Sow What You Reap? Using Predator and Reaper Drones to Carry out Assassinations or Targeted Killings of Suspected Islamic Terrorists

INTRODUCTION From the crossbow to the rifle, the biplane to the jet fighter, the mortar to the atomic bomb, advances in technology have often been adapted for military ends.1 Because of their novel applications, however, new weapons sometimes have escaped the bounds of international law. For example, the military adaption of the airplane shortly following its invention at the beginning of the twentieth century dramatically changed the dimensions of warfare, making attacks far behind enemy lines much easier to carry out. Especially during World War II, all sides routinely violated the 1938 League of Nations Resolution on aerial bombardment, its purported customary law analog,2 and the spirit, if not the exact letter, of Article 25 of the 1907 Hague Regulations. That article prohibits attacking an undefended city3; the 1938 Resolution requires air forces to take precautions to protect civilians, permits targeting military objectives only, and prohibits bombing civilians and civilian objects, such as homes and hospitals.4 In World War II, Germany engaged in terror bombing of London.5 Britain and the United States engaged in target area bombing ("carpet bombing") of German cities, including the firebombing of Hamburg and Dresden.6 The Japanese bombed Shanghai and Chungking.7 The United States dropped nuclear weapons on the Japanese cities of Hiroshima and Nagasaki.8 Indiscriminate bombing by all sides caused at least 1.5 million civilian casualties in that conflict.9 It took over thirty years after World War II (and the global reaction to the Vietnam War10) for the international community to reaffirm the principle that all combatants-including air forces- must discriminate between legitimate military targets and civilians. Not until the 1977 Additional Protocols to the Geneva Conventions of 1949 (AP I and AP II) were adopted did the world community again commit to the rule of the 1907 Hague Regulations and the 1938 League of Nations Resolution that, absent the presence of a military objective, civilians and civilian objects were immune from attack.11 Because of the previous state practice, the international community has had to work hard to re-establish the fundamental principle of discrimination, of protecting civilians in armed conflict.12 Like the advent of the airplane nearly a century earlier, the advent of the weaponized, remotely controlled drone has changed the dimensions of warfare. Now, an attacker can strike from the comfort of a control room, thousands of miles away from any action.13 Governments possessing drones may, therefore, be tempted to carry out an increased number of attacks, perhaps legally questionable (if not absolutely illegal), because no member of their armed forces suffers any risk whatsoever. Remotely controlled drones were initially used for surveillance; then they were weaponized and used for attack.14 In that capacity, they can directly support troops on the ground and attack enemy troops and enemy military installations. Drones can also be used to carry out a targeted killing or assassination. Both the Bush-Cheney and Obama administrations have used drones, particularly for the purpose of carrying out targeted killing of suspected Islamic terrorists.15 Just as the rule of discrimination suffered with the beginning of air warfare, the weaponized drone, particularly when employed for this purpose, challenges: (1) the international human rights law peremptory norm against extrajudicial killing, (2) the limits that military necessity places on combatants, (3) the prohibition on attacking civilians unless and until "they take a direct part in hostilities," (4) the international humanitarian and human rights law norms16 protecting non-combatants from attack, and (5) the principle of chivalry.17 To avoid some of the mistakes of the last century brought about by thennovel weapons technology, the international community must demand, at a minimum, that those using robotic weapons strictly follow international law. …