Skip to main content

When are drone killings illegal?

By Mary Ellen O'Connell, Special to CNN
August 16, 2012 -- Updated 1512 GMT (2312 HKT)
 Pakistani tribesmen shout anti-US slogans during a protest in Islamabad in February against the U.S. drone attacks in the Pakistani tribal region.
Pakistani tribesmen shout anti-US slogans during a protest in Islamabad in February against the U.S. drone attacks in the Pakistani tribal region.
STORY HIGHLIGHTS
  • O'Connell: U.S. drone strikes have killed as many as 4,400 people since 2002
  • Many drone attacks are occurring outside war zones, says O'Connell
  • Those attacks have generally violated the right to life, she says
  • O'Connell: A legal argument against targeted killing requires international law

Editor's note: Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law and is research professor of international dispute resolution at the Kroc Institute for Peace Studies at the University of Notre Dame. She is a specialist on the international law of armed conflict and is the editor of "What Is War? An Investigation in the Wake of 9/11" (Martinus Nijhof/Brill, 2012).

(CNN) -- The Bush and Obama administrations' extraordinary program of targeted killing has resulted in the deaths of as many as 4,400 people to date. Books such as Daniel Klaidman's "Kill or Capture" and David E. Sanger's "Confront and Conceal" are appearing thick and fast, focusing on the program and particularly on the use of drones to carry it out.

The belated scrutiny is welcome. Yet it still fails to critically assess the essential question: Is this killing occurring in war?

Both Presidents Bush and Obama have attempted to justify thousands of drone attacks as part of a "war" or "armed conflict." But is that correct?

Mary Ellen O\'Connell
Mary Ellen O'Connell

The question must be answered in terms of international law. When the United States kills people in foreign, sovereign states, the world looks to international law for the standard of justification. In war, enemy fighters may be killed under a standard of reasonable necessity; outside war, authorities are far more restricted in their right to resort to lethal force.

Independent scholars confirm that many drone attacks are occurring outside war zones. These experts know the legal definition of war, and they understand why it is important to know it: Above all, protecting human rights is different in war than from protecting them in peace.

News: Pakistan spy agency chief to tell CIA: End drone strikes; ID targets for us to attack

Admittedly, this dual standard for justifiable killing makes the law protecting the right to life more complicated than the law protecting other fundamental rights. Torture, for example, is absolutely prohibited in international law at all times, in war and peace.

'Drones completely counterproductive'
Barack Obama's 'lethal presidency'
Obama's secret wars

The law on killing is different. The human right to life codified in the International Covenant on Civil and Political Rights, to which the United States is a party, prohibits the "arbitrary" deprivation of life. It does not prohibit absolutely all taking of life.

The military may use lethal force against enemy fighters during an armed conflict if the use of force meets the requirements of military necessity, and if it will not have a disproportionate impact on civilian lives and property. Countries may lawfully initiate armed conflict in self-defense if the state is the victim of a significant armed attack, as long as the self-defense is carried out against the state responsible for the armed attack.

President Bush declared a "global war on terror" after 9/11 to, presumably, gain the advantage of more relaxed rules on killing and detention. Some of the same lawyers who tried to develop legal cover for the use of torture produced an even flimsier analysis of why the entire world was a war zone, so that the president could authorize killing and detention of individuals worldwide.

Lawyers in both the Bush and Obama administrations have reportedly prepared memos that according to the media assert the CIA may lawfully conduct so-called "targeted killings" of the "war on terror" without violating President Reagan's ban on assassination. Legality seems to turn in this analysis on the president personally approving a "kill list."

In November 2002, the first killings occurred under this "global war" assertion. Six people, including a 23-year-old American, were killed by Hellfire missiles in Yemen fired from CIA-operated drones based in Djibouti. The UN special rapporteur for extra-judicial killing condemned the attack as an arbitrary deprivation of the right to life, but it would take over six years and a change of party in the White House before human rights advocates, international law scholars, moral philosophers, theologians, and others would begin to focus on targeted killing as they had focused on the use of torture.

Why has it taken so long to focus on so many questionable deaths? As already indicated, the law is more complicated on killing than on torture. To make the legal argument against targeted killing requires sophisticated knowledge of a broader range of international law than is involved in defending a human right such as the right to be free from torture.

Also, the Bush administration carried out fewer targeted killings: Of the 336 attacks as of July 2012 in Pakistan, 284 have occurred under Obama. Bush officials were better able, therefore, to suppress discussion. Also, human rights advocates had their hands full with the more visible problems of the Bush era: torture, Guantanamo Bay and military commissions. A number of them then joined the Obama administration; rather than condemn targeted killing as the violation of international law that it is, some former critics are defending it, presumably as part of their job.

Opinion: Civilian casualties plummet in drone strikes

The job of the International Law Association is to report on international law in a scholarly and objective fashion. The ILA has had a Committee on the Use of Force for decades. From 2005 to 2010, when I was its chair, the 18-member committee, including members from five continents, undertook to produce a report on how "war" is legally defined.

That report assesses hundreds of violent incidents over a period of 65 years. It concludes that under international law, war or armed conflict exists only when there is intense inter-group fighting by organized armed groups.

These are objectively verifiable criteria that cannot be fabricated by politicians. The International Committee of the Red Cross recently invoked them with respect to the violence in Syria. The situation in Syria became a civil "war" when organized armed groups were fighting with intensity of some duration.

Targeted killing with drones in Yemen, Somalia, and Pakistan have generally violated the right to life because the United States is rarely part of any armed conflict in those places. The human right to life that applies is the right that applies in peace.

Complete coverage of drones on CNN's Security Clearance blog

Today, the United States is engaged in armed conflict only in Afghanistan. To lawfully resort to military force elsewhere requires that the country where the United States is attacking has first attacked the United States (such as Afghanistan in 2001), the U.N. Security Council has authorized the resort to force (Libya in 2011) or a government in effective control credibly requests assistance in a civil war (Afghanistan since 2002).

If the president has been advised otherwise with regard to his "kill list," he should read "What Is War?"

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of Mary Ellen O'Connell.

ADVERTISEMENT
Part of complete coverage on
July 30, 2014 -- Updated 1941 GMT (0341 HKT)
Stuart Gitlow says pot is addictive and those who smoke it can experience long-term psychiatric disease.
July 30, 2014 -- Updated 1645 GMT (0045 HKT)
Gabby Giffords and Katie Ray-Jones say "Between 2001 and 2012, more women were shot to death by an intimate partner in our country than the total number of American troops killed in the Iraq and Afghanistan wars combined."
July 29, 2014 -- Updated 2357 GMT (0757 HKT)
Alan Elsner says Secretary Kerry's early cease-fire draft was leaked and presented as a final document, which served the interests of hard-liners on both sides who don't want the Gaza war to stop.
July 30, 2014 -- Updated 1158 GMT (1958 HKT)
Vijay Das says Medicare is a success story that could provide health care for everybody, not just seniors
July 30, 2014 -- Updated 1818 GMT (0218 HKT)
Rick Francona says Israel seems determined to render Hamas militarily ineffective.
July 30, 2014 -- Updated 1743 GMT (0143 HKT)
S.E. Cupp says the entrepreneur and Dallas Mavericks owner thinks for himself and refuses to be confined to an ideological box.
July 30, 2014 -- Updated 1311 GMT (2111 HKT)
A Christian group's anger over the trailer for "Black Jesus," an upcoming TV show, seems out of place, Jay Parini says
July 30, 2014 -- Updated 2028 GMT (0428 HKT)
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
July 30, 2014 -- Updated 1939 GMT (0339 HKT)
Carol Dweck and Rachel Simmons: Girls tend to have a "fixed mindset" but they should have a "growth mindset."
July 28, 2014 -- Updated 1156 GMT (1956 HKT)
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
July 26, 2014 -- Updated 1822 GMT (0222 HKT)
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
July 28, 2014 -- Updated 1251 GMT (2051 HKT)
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
July 28, 2014 -- Updated 1852 GMT (0252 HKT)
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
July 28, 2014 -- Updated 1831 GMT (0231 HKT)
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
July 30, 2014 -- Updated 1744 GMT (0144 HKT)
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
July 28, 2014 -- Updated 1635 GMT (0035 HKT)
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
July 26, 2014 -- Updated 1555 GMT (2355 HKT)
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
July 27, 2014 -- Updated 1822 GMT (0222 HKT)
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
July 24, 2014 -- Updated 2225 GMT (0625 HKT)
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
July 25, 2014 -- Updated 1510 GMT (2310 HKT)
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
July 26, 2014 -- Updated 1533 GMT (2333 HKT)
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
July 25, 2014 -- Updated 1245 GMT (2045 HKT)
John Sutter responds to criticism of his column on the ethics of eating dog.
July 25, 2014 -- Updated 1302 GMT (2102 HKT)
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
July 25, 2014 -- Updated 1850 GMT (0250 HKT)
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
July 24, 2014 -- Updated 1803 GMT (0203 HKT)
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
July 24, 2014 -- Updated 1349 GMT (2149 HKT)
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
July 23, 2014 -- Updated 2205 GMT (0605 HKT)
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
July 24, 2014 -- Updated 1142 GMT (1942 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1853 GMT (0253 HKT)
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
July 24, 2014 -- Updated 1317 GMT (2117 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1637 GMT (0037 HKT)
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
July 24, 2014 -- Updated 1413 GMT (2213 HKT)
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
July 23, 2014 -- Updated 1630 GMT (0030 HKT)
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
July 30, 2014 -- Updated 1209 GMT (2009 HKT)
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT