DRONE STRIKES: THE LEGALITY OF U.S. TARGETING TERRORISTS ABROAD – PART I

The Heritage Foundation in Washington DC on April 10, 2013, published a paper by Steven Groves on the legality of U.S. drone strikes. Groves recommended that

the United States continue to affirm that it has the authority under the laws of war and its inherent right to self-defense to target and suppress threats to U.S. national security wherever they may be found,

neither Congress nor the Obama Administration take any action or pass any legislation that would derogate from the September 2001 Authorization for Use of Military Force (AUMF), and

Congress and the Administration reject calls to establish a judicial or quasi-judicial “drone court” to scrutinize the targeting decisions made by U.S. military and intelligence officers.

Groves wrote that lethal force, including targeted drone strikes, may lawfully be used against an enemy belligerent during an armed conflict or under circumstances in which the belligerent constitutes an imminent threat to national security. Because the United States is currently engaged in an armed conflict with al-Qaeda and its associated forces, whose operatives continue to pose an imminent threat, U.S. armed forces may target them with lethal force wherever they may be found, whether on the “hot” battlefield of Afghanistan or operating from other nations, such as Pakistan and Yemen. Excerpts below:

American targeted drone strikes comply with international law, in particular that part of international law known as the law of war, which requires belligerents to distinguish combatants from civilians and minimize harm to the civilian population.

The paper summarizes the main issues regarding the legality of targeted drone strikes and seeks to answer the central questions surrounding their use: Part I asks what is the legal basis for U.S. drone strikes on al-Qaeda, Part II asks in which countries may the U.S. conduct drone strikes, and Part III asks whether U.S. drone strikes adhere to international humanitarian law.

Part I: What Is the Legal Basis for U.S. Drone Strikes on al-Qaeda?

In the conduct of war, the United States must follow the relevant treaties to which it is a party, such as the four Geneva Conventions of 1949. The United States also follows customary principles of international humanitarian law, also known as the law of armed conflict or the law of war. The United States does so both because it respects customary international law and because it has a practical interest in encouraging reciprocal observance of the law of war by others, so as to protect U.S. armed forces and its civilian population

In short, the United States may lawfully target al-Qaeda in multiple countries with lethal force under two related, but independent justifications:

1. The United States and al-Qaeda are two belligerents engaged in an armed conflict and
2. Even in the absence of an armed conflict, the United States has an inherent right to defend itself against the threat posed by al-Qaeda.

Because the United States is engaged in an ongoing armed conflict with al-Qaeda and its associated forces, it may lawfully target them with lethal force because the members of those organizations are belligerents. They may be targeted just as the U.S. targeted North Korean forces during the Korean War and Iraqi forces during the Gulf Wars.

…as a sovereign and independent nation, the United States may determine for itself whether it is at war with another nation or, in this case, with a transnational terrorist organization. U.S. officials have considered the United States to be in a state of armed conflict with al-Qaeda since at least the attacks on September 11, 2001. President George W. Bush’s Military Order of November 13, 2001, states:

International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.

Neither the Geneva Conventions nor their Additional Protocols define “armed conflict” or set a threshold of violent activity that must be present for an armed conflict to be deemed to exist between two belligerents. The general view is that the existence of an armed conflict depends on the particular facts and circumstances of each case.

Al-Qaeda is an organized, armed, transnational non-state actor that has planned and executed attacks against the United States while being harbored in Afghanistan.

Complicating matters regarding the designation of the conflict under international law is the fact that al-Qaeda and Taliban fighters have not confined their activities to Afghan territory, but have crossed the border into the Federally Administered Tribal Areas (FATA) of northwestern Pakistan, where they continue to plan and launch attacks against U.S. and Afghan forces.

Further complicating matters is the fact that al-Qaeda and its associated forces are no longer confined to Afghanistan and the FATA of Pakistan, but have dispersed, spreading their operations to nations in the Middle East and Africa.

Because al-Qaeda twice declared war on the United States, successfully attacked the United States both before and after September 11, and has not abandoned its intent to launch future attacks, the United States continues to consider itself in a state of armed conflict.

The threshold of hostilities between the United States and al-Qaeda has been high enough that it may be said that an armed conflict continues between the two belligerents. In Afghanistan, the United States, its NATO allies, and Afghan forces continue to fight al-Qaeda and Taliban militants, many of whom have moved their operations into the frontier region of Pakistan. Operatives and militants who have sworn allegiance to al-Qaeda continue to plan attacks on the United States from Pakistan, Yemen, and the Sahel region of North Africa.

Indeed, since September 11, the United States has thwarted more than 50 terrorist plots, many of which emanated from Afghanistan, Pakistan, and Yemen.

These attacks were planned and financed by al-Qaeda and its associates and originated from countries beyond the “hot” battlefield of Afghanistan.

The Right to Self-Defense. The United States may use lethal force to defend itself against imminent threats to its citizens and its security. It may do so without a formal congressional declaration of war, without a congressional authorization for the use of military force, and without the existence of an armed conflict recognized under international law. Self-defense is an inherent right of a nation-state.

Indeed, a nation’s inherent right to defend itself in the absence of a Security Council resolution is contemplated by the United Nations Charter. Specifically, Article 51 of the Charter states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

In the current age when, less and less, nations mass their tanks and troops on the border, the calculation regarding what is an “imminent” threat must be considered in the proper context.

Whether assessing threats in 1945 or in the post-9/11 world, the right to self-defense “is not a static concept but rather one that must be reasonable and appropriate to the threats and circumstances of the day.”

Senior Obama Administration officials, following the lead of the Bush Administration, have adopted an approach to what constitutes an imminent threat that may not comport with current academic opinion, but does find increasing support among nations. As related by then-White House counterterrorism adviser John Brennan:

We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts. After all, al-Qa’ida does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass its troops at the borders of the nations it attacks. Nonetheless, it possesses the demonstrated capability to strike with little notice and cause significant civilian or military casualties. Over time, an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an “imminent” attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.

Steven Groves is Bernard and Barbara Lomas Senior Research Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.

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