Targeted Killings and the Law of War

I recently had the privilege of attending an event sponsored by The Aspen Institute’s Justice and Society Program entitled, “Targeted Killings and the Law of War.” The roundtable discussion brought together leading experts in law and foreign policy, each of whom addressed whether and how U.S. and international law apply to the practice of targeted killings. It was obvious from the nature of the questions and a quick glance through recent headlines that drone strikes would dominate the debate– rightfully so given the onset of the new, advanced technology and the ease with which it can be utilized on (and off) the battlefield.

So far, drone strikes have reportedly been carried out in six countries: Afghanistan, Pakistan, Iraq, Somalia, Yemen, and Libya. According to the New America Foundation’s drones database, which analyzes U.S. drone strikes in Pakistan, “283 reported drone strikes in northwest Pakistan, including 70 in 2011, from 2004 to the present have killed approximately between 1,717 and 2,680 individuals, of whom around 1,424 to 2,209 were described as militants in reliable press accounts."

Two main themes are immediately clear. First, if you accept the premise that the U.S. is engaged in an armed conflict with non-state actors domiciled in foreign countries which are unable or unwilling to respond to an imminent threat of violence (however one defines ‘imminent’), do drone strikes adhere to international law according to the Geneva Conventions? Second, according to U.S. law, what rights, if any, are guaranteed to those individuals being targeted, especially if they are U.S. citizens as was the case with Anwar al-Awlaki? Should they be afforded an opportunity to surrender? What about due process and the role of the courts?

The event at The Aspen Institute made it clear that the answers to these questions remain unclear at best and non-existent at worst. Targeted killings will no doubt be a policy – covert or not – that faces increasing legal scrutiny at home and abroad. For this reason, and because after-the-fact adjudication is unlikely to happen in the near future, many experts are urging the executive and legislative branches to clarify the substantive and procedural law surrounding the use of targeted killings – before others attempt to do so for us.

Follow Eric on Twitter: @ejohnsonaz