February 4, 2002. CIA operated Predator drone, hovering over an abandoned mujahedeen complex in Afghanistan’s Paktia province spotted three men; one of them was tall. Hoping that the tall man was Osama bin Laden, the CIA fired a Hellfire missile from the drone, killing all three men. As it later turned out, none of them was affiliated with al-Qaeda or the Taliban. The Pentagon spokesperson later admitted that the CIA did not have any intelligence indicating that the ‘tall man was actually bin Laden’.

Image courtesy of Irish Typepad, © 2012, some rights reserved

Image courtesy of Irish Typepad, © 2012, some rights reserved

This was one of the first examples of what has come to be known as ‘signature strikes’ – a drone attack that targets ‘groups of men who bear certain defining characteristics associated with terrorist activity, but who’s identities are not known.’ The 2010 Reuters report (1) shows that between 2008 and 2010, 92% of all targets were chosen as a result of a ‘suspicious pattern of activities’ without prior identification. Multiple media reports suggest that the U.S. considers all military-aged men in areas of terrorist activity as combatants who can be targeted by a drone.

The drone war is still officially unacknowledged by the White House and the CIA, even though we know that the US has engaged in ‘targeted killings’ in Pakistan, Yemen, Somalia, and possibly other places as well. Although many details remain obscure, thanks to the recently released 2011 Justice Department white paper on the question of targeting U.S. citizens overseas, we now know a bit more about the Obama’s administration’s legal justification of this shadow war. The good news is that if you couldn’t sleep because you were worried about whether the U.S. Government can secretly target American citizens overseas, you can calm down: in the white paper, which the American Civil Liberties Union (ACLU) calls a ‘stunning overreach of executive authority’, the Justice Department concludes that this can happen only if an ‘informed, high-level official of the U.S. government’ decides that the target poses an ‘imminent threat’ and capture would be ‘unfeasible’.

Ironically, the memo gives the appearance of limiting the executive’s power to target Americans overseas, whilst at the same time defining the key terms that it uses in a way that makes those limitations meaningless. Take ‘imminence’ for example. The traditional concept sees imminence as requiring ‘evidence of a specific attack in the immediate future’. Thus the threat cannot be distant or speculative. The Justice Department’s understanding of imminence, on the other hand, ‘does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future’.

How does killing of people inside a foreign state get along with the notion of sovereignty and international law? The Justice Department has an answer for this: there is no breach of sovereignty or international legal principles as long as the state either consents or is ‘unwilling or unable to suppress the threat posed by the individual being targeted.’ Let me rephrase: Target-killing someone in a foreign sovereign state represents no problem if the state consents with it. If it doesn’t consent and yet an ‘informed, high-level official’ decides that an individual within that state poses an ‘imminent threat’, then obviously the state is ‘unwilling to suppress the threat’, which implies that a U.S. strike is acceptable.

In order to decide whether drone strikes are legal, we have to find out which law applies here. In general, if the targeted killing takes place within armed conflict, it has to be justified by recourse to international humanitarian law (IHL); outside armed conflict, international human rights law (IHRL) applies. The difference is significant: IHL accepts collateral damage, is less strict about when and how individuals can be targeted, and when the targeted killing is justified as an act of self-defence according to Article 51 of the UN Charter, there is no violation of the affected state’s territorial sovereignty. According to IHRL, however, exterritorial targeted killing violates a state’s sovereignty (Article 2 (4) UN Charter), as well as the targeted individual’s right to life (Article 6 ICCPR) and every unjustified death can be considered an arbitrary deprivation of human life with potential state responsibility and individual criminal liability.

John Brennan, Obama’s chief counter-terrorism advisor, has claimed that ‘the US is in an non-international armed conflict (NIAC) with al-Qaeda in response to the 9/11 attack, and we may use force consistent with our inherent right of national self-defence’ (2), thus suggesting that the U.S. drone strikes must comply only with IHL. In legal theory, NIAC between a state and a terrorist group can exist if such group has an adequate level of organisation (such as common command structure) and the hostilities between the two reach an ‘adequate level and intensity’.

The problem is that outside Afghanistan, al-Qaeda groups lack central command, common strategy, and their hostilities seem to be sporadic and isolated rather than intense. As Bruce Hoffman puts it: ’since 9/11, al-Qaeda has become more an idea or a concept than an organisation’. And different terrorist groups can hardly be considered one organisation only on the basis of sharing ideology.

Many people see drone strikes as the only effective alternative to wars on the ground in operations against al-Qaeda. But this is a false dichotomy. Over-reliance on drones and leadership decapitation might seem as a successful short-term counter-terrorism strategy. However, history tells us that unless the group we are dealing with is highly centralised, this is a shortsighted strategy that may in fact increase threats to the U.S. First, we cannot kill all individuals that might represent a potential threat in the future. Second, by engaging in what basically are local political disputes in Yemen and Somalia and (accidentally) killing civilians in drone strikes, we run the risk of triggering exactly the kind of anti-western sentiment that we should be trying to prevent, and thus producing a long-term security threat.

Let me make one thing clear: I’m not stricto sensu against drone strikes or targeted killing in general, supposing they are used sporadically in justified instances. But they’ve now become the norm and yet we are still working with a legal framework that has outgrown its usefulness. This is becoming more pressing, as more states are about to join the ‘drone club’. If you are concerned about the Justice Department’s interpretation of ‘imminent threat’ and ‘informed, high-level official’, image how they could be interpreted in Putin’s Russia.

(1) Stanford Law School International Human Rights and Conflict Resolution Clinic & NYU School of Law Global Justice Clinic, Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan, September 2012, p. 31.

(2) J. Brennan, ‘The Ethics and Efficacy of the President’s Counterterrorism Strategy’ Speech to the Wilson Center, 30 April 2012, available at http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism- strategy