Analyzing the Legality and Effectiveness of U.S. Targeted Killing

• Author: Laurie R. Blank
• Position: Clinical Professor of Law; Director, Center for International and Comparative Law; Director, International Humanitarian Law Clinic, Emory University School of Law
• Pages: 259-282

Analyzing the Legality and Effectiveness of U.S.

Targeted Killing

Laurie R. Blank*

INTRODUCTION

Targeted killing, “kill lists,” targeted strikes, “killer drones,” signature strikes—

the language of counterterrorism in the twenty-first century includes an entire vo-

cabulary describing, and sometimes vilifying, the deliberate use of lethal force

against a designated individual or individuals, in peacetime or during conflict,

who are known or believed to present a threat to national security. The United

States’ use of targeted strikes against identified terrorist and insurgent operatives

over the past two decades has engendered enormous debate in the legal and policy

arenas.

1

In the legal sphere, the discourse has focused on the legality of targeted

killing under international human rights law,

2

the international law of self-

defense,

3

and the law of armed conflict;

4

on the identification of individuals as

lawful targets; on the minimization and reporting of civilian casualties;

5

and on

other core questions. From the policy and strategic perspectives, scholars and pol-

icy makers have debated the effectiveness of targeted strikes in preventing terrorist

attacks, degrading or defeating terrorist or insurgent groups, or achieving other

national security objectives.

6

The discourse and rhetoric of the past two decades

demonstrates, however, that targeted killing is not either a legal debate or a

* Clinical Professor of Law; Director, Center for International and Comparative Law; Director,

International Humanitarian Law Clinic, Emory University School of Law. © 2023, Laurie R. Blank.

1. See, e.g., Michael N. Schmitt, Drone Attacks under the Jus ad Bellum and Jus in Bello: Clearing

the Fog of Law, 13 YBK. INT’L HUM. L. 311 (2010); Mary Ellen O’Connell, Unlawful Killing with

Combat Drones: A Case Study of Pakistan, 2004-2009, in SHOOTING TO KILL: SOCIO-LEGAL

PERSPECTIVES ON THE USE OF LEGAL FORCE (Simon Bronitt et al eds. 2012); Rosa Brooks, Drones and

the International Rule of Law, 28 ETH. & INT’L AFF. 83 (2014).

2. Philip Alston, Rep. of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions:

Study on Targeted Killings, A/HRC/14/24.Add.6 (May 28, 2010).

3. See Laurie R. Blank, Targeted Strikes: The Consequences of Blurring the Armed Conflict and Self-

Defense Justifications, 38 WM. MITCHELL L. REV. 1655 (2012); Jordan J. Paust, Self-Defense Targetings

of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan, 19 J. TRANSNAT’L L. & POL’Y

237 (2010); Geoffrey S. Corn, Self Defense Targeting: Conflict Classification or Willful Blindness? 88

INT’L L. STUD. 12 (2012).

4. See Schmitt, supra note 1; Ryan J. Vogel, Drone Warfare and the Law of Armed Conflict, 39

DENV. J. INT’L L. & POL’Y 101 (2010); Laurie R. Blank, After “Top Gun”: How Drone Strikes Impact

the Law of War, 33 U. PA. J. INT’L L. 675 (2012); Oren Gross, The New Way of War: Is There a Duty to

Use Drones?, 67 FL. L. REV. 1 (2015).

5. See, e.g., Paul Lushenko, Shyam Raman & Sarah Kreps, How to Avoid Civilian Casualties During

Drone Strikes — At No Cost to National Security, MODERN WAR INSTITUTE (Feb. 10, 2022).

6. See, e.g., Javier Jordan, The Effectiveness of the Drone Campaign Against Al Qaeda Central: A

Case Study, 37 J. STRAT. STUD. 4-29 (2014); Max Abrahms & Jochen Mierau, Leadership Matters: The

Effects of Targeted Killings on Militant Group Tactics, 29 TERR. & POL. VIOLENCE 830 (2017); Audrey

Kurth Cronin, Why Drones Fail; When Tactics Drive Strategy, 92 FOR. AFF. 44 (2013).

259

strategic and policy question, but rather melds the two inquiries into a more com-

plex and nuanced set of issues.

To assess the effectiveness of targeted killing, an essential first question is

“effectiveness at doing what?” Beyond the common conceptions of effectiveness,

which might include metrics such as eliminating, weakening, or defeating a par-

ticular terrorist group or deterring future attacks by such group, a range of other

possible ways to consider effectiveness are relevant as well.

7

Broadening the lens

of inquiry from one particular adversary group, one might consider whether tar-

geted killing is effective in combating terrorism more generally or, even more

broadly, as one instrument in protecting national security. However, the “what”

and “how” of effectiveness is opaque at best. Targeted killing:

[M]ay be effective in disrupting a terrorist organization in the short term but

not the long term. It may be effective in ending certain types of terrorist activ-

ities and in particular settings but not in others. It may be effective politically

in the country that launches the attack but not militarily on the ground. It may

be effective militarily but not diplomatically either in the land of the attack or

among international alliances. It may be either more or less effective on any

dimension than the available data are capable of revealing.

8

But targeted killing also presents entirely separate considerations of effective-

ness, such as whether the available tactic of targeted strikes is effective in ena-

bling the use of force with lower domestic or international constraints—in other

words, does targeted killing “make it easier” to use lethal force against terrorists

rather than another option with less immediate effects. One might even query the

effectiveness of targeted killing in the more amorphous space of messaging about

national security capabilities, in effect, as a means of communicating a state’s

willingness and capability to pursue enemies and threats regardless of more

traditional limitations on the projection of national power. The U.S. use of

“over-the-horizon” strikes in Afghanistan after its August 2021 withdrawal

could—depending on one’s interpretation and acceptance of the relevant legal

and policy justifications—be one such example.

9

President Biden, Remarks on the End of the War in Afghanistan (Aug. 31, 2021), https://perma.cc/

JDM6-8KDL.

One area where targeted killing has engendered enormous debate is, of course,

the law— both domestic and international law—but little if any of this debate has

explored questions and assessments of effectiveness. The question of “what

standards and metrics [a democracy] should . . . use to judge the propriety and

effectiveness of its actions”

10

is central to all national security decision-making

and analysis. However, most analyses and critiques of targeted killing assess legal

7. For an extensive discussion of various methods for analyzing the effectiveness of targeted killing,

see generally MITT REGAN, DRONE STRIKE—ANALYZING THE IMPACTS OF TARGETED KILLING (2022).

8. Brian Forst, Targeted Killings: How Should We Assess Them?, 16 CRIMINOLOGY & PUB. POL’Y

221, 221 (2017).

9.

10. Daniel Byman, Do Targeted Killings Work?, 85 FOREIGN AFF. 95, 96 (2006).

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