Monday, February 21, 2011

Targeted Killing Justifications and Revelations

Recent revelations about the procedures used by the United States in its targeted killing program indicate that the U.S. views individuals selected for targeted killing as legitimate targets at all times. That is, once identified, a targeted individual may be subject to the use of force at any time thereafter. However, such continuous targetability calls into question the ability of the United States to rely on self-defense as one of its two legal justifications for its targeted killing program. Strikes against these continuously targetable individuals would then only be lawful within the context of an armed conflict. Any targeted killing outside of an armed conflict or valid self-defense would be an illegal, extrajudicial execution.

The United States defends the legality of its covert targeted killing program on the basis that those killings fall within the paradigms of armed conflict or self-defense. Both justifications afford a state the right to use force against another state, non-state actor, or arguably an individual. Both justifications are subject to strict requirements and limitations.

International law admits only two categories of armed conflict: international and non-international. International armed conflicts occur whenever there is a resort to force between two states. Non-international armed conflicts occur between states and non-state actors, or among non-state actors, and are distinguished from riots or domestic disturbances by the level of organization of the non-state actor and the intensity of the hostilities between the parties. When engaged in an armed conflict, a state may lawfully use force against enemy combatants or civilians who directly participate in hostilities.

Judging a state’s reliance on self-defense is more difficult—particularly when it is invoked as a justification for a covert or unacknowledged state action. Self-defense must be predicated on an imminent or ongoing armed attack. The force used must be necessary to disrupt that armed attack and the force used must be proportionate  the need to repel or deter that armed attack. Moreover, to be invoked against an imminent armed attack, that attack must be more than a mere threat. This difference in threat versus imminent armed attack is the difference between the 1967 Israeli strike against the Egyptian air force—valid as self-defense—and the 1981 Israeli strike against the Iraqi Osirak nuclear reactor—not valid as self-defense.

Here, then, lies the particular difficulty of evaluating the lawfulness of a targeted killing justified by self-defense. These attacks are covert and are based on classified intelligence information. How are those of us outside of government to adjudge whether a targeted killing satisfied the requirement that the United States faced an imminent armed attack? The question is impossible to answer directly, so we are forced to rely on public characterizations of the targeted killing program and the procedures on which it is based.

Public characterizations of the United States’ targeted killing program suggest that there are in fact two distinct programs: one operated by the U.S. military and the other by the Central Intelligence Agency. Public characterizations have further indicated that the CIA’s program, at least, maintains a list or bullpen of individuals who are targeted and remain targetable until killed. It is this continuous targetability that calls into question the United States’ reliance on self-defense.

This is not to say that a state, a non-state actor, or an individual cannot be continuously responsible for imminent or ongoing armed attacks. However, such a scenario better describes armed conflict and its attendant intense hostilities than self-defense. Of course, armed conflict provides the authority to use force against these individuals. Moreover, those hostilities would be observable to the general public and would likely look a lot like what is going in Northwest Pakistan—such frequent resort to targeted killings that hostilities between the United States and non-state actors likely place the United States in an armed conflict there.

The same cannot be said for U.S. involvement in Yemen and Somalia, for instance. The United States reportedly uses force in those locales only sporadically. The individuals it targets there may be continuously plotting against the United States. They may be continuously recruiting potential attackers. And they almost certainly present a significant threat to the United States. However, it is unlikely—given both the sporadic use of force by the United States and the sporadic publicly known actual or attempted attacks against the United States—that these individuals are continuously responsible for imminent armed attacks within the meaning of self-defense.

Without the ability to rely on self-defense as a justification for a targeted killing, the United States’ must rely on the existence of an armed conflict for the authority to employ force. If no armed conflict exists where and when the United States employs a targeted killing, and that targeted killing does not satisfy self-defense, then such action can only be described as an extrajudicial execution—a gross violation of international law and human rights norms.

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