The Obama Administration’s Counterterrorism Manual and Targeted Killings in the “War on Terror”
Written by Ellen Policinski*
The YouTube video above, filmed in 2008, depicts a drone strike on individuals setting up a rocket launcher in Baghdad. Drone strikes such as this one are one method that is used to carry out the targeted killing policy extensively relied on in U.S. counterterrorism operations. Targeted killings can also be carried out through other means, such as traditional air strikes or special forces operations. Targeted killing began after 9/11 under the Bush administration and was later expanded by the Obama administration, which is currently in the process of developing a detailed counterterrorism manual which will lay out the policies behind this practice. The manual is expected to articulate the process for developing “kill lists” and the framework, or “disposition matrix,” used to target U.S. citizens, although much can already be determined through official and unofficial statements. However, the manual is likely to leave a significant amount of leeway for conducting drone strikes, particularly the CIA-run drone campaign in Pakistan and elsewhere. The UN is also attempting to create rules limiting drone use, and has launched an investigation into remote targeting.
Targeted killings carried out by drones are a constant source of interest in the news, with the public seemingly fascinated by drone technology. While drones (also known as unmanned aerial vehicles, or UAVs) may be novel, the legal implications are less so. They fall under the same legal framework as other weapons systems. Much of the public discussion concerning drones is based on the misconception that they are autonomous. It is important to note that drones are not autonomous, but rather are piloted remotely by human beings. In light of this, drones should be considered as a weapons platform no different from airplanes or helicopters as far as the law of armed conflict is concerned. Both drones as a weapons system and the hellfire missiles they typically carry have been subjected to pre-deployment weapons reviews as mandated by international humanitarian law, and have been found to comply with international legal standards.
Other aspects of the current approach to targeted killing operations are more interesting from a legal perspective. Targeted killing can be defined as the intentional and premeditated killing of a specific, deliberately selected individual. At the international level there are two legal frameworks that can apply to this type of deprivation of life by a government: the law of armed conflict or human rights law. In the context of an armed conflict, targeted killings may be permissible so long as they follow the rules applicable to the conduct of hostilities, discussed below. In contrast, it is very unlikely that a targeted killing operation conducted in peacetime would comply with international law since the right to life prohibits that killing be the sole aim of an operation. Operations undertaken in peacetime are also more likely to be in violation of U.S. domestic law.
The three main principles which must be respected in the conduct of hostilities are distinction, proportionality, and precautions. According to the principle of distinction, belligerent parties in an armed conflict must distinguish between civilians and combatants at all times. Civilians may not be the target of attacks so long as they do not actively participate in hostilities. The principle of proportionality provides that the expected damage to the civilian population cannot be excessive compared to the direct and concrete military advantage anticipated to be gained from the attack (although some collateral damage is accepted). Lastly, precautions must be taken to protect the civilian population from the effects of military operations. Precautions include choosing the weapons and tactics which are least likely to cause excessive harm to the civilian population and providing prior warnings to the civilian population, whenever possible.
These rules, including those concerning targeting individuals, only apply during “armed conflict”. There are two categories of armed conflict; international and non-international armed conflicts. International armed conflicts may be understood as a war between two or more countries. Non-international armed conflicts are violent conflicts between a country and one or more armed groups or between armed groups, for example a civil war. A non-international armed conflict is distinguished from criminal conduct and other forms of violence by the two criteria: 1) the intensity of the violence; and 2) the level of organization of the armed group or groups involved. Counter intuitively, these types of armed conflicts may cross international borders.
The traditional understanding in international armed conflict is that international humanitarian law governs the conduct of soldiers anywhere in the world the belligerent parties can be found, meaning that member of the enemy’s armed forces could be targeted regardless of geographic location.
In the context of modern conflicts the enemy is not necessarily concentrated within the territory of a single country or even a single geographic region. According to some, the traditional understandings of the geographic limitations of armed conflict risk rewarding terrorist groups who find refuge in countries not participating in the conflict, where they cannot be attacked. The so-called “Global War on Terror” is an example of a modern conflict against an armed group that transcends international borders, complicating traditional examinations of the use of force. The U.S. government takes the position that there is an armed conflict between the United States and “Al Qaeda and associated forces,” and the Supreme Court has found that the rules governing non-international armed conflict apply to this conflict. The Obama administration maintains that the geographic scope of that war is very broad, noting that the Authorization for the Use of Military Force (AUMF) does not contain the geographic limitations of the use of force against those who “planned, authorized, committed, or aided” the 9/11 attacks.
The notion of a “global” war has been widely rejected by the international community and IHL scholars, but the exact geographic limitations of the conflict remain unclear given that it involves a network of often distinct armed groups operating in multiple countries around the globe. In the course of its campaign against Al-Qaida, the United States has engaged in targeted killings in Afghanistan, neighboring Pakistan, Yemen, and other places removed from the battlefield as traditionally understood. If it is determined that any of these attacks occurred outside of armed conflict, it is unlikely that they would be consistent with international legal obligations. However, if the law of armed conflict does in fact apply, these operations may comply with international law so long as the main tenants of IHL are followed. As we learn more about the Obama administration’s procedures we will be better able to evaluate whether these attacks comply with the law of armed conflict, and with the upcoming counterterrorism manual we may get the chance to do just that.
* Ellen Policinski is an intern with the International Humanitarian Law Dissemination unit at American Red Cross National Headquarters. She holds a J.D. from Villanova Law School in Villanova, Pennsylvania and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland.
 For a very good summary of what we know about the drone program, both officially and unofficially, see Cara Currier, “Everything We Know So Far About Drone Strikes,” (Propublica, 11 Jan. 2013). Available at: http://www.propublica.org/article/everything-we-know-so-far-about-drone-strikes. For a reverse-engineered model of the disposition matrix for U.S. citizens, see Daniel Byman and Benjamin Wittes, “How Obama Decides Your Fate if He Thinks You’re a Terrorist,” (The Atlantic, 3 Jan. 2013). Available at: http://www.theatlantic.com/international/archive/2013/01/how-obama-decides-your-fate-if-he-thinks-youre-a-terrorist/266419/.
 Greg Miller, Ellen Nakashima and Karen DeYoung, “CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say,” (Washington Post, 19 Jan. 2013). Available at: http://www.washingtonpost.com/world/national-security/cia-drone-strikes-will-get-pass-in-counterterrorism-playbook-officials-say/2013/01/19/ca169a20-618d-11e2-9940-6fc488f3fecd_story.html.
 The UN Special Rapporteur on human rights and counterterrorism us currently investigating drone use by the United States, Israel and others and is expected to report back to the UN General Assembly some time in 2013. See http://www.aljazeera.com/news/europe/2013/01/201312411432248495.html.
 Even this debate seems to be about factual circumstances that might make it more difficult to determine who is responsible for an attack than a legal issue, since until machines achieve consciousness there will always be a human being entering the command somewhere in the chain of events. For an in-depth discussion of autonomous unmanned robots see the Human Rights Watch report Losing Humanity: The Case Against Killer Robots, (International Human Rights Clinic, Harvard Law School, 2012). Available at: http://www.hrw.org/sites/default/files/reports/arms1112ForUpload_0_0.pdf. Also look at the back and forth between Tom Malinowski of Human Rights Watch and several of the Lawfare bloggers, especially “Tom Malinowski Ups the Game in Lawfare’s Discussion of Killer Robots,” (Lawfareblog, 14 Jan. 2013) by Benjamin Wittes. Available at: http://www.lawfareblog.com/2013/01/tom-malinowski-ups-the-game-in-lawfares-discussion-of-killer-robots/.
 Laurie R. Blank, ‘After ‘Top Gun:’ How Drone Strikes Impact the Law of War,’ U. Penn. J. Int’l L, vol. 40 no. 3 p. 677; See, ex. Charles Blanchard, Gen. Counsel, U.S. Air Force, ‘Remarks made at the New America Foundation Conference: Drones, Remote Targeting and the Promise of Law, Panel II,’ 24 Feb. 2011. Available at: http://www.ustream.tv/recorded/12909598; Scott Shane & Thom Shanker, ‘Yemen Strike Reflects U.S. Shift to Drones as Cheaper Tool of War,’ N.Y. Times, (2 Oct. 2011) pp. 1, 14.
 For an in-depth look at the requirements for weapons under the law of armed conflict, see the ICRC blog post “How international law adapts to new weapons and technologies of warfare,” by Neil Davidsion (4 Dec. 2012). Available at: http://intercrossblog.icrc.org/blog/how-international-law-adapts-new-weapons-and-technologies-warfare.
Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum: Study on targeted killings, UN Doc. A/HRC/14/24/Add.6, ¶ 1. Available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf; Nils Melzer, Targeted Killing in International Law (hereinafter Targeted Killing)(Oxford University Press, Oxford 2009) p. 4.
 Melzer, supra note 7, at 74.
 Alston, supra note 7, at ¶ 33. The basic legal principal for this evaluation is the prohibition of the arbitrary deprivation of life in ICCPR Art. 6(1), which requires a concrete danger to human life necessitating the use of lethal force.
 For a thorough discussion of the U.S. domestic legal issues related to targeted killing, see William C. Banks and Peter Raven-Hansen, “Targeted Killing and Assassination: The U.S. Legal Framework,” 37 University of Richmond Law Review 667. Available at: https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/BanksRavenHansenLegalFramework.pdf. For an in-depth discussion of Constitutional Due Process concerns see Richard Murphy & Afsheen John Radsan, Due Process and Targeted Killing of Terrorists, 31 CARDOZO L. REV. 405 (2009) (contending that CIA drone strikes against non-citizens located outside the United States implicate due process under the U.S. Constitution); and Afsheen John Radsan & Richard Murphy, Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing, 2011 UNIV. ILL. L. REV. 101 (2011) (proposing that IHL principles require the CIA to be certain of its targets beyond reasonable doubt and that CIA drone strikes should receive independent review). Alston, supra note 7, at ¶1.
 Additional Protocol I to the Geneva Conventions, Art. 48.
 Additional Protocol I to the Geneva Conventions, Art. 51. In 2009, the ICRC released it’s Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, available here: https://mail.google.com/mail/u/0/?shva=1#inbox. It lists several examples of what can constitute direct participation in hostilities by civilians, including capturing or wounding enemy soldiers; interfering with military deployment through sabotage or road blocks; interfering with military computer networks through online attacks; giving the enemy tactical intelligence for a specific attack; or setting booby-traps. Indirect participation, like showing general support for the war effort, is not enough.
 Additional Protocol I to the Geneva Conventions, Art. 51(5)(b).
 Additional Protocol I to the Geneva Conventions, Art. 57.
 Geneva Conventions of 1949, Common Article 2.
 Geneva Conventions of 1949, Common Article 3; Additional Protocol II to the Geneva Conventions, Art. 1.
 ICTY, Prosecutor v. Tadic, (Judgment) IT-94-1-T (7 May 1997) §§ 561-568; ICTY Prosecutor v. Limaj, (Judgment) IT-03-66-T (30 Nov. 2005) §§ 135-170; ICRC Opinion Paper, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?” (March 2008). Available at: http://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf.
 For further discussion the geographic scope of the law of armed conflict see Michael W. Lewis, “Drones and the Boundaries of the Battlefield,” 47 Texas Int’l L. J. 293 (2012). Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917461.
 Blank, supra note 5.
 For example see Lewis, supra note 20, pp. 306-14.
 The Supreme Court has held that Common Article 3 of the Geneva Conventions, applicable in both international and non-international conflicts, applies to the conflict against al Qaeda but declined to classify the conflict. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The full text of the decision may be accessed here.
 For example, see the speech by Harold Koh, Legal Advisor, U.S. Department of State, ‘ASIL Keynote Address.’ Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917461.