Murder by Drone: The Legal Arguments in Missouri

Below are excerpts from briefs filed yesterday (Thursday, August 29, 2012) in the upcoming drones trial in federal court in Jefferson City, Missouri.

INTRODUCTION

Drones are pilotless aircraft operated by remote control by a pilot who can be thousands of miles away from where the drone is flying. Most drones are currently being used for surveillance only, but states are increasingly acquiring drones equipped with missiles and bombs that can be used by the government of one country to strike at persons and other targets in other countries. The United States started using drones to kill individuals in 2001 and it is estimated that thousands of people (reports estimate up to 4,400 to date) have been killed by United States’ drones in Afghanistan, Iraq, Pakistan, Yemen, and Somalia, many of whom were civilians.¹ This use of drones by the United States to kill targets and civilians alike in such countries is illegal under both the law of the United States and international law.

I. DRONES KILLINGS ARE ILLEGAL UNDER THE LAW OF THE UNITED STATES

Drone killings are illegal under the law of the United States in three main ways: (1) they constitute premeditated murder; (2) they violate the United States’ ban on assassinations; and (3) they violate the United States Constitution’s guarantee against the deprivation of life without due process of the law. Each of these is discussed in detail below.

A. Drone Killings Constitute First Degree Premeditated Murder

Drone killings are acts of premeditated murder which is a crime in all fifty states and under federal criminal law. Under United States law, willfulness, deliberation, and premeditation are ordinarily distinctive features of first degree murder. “Premeditation,” in the context of first degree murder means that the defendant formed the specific intent to kill the victim for some length of time, however short, before the murderous action.

Drone killings are defined as targeted killings which involve the intentional, deliberate, and premeditated use of lethal force against an individual or individuals specifically identified in advance by the perpetrator.² In a targeted killing, the specific goal of the operation is to use lethal force.³ This distinguishes targeted killings from unintentional, accidental, or reckless killings, or killings made without conscious choice.⁴ As such, drone killings fall within the definition of first degree murder under both state and federal law and thus are illegal.

B. Drone Killings Constitute Assassination

Drone killings are also acts of political assassination which have been illegal in the United States since 1976. Assassination is the murder of a private person by sudden or covert attack for political reasons. Drone killings clearly fall within this definition of assassination, as they are the targeted killing of people considered to be political threats to the United States by sudden attack by a remotely controlled device.

In 1976 U.S. President Gerald Ford issued Executive Order 11905, Section 5(g), which states “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”⁶ President Reagan later clarified this ban on assassinations in Executive Order 12333.⁷ Section 2.11 of that Order states “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”⁸ Section 2.12 further states: “No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.”⁹ This ban on assassination still stands; therefore the law of the United States expressly prohibits drone killings. While it can be argued that these Executive Orders were not meant to ban political killings in wartime and thus drone killings in the context of war are not illegal assassinations, as discussed below, the United States engages in drone assassinations outside the context of armed conflict in countries such as Pakistan, Yemen, and Somalia. Therefore, even if drone killings are not illegal as political assassinations in the context of war, the United States’ use of drones in countries where it is not engaged in armed conflict still constitutes illegal political assassination.

C. Drone Killings Violate Due Process Guarantees

Drones have been used to kill United States’ citizens abroad. For instance, three U.S. citizens were killed in targeted drone strikes in Yemen in 2011.¹⁰ One of the individuals killed was a sixteen year old boy who was born in Colorado while he has at dinner at an open-air restaurant.¹¹ These killings by the United States government of its own citizens are unlawful violations of such individual’s fundamental rights including the right not to be deprived of life without due process of the law. Both the U.S. Constitution and international law prohibit killing without due process, except as a last resort to avert a concrete, specific, and imminent threat of death or serious physical injury—none of which were present in the Yemen killings in 2011. The Constitution “does not allow a bureaucratized program under which Americans far from any battlefield are summarily killed by their own government on the basis of shifting legal standards and allegations never tested in court.”¹²

II. DRONES KILLINGS ARE ILLEGAL UNDER INTERNATIONAL LAW

The United States has initiated drone attacks in Afghanistan, Iraq, Pakistan, Yemen, and Somalia. Whether such drone attacks are valid under international law depends in large part upon whether they are occurring within the context of armed conflict or not as the applicable law differs in each situation. In the context of war, enemy fighters may be killed under a standard of reasonable necessity, proportionality, and distinction; outside war, authorities are far more restricted in their right to resort to lethal force. The basic legal rules applicable to targeted killings in each of these contexts are laid out briefly below.

A. Prohibition on the Use of Force under the U.N. Charter

The U.N. Charter, which is binding law on all its signatories including the United States, specifically prohibits the use of force, except where expressly permitted by the U.N. Charter itself.¹³ In Article 2, the U.N. Charter provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”¹⁴ This prohibition on the use of force is also well established by customary international law and is considered an inherent obligation of all States.

This ban on the use of force can only be overcome in a few narrow instances. One exception to this ban on the use of force is self-defense which is provided for in Article 51 of the U.N. Charter. Article 51 provides in relevant part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”¹⁵ Importantly, Article 51 does not allow for preemptive attacks. Additionally, acts of self-defense are only legitimate if they meet two specific requirements: (1) the use of force in self-defense is necessary (there is an attack and the use of force is necessary to repel it and is defensive in nature); and (2) the use of force in self-defense is proportionate to the attack and not punitive in nature.¹⁶ A second exception to the ban on the use of force is authorization by the Security Council for the purpose of the maintaining international peace and security.¹⁷ Finally, regional enforcement actions are also permitted under the Charter, but again only with explicit Security Council authorization.¹⁸

B. Use of Drones to Kill Outside the Context of Armed Conflict

Under the standards of international law, the United States is not involved in an armed conflict in Pakistan, Somalia, or Yemen, yet the United States has used targeted drone strikes for assassinations in each of these countries. Currently, the United States is engaged in armed conflict only in Afghanistan.¹⁹ To lawfully resort to military force elsewhere requires that the country the United States is attacking has first attacked the United States (for example, Afghanistan in 2001), the U.N. Security Council has authorized the resort to force, or a government in effective control credibly requests assistance in a civil war (for example, Afghanistan since 2002).²⁰ None of these instances are present in Pakistan, Somalia, or Yemen. However, the United States continues to initiate targeted killings by drones in each of those countries. More than 2,200 people are estimated to have been killed by drones during the Obama administration in Pakistan alone, many of whom were mere civilian bystanders including children.²¹ These drone attacks outside the context of armed conflict are illegal under international law.

Under both the United States Constitution and international human rights law, when there is no armed conflict, the use of lethal force is prohibited unless, at the time it is applied, it is a last resort to protect against a concrete, specified, and imminent threat of death or serious physical injury and there is no other, non-lethal means of preventing that threat to life.²² The applicable law that governs outside the context of armed conflict is human rights standards, especially those concerning the use of lethal force. Under Article 6 of the International Covenant on Civil and Political Rights, “every human being has the inherent right to life . . . [and] no one shall be arbitrarily deprived of his life.”²³ Thus, under human rights law, a State killing is legal only as an avenue of last resort—only if it is required to protect life, thus making it proportionate, and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life, making lethal force necessary.²⁴ Any killing that is arbitrary or not necessary to save a life is an illegal killing.²⁵ The United States’ practice of targeting individuals in countries like Pakistan from a list of names created through a secret bureaucratic process and which remain there for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what international law permits.

Furthermore, under human rights law, a targeted, or intentional, premeditated and deliberate, killing by a state can never be legal because, unlike in armed conflict, “it is never permissible for killing to be the sole objective of an operation” occurring during a time of peace.²⁶ This is because, as noted above, lethal force can only be used when lives are imminently threatened.²⁷ Therefore, outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal. As such, the use of drones to kill civilians and militants alike in countries where the United States is not involved in armed conflict and where no imminent threat exists to human life is illegal under international human rights law which protects against the arbitrary deprivation of human life. Therefore, the use of drones by the United States in countries such as Pakistan, Yemen, and Somalia, where the United States is not involved in armed conflict violates international law. In light of this, the United States has sought to justify the use of drones in countries such as Pakistan and Somalia where there is no armed conflict by claiming the right to anticipatory self-defense against a non-state actor. As stated above, a state may lawfully use force, including lethal force, in self-defense in response to an armed attack.²⁸ The United States claims that its drone strikes in Pakistan, Afghanistan, and Yemen are acts of self-defense against an enemy that attacked the United States on September 11, 2001.

However, this argument fails for a number of reasons. First, under article 51 of the U.N. Charter, measures taken in the name of self-defense must be reported to the Security Council, a requirement that the United States has failed to meet. Second, the International Court of Justice (ICJ) has held in numerous decisions that self-defense measures can only be taken against a state who has initiated an armed attack against that country.²⁹ Here, the September 11, 2001 attacks on the United States were initiated by the terrorist group Al-Qaeda, not any individual state. As such, the use of lethal force in the name of self-defense is not permitted in this situation.

Furthermore, the ICJ has held that acts of self-defense are only legitimate if they are (1) necessary to quell an imminent attack and (2) proportionate to the attack.³⁰ As a practical matter, there are very few situations outside the context of active hostilities in which the test for anticipatory self-defense – necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation” – would be met.³¹ It is certainly not met here where the United States has shown no evidence of any imminent armed attack on the United States or why assassination is necessary in these circumstances.

Finally, even within the context of self-defense, drone killings of anyone other than the target, for instance family members or others/civilians in the vicinity, would also be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.

C. Use of Drones to Kill in the Context of Armed Conflict

Even in the context of an armed conflict, the law of war restricts the government’s authority to use lethal force and specifically prohibits killing civilians who are not directly participating in the hostilities. Both International Humanitarian Law (IHL) and human rights law apply in the context of armed conflict. Under IHL, targeted killing is only lawful when the target is a “combatant” or “fighter.”³² In the case of civilians, targeted killing can only be used for such time as the person “directly participates in hostilities.”³³ For direct participation, the law requires both a causal and temporal nexus to hostilities.³⁴

Additionally, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians.³⁵ These standards apply regardless of whether the armed conflict is between States or between a State and a non-state armed group, including alleged terrorists.³⁶ Reprisal or punitive attacks on civilians are always prohibited.³⁷

Even if it can be argued that the United States’ use of drones to kill is within the context of armed conflict (as the U.S. claims that it is “in an armed conflict with Al Qaeda, as well as the Taliban and associated forces” and uses this to justify drone attacks in all the countries it has fired against), the current way in which drones are being used by the United States still violates international law in a number of ways. First, reports show that a common practice of the United States with respect to drone killings is to fire a second set of drone strikes at the scene once people have come to find out what happened in the initial strike and to give aid. This is a deliberate targeting of rescuers and mourners who cannot be considered to be “directly participating in hostilities.” As such, such secondary attacks violate International Humanitarian Law and likely constitute war crimes.

Additionally, as stated above, IHL requires a State only use military force that is necessary to achieve the goal of a military operation, only causes incidental loss of life or civilian casualties that is proportionate to the military objective, and distinguishes between legitimate military targets and civilians.³⁸ As such, a state must take all feasible steps to minimize damage to civilian life and objects.³⁹ There is evidence to show that the United States’ use of drones violates these requirements. For example, the high numbers of civilians who have been killed as a result of drone strikes and the evidence that the government has failed to take legally required measures to protect civilian bystanders calls into question whether the United States has met the requirements of proportionality and distinction.

Additionally, the United States has refused to release information on the circumstances under which it uses drone or the process by which it decides to use drone killings, including the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms. This lack of transparency calls into question whether these drone strikes are indeed militarily necessary and whether the United States is adhering to the requirements of international law. Furthermore, the U.N. and other international organizations are concerned about this lack of transparency in the United States’ use of drones and conclude that until the United States releases such information, drone killings even within the context of armed conflict are likely to be found illegal.

NOTES

1 See Mary Ellen O’Connell, When are drone killings illegal?, CNN.com, Aug. 16, 2012, available at http://www.cnn.com/2012/08/15/opinion/oconnell-targeted-killing/index.html.
2 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum, Study on Targeted Killings, U.N. Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 ¶ 9 (May 28, 2010) (by Philip Alston), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf [Hereinafter “Alston Report”].
3 Id.
4 Id.
5 Id.
6 Exec. Order No. 11,905 § 5(g), 41 Fed. Reg. 7703, 7733 (Feb. 18, 1976).
7 Exec. Order No. 12,333, 46 Fed. Reg. 59,941, 59,952 (Dec. 4, 1981).
8 Id.
9 Id.
10 See Complaint at 2-3, Al-Aulaqi v. Panetta, 1:12-cv-01192-RMC (D.C. Cir. 2012), available at http://www.aclu.org/files/assets/tk_complaint_to_file.pdf. See also Charlie Savage, Relatives Sue Officials Over U.S. Citizens Killed by Drone Strikes in Yemen, N.Y. TIMES, July 18, 2012, available at http://www.nytimes.com/2012/07/19/world/middleeast/us-officials-sued-over-citizens-killed-in-yemen.html.
11 Id.
12 See Rights Groups File Challenge to Killings of Three Americans in U.S. Drone Strikes, ACLU, July 18, 2012, available at http://www.aclu.org/national-security/rights-groups-file-challenge-killings-three-americans-us-drone-strikes.
13 See U.N. Charter art. 2, para. 4, art. 51, available at http://www.un.org/en/documents/charter/; See also Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 14 (June 27).
14 U.N. Charter art. 2, para. 4.
15 U.N. Charter art. 51.
16 Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 14 (June 27).
17 U.N. Charter arts. 42, 51.
18 U.N. Charter art. 53.
19 See Mary Ellen O’Connell, When are drone killings illegal?, CNN.com, Aug. 16, 2012, available at http://www.cnn.com/2012/08/15/opinion/oconnell-targeted-killing/index.html.
20 Id. See also U.N. Charter arts. 42, 51, 53.
21 Owen Bowcott, The legal dilemma over drone strikes: justified killings or war crimes? Guardian.co.uk, Aug. 2, 2012, available at http://www.guardian.co.uk/world/2012/aug/02/drone-strikes-thorny-legal-questions.
22 McCann and Others v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) at para. 145 (1995).
23 See International Covenant on Civil and Political Rights art. 6(1), Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www2.ohchr.org/english/law/ccpr.htm.
24 Human Rights Committee, General Comment No. 6 (art. 6), para. 3, U.N. Doc. HRI/GEN/1/Rev.1 (1994), available at http://www1.umn.edu/humanrts/peace/docs/hrcom6.htm; Inter-American Commission of Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (2002), available at http://www.cidh.oas.org/Terrorism/Eng/toc.htm.
25 Id.
26 Alston report, ¶ 9.
27 Human Rights Committee, General Comment No. 6 (art. 6), para. 3, U.N. Doc. HRI/GEN/1/Rev.1 (1994), available at http://www1.umn.edu/humanrts/peace/docs/hrcom6.htm.
28 U.N. Charter art. 51.
29 See, e.g., Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 168, ¶¶ 146-47 (Dec. 19); The Wall, 2004 I.C.J. 135, ¶ 139; Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161, ¶¶ 51, 61 (Nov. 6).
30 Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 14 (June 27).
31 Caroline Incident, Letters from Webster to Fox, 29 Brit. & Foreign St. Papers 1129, 1137-38 (1840-41).
32 See International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict, March 2006, available at http://www.iihl.org/iihl/Documents/The%20Manual%20on%20the%20Law%20of%20NIAC.pdf
33 Geneva Conventions Common Article 3, AP I, art. 52(1) and (2), available at http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument.
34 Id.
35 Henchkaerts & Oswald-Beck, Customary International Human Law Rules, ICRC (2005), Rules 14-21, available at http://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf.
36 Id.
37 Id.
38 Id.
39 Id.