Lawful if Conducted in Accordance with the Rule of Law

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The drone attack that killed Anwar al-Awlaki has been the subject of innumerable articles, commentaries, and public discussion. The fact Al-Awlaki is an American citizen has dramatically increased the public scrutiny of the drone policy initiated by President George W. Bush in the aftermath of 9/11 and significantly enhanced by President Barack Obama. The discussion is healthy and essential in large part because drone warfare will play an increasingly important role in the future of operational counterterrorism.
    From the perspective of the nation-state, the benefits of targeted killing are clear: aggressive measures against identified targets with minimal, if any, risk to soldiers for the obvious reason that the killings are conducted from an unmanned aerial vehicle. While the risks to soldiers are minimal, there are other risks that are not insignificant. Particularly, there is always the risk of collateral damage, and there are also legitimate concerns regarding how a target is defined as legitimate.
    While I believe the Al-Awlaki killing lawful, I am deeply troubled by the broad rationale articulated by the Obama Administration. Yes, the Al-Awlaki killing reflects aggressive self-defense coupled with a respect for the obligation to minimize collateral damage. However, the Administration failed to articulate exactly how, beyond mere speech, Al-Awlaki was connected to terrorist activity. The mere “likelihood” of membership in a terrorist organization is highly problematic.
    The essence of targeted killing, arguably the most aggressive form of operational counterterrorism, is killing an individual the nation-state has identified as posing a danger to national security, and there is no alternative, in the name of national security, but to kill the individual. The decision must reflect a rigorous application of “checks” to ensure that the decision is neither arbitrary nor in violation of international law and core principles of morality in armed conflict.
    I am a firm believer in the nation-state’s right to engage in aggressive, preemptive self-defense subject to powerful restraints and conditions. I advocate a measured, cautious approach to targeted killing with the understanding that the nation-state has the absolute right— and obligation—to protect its civilian population. However, that absolute right does not translate into an unlimited right.
    After all, conducting operational counterterrorism divorced from a balanced approach results in violations of international law obligations, violates principles of morality in armed conflict, and results in policy ineffectiveness. The challenge in the targeted killing paradigm is to identify the specific individual deemed a legitimate target and to implement the policy in a manner reflecting respect for international law.
    At its core, targeting killing reflects aggressive self-defense. Needless to say, neither the policy (in principle) nor its application (in specific) is controversy-free or immune to criticism. In the seminal case regarding targeted killings, the Israel Supreme Court sitting as the High Court of Justice held:

The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§ 51(3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportionate. That proportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. As we have seen, we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.4

    Active self-defense (in the form of targeted killing), if properly executed, not only enables the state to more effectively protect itself within a legal context but also leads to minimizing the loss of innocent civilians caught between the terrorists (who regularly violate international law by using innocents as human shields) and the state.
    Active self-defense aimed at the terrorist must contain an element of “pinpointing” so that the state will attack only those terrorists who are directly threatening society. The first step in creating an effective counterterrorism operation is analyzing the threat, including the nature of the threat, who poses it, and when it is likely to be carried out. It is crucial to assess the imminence of any threat, which significantly impacts the operational and legal choices made in response.
    To ensure both the legality and morality of drone strikes, I propose the following standards:

  1. A target must have made significant steps directly contributing to a planned act of terrorism.
  2. An individual cannot be a legitimate target unless intelligence action indicates involvement in future acts of terrorism.
  3. Before a hit is authorized, it must be determined that the individual is still involved and has not proactively disassociated from the original plan.
  4. The individual’s contribution to the planned attack must extend beyond mere passive support.
  5. Verbal threats alone are insufficient to categorize an individual as a legitimate target.

The significant advantage of active self-defense—subject to recognized restraints of fundamental international law principles—is that the state can act against terrorists who present a real threat prior to the threat materializing (based on sound, reliable, and corroborated intelligence information or sufficient criminal evidence) rather than reacting to an attack that has already occurred.
    While there is much disagreement among legal scholars as to the meaning (and, subsequently, timing) of words such as “planning to attack,” the doctrine of active self-defense enables the state to undertake all operational measures required to protect itself.
    Lawful targeted killing must be based on criteria-based decision making, which increases the probability of correctly identifying and attacking the legitimate target. The state’s decision to kill a human being in the context of operational counterterrorism must be predicated on an objective determination that the “target” is, indeed, a legitimate target. Otherwise, state action is illegal, immoral, and ultimately ineffective. It goes without saying that many object to the killing of a human being when less lethal alternatives are available to neutralize the target.
    Any targeted killing decision must reflect consideration of four distinct elements: law, policy, morality, and operational considerations. Traditional warfare once pitted soldier against soldier, plane against plane, tank against tank, and warship against warship.
    Present and future asymmetric conflict reflects state engagement with non-state actors. In the targeted-killing paradigm, the questions— who is a legitimate target and when is the target legitimate— are at the core of the decision-making process. How both questions— in principle and practice alike—are answered determines whether the policy meets international law obligations.
    The dilemma of the decision maker in the targeting paradigm is extraordinary; the time to make the decision is short, limited, and stress-filled. After all, national security is at stake. However, not all individuals identified as posing threats to national security are indeed those persons. A criteria-based decision-making model is necessary to ensure that the identified target is, indeed, the legitimate target.
    Any use of force under international law must meet a four-part test: (1) It must be proportionate to the threat posed by the individual; (2) collateral damage must be minimal; (3) alternatives have been weighed, considered, and deemed operationally unfeasible; and (4) military necessity justifies the action. In addition, all these principles build on the fundamental international law principle of distinction, which requires that any attack distinguish between those who are fighting and those who are not in order to protect innocent life.
    Regardless of whether a target is legitimate, if an attack fails to satisfy the requirements listed above, it will not be lawful. Thus, the Israeli Special Investigatory Commission5 examining the targeted killing of Saleh Shehadah concluded that although the targeting of Shehadeh—head of Hamas’s Operational Branch and the driving force behind many terrorist attacks—was legitimate, the extensive collateral damage caused in the attack was disproportionate.
    In any targeted killing decision, three important questions must be answered: First, can the target be identified accurately and reliably? Second, does the threat the target poses justify an attack at that moment or are there alternatives? And, finally, what is the extent of the anticipated collateral damage?
    To answer these questions using the criteria-based process, extensive intelligence must be gathered and thoroughly analyzed. The Intelligence Community receives information from three different sources: human (such as individuals who live in the community about which they are providing information to an intelligence officer), signal intelligence (such as intercepted phone and e-mail conversations), and open sources (the Internet and newspapers, for example).
    One of the most important questions in putting together an operational “jigsaw puzzle” is whether the received information is “actionable,” that is, does the information warrant a response? This question is central to the criteria-based method, or at least to a process that seeks—in real time—to create objective standards for making decisions based on imperfect information (as almost all intelligence is). It is essential that intelligence information, particularly from humans, be subjected to rigorous analysis.
    Targeted killing is a legitimate and effective form of active self-defense provided that it is conducted in accordance with clear international law principles and a narrow definition of legitimate target; otherwise, it reflects state action bound neither by the rule of law nor constraints of morality. Morality and legality demand that operational counterterrorism measures reflect criteria-based decision making, otherwise the stakes and the price are too high.

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4. Public Committee Against Torture in Israel, Palestinian Society for the Protection of Human Rights and the Environment v. The Government of Israel, and others, HCJ 769/02, 40.

5. http://www.pmo.gov.il/PMOEng/Communication/Spokesman/2011/02/spokeshchade270211.htm (last visited March 8, 2011).

 

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