title: U.S. drone strikes and international law: Jus ad bellum, International Human Rights Law and International Humanitarian Law issues.
Creators: name: Lewis, Stephen
Publisher: name: University of Liverpool Repository
Year: 2015

description: “[I]n all of our operations involving the use of force, including those in the armed conflict with Al-Qaeda, the Taliban, and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law…[I]t is the considered view of this Administration…that US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” - Harold Koh, US State Department Legal Adviser. “My concern is that these drones, these Predators, are being operated in a framework which may well violate international humanitarian law and international human rights law.” - Philip Alston, United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions. The use of Unmanned Aerial Vehicles (UAVs), commonly referred to as “drones”, in lethal targeting operations, is one of the most topical and controversial issues in international law. The writer’s interest in this area, the relationship between technological developments in warfare and settled principles of international law, developed from his attendance at a lecture given by Professor Harold Koh at Queen’s University in Belfast back in May 2013. Professor Koh’s now seminal speech to the American Society of International Law in 2010, while serving as Legal Adviser to the US Department of State, set out the US Government’s position on the legality of drone strikes under international law. In recent years, the United States has increasingly utilised drone technology to target and kill enemy operatives in its counter-terrorism operations – against Al-Qaeda and Taliban forces in Afghanistan and North West Pakistan, and against militants affiliated with Al-Qaeda in Somalia and Yemen. UAVs have taken on an ever more prominent role in the US’s current military and counter-terrorism operations, given their relative low cost, greater accuracy and precision, reduced blast radius, advanced surveillance capabilities, and greater flight time than conventional manned aircraft. The recent proliferation of armed UAV technology, and its deployment in situations of asymmetrical conflict for the purpose of conducting targeted killing operations, has fuelled a public and academic debate, centrally focused on issues regarding the compatibility of such technology and current targeting practices with established norms of international law. The term “targeted killing” does not yet have an agreed definition under international law, although Murphy and Radsen have formulated the following useful definition: extra-judicial, premeditated killing by a state of a specifically identified person not in its custody. Targeted killings by means of unmanned drone strikes have proven to be a successful counter-terrorism strategy, not only in terms of locating, targeting and eliminating enemy operatives, but also, and perhaps more importantly, given public discontent at long-standing military deployments in Iraq and Afghanistan, in avoiding many of the challenges that flow from the use of traditional military forces, such as public hostility to the deployment of traditional ground forces, the detention of enemy forces, as well as security threats to military personnel from insurgent attacks. In the context of the US drone program, three discrete areas of international law are of particular relevance: 1. the jus ad bellum, which sets out the narrow circumstances in which a state can lawfully resort to the use of armed force; 2. international human rights law, the corpus of which is of universal application, particularly in situations of armed violence falling below the threshold of an armed conflict; 3. the jus in bello, international humanitarian law, which regulates the conduct of hostilities in situations of armed conflict. What follows in this work is an analysis of the legality of US drone strikes in key target states through the prism of each of the three aforementioned paradigms. What shall become clear is that, while the use of armed drones per se may not violate international law as an unlawful means and method of warfare, the broad interpretation of the jus ad bellum favoured by the United States in the years since the 9/11 attacks, in particular those rules relating to the resort to force by a victim state in self-defence in response to an armed attack, as well as current US targeting practices, in particular the controversial use of Signature Drone Strike Protocol (SDSP), have been the subject of rigorous academic debate, and for the most part have proven difficult to reconcile with established principles of international law. This debate remains far from settled, and in consequence the entire US drone program, shrouded in a veil of secrecy, remains of dubious legality, particularly when examined through the prisms of international human rights law and international humanitarian law.