Assassination & targeted killing - a historical and post-Bin Laden legal analysis.

Author:Vlasic, Mark V.
 
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  1. Recent Targeted Killing Policy and President Barack Obama's Expanded Drone Attacks

    In many ways, the Obama administration has not only followed in the footsteps of President Bush, but has ushered in an even more aggressive targeted killing campaign against terrorist leadership. As early as the 2008 presidential campaign, President Obama indicated that he would take a forceful approach to targeted killing, when he criticized what he perceived to be President Bush's lack of aggression:

    The Bush administration has not acted aggressively enough to go after Al-Qaeda leadership. I would be clear that if Pakistan cannot or will not take out Al-Qaeda leadership when we have actionable intelligence about their whereabouts, we will act to protect the American people. There can be no safe haven for Al-Qaeda terrorists who killed thousands of Americans and threaten our homeland today. (198) True to his word, President Obama and his administration have undertaken a number of targeted killing initiatives in Afghanistan, Pakistan, and elsewhere in the world. One component of Obama's strategy has been to increase the activities of U.S. Special Operations Forces (SOF). (199) From 2009 to 2010, SOF teams were deployed in fifteen additional countries, for a total of seventy-five countries. (200) For fiscal year 2011, Obama requested an increase in SOF funding of more than five percent, amounting to a total estimated budget of $6.3 billion. (201)

    However, the most notable expansion of Bush's policies has been Obama's marked increase in the use of UAV drone warfare, almost immediately upon taking office. (202) In 2010, the United States killed an estimated 581 militants in Pakistan during a total of 118 drone strikes. (203) That number was an increase from a mere thirty-three strikes made in 2008. (204) The more staggering statistic is the increase from the period between 2003 and 2007, during which the United States killed between 81 and 103 militants in only eight drone strikes. (205) Even assuming that the United States' use of drones was already increasing by the end of President Bush's second term, the Obama administration made more than three and a half times the number of strikes in 2009 that Bush made in 2008. Compared to the period between 2004 and 2007, the United States made thirteen times the strikes in 2009. (206)

    Moreover, there is no indication that the United States will reduce the rate of attacks. After the bin Laden raid, and during an eleven-day period in early May, the United States made five drone strikes. (207) This rate of one strike approximately every two days was an increase from the early months of 2011, when the United States was averaging one strike every six days. (208) The attacks have continued even as this Article is being written, including an August 2011 drone attack in Pakistan that killed Al-Qaeda's second in command, Libyan-born Atiyah Abd Al-Rahman, thought to be a possible successor to bin Laden in the terror network. (209)

    In addition to the increased frequency and deadliness of drone attacks, the United States has begun targeting militants in new regions outside of Afghanistan and Pakistan. Beginning in late June 2011, the United States commenced drone attacks against several Somalis in the militant group Al-Shabab. (210) Somalia is the sixth country in which the United States is engaged in drone operations, joining Afghanistan, Iraq, Libya, Pakistan, and Yemen. (211) The expansion raises the question by some of whether the United States can lawfully target members of terrorist organizations that were not involved in the September 11 attacks and have not made an "armed attack" against the United States. John Brennan recently conveyed the Obama administration's position on the matter:

    The United States does not view our authority to use military force against al-Qa'ida as being restricted solely to "hot" battlefields like Afghanistan. Because we are engaged in an armed conflict with al-Qa'ida, the United States takes the legal position that--in accordance with international law--we have the authority to take action against al-Qa'ida and its associated forces without doing a separate self-defense analysis each time. (212) This statement suggests that it is the Obama administration's position that it can target members of Al-Qaeda anywhere in the world. What is less clear is who and what constitutes an "associated force." If an associated force is any terrorist organization with similar ideological inclinations, then Brennan was asserting the right of the United States to target almost all terrorists throughout the world, regardless of whether they have attacked the United States. (213)

    As one might expect, the reactions from countries affected by U.S. drone strikes have been mixed. In the case of Pakistan, its government has been vocal in its condemnation of drone attacks resulting in civilian casualties. After a March 2011 missile strike went awry, missing its intended target and killing forty-four people, most of whom were civilians, the Pakistani Foreign Office released a statement declaring that the strike "was not only unacceptable, but also a flagrant violation of all humanitarian rules and norms." (214) The same spokeswoman indicated that Pakistan has demanded an apology and an explanation, and that "[t]he government of Pakistan strongly condemns the drone strike which has resulted in a large number of casualties." (215)

    On the other hand, Pakistan has also cooperated with the United States in its drone attacks. According to Shuja Nawaz, an expert on the Pakistani military, the government has sought to "have it both ways." (216) Nawaz says that "[t]he government of Pakistan pretended that this was the [United States] doing something unilaterally, when a fair amount of evidence is now available that many of the strikes were taking place with Pakistani assistance." (217)

    It is unclear exactly how the May 2011 raid on Osama bin Laden's compound will impact American-Pakistani relations long-term, specifically in relation to cooperation during drone strikes. In the immediate wake of the operation, Pakistan threatened to cut intelligence and military cooperation with the United States if similar attacks were made with Pakistani authorization. (218) Indeed, Pakistan ordered U.S. military trainers out of the country, held up visas for other U.S. officials, (219) and allegedly leaked the name of the CIA station chief located in Islamabad to the Pakistani media. (220) Pakistani Defense Minister Ahmed Mukhtar claimed that Pakistan had ended CIA drone flights from Shamsi airfield. (221) However, according to reports at the time of writing, the United States is still launching drone strikes from the base, located in southwestern Pakistan. One senior U.S. official speculated that the Pakistani government may have made the statements for purposes of domestic public relations, and was simply trying to deflect the anger some Pakistani citizens felt over the bin Laden raid. (222)

    John Brennan also released a statement confirming that the Pakistani government has cooperated with U.S. operations in the past, and will do so in the future: "As frustrating as this relationship can sometimes be, Pakistan has been absolutely critical to many of our most significant successes against [Al-Qaeda] I am confident that Pakistan will remain one of our most important counterterrorism partners." (223) If this statement is an accurate reflection of Pakistan's position, the United States is not in violation of Article 2(4).

  2. Critical Views of Targeted Killing and Drone Attacks

    Some commentators and agencies have condemned the practice of drone warfare. In a May 2010 Report of the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (May 2010 Report), delivered to the UN Human Rights Council, the Special Rapporteur made a number of conclusions, many of which were critical of the American drone program. (224)

    First, the Special Rapporteur rejected the assertion that drones are categorically prohibited weapons under IHL because of their effect of causing indiscriminate killing. (225) The proper inquiry for determining the legality of a weapon, according to the May 2010 Report, is whether "its specific use complies with IHL." (226) In this regard, the Special Rapporteur likened the drone to "other commonly used weapons, including a gun fired by a solider or a helicopter or gunship that fires missiles." (227)

    Second, the Special Rapporteur acknowledged that, although not categorically illegal, there is a "greater concern with drones" because their use removes some of the deterrent effects of traditional warfare. (228) Because drone strikes can be made from afar without risk of life and limb to military personnel, "policy makers and commanders will be tempted to interpret the legal limitations on who can be killed, and under what circumstances, too expansively." (229)

    Third, the Special Rapporteur raised a concern regarding the reliability of the information available to drone operators. (230) The report notes that forces on the ground are frequently ill-informed or otherwise uncertain about the combat status of targeted individuals. (231) This, therefore, may increase the likelihood that civilians and otherwise unlawful targets may also be killed in drone strikes.

    Civilian casualties are an important concern of policy makers and military commanders involved in the drone program. According to the New America Foundation, which closely follows the U.S. drone program in Pakistan and keeps a record of fatalities, the number of militant deaths due to drone strikes from 2004 to 2011 is estimated to range between 1,335 and 2,090. (232) The number of total deaths, including civilians, ranges between 1,628 and 2,561. (233) Thus, approximately eighteen percent of those killed by drone strikes have been civilian casualties. That said, the rate dropped to approximately five percent in 2011. (234)

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