Macomb, IL – We just read in the news that a Hamas leader was killed in a hotel in Dubai. In 2002 a missile fired by a US drone destroyed a car in the Yemeni desert, killing an Al Qaeda leader. Such US missile attacks occur frequently in Afghanistan and Northwest Pakistan. After 9/11 President Bush said we would target terrorists anywhere. That is still US Policy. Are such targeted killings lawful under International Law?
An international war against terrorism is something new and no wonder there are divergent views on the subject. Public International Law normally regulates the activities of states vis-a-vis other states. Non-state actors, like al Qaeda, involved in armed conflict change the face of war, and thus how it is fought. But armed conflict is still regulated under the law of war.
US policy and International Law prohibit assassination to remove a rogue or disliked foreign leader. Many believe, as does the US government, that there are exceptions in wartime; that in war targeted killings are not assassinations.
But opinions differ. Some argue that targeted killings are just extrajudicial killings or assassinations and prohibited by International Law. They say International Human Rights Law protects terrorists who can only be killed when they are in the process of or about to do something that endangers human life. Otherwise they should be arrested and prosecuted for their crimes. This view would say that terrorists can resume their innocent civilian roles between acts of terrorism.
The other view is that terrorists are taking part directly in armed conflict and they never shed that quality and can be targeted so long as the armed conflict continues. Under this view a state threatened by terrorists can always act in self defense and targeting terrorists is allowed under the International Law of War.
Such attacks must comply with the law of war. Perfidy or treachery is outlawed under International Law, so it is unlawful for a state to pay a co-worker of an enemy to kill or poison him.
In general the view supporting targeted killings sees them not as reprisal, rather as self defense actions to prevent further attacks. Being in a state of war even against non-state actors provides the legal justification to target the leaders, who cannot be negotiated with since you cannot find them like you can another state and you cannot implement sanctions against them, like you can against another state. Capturing them is impossible or too dangerous.
International law requires the sovereignty of states to be respected. Presumably the US has permission from Pakistan, Afghanistan and Yemen for strikes in their territories. The law of proportionality requires the avoidance of so-called collateral damage. A Geneva Convention Protocol outlaws attacks expected to cause accompanying loss of civilian life or property or both considered excessive weighed against the military advantage of the strike.
Drone strikes sometimes kill innocent people. Is getting Osama bin Laden worth the death of five innocent people who are near him? Fifty? Can a village be destroyed? Where does one draw the line? Such questions will be asked with any targeted killing, but many believe, if the rules are followed, targeted killings are lawful.