether the proportionality and necessity requirements of IHL are met. Andreias points out, it is near impossible to gauge the proportionality of jus in bello, unless an initial attack occurs. There is no yardstick against which to measure the harm caused by an anticipatory strike, simply because there is no evident material damage in an attack that never happened.68 This can also extend into the realm of necessity. The US classifies most of its intelligence briefings, so there is no way to access whether a targeted strike is both necessary and proportional. Guiora argues in favor of drone strikes, as long as they are supported by intelligence that meets his, “reliability and corroborated standard.”69 While well-intentioned, he provides no plausible means of oversight. The US does not want to relinquish its unilateral decision making power, and there is insufficient international organization to push for more transparency.

9. Transparency and Accountability

The legality of targeted killing relies not only on the legitimacy of the conflict, but on the status of the people who carry out the strikes. Leaked documents show that the US currently operates two separate drone programs. One is run by the military, while the other is kept classified and conducted through the Central Intelligence Agency (CIA).70 The US government publicly acknowledges the military operation, run through the Joint Special Operations Command (JSOC), although its operations remain highly secretive. JSOC strikes fall under Title 10 “armed forces,” making pertinent information publicly available.71 Although not fully transparent, it “…details steps in the joint targeting cycle, including the processes, responsibilities, and collateral damage estimations intended to reduce the likelihood of civilian

65 Amnesty International, 2.66 Amnesty International, 1.67 Amnesty International, 1.68 Andreias, 13.69 Guiora, 8.70 Sterio, 197.71 Zenko, Micah. "Transferring CIA Drone Strikes to the Pentagon." Council on Foreign Relations. April 2013. Online at: http://www.cfr.org/drones/transferring-cia-drone-strikes-pentagon/p30434.

LaBruzzo 10casualties”72 Aaron Drake, a former US Air Force pilot, contends that remotely piloted aircrafts (RPA), or drones, provide pilots more time to gauge proportionality and distinction. He cites Additional Protocol I of the 1949 Geneva convention, which states that before attacking, one must, “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.”73 Regular aircrafts only carry enough fuel to last about an hour, which forces pilots to make hasty decisions about whether to strike now or risk losing their target.74 Since fuel is no longer a concern, RPA pilots can better observe their suspect before opting to strike. Drake further argues that the chain of command ensures greater compliance with IHL. If there is a possibility of collateral damage, a RPA pilot must obtain pre-approval from the commanding officer.75 However, based on his description, it appears an individual pilot can still decide autonomously if a person is a legitimate target. He states that pilots can converse freely and share information with analysts.76 Ultimately, though, a pilot still determines who is a terrorist and who is collateral damage, thus making the chain of command less effective. Although not entirely satisfactory, Drake’s depiction suggests that the military run drone program does make an attempt to follow international law.

The CIA drone program is shrouded in secrecy, but its mere existence likely violates international law. Legally, the US government cannot confirm covert operations by the CIA.77 Drone operations by the CIA fall under “Title 50 covert actions,” which means that, “Activities of the United States Government… where it is intended that the role… will not be apparent or acknowledged publicly, but does not include traditional… military activities.”78 Presumably, deliberate strikes against perceived enemies count as military activity. The CIA is a civilian organization, which means its operatives lack the standing to employ military grade force. In an armed conflict, members of the military can legally kill enemy combatants. American civilians lack the authority to do that of their own volition. Even in times of war, that constitutes murder. The CIA is an intelligence agency, so it can conceal many of its actions. It can therefore privilege itself not to disclose its role in targeted killings, even if they are carried out in conjunction with military personnel. This secrecy prevents any meaningful assessment of the legality of drone strikes. Even if the US is at war with al-Qaeda, there is no way to determine if targeted killings cohere with jus in bello.

10. Conclusion

In order to conclusively determine the legality of drones and regulate their usage requires more transparency on the part of the US government. However, it is equally important to define the nature of hostilities. Continued uncertainty impedes serious consideration of the civilian

72 Zenko.73 Drake, Aaron M. “Current U.S. Air Force Drone Operations and Their Conduct in Compliance with International Humanitarian Law - An Overview." Denver Journal of International Law & Policy 39, 4 (Fall 2011): 642.74 Drake, 640.75 Drake, 644.76 Drake 64477 Zenko.78 Zenko.

LaBruzzo 11protections and limitations to military engagement, enshrined in the UN Charter and Geneva Conventions. It is abundantly clear that US counterterrorism efforts do not neatly fit into the traditional state-centric models. The different understandings of conflicts seem insurmountable, so it may be time to start looking at different ways to classify hostilities between the US and foreign non-state terrorist groups. One alternate option is the “extrastate armed conflict,” which comprises of an acknowledged nation-state and another political entity, which is not recognized as a state.79 This definition fittingly describes the current situation. Unfortunately, the extrastate model is not universally recognized, and lacks the necessary treaty or institutional backing to confer any legitimate legal obligations. However, working towards an alternative customary concept would be more constructive than continuing to regurgitate the same irreconcilable arguments about the quintessential definition of conflict.

The lack of consensus allows the US to continually escalate its targeted killing operations, with relatively minimal organized opposition. The US invokes “self-defense,” further obfuscating the intricacies of international law, as there is insufficient unanimity to even attempt to regulate or contest its unilateral exertions of force abroad. The mere adoption of “targeted killings” as the technical term for drone strikes shows the influence a hegemonic power can have on the normative framework that shapes international understanding. Unless the legal community can collectively push for reform, actions by the US will continue to shape the contours of international norms. This, in turn, will affect any future attempts to constrain or regulate the unilateral use of drone strikes.

79 Allen, Michael C."The Rise, Decline, and Rebirth of Extra-State Conflicts." The Quantitative Peace. May 15, 2014. http://quantitativepeace.com/blog/2014/05/the-rise-decline-and-rebirth-of-extra-state-conflicts.html.