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KLS POSTGRADUATE DISSERTATION SUBMISSION SHEET

Name Viktor Dubrava

Dissertation title A Study into the Justification and Legality of the Use of Drones in Armed Conflict

Dissertation supervisor Dr Sara Kendall

Word count 19,084

In submitting this assessment for marking I certify that all material contained in this essay is my own work and that the
word count is accurate. I have not plagiarised from any sources, including printed material and the internet. This work,
either as a whole or in part, has not previously been submitted for assessment at this, or any other institution, by myself
or others. All direct quotation appears in inverted commas and all source material, whether directly or indirectly quoted,
is clearly acknowledged as and when it occurs in references, as well as in the bibliography. The University Academic
Discipline Regulations are contained in Annex 10 of the Credit Framework:

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A Study into the Justification and Legality of the


Use of Drones in Armed Conflict
By

Viktor Dubrava
Dissertation presented in partial fulfilment for the degree of
Master of Laws in International Criminal Justice at the
University of Kent

Word Count: 19,084

September 2015

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Table of Contents
Acknowledgments...................................................................................................................4
Abstract...................................................................................................................................5
Chapter 1
Introduction.............................................................................................................................6
Background..............................................................................................................................6
Targeted Killings in Practice....................................................................................................7
Research Focus........................................................................................................................8
Research Objectives...............................................................................................................10
The Methodology and Significance of the Study....................................................................11
Chapter 2
Collateral Damage and Moral Ethics......................................................................................12
Chapter 3
Applicable Law.......................................................................................................................14
Chapter 4
Cases of Drone Strikes and Targeted Killings.........................................................................17
Chapter 5
Fully Autonomous Drones......................................................................................................21
5.1. State Actors and Non State Actors..................................................................................24
Chapter 6
Positive and Negative Aspects...............................................................................................26
6.1. Positives..........................................................................................................................26
6.2. Negatives........................................................................................................................28
Chapter 7
The US Position and How They Justify the Use of Drones.....................................................30
7.1. Operation Enduring Freedom.........................................................................................33
7.2. The Interpretative Guidance...........................................................................................37
Chapter 8
Why Was Anwar Al-Aulaqi Put on the Kill List?......................................................................40
8.1. Events Before the Targeted Killing Happened.................................................................40
8.2. Analysis and Arguments of How the US Justified the Targeted Killing...........................44

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Chapter 9
Are Drones Really Precise?...................................................................................................50
Chapter 10
The Most Recent Impact of the Use of Drones Refugee Crisis..........................................54
Chapter 11
Conclusion.............................................................................................................................57
Appendices............................................................................................................................61
Appendix 1.............................................................................................................................61
Appendix 2.............................................................................................................................62
Appendix 3.............................................................................................................................62
Appendix 4.............................................................................................................................63
Appendix 5.............................................................................................................................63
Appendix 6.............................................................................................................................64
Appendix 7.............................................................................................................................73
Appendix 8.............................................................................................................................74
Bibliography...........................................................................................................................76

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ACKNOWLEDGMENTS

This dissertation gave me a chance to study a topic which I have been passionate about over the last

years; therefore I would like to thank my tutor, Dr Sara Kendall, for agreeing to be my supervisor, her

recommendations and support that lead to this dissertation. I would like to thank my parents who

have been a great support and demanded updates about my writing every time I called them. My

thanks also belong to all the people who found time and agreed to meet with me, or e-mailed me

back to discuss the topic. I would like to thank Jo Constanzo, Director of the UK Institute for

Migration, who gave me valuable advice regarding different methodologies that this dissertation

could include. I also want to thank all my colleagues from the Anti-Human Trafficking Department at

Migrant Help, who greatly supported me over the last three months. Lastly and most importantly, I

would like to thank my fianc, Steven, who provided immeasurable emotional support,

encouragement and patience over the last four months.

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ABSTRACT

This study examines the justification and the legality of drones in armed conflict. The study looks at

different perspectives of where the use of drones could be justified or legal and vice versa. To

determine these findings, the dissertation looks at ethical theories and values. The author then

evaluates International Law and International Humanitarian Law and Domestic Law. The researcher

also looks at negatives and positives of the use of drones, studies fully autonomous drones and

whether they represent danger for our society, analyses statements by Harold Koh, Legal Adviser of

the Department of the United States, examines Interpretative Guidance by the International

Committee of the Red Cross and focuses on the targeted killing of Anwar Al-Aulaqi. The author also

evaluates the report by the human rights organization Reprieve, which provided the statistics of 46

individuals that were targeted and how many civilians died in these strikes. In the last chapter, the

author hypothesises whether the use of drones by the US in the last 14 years could be partly

responsible for the Refugee Crisis in the summer of 2015. The study concludes that the use of drones

and targeted killings may be legal, but only in exceptional circumstances. The dissertation stresses

that using drones became a first option, rather than a very last resort, which is incorrect.

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CHAPTER 1

INTRODUCTION

Imagine that you are living somewhere in Pakistan, Yemen, or Gaza where the United States

and its allies suspects a terrorist presence. Day and night, you always hear a constant buzzing in the

sky. You know that this flying robot is watching everything you do. Sometimes, it fires missiles into

your village. You are told the robot is targeting extremists, but its missiles have killed family, friends,

and neighbours. Your behaviour changes: you stop going out, you stop congregating in public, and

you likely start hating the country that controls the flying robot. And you probably start to

sympathize a bit more with the people these robots, called drones, are monitoring.1

1.1. BACKGROUND

The terrorist attacks of 11th of September 2001 (9/11) changed the world: domestically and

internationally. After 9/11, the United States (US) with the cooperation of the United Kingdom (UK)

began Operation Enduring Freedom, which aimed to remove the Taliban government in Afghanistan

and to eliminate members and supporters of Al-Qaeda. Afterwards, in 2002, a new Afghan

government was built and the US carried on conducting armed forces against the terrorist

organization and its associates in the area.2 Therefore, a new concept of how to combat terrorism

was established; however, the US did not limit their strikes just to the territory of Afghanistan, but

rather began using military force and strikes in Somalia, Pakistan, Syria and Yemen with the aim of

targeting individuals who were associated with Al-Qaeda. These strikes were later known as targeted

1 Owen, Drones dont just kill. Their Psychological Effects are Creating Enemies, The Globe and Mail, (2013), Available at:
http://www.theglobeandmail.com/globe-debate/drones-dont-just-kill-theirpsychologicAl-effects-are-creating-
enemies/article9707992. Accessed 15 June 2015
2 Siddik Gulluk, Justification of the US for Drone Strikes in Fighting Against Terrorism Under International Law, Lund

University, (2014), Available at:


http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=5113879&fileOId=5113880 Accessed: 03 July 2015

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killings, which were conducted thanks to armoury technologically developed to be accurate and

precise and they were called drones. Drones do not have a human being on board, can be

autonomous or be controlled remotely and are capable of carrying a lethal bomb.3

The drones developed to the extent that they can provide real time intelligence to its operators and

once the drone detects a target, the commanders may decide to launch a lethal missile.4 The Bush

Administration started to use drones to kill supporters of the Taliban and Al Qaeda in 2002. The

Obama administration increased the amount of strikes and the use of drones became a key strategy

to combat terrorism.5 Over the last 14 years, the drones were successful in eliminating dangerous

terrorists, however they were unsuccessful since they were responsible for over 1100 innocent

civilians according to report by the human rights organization, Reprieve.6 These killings will be given

more focus in the Chapter 4.

1.2. TARGETED KILLINGS IN PRACTICE

In August 2009, CIA officers in Virginia, watched closely a live video of Baitullah Metsud, who was

the leader of the Taliban in Pakistan, responsible for numerous bomb attacks and the death of Prime

minister of Pakistan, Benazir Bhutto.7 On that August evening, the officers saw from the live feed

that Metsud, his wife, uncle and other people were in Metsuds father-in-laws house on the

rooftop. Metsud, who was a diabetic, was seen getting a medication from his doctor. The CIAs

officials had a clear image received from a remotely controlled Predator and decided to launch a

3 Ibid
4 OConnell, Unlawful Killing with Combat Drones A Case Study of Pakistan, 2004-2009, Notre Dame Law School Legal
Studies Research Paper, 2009, Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1501144 Accessed 10
June 2015
5 Ibid
6 Reprieve, You Never Die Twice: Multiple Kills in the US Drone Program, 2014, Available at: http://www.reprieve.org/us-

drone-strikes-kill-28-unknown-people-for-every-intended-target-new-reprieve-report-reveals.html Accessed 17 August


2015
7 P.Z. Shah, Taliban Leader in Pakistan Is Reportedly Killed, NY Times, 2009, Available at:

http://www.nytimes.com/2009/08/08/world/asia/08pstan.html?_r=0 Accessed 17 June 2015

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missile from the drone.8 Thousands miles away, the officials of the CIA were witnesses of an

explosion, watching from their video as eleven other people died, including Metsuds wife, her

mother and father, Metsuds double and seven guards. Metsud had been targeted since 2008 and

the CIA since then used 7 drones to attempt to kill him.9 The drones strikes were responsible for 164

people, who as some scholars argue, were possibly members of the Taliban, however there were

some who were innocent people who just happened to be in the wrong place at the wrong time,

particularly, when there was a launched drone that meant to kill Metsud on one of the funerals that

he attended in the past, and instead 86 mourners were reported to be dead from the strike.10

1.3. RESEARCH FOCUS

The main subject of this dissertation is to consider the extent to which the use of drones can be

legally justified; however, it will not be limited just to this issue. Certainly, it could be logical to

suppose that once a terrorist is considered to be a serious threat to the security of a nation, the

terrorist is a legitimate target and therefore killing him is legal. Surely, at first the assumption itself is

persuasive legally eliminating a threat that could be potentially dangerous and responsible for the

death of innocent people. However, as will be argued in this thesis, the notion is not as clear as it

first appears to be.

This thesis will firstly focus on the moral grounds of the issue. It studies two different theories:

deontological theory and consequentiality. These two theories could be seen as unusual examples to

discuss the moral justification of the use of drones; however, the author of this thesis believes that

they particularly make a strong argument for why the use of drones should not be justified.

8 J. Mayer, The Predator War What Are the Risks of the CIAs Covert Drone Program? The New Yorker, 2009, Available at:
http://www.newyorker.com/magazine/2009/10/26/the-predator-war Accessed 13 June 2015.
9 A. Martirosjan, Drone Strikes: Legitimate, or Ordinary Murder by the State? University of Rotterdam, 2013.
10 Supra note 8

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Secondly, it will put into contrast US domestic law and international law, the responsibilities of the

US president, whilst it also questions what power the President has. The second part also focuses on

jus ad bellum principle and considers whether it is legal to use drones against states which have not

conducted any armed force against the US.

Thirdly, it will illustrate first cases when the US started to use drones and consider many others that

were eventually unsuccessful. These cases were particularly the ones that show what happens when

the operator of a drone makes a decision based just on a suspicion that the target is a terrorist.

It afterwards leads to the fourth part which discusses how autonomous the drones truly are. It

considers two very significant reports by Human Rights Watch and Strategist. This chapter examines

what a strong artificial intelligence is, how close it could be to a human emotions and how it could

be used in the future.

Whilst there have been several reasons why drones have created such a controversial discussion,

the author supposes that it is easier for states to kill when drones, and it is also more tempting to

use lethal force against its enemies. Therefore, this dissertation will fifthly focus on the so called

Play station effect, which is created when operators remotely operate drones whilst they are

thousands miles away from the battle zone. Afterwards, it describes the main positives that drones

could bring to our society; however it also looks at negatives.

Subsequently, it considers the US position and their actions, and looks at the arguments of how their

officials justify the use of drones. This chapter analyses the statements of Harold Koh, Legal Adviser

of the Department of the United States, who mainly argues that the actions of the US are justified

because of self-defence. This part of the thesis challenges the statements.

Consequently, the author also analyses the Interpretative Guidance by International Committee of

the Red Cross and looks at how direct participation in hostilities can be applied under international

humanitarian law.

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The thesis also provides a brief description of the targeted killing of Anwar Al-Aulaqi. After the

description, the author provides argument and analysis of why the killing of Anwar Al-Aulaqi was

illegal. All the arguments are based on the facts that were explained in this thesis before that

chapter.

The dissertation then focuses on the report by the human rights organization group Reprieve, which

provides shocking numbers of how many people died whilst the US authorities attempted to kill 46

targets. The numbers are put into a table and graphs, so the reader can easily understand the

significance of the issue.

Lastly, the author gives his own explanation of what is the most recent consequence of the use of

drones the refugee crisis in the summer of 2015. The author explains that one of the reasons the

refugees attempt to escape their own countries and homes because of the bombarding campaign

conducted by the US government. The author is fully aware that this assumption might come across

as a speculation, however, tries to provide arguments which would support this notion. The author

also considers that drones used for surveillance could be helpful with rescues at sea.

1.4. RESEARCH OBJECTIVES

The objectives of this dissertation are:

1. To establish whether targeted killings and drones are legal.

2. To determine whether targeted killings and drones could be justified.

3. To question the possibility of fully autonomous drones in the future and whether they would be
able to meet international humanitarian law and international law standards.

4. To find answers whether a non state actor can have more tendencies to use a drone than a state.

5. To show how the drones are essentially not as precise as the US government claims they are.

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6. To explore whether targeting based on suspicion is a legal criterion.

1.5 THE METHODOLOGY AND SIGNIFICANCE OF THE STUDY

The study is primarily based on books by numerous scholars and academics. However, the author

also looked at the UN Charter and Geneva Conventions of 1949. The three most important reports

for this dissertation were the reports by Human Rights Watch, Strategist and Reprieve. The report by

Reprieve significantly contributed to an understanding of how drones employed by US are not

precise at all. The author also read opinions on Opinio Juris and analysed Interpretative Guidance by

the ICRC. Furthermore, the statements by Harold Koh assisted a great deal and were analysed to

understand the rationale behind the actions by the US. Lastly, the author conducted three

interviews, including a face-to-face interview with senior lecturer in politics and international

relations, an interview via e-mail with lecturer in criminal law and an interview via e-mail with an

individual who works at European institutions. Therefore, the author believes that combination of all

of the sources will contribute to a coherent understanding of the issue.

The topic itself is significant because over the last 14 years the use of drones increased to an extent

that they became more of a liability than an advantage. Moreover, fully autonomous drones can

easily become a normal practice. Many argue that it is a futurology at the moment, but sooner or

later it might become a phenomenon. 14 years ago, people would not have thought that there

would be drones, able to give a clear image of a location that is miles away. Drones have become a

first option, rather than a very last resort, therefore, it is crucial to examine study and stress about

the importance of why the drones should be employed less and any development of fully

autonomous drones fully cancelled.

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CHAPTER 2

COLLATERAL DAMAGE AND MORAL ETHICS

Since the drones strikes increased, there has been a discussion whether targeted killings

could be justified and to what extent they are legal. Someone could argue that death of a dangerous

terrorist potentially means that less innocent people will die in the future since the terrorist cannot

hurt or kill anyone after he is dead. As with the use of torture, this particular issue could be studied

from two different perspectives: deontological theory and consequentiality. From the deontological

point of view, targeted killings are deemed as cruel and aggressive; therefore its use cannot be

justified. This philosophy, developed by Immanuel Kant, believes that everyone has the right to be

treated with respect by other people: hence, targeted killings are considered as a morally wrong

action and thus should be prohibited.11 However, someone could argue that when a terrorist is

responsible for the deaths of innocent lives, he loses the right to be treated with respect, therefore

deontological theory does not apply to him, and consequentiality can be applied instead.

Considering the targeted killings, consequentiality could indeed be applied because it states that if a

goal is ethically significant enough, whatever method is chosen to accomplish this, it is acceptable,

which is generally used with saying the ends justify the means.12 Therefore in the case of targeted

killings, the lesser evil is chosen to avoid the greater one: hence by killing a terrorist who could be in

the future responsible for the death of innocent people, the positive consequences outweigh the

harm that is inflicted on the terrorist. 13 This could be easily supported by a speculation that if the

US authorities killed Osama Bin Laden in 2000 as they anticipated, the 9/11 attacks would have

never happened and 3000 people would have never died. Therefore, from the consequentialist point

of view, the goal to kill Bin Laden would be significant enough; therefore any method chosen to kill

11 Bruno Andreotti, Can a Moral Argument Be Made For the Use of Autonomous Drones in Warfare? Available at:
https://www.academia.edu/4287681/Moral_Case_for_Automated_Drones Accessed 14 June 2015
12 Mizzoni, John. Ethics: Basics. John Wiley & Sons. p. 104.
13 K. Booth The Human Faces of Terror: Reflections in a Cracked Looking-Glass in Critical Studies on Terrorism (2008)

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him would be justified. The Landau Commission in Israel expanded on this by arguing that

sometimes you have to compare two evils the evil to breach the law as opposed to the evil that

would sooner or later occur if the terrorist would have not been killed.14

Therefore, eventually, the moral argument will always be prisoner to evil from the consequentialist

point of view. Nevertheless, even this could at first appear as a logical argument, it cannot be truly

applied because how the killing of a terrorist (which brings a risk of killing other innocent people) to

stop his bomb attacks in the future is different than committing genocide to stop a bigger one or

raping a child to prevent raping hundreds of other children? It seems that if we were to start

following the consequentialist theory, the boundaries of what is moral would disappear and the

human beings fighting in the armed conflict would sink even lower than before.

14Landau Commission, Report of the Commission of Enquiry into the Methods of Investigation of the General Security
Service Regarding Hostile Terrorist Activity, Part One, para 3.15 (1987)

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CHAPTER 3

APPLICABLE LAW

The use of drones and targeted killings have opened a debate which considers many viewpoints and

two very important aspects. Firstly, it concerns the legal side of the issue: domestic and international

law. Secondly, to what extent would it be legal to carry out a drone strike on a person who is actually

an American citizen? The latter issue particularly expanded after Anwar al-Awlaki, his 16 year old

son, Abulrahman and Samir Khan were killed in Yemen in 2011.15

Addressing the domestic law in the US, whether to target and kill someone mostly concerns

constitutional due process and can be decided by the President if he believes that this is the

approach that will achieve the USAs national security goals. The President of the United States is

allowed to make such decisions as he has legitimate power as commander-in-chief,16 since the U.S.

Department of Justice Office of Legal Counsel published a memo in which several examinations state

that the US President is under Article II of the Constitution authorized to employ use of force

without consent by Congress.17 Therefore, whether Congress agrees or disagrees, the President has

the legitimate power to authorize targeted killings or other deadly strikes. Moreover, the

Authorization for Use of Military Force (AUMF) was established just after the 9/11atacks18, which

also gives powers to the President to use all appropriate and necessary force to defend the country

and order killings against people who he considers to be dangerous.19 Finally, there is the National

15 Dawood I. Ahmed, Rethinking Anti-Drone Legal Strategies: Questioning Pakistani and Yemeni Consent. Available at:
http://yalejournal.org/wp-content/uploads/2013/06/YJIA-SUMMER-VOL8-ISSUE2-FINAL-A1-Ahmed-Copy.pdf Accessed 18
June 2015
16 U.S. CONST. art. II, 2, cl. 1.
17 Supra note 15
18 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. 1541 (2006)).
19 Human Rights Institute, Targeting Operations With Drone Technology: Humanitarian Law Implications, Available at

http://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteASILColumbia.pdf Accessed 17 June


2015

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Security Act of 1947, which to some extent authorizes the President to give a green light to secret

acts. 20

The AUMF firstly appeared as a policy that identifies enemies of the US to be Afghan Taliban and

other few terrorist groups that could be allegedly behind the 9/11 attacks, however the AUMF was

later seen a little differently. After the 9/11 attacks President Bush stated that his administration and

the American authorities were suddenly drawn in to a war on terrorism which means focusing on

every single terrorist group of world-wide importance that is a potential danger to the US.21

Furthermore, not only the Bush administration, but also the Obama Administration have been

known for their justification of engagement in armed conflict by stating that America is indeed

involved in armed war against the Taliban, al Qaeda and other related terrorist organizations.22

Addressing the international law, there are three different aspects in the debate. Firstly, there is jus

ad bellum principle that justifies targeted killings if the country needs to self defend itself. However,

this must be done with the approval of the host state, which if this criterion is lacking and the host

does not want to cooperate or is not able to control non-state actors within its borders, targeted

killings are justified.23 Attorney General Eric Holder used this argument and said that all of the US

governments strikes are justified as Pakistan was reluctant or incapable to put down the danger at

issue.24 In this particular case, Curtis Doebbler claimed that Pakistan did not give the US any consent

to strike their country; therefore the targeted killings were illegal.25 Nevertheless, Philip Alston

referred to jus ad bellum and stated that there is no requirement for consent, especially in cases in

20 National Security Act of 1947, Pub. L. No. 80253, 61 Stat. 495 (codified as amended at 50 U.S.C. 3001 (2006)). (See
discussion infra accompanying notes 3642).
21 Eric Schmitt & Thom Shanker, Counterstrike: The Untold Story Of Americas Secret Campaign Against Al Qaeda, 2526

(2011)
22 Gregory S. McNeal, Targeted Killing and Accountability, Pepperdine University School of Law, 2014, Available at

http://georgetownlawjournal.org/files/2014/03/McNeal-TargetedKilling.pdf Accessed 23 June 2015


23 Id
24 Robert Chesney, Text of the Attorney Generals National Security Speech, Hard National Security Choices, 2012, Available

at https://www.lawfareblog.com/text-attorney-generals-national-security-speech Accessed 30 June 2015


25 Curtis A. Bradley and J. Goldsmith, Foreign Relations Law, Jurist, 2011, Available at:

http://jurist.org/forum/2011/05/curtis-doebbler-illegal-killing-obl.php Accessed 2 July 2015

15
which a state is incapable of preventing rebels and terrorists from creating new plans and attacks

within the country.26

The second aspect is whether it is lawful to attack countries, which have not used any military force

on the US, or with which the US is not at any armed conflict, and which refuse approval to use

drones on its land. The most common example used in this scenario is the use of force in Pakistan,

whilst there is not consent from their government, merely because the government is not able or

willing to stop and avoid the future terrorist attacks.27 More detailed arguments on this matter will

be studied in one of the chapters later by analyzing statements of Harold Koh, Legal Adviser of the

Department of the United States. However, at this stage, it will be mentioned that there were two

instances when the International Court of Justice came to the conclusion that international law does

not permit a country to strike the land of a country that is not accountable for the strike but where

radicals occurred to live, in other words, the unable and unwilling countries that cannot be

accountable just for a fact that a terrorist was born and lived there. 28

Thirdly, is the use of drones unlawful because it mostly ended up with too many losses of innocent

lives, does not supposedly differentiate between innocent individuals and enemy insurgents, or does

not give any chance for enemy combatants to surrender?

Finally, a question needs to be considered which is somewhat separate but also very related in

aspects to the issue. Academics question whether the US is allowed to relocate their conflict against

Al-Qaeda on to the Pakistani land, since they are not as Afghanistan is, the hot battle zone, in

other words Pakistan is not in the centre of an active armed war.

26 Philip Alston, The CIA and Targeted Killings Beyond Border, 2 Hary. Natl Sec. J. 283 (2011)
27 Supra note 15
28 Id

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CHAPTER 4

CASES OF DRONE STRIKES AND TARGETED KILLINGS

Over the past few decades, targeted killings have been conducted by countries that would

frequently refuse to admit the reality of policy responsible for deaths of human beings. Throughout

history, these actions were highly confidential and secret, however this has changed in the wake of

9/11 and the two main states, Israel and the U.S., have publicly disclosed their engagement in

targeted killings in 2002. One of the people who was put on a list of potential targets was a

suspected member of Al Qaeda.29 The U.S. Central Intelligence Agency (CIA) targeted Qaed Salim

Sinan al-Harethi after he was suspected to be behind the attack on the USS Cole, which had

eventually lead to the deaths of 17 American sailors in 2000. Morever, Sinan al Harethi was allegedly

one of the men responsible for the 9/11 attacks.30 Essentially, he and five other people that were

with him were killed by a drone-launched missile in November 2002. Although, several scholars

argued that the Bush administration should have made an attempt to capture the terrorist rather

than kill him, the act was justified because it was seen as a self-defence strategy as the Bush

administration believed that he was a prominent figure in the 9/11 attacks. 31

Nevertheless, the UN Human Rights Council (UNHRC) identified the act to be a subject of

extrajudicial killing.32 The paper USA Today published an article in which they claimed that this attack

was Opening up a visible new front in the war on terror.33 This claim later proved to be correct

because targeted killings and drone strikes not only continued, they also increased under the Bush

and Obama administrations. To put this argument to a perspective: the Agence France-Presse

29 Nils Melzer, Targeted Killing In International Law, Oxford University Press, 2010
30 Otto, Roland. Targeted Killings and International Law: With Special Regard to Human Rights and International
Humanitarian Law, Springer, 2012.
31 O'Connell, To Kill or Capture Suspects in The Global War on Terror, 35 Case W. Res. J. Int'l L. (2003)
32 Id
33 USA Today. U.S. Kills al-Qaeda Suspects in Yemen. Available at http://www.usatoday.com/news/world/2002-11-04-

yemen-explosion_x.htm. Accessed 04 July 2015

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revealed that the Pentagon used to have less than 50 aerial drones 15 years ago.34 However,

nowadays 7000 aerial drones are known to be in possession of the Pentagon. Moreover, the budget

of the organization has increased by $5 billion just for the usage of drones. This enhancement in the

budget demonstrates how US foreign policy has shifted their way to conduct their involvement in

the future wars. 35

The planned targeted killing of Sinan Al Harethi may have been recognized as the first successful

assassination of an acknowledged objective, however it was not the first deadly drone attack. The

first lethal drone strike took place in February 2002 in Afghanistan, when CIA leading operators saw

two men talking to a third man with respect.36 The operators concluded that the third man might be

Osama Bin Laden, therefore used a Predator drone which essentially resulted in the death of all

three men. After a close examination, the operators found out that the target was not Osama Bin

Laden after all.37 A Pentagon Admiral Stufflebeem later admitted that none of the persons were Bin

Laden, however he claimed that the men were not innocent, and that initial indications

afterward would seem to say that these were not peasant people up there farming.38

Another Pentagon representative afterwards claimed that the Pentagon was sure that it was a

correct target; however, they do not have any identities for the three men. Subsequently, the

Pentagon did not elaborate on this, did not provide any further explanation for such basis, nor

disclosed what exact factors had been used to verify that the three persons were justifiable

34 Tom Tschida. Predator Drones and Unmanned Aerial Vehicles (UAVs). The New York Times. Available at
http://topics.nytimes.com/top/reference/timestopics/subjects/u/unmanned_aerial_vehicles/index.html. Accessed 7 July
2015
35 Id
36 Supra note 31
37 Id
38 John F. Burns, A Nation Challenged: The Manhunt; U.S. Leapt Before Looking, Angry Villagers Say, The Manhunt, 2002,

Available at: http://www.nytimes.com/2002/02/17/world/a-nation-challenged-the-manhunt-us-leapt-before-looking-


angry-villagers-say.html Accessed 27 July 2015

18
targets.39 However, the New York Times later conducted an independent investigation and found out

that the men were residents from close towns searching for scrap metal.40

This unfortunate event is not the only instance when an innocent civilian was killed or injured.

Another instance happened in Watapur district, in September 2013, when the drone strike operators

assumed that they can see a vehicle carrying rebels. Although they later discovered that the vehicle

was carrying six rebels, they were also eleven innocent people, out of which four were women and

four children.41 As a result of the drone strike, the six rebels were killed together with other ten

people and seriously injuring a young girl. However, the presence of the innocent people was denied

by the NATO-led International Security Assistance Force (ISAF), which later decided again not to

disclose to media what actions were taken to identify targets. The ISAF only stated that one of the

rebels had most likely been high level. 42

Another attack happened in Uruzgan in February 2010. The targets this time were around 20 people

who met together just before sunrise, got into their vehicles and left the province. It was later

discovered that the people were in fact innocent residents that gathered together to safely cross an

unsafe region. As they left the place, the predator drone followed them for next three hours, whilst

giving data to a USA ground leader who was commanding a unit in the area of Taliban force. The

crew operating the drone misread the data obtained from the drone, resulting in the conclusion that

the people in the vehicles were insurgents and not civilians.43 The whole group of twenty three

people, including women and children were killed in the attack. The military afterwards carried out

investigation publicly, which resulted into administrative sanctions for a number of senior officers

and the entire Predator crew that was responsible for operating the drone.44

39 Steven Clark, Targeted Killings: Justified Acts of War or Too Much Power for One Government, Global Security Studies,
Volume 3, Issue 3, 2012 Available at http://globalsecuritystudies.com/Clark%20Targeted.pdf Accessed 12 July 2015
40 Supra note 38
41 Supra note 39
42 Supra note 31
43 Craig Martin, A Means-Methods Paradox and the Legality of Drone Strikes in Armed Conflict, Available at :

http://ssrn.com/abstract=2535945, Accessed 19 July 2015


44 Id

19
Repeated practice of targeted killings and drones resulted in a Senate Foreign Relations Committee

Report in 2009 which concluded that even drug group leaders who were suspected of funding the

Taliban should be potential targets for killings. In 2011, the Obama administration increased the

number of strikes which repeatedly killed a great number of people. However, the attack sites are

very hard to independently access, therefore there is a limited understanding of whether the strikes

were in fact lawful, or how many innocent civilians were wounded or killed.45 A governmental

inquiry from Yemen however discovered that in December 2009, an American cruise missile strike

killed 41 local inhabitants, of which 21 were children and 14 were women. It supposedly included

cluster munitions, a missile that potentially causes intolerable risks in resident areas. In September

2011 the CIA established a new base on the Arabian Peninsula from which the Obama

administration started further drone attacks.46

Therefore, all of these cases clearly show that suspicion should not be a legitimate criterion. This is

more or less supported by all of the authors interviewees. Andre Barrinha in the face to face

interview stated:

Just because you have a suspicion, thats not a reasonable legal ground in which you can kill

someone. So, in any case, what you need to do is to bring someone to justice. Only, as I said, unless

you are in the context of war, or you have a clear evidence that the person is about to commit an

attack or to kill someone. Only in those cases, it can be justified; mostly using the argument of self

defence as a very last resort, in other circumstance, what you should do is to bring the person to

justice and not just kill them.47

Instances like this can make someone think that an operator acts under influence of stress and

emotions, therefore, a reasonable solution could be to leave the decision making process to the

robot. However, to what extent should be complicated systems such as drones fully autonomous?

45 Alberto R. Gonzalez, Drones: The Power To Kill, Belmont University College Law, 2013, Available at:
http://online.wsj.com/public/resources/documents/GonzalesPowertoKill02042014.pdf Accessed 30 July 2015
46 Supra note 43
47 Viktor Dubrava, Interview with Andre Barrinha, Face to face meeting (2015), Appendix 6

20
CHAPTER 5

FULLY AUTONOMOUS DRONES

The concern of fully autonomous drones was raised by Human Rights Watch report Losing

Humanity: The case against killer robots which demonstrated that there are too many risks involved

when you entirely remove a commander in charge from the decision making.48

The report argues that technological progress has been so fast that, slowly but surely, human

involvement has been significantly reduced in fighting wars. Indeed, the creation of smart robots

allowing the US to carry out surveillance on Libya, Yemen or Pakistan with no apprehension of losing

casualties has been an important step forward.49 It does seem justified to claim that the use of

robots is to reduce human losses; however taking advantage of the recent technological progress

can bring complications. Arguably, thinking that there are no human losses if our autonomous

robots fight in battle zones, it might have been easier for commanders to make a decision to enter

war. This might lead to unnecessary wars which might have been resolved at the diplomatic table.

On the other side, commanders in charge might hesitate much more if their own soldiers were in

danger of being killed or seriously injured. It can be argued that states that possess more

autonomous robots might be more aggressive and confident to enter wars.

Another aspect that needs to be considered is human emotions. Some operators of drones admitted

that sometimes they felt like they were playing a video game as they felt emotionally separated from

the action of killing a human being.50 As D. Keith Shurtleff expressed: As war becomes safer and

easier and as soldies are removed from the horrors of war and see the enemy not as humans but as

48 HRW, Losing Humanity: The Case against Killer Robots, Available at: https://www.hrw.org/report/2012/11/19/losing-
humanity/case-against-killer-robots Accessed 05 August 2015
49 Id
50 Id

21
blips on a screen, there is a very real danger of losing the deterrent that such horrors provide.

51
Unfortunately, robots that operate autonomously present the very same concern.

However, countries must review weapons to make sure they do meet the criteria of international

humanitarian law. According to Human Rights Watch report, countries therefore should start

reviewing weapons as early as possible throughout the development. 52

However, it can be argued that robots with complete autonomy would not be able to meet

principles and values of IHL. However smart the mechanism would be, there are certain rules of

difference and proportionality that present significant instruments to protect civilians from the

consequences of war and in this case, weapons that are fully autonomous machines would be

incapable of understanding those rules. Surely, scientists and engineers defend themselves and

argue that the systems in the brains of the robots would be sophisticated and programmed to

analyse the most complicated algorithms to solve situations in combat and to fully replace a human

mind. However, even the robots would have possessed a strong artificial intelligence (AI); they

would have lacked very crucial human quality to meet the IHL standards.53 As the IHL standards are

very complex and involve a lot of subjective decision making, they require human judgment, which

robots with any sophisticated AI, will never have. This can be supported by a situation in which a

robot would not be able to distinguish between a scared human being and threatening enemy rebel

as it is required from soldiers to comprehend the intentions behind human behaviour. Furthermore,

weapons that would be fully autonomous would likely break Martens Clause54, which bans artillery

that contradicts the dictates of public conscience.55

Lastly, fully autonomous weapons and their use also represents the issue of who is accountable for

any illegal actions of the robot. Considering a situation in which a robot eventually recognizes a

51 Cited in: P.W. Singer, Military Robots and the Laws of War, The New Atlantis, no. 23 (Winter, 2009), 25-45.
52 Supra note 48
53 Id
54 Id
55 Laws of War: Laws and Customs of War on Land (Hague IV), 1907, Avalon Project at Yale University

22
target and attacks, later discovering that the target was an innocent civilian, who would be

accountable for this illegal act? Would that be the commander that positioned the robot in the area,

the engineer who programmed the robot, or the company that was responsible for the manufacture

of the robot? Essentially, it could be argued that it would not be fair to blame any of the three

actors, but the robot itself. However, this would mean that no one is being punished and liable for

the loss of innocent life, which would not eventually meet the IHL standards and victims of the

unlawful act, would be left with no meaningful retributive justice. The justice system in our modern

world is based on the idea of accountability and to take this away from the society would be a major

step back.

According to Andre Barrinha (Appendix 6):

Its the same as if you have a dog and the dog bites someone, obviously you can punish the dog, but

you cant claim legal responsibility to the dog and maybe the owner will disappear and hide and

nobody knows to whom the dog belongs to, but in most cases you know, so its the same thing.56

Barrinhas comparison makes perfect sense and it could be argued that the owner of the drone

could be accountable; however, there are still bigger risks in employing fully autonomous drones

than having a human being operating the drone. How to conduct decision making on drone strikes is

undoubtedly a serious issue, particularly if civilian casualties are involved. However, as mentioned

above, HRW report considers fully autonomous systems and argues that they should be prohibited

before they are produced.57 Nevertheless, Dan Trombly, International Affairs Analyst and blogger,

explains that fully autonomous systems will indeed never be created as there will be always a

military commander. Trombly adds that producing a fully autonomous machine is nonsense as no

commander needs a weapon that cannot be properly controlled.58

56 Viktor Dubrava, Interview with Andre Barrinha, Face to face meeting (2015), Appendix 6
57 Supra note 48
58 Clint Arizmendi, Drones and the Kill-Decision-Making Loop, The Strategist, 2013, Available at:

http://www.aspistrategist.org.au/drones-and-the-kill-decision-making-loop/ Accessed 05 August 2015

23
5.1. STATE ACTORS AND NON STATE ACTORS

Even if this seems like a logical explanation, Trombly and HRW report did not consider an

involvement of non state actors, but only use of robots by states. Surely, the United Kingdom would

hardly produce a drone that is fully autonomous, as the country is bound by a list of rules that need

to be followed when involved in conflict. Hence, no matter what war they enter, what enemy they

are against, or the machinery the enemy employs, they will not use a fully autonomous weapon.

However, non state actors who are not limited by the same list of rules will certainly not have the

same opinion about fair battle and are expected to adapt and set out machinery much more

autonomous and less regulated to accomplish a win.59 This worrying factor is supported by Peter

Singer, who gave a speech on TED on the future of drones, conflict and armed military.60 Singer

mentioned that all you need to create a hand-held Raven drone is around $1000. For $1000 anyone

can freely buy the parts required to build the drone.61 Hence, essentially all that a non state actor

needs is to get every part needed to build a weaponised drone and attain a simple open-source

voice and facial recognition technology. Afterwards, last step to do is to launch the drone and await

what happens. The non state actor can easily follow its success or failure by observing social

networks. Accordingly, the non state actor can take the credit if the plot worked or ignore it if it

failed.62

Another example of who could use a drone without questioning any set of laws would be lone wolf

types. Similar point attempted to anonymously make a male with nickname Milo Danger who in

2012 posted on YouTube a video in which a hobbyist drone attached with a small paintball gun was

flying around a field and showering with pellets his friends who agreed to volunteer in this video.63

Dangerously, what could stop a lone wolf individual to easily access open-source technology and use

59 Id
60 P.W. Singer, Military Robots and the Future of War, TED, 2009, Available at:
http://www.ted.com/talks/pw_singer_on_robots_of_war Accessed 10 July 2015
61 Id
62 Supra note 58
63 Patrick Hruby, Citizen Drone Warfare: Hobbyist Explores a Frightening Scenario, The Washington Times, 2012, Available

at: http://www.washingtontimes.com/news/2012/dec/17/citizen-drone-warfare-hobbyist-explores-a-frighten/?page=all
Accessed 06 July 2015

24
it for malevolent purposes, such as the assassination of a local authority figure? Surely, in Milo

Dangers case, it was just a paintball pistol, however it can be seen that anyone could build slightly

more dangerous drone and use it against any target. Milo later explained to Washington Times that

he did not want to advocate any bad activities, but on the contrary, he wanted to stress that this

new technology is expected to be used for illegal purposes, in this case, not just targeting volunteers

who agreed to make the point, but rather people that could be wounded or even killed.64 Milo

makes an even stronger point by stating that people who agreed to contribute in this project were

not afraid of being shot by a paintball pistol. They wanted to try whether they could actually escape

and hide from the drone. Unfortunately, the result was that they did not escape nor hide, as all of

them ended up shot by the gun.

Another point of view provided Andre Barrinha who in a face-to-face interview stated:

Hamas has got their own drones, but still even for those groups, its not so easy to have access to

certain type of drones. Firstly they are not particularly cheap...they are sometimes hundreds of

millions of dollars. Secondly, drones are not just the aeroplane you see, they are the whole system,

they include satellite, transmitters, so you cant just buy a drone to get out of the box and kill

someone that easily, so in that sense, there are still significant obstacles to use drones, as a weapon

for non state actors, you need to have specific strategic goals in mind and even in those cases, youll

find quite a number of obstacles to try to use that, so I would say that there is still a difference

between what you can get as a state and what you can get as a non state actor.

Nevertheless, the prices of types of technology are getting lower, and getting more advanced drones

for $1000 is easier than 10 years ago, therefore, it can be argued that it is still alarming that in 10-15

years time terrorist groups will be able to build more developed drones than now.

64 Id

25
CHAPTER 6

POSITIVE AND NEGATIVE ASPECTS

6.1. POSITIVES

Drones can be used as systems for surveillance purposes, therefore they can be positioned above a

target for quite a long time up to 22 hours at a time, which is arguably appropriate amount of time

for operators to longer evaluate and gather as much intelligence as needed.65 The drones can go up

to 50 000 feet which makes it complicated to detect. As the drones are usually situated above the

target during the decision making process, it is easier to conduct a fast strike, when the actual

decision is made. Additionally, amongst the stealth features there are other gathering and targeting

characteristics, which involve more complex antennas and video feeds.66 One of the most recent

features is the Gorgon Stare, which is a set of cameras that are able to send a video up to five-mile

radius at one time, giving operators a chance to zoom into any of the sections. Moreover, the drones

are operated by numerous people, including an intelligence coordinator, an operator of sensors and

a lead pilot.67 Furthermore, there are more intelligence analysts involved in the process, who can

contribute to the decision making procedure using another feature called chat rooms which is a

voice line where everyone can say what they think of the information gathered from the drone.68

Therefore, the decision making procedure is assessed by more people, who are together analyzing

the information, all of them working under less stress as there are no imminent risks involved.

65 Gen. John P. Abizaid and Rosa Brooks, Recommendations and Report of the Task Force on US Drone Policy, Washington:
The Stimson Center (2014)
66 Lynn E. Davis et al., Armed and Dangerous? UAVs and U.S. Security, (Washington: RAND Corporation, 2014)
67 Aaron M. Drake, Current U.S. Air Force Drone Operations and their Conduct in Compliance with International

Humanitarian Law An Overview, Denver Journal of International Law & Policy, Vol. 39, No. 4 (2011)
68 Supra note 66

26
Hence, it can be argued that this particular procedure is less dangerous, involving minimal amount of

errors and is more likely to meet the IHL standards and other lawful responsibilities. 69

The biggest advantage is that the drones are unmanned, thus they are remotely controlled. This

especially means that dangerous areas that would be hardly reached by soldiers are suddenly open

for surveillance and gathering necessary information. Therefore, with all the other characteristics

such as the amount of time to gather information, stealth, and group decision making procedures

and no risk involved for troops, makes unmanned drones a very helpful system.70

Defenders of the use of drones also claim that weapons equipped with drones are extremely

accurate and are developed to often hit and damage just the areas that are supposed to be hit.71

This will be later challenged by portraying events when a drone supposed to hit smaller target but

eventually had an impact on wider area. Nevertheless, the defenders consider drones to be a high-

accuracy weapon mechanism. This argument is mainly supported by the fact that one type of drone,

the Reaper can carry bombs that can accurately hit a target due to having GPS.72 The predator drone

on the other side can carry Hellfire missiles that are guided by its own laser system. Therefore,

characteristics of both types of drones are likely to correspond with the norms of IHRL and IHL, as

they posses technology that allows them to be as precise as possible.73 For that reason defenders

believe that the more precise the drones are, the less likely it is that they will harm innocent

civilians.

69 Laurie R. Blank, After Top Gun: How Drone Strikes Impact the Law of War, University of Pennsylvania Journal of
International Law, Vol. 33 (2012)
70 Supra note 65
71 Michael N. Schmitt et al., The Manual on the Law of Non-International Armed Conflict with Commentary (Sanremo:

International Institute of Humanitarian Law, 2006)


72 Supra note 67
73 Supra note 71

27
6.2. NEGATIVES

Interestingly, opponents of the drones use the very same characteristics to explain that drones are

not as remarkable as they are portrayed by the advocates. Firstly, the opponents argue that

operators, analysts and other people involved in the decision making process can rely just on the

video and other intelligence gathered by sensors that is given by the drone itself. The opponents

explain that people who make decision are influenced by the soda-straw effect which in practice

suggests that analysts often zoom in on a narrow area, therefore leading to a constricted view. 74

This at the same time gives the operators the impression that what they see somehow represents

the entire issue, which later results in losing significant information that could be gathered if the

operators were targeting also the surrounding area and not just the zoomed target. This particular

argument is strong in cases where the operators zoom in on a target for a few hours, define that

target as dangerous and decide to fire without double checking whether an innocent civilian

somehow got into the area which will be affected by the bomb fired from the drone.75

Secondly, the opponents suggest that the technology progress is not always a good step to better

conduct ourselves in the battlefield. This is with regard to the above mentioned Gorgon System

which brings the video with better resolution, more sophisticated sensors and quicker data

streaming. Surely, it could be argued that the better the technology, the less risks are involved to

harm civilians, however the operators must analyse much more data in the same time, therefore the

decision makers and analysts experience a so called data crush. Essentially, 80-90% data gathered

is inadequate and whilst analysts and operators analyse this type of data, they can simply miss

significant evidence.76

74 Supra note 43
75 Center for Civilians in Conflict, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions, Columbia Law
School, 2012, Available at
http://civiliansinconflict.org/uploads/files/publications/The_Civilian_Impact_of_Drones_w_cover.pdf Accessed 07 August
2015
76 Wayne Chappelle et al., Assessment of Occupational Burnout in United States Air Force Predator/Reaper "Drone"

Operators, Military Psychology, (2014)

28
Thirdly, the opponents suggest that the operators detachment from the battle zone means that

there are no risks involved for anyone operating the drone. Many could argue that it is absurd to

suggest that it is a poor argument, however it is somewhat logical. The opponents argue that the

less reciprocal risk is involved, the more likely operators are to make mistakes and target errors. This

is supported by the Play station effect, which means that there is something wrong with operators

that are distant from their targets and at the same time are responsible for their killing thanks to a

video-feed provided by a drone. Moreover, it concerns that whilst operators kill a thousand miles

distant target in the morning, they are back home, watching TV with their partners and children in

the evening.77 According to Craig Martin, this can mean that operators cannot properly consider

moral consequences of their actions.78 However, this argument and the Play station effect

especially are considered very speculative by the advocates of drones. The defenders of drones also

suggest that being distant and detached from the battle zone is actually better as the operators can

make stress-free decisions, since they are in a position of safety.79

77 Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, United Nations Human
Rights Council, 2010.
78 Supra note 43
79 Supra note 71

29
CHAPTER 7

THE US POSITION AND HOW THEY JUSTIFY THE USE OF DRONES

Ever since the US began employing the drone strikes in several places such as Pakistan, Yemen or

Afghanistan, the global community of scholars, academics and law experts commenced a discussion

on whether such acts are justified. After several calls and proposals by the United Nations and

numerous other institutions have been made to encourage the US to provide a lawful explanation,

Harold Koh, the legal adviser of the Department of the State delivered a speech in which he

presented a clarification of targeted killings, especially the ones conducted with the use of drones.

80
What Koh said on that day was considered as a comprehensive speech which attempted to justify

the USs actions. However, the speech contains contradictions that need to be considered in greater

detail.

Koh Harold stated that: The United States agrees that it must conform its actions to all applicable

law. The United States is in an armed conflict with al Qaeda, as well as the Taliban and associated

forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to

self-defense under international law.81

Reading Kohs statement, he seems to rationalize the actions by using international law and its

normative framework. Undoubtedly, Mr. Koh is aware of all the applicable law, which is in this case

domestic and international law and that leads to an argument that the USA is allowed to target and

kill people because it is only in self-defence. It can be argued that the War on Terror has served as

an argument to justify American actions because every attack, every operation and every killed

human being was done in self-defence. Hence, arguably, the whole of US foreign policy and their

80 John Sjoberg, Attack of the Drones An Argument Analysis of the American Official Justification on Targeted Kilings and
the Use of Unmanned Combat Air Vehicles, Lund University, 2010, Available at
http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1653555&fileOId=1686914 Accessed 3 June 2015
81 Koh, Harold. The Obama administration and international law. US Department of State, 2010, Available at

http://www.state.gov/, Accessed 15 July 20115

30
decision making since the 9/11 attacks are in the category of jus add bellum, since the motivation to

defend their country is the primary argument. However, there are a few aspects that need to be

considered. According to article 51 in the UN-Charter, self defence indeed may be conducted to

justify violence82; however the attack must be based on grounds of the right intention and cause. Jus

ad bellum obliges to use armed forces just on the reasons of restoring peace and the attack must not

be based on revenge.83 Moreover, Mr. Koh does not mention that individuals that are being targeted

are actually imminent threats to the nation. The statement that the US is acting in self-defence is

tricky also because it mixes the necessity and proportionality under the IHRL standards with the

norms of the necessity and proportionality of IHL, which is not the same. Alston argues that the

norms of IHRL are not as tolerant as IHL.84 Necessity in IHRL requires the countries to find different

alternatives, which is in most cases attempt to catch the target rather than immediately kill the

person, hence killing the person must be the last resort. Proportionality in IHRL means that armed

forces can be used, but just in cases where they need to defend themselves from attacks by the

target. On the other side, necessity in IHL requires a state to firstly assess whether an operation has

the potential to be successful and accomplish military goals. Proportionality in IHL means that the

military forces must take into account any potential collateral damage.85

The American self-defence in the armed conflict was also explained by Kenneth Andersson who

stated that the US self-defence and conduct could be compared to Carolina doctrine from 1837.86

Anderson argues that sometimes the USs actions may look like revenge, however these acts are

mostly active defense, which means that a country justifies preventative attacks by using past

terrorist acts.87 Arguably, following this logic, a country can attack whoever attacked them in the

past, since it is better to strike first than to wait for the former attackers hit. Anderssons argument

82 Supra note 4
83 Supra note 81
84 Supra note 77
85 Supra note 81
86 Anderson, Kenneth, Targeted Killing in U.S. Strategy and Law, Brookings institution, Georgetown University Law Centre,

Hoover Institution, 2009


87 Id

31
is that if America wants to justify targeted killings, they need to base their argument on self-defence

rather than refer to armed conflict law, which Andersson claims to be narrow.88

Interestingly, in 2000, Osama Bin laden was considered to be an imminent danger to America;

therefore President Bill Clinton made a decision to kill him. Clinton argued that since the USA is in

armed conflict, and it needed to defend the country against an imminent threat, this act is justified.

However, in 2000, there was no armed conflict publicly known.89 Therefore, it can be argued that the

Clinton administration failed to give any legal frameworks as to why there was an attempt to kill

someone.

Another scholar, Milanovic, using the use of drones in Pakistan as an example, argues that the

American conduct not only violated Pakistans sovereignty but also the right to life as well. Milanovic

believes that using self-defence to justify targeted killings is wrong and illegal as such acts cannot be

lawful when they disobey human rights, especially the right to life under ICCPR.90 Moreover, the

conduct of targeted killings is required as the last resort from the human rights treaties, therefore a

state needs to show that every possible option has been used. Amongst the viable options could be

the arrest, capture or disarming of the target.91

Another scholar, Mary OConnell, also argued that justifying targeted killings by referring to self-

defence is wrong. OConnell claims that American conduct in Pakistan is indeed illegal since America

had never received any authorization from the Pakistani government to break the sovereignty of the

country.92 Certainly, there is no authorization needed if one state attacks another, however, it was

still not justified to attack Pakistan, since Pakistan was not responsible for the 9/11 attacks, since Al-

Qaida was. Moreover, the Pakistani government in the past assisted the USA in catching dangerous

terrorists, therefore it would have been unwise to argue that Pakistan does not cooperate and is not

88 Id
89 Supra note 80
90 Marko, Milanovic, Drones and targeted killings: Can Self-Defence Preclude Their Wrongfulness?, EJIL, 2010, Available at:

http://www.ejiltalk.org/, Accessed 16 June 2015.


91 Id
9292 Supra note 4

32
willing to stop strikes on the USA. Furthermore, the UNSC did not give any permission to use the

drones, hence there was no authorization given for the military action through the UNSC resolutions

to happen, thus the decision to use drones is rather questionable, even illegal. Finally, activities of a

terrorist group are mostly not seen as armed attacks, but are rather understood as criminal

activities. Therefore, OConnell claims that America cannot justify the attacks by relying on self-

defence since in order to be able to use self-defence to justify a targeted killing you need an armed

attack to take place which, according to OConnell, did not happen, because 9/11 was a criminal

activity and not an armed attack.93

The Pakistani case is undoubtedly and still is a very controversial event in the use of drones

particularly because its government keeps denying that the US authorities ever received any consent

from them. This is supported by a visit of Ben Emmerson, who is the UN Special Rapporteur on

Human Rights and Counter-Terrorism. Emmerson claimed that he did not find any proof of the

Pakistan governments consent, therefore he stated that with their actions of using lethal drone

strikes the US did indeed breach the sovereignty of Pakistan.94

7.1. OPERATION ENDURING FREEDOM

Another case in which the use of drones by the American government was justified is the Operation

Enduring Freedom in Afghanistan. Considering this particular case, there have been arguments that

suggest this operation was indeed legal, yet again building the argument on self-defence. Whilst

some argued that the employment of drones in this operation was justified because the Afghan

government tolerated terrorists responsible for the 9/11 attacks, it does not necessarily prove that

the government of Afghanistan in any way sponsored the attack. Therefore, it can be argued, that

since there was no sponsorship involved, there would be hardly any engagement at all. Paust argues

93Id
94Owen Bowcott, US drone strikes in Pakistan carried out without governments consent, Guardian , 2013, Available at
http://www.guardian.co.uk/world/2013/mar/15/us-drone-strikes-pakistan Accessed 02 June 2015

33
that to claim that the 9/11 attacks organized by Al-Qaeda were done under the supervision of the

Taliban (basically the Afghan government) would be incorrect as there has never been any proof to

support this hypotheses.95 Therefore, according to Paust, it is very problematic to accept the

explanation of why the US used the drones against the Taliban. However, there have been claims

that even though the Afghan government did not organize the attack, they still failed to control the

ongoing terrorist organizations within its borders, hence they were to some extent responsible and

involved in the attack. Moreover, Paust argues that the US employment of armed force in combating

Al-Qaeda was justified, because the US was involved in ongoing armed conflict and had every right

to defend their nation. Paust additionally states that both NATO and the UNSC did not have any

expectations in terms of any known time or geographical boundaries that could affect or prevent the

US from defending itself against Al-Qaeda. Moreover, according to Paust, they did not expect that in

order to defend themselves, they would need the consent of the government of Afghanistan.96

The opposing view is offered by Byers who argues that the UNSC resolutions must not be considered

as expressions that approve the use of military force in self-defence in reaction to the 9/11 attacks.97

Byers explains that the Charters Article 51 specifies that the privilege to self-defend is still there,

until the UNSC carries out required methods to preserve global reconciliation and safety.98 Byers

further argues that: the adoption of Resolutions 1368 and 1373, rather than reinforcing the right of

the US to engage in self-defense against Afghanistan, instead superseded that right.99 The decision

of the UNSC to implement both Resolutions under Chapter VII seems like it was meant to somehow

respond to the terrorist attacks, meaning that they encourage countries and nations to undertake or

find non-armed methods to fight terrorist organizations. Therefore, both resolutions could be

considered as policies that try to find alternative ways in which to maintain peace and safety on a

global scale.

95 Jordan J. Paust, Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drone in Pakistan, 19 Fla. St.
S. Transnatl L. & Poly 237, 2010
96 Id
97 Byers, Terrorism, The Use Of Force And International Law After 11 September, 51 Int'l & Comp. L.Q. 2002
98 Id
99 Id at 412

34
Contrary to this, OConnell argues that the use of armed force can be justified in the case of

Operation Enduring Freedom, since the Taliban had well established relations with members of Al-

Qaeda, hence, according to OConnell, this factor makes the Taliban partly accountable for 9/11.100

OConnell also believes that when the US administration made the decision to defend their nation,

they possessed credible proof of the Afghan governments involvement in the Al-Qaeda attacks from

the past and potential future strikes as well.101 However, Shah considers other aspects which help to

explain why the decision to use armed force in this operation must not be regarded as a legal

justification to self defend the country.102

Shah firstly argues that even though the UNSC resolutions strongly denounce the 9/11 terrorist

attack, they still do not state that the Afghan government was involved in the act, nor do they

authorize any use of military force to combat any nation with a belief to re-establish global peace

and safety in the Charter under Chapter VII. Additionally, the UNSC resolutions do not allow any

military force in reaction to the 9/11 attacks.103

Secondly, Shah argues that there was no specific connection made between members of Al-Qaeda

and the Taliban, which proves that the Taliban did not sponsor the attacks.104

In further statements, Koh stated that the use of drones and what they mean to achieve are only the

military goals and that innocent people are not the objective of the strike. As argued before, the

principle of distinction in international armed conflict under IHL obliges actors involved in the attack

to distinguish who is a civilian and who is a combatant. As explained in Article 4 of the Third Geneva

100 OConnell, Lawful Self-Defense to Terrorism, 63 U. Pitt. L. Rev. 2001-2002.


101 Id
102 Shah, War on Terrorism: Self Defense, Operation Enduring Freedom, And The Legality of US Drone Attacks In Pakistan, U.

Global Stud. L. Rev. 2010


103 Id
104 Id

35
Conventions, civilians ought to be protected except in cases in which they get involved in

hostilities.105

A similar principle of distinction with almost the same terms is defined in non-international armed

conflict. Nevertheless, such conflicts are defined by conventional humanitarian law, which does not

apply the name combatant. Moreover there has never been recognition from countries of what

the human rights and responsibilities of a combatant are. However, even though it is not possible to

find the term combatant in non-international armed conflicts, it still operates the rule of distinction.

Combatants are not recognized; however they are described as an individual who is not a civilian,

but rather a member of the armed forces.106 However, this definition makes categorizing of

individuals somewhat more complex. If an individual is targeted by a drone, is he seen as a civilian

who participates in hostilities or as a member of non-state armed assembly? Surely, if the US

acquires a target and decides to use a drone against it, they must have prepared statements in order

to justify these actions and to legally support their decisions. The rule that if targeting, there is no

guaranteed safety of civilians who contribute in hostilities has been recognized by experts and

academics.107 However, there is a debate on what exactly direct participation in hostilities means.

However, Kohs statements and speech only touches on what military goals there were and that the

individuals were high-level targets, but he did not offer any detailed explanation of whether the

high-level targets were eventually indeed terrorists or insurgents or whether the targets were just

civilians participating in hostilities, which is the topic of next section.

105 Supra note 2


106 Supra note 19
107 Id

36
7.2. THE INTERPRETATIVE GUIDANCE

The academics arguments about the issue are essentially detailed in the Interpretive Guidance from

the ICRCs. The report is the product of interviews that were conducted with almost 50 practitioners

and lasted for nearly 5 years.108 Before the study was published, the academics and scholars agreed

that there was indeed a difference between indirect and direct participation, however the definite

interpretation and decision of this difference was mostly exercised by the commanders who

organized and carried out the act.109 In fact, there was a handbook published by the US Navy that

agreed and supported this argument by stating that where there is a direct participation in hostilities

involved it should be evaluated differently with each case, since every case is different.110 Moreover,

this strategy is also used by the International Criminal Tribunal for the Former Yugoslavias debate in

the case of Tadic, which advises that each individual should be evaluated and judged by the relevant

facts whether that individual was directly participating in hostilities at that very time. 111

Nevertheless, the main author and contributor of the Interpretive Guidance stated that confusion

and uncertainty as to the distinction has been produced by the rise of loosely organized and

clandestinely operating armed groups, the widespread outsourcing of traditional military functions to

private contractors and civilian intelligence personnel, and a more general trend towards increased

civilian involvement in military operations.112

The ICRCs reflection was included in the Interpretive Guidance and claimed that in order to

constitute active participation in hostilities an act needs to pass three different aspects. The first

criterion is that the violence or damage that is supposed to result from the action needs to attain a

certain threshold of harm. The second aspect is that there should be a fundamental connection

108 Id
109 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law
(Nils Melzer ed., 2009) [hereinafter ICRC Interpretive Guidance].
110 U.S. Navy, U.S. Marine Corps & U.S. Coast Guard, Doc. NWP 1-14M/MCWP 5-12.1/COMDTPUB P5600.7A, The

Commanders Handbook on the Law of Naval Operations, 2007


111 Prosecutor v. Tadic, Opinion and Judgment, IT-94-1-T, ICTY, 1997, 616.
112 Nils Melzer, Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critiques on the ICRCs

Interpretive Guidance on the Notion of Direct Participation in Hostilities, N.Y.U. J. Intl L. & Pol. 831, 833, 2010

37
between the harm that is expected and the action, hence so-called direct causation. Finally, the third

criterion is called belligerent nexus, which means that the action should at the end purposely give

advantage to a belligerent party at the expense of the other.113

Another factor that has been considered amongst scholars is the duration: hence for how long must

a civilian directly take part in hostilities to lose their right to safety. Looking at conventional

humanitarian law, there is no safety for the civilian as long as he is directly participating.114 The

Interpretative Guidance argues that participation means preparation and implementation of the

particular action and also coming and returning from the area of its execution.115

The Interpretive Guidance has, however, received a great amount of criticism by scholars stating

that the characterization of the direct participation in hostilities has been defined in a very limited

way.116 Firstly, academics criticize that the characterization fails to consider that military procedures

and operations require practical tactics, particularly in cases when the military delegates and

operators need much wider discretion in order to plan decisions of who to target in battle zones.117

Secondly, scholars argue that the characterization leads to a revolving door of protection.

According to critics, the revolving door provides individuals with the option of participation in

unlawful acts and then the ability to get back their protection from counter-attack.118 In other words,

scholars used an example of a labourer who works hard during the day but was, however, an

insurgent later in the evening or night. Academics explained that the labourer can get back his

protection back each time he comes home. 119

113 Supra note 109 and 112


114 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Additional Protocol I), art. 50-51, 1977, 1125 U.N.T.S.
115 Supra note 109
116 Ryan Goodman & Derek Jinks, The ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under

International Humanitarian Law: an Introduction to the Forum, N.Y.U. J. Intl L. & Pol. 2010
117 Id
118 Noam Lubell, Extraterritorial Use of Force Against Non-State Actors, 2010
119 Michael N. Schmitt, The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis,

Harvard Natl Security, 2010.

38
The author of the Interpretive Guidance, Melzer responded that a person like the labourer described

above would most possibly be characterized as a member of a non-state group who has a

permanent combatant purpose, rather than seen as an innocent civilian.120 Suggestions of how to

avoid the revolving door have been discussed and some scholars proposed to bring a wider

characterization of direct participation. To further explain this proposal, a martial law specialist,

Kenneth Watkin, claimed that if an individual is constantly caught up in hostilities, it means that the

civilian is indeed continuously participating, and needs to peacefully disengage to get back his safety

and protection.121

120
Supra note 112
121
Kenneth Watkin, Opportunity lost: organized armed groups and the ICRC Direct Participation in Hostilities Interpretive
Guidance, 42 N.Y.U. J. Intl L. & Pol. 2010

39
CHAPTER 8

WHY WAS ANWAR AL-AULAQI PUT ON THE KILL LIST?

8.1. EVENTS BEFORE THE TARGETED KILLING HAPPENED

Anwal Al-Aulaqi (also known as Al-Awlaki) was an American citizen with a Masters degree in

Education Leadership from San Diego State University. Interestingly, the institution does not have

any documentation that Al-Aulaqi had eventually completed his degree. From 1995-mid-2000, Al-

Aulaqi worked as a worship leader at the Al-Ribat Mosque. At that time, in late 90s Al-Aulaqi was

supposed to work with Al-Mindhar and Al-Hazmi, two hijackers from the 9/11 attacks. 122

Furthermore, Al-Aulaqi also operated as the vice president of charity that was later described as an

institution that in the past supported Osama bin Laden and Al-Qaeda.123 Over the next years, Al-

Aulaqi had become a target for the legal authorities in the USA. He was investigated by agents of the

Federal Bureau of Investigation (FBI) in 2000 who discovered that Al-Aulaqi had links to a Palestinian

terrorist group, conducted numerous calls and later face-to-face meetings with the hijackers of the

9/11 attacks and was interviewed by the FBI four times. After 9/11, Al-Aulaqi admitted that he met

the two hijackers in Fall Church, Virginia where he worked as an imam, but Al-Aulaqi claimed that he

served them just as their spiritual advisor.124

In 2002, Al-Aulaqi visited Ali al-Timimi, a man who tried to inspire young people to join terrorist

training camps, Lashkar-e-Taiba, in Pakistan. The investigation on Al-Aulaqi was closed for the lack of

evidence on attempted terrorism, however was again reopened in 2006 when later that year he was

arrested on suspicion of participation in an Al Qaeda plan to abduct an American official.125 Al-Aulaqi

was discharged in December 2007 and in 2008 since he wanted to leave the US he was again

122 Seth Hettena, The Anwar Awlaki Timeline, 2013, Available at http://web.archive.org/web/20130310235748/ Accessed
24 July 2015
123 Ati-Defamation League, Profile: Anwar Al-Awlaki, 2011, Available at http://www.adl.org/assets/pdf/combating-

hate/anwar-al-awlaki-2013-6-4-v1.pdf. Accessed 24 July 2015; see also supra note 122


124 Supra note 123
125 Supra note 122

40
believed to be engaged in severe dangerous activities conducted by terrorist groups.126 Yet, nothing

suggested that he was on a target list to kill him back then.127

In 2009, Nidal Malik Hasan, the person responsible for the Fort Hood shootings admitted that he was

inspired by Al-Aulaqi and his rhetoric and that they met in 2000 in Fall Church, Virginia. Additionally,

Hasan later stated that Al-Aulaqi suggested to him to kill other American soldiers and gave him a

blessing to conduct the attacks at Ford Hood.128 Nevertheless, the FBI did not find any proof that

would suggest that Al-Aulaqi has somehow initiated Hasan to get involved in the brutal attack or any

other evidence that would support any of these allegations.129

In February 2009, Al-Aulaqi had a very successful fan base on the internet. In one of the posts, Al-

Aulaqi said that he wished that Allah would devastate the allies of the United States and the US

itself. He stated that he could assure everyone that it would happen and when it happened, it would

make him very happy.130 In the autumn of 2009, Al-Aulaqi inspired Umar Farouk Abdulmutallab to

put a bomb onto one of the Northwest Airlines flights. Apparently, Abdulmutallab received training

at a terrorist camp in Yemen and afterwards had permission from Al-Aulaqi to start the mission

which eventually failed. According to the letter written by Attorney General Holder, Abdulmutallab

stayed in the Al-Aulaqis house for three days where Al-Aulaqi organized the operation and assisted

him to film a video to be shown after the attack. One of the instructions was to let the plane explode

over US soil.131

In late October, the Yemeni legal authorities asked the CIA to assist them to arrest Al-Aulaqi,

however the CIA declined stating that they did not have any specific proof that he somehow

endangered lives of the US citizens.132 A few weeks later however, the NSC evaluated Al-Aulaqis

126 Susan Schmidt, Imam from Va. Mosque Now Thought to Have Aided Al-Qaeda, Washington Post, 2008
127 Supra note 45
128 Id
129 Id
130 Supra note 122
131 Letter from Eric H. Holder, U.S. Attorney Gen., to Senator Patrick J. Leahy, Chairman, Comm. on the Judiciary , 2013,

Available at http:// i2.cdn.turner.com/cnn/2013/images/05/22/holder-letter-5-22-13.pdf Accessed 25 July 2015


132 Supra note 45

41
profile again and decided to mark him as a terrorist threat and President Obama put him on the kill

list.133 The US government never revealed what lead them to make such decision, just provided a

public statement with the outline of actions that Al-Aulaqi was responsible for. There has never been

proof that he knew what the reasons were or even that he was placed on the list. In December 2009,

Obama gave permission to use a lethal drone on Al-Aulaqi, however this operation was unsuccessful.

The National Security Agency in Yemen asked Al-Aulaqi to give up and turn himself in to legal

authorities, which he declined to do.134

Therefore, the legal authorities in Yemen agreed to target him, however the drone attack was again

unsuccessful and did not kill him. According to Gonzalez, a former White House counsel, the NSCs

evaluation involved a confidential lawful opinion from the Office of Legal Counsel at the Justice

Department verifying that Al-Aulaqi was considered to be an enemy combatant and that President

Obama was justified to place him on kill list, even though he is a US citizen.135 Gonzalez argues that

even that would be the case; the authority of the President is still questionable and must be closely

legally examined. Gonzalez also considers other cases in which Al-Aulaqi to some extent influenced

people to attempt illegal acts, among others Faisal Shahzad, who plotted to plant a bomb at Times

Square or Roshonara Choudhry, an English student who attempted to kill British MP Stephen Timms

in May 2010.136 Choudry admitted that she was motivated by listening to more than 100 hours of Al-

Aulaqis statements and reading his blog. Yet again, none of the evidences in both cases showed that

Al-Aulaqi instructed anyone to get involve or plan such brutal attacks. However, at that point, the US

authorities were aware that he most possibly assisted in starting the terrorist training sites and

numerous different terrorist acts.137

133 Lesley Wexler, Litigating the Long War on Terror: The Role of al-Aulaqi v. Obama, 9 Loy. U. Chi. InttL L. Rev. 2011
134 Supra note 122
135 Supra note 45
136 Id
137 Supra note 122

42
All of the facts explained above and expertise from the NSC made Obama consider Al-Aulaqi to be

the chief of external processes for Al-Qaeda in the Arabian Peninsula. 138 The Justice Department

then publicly produced a memo that concluded that it is legal to kill Al-Aulaqi, claiming that just in

case when it will not be possible to capture him alive.139

In August 2010, the Centre for Constitutional Rights and the American Civil Liberties Union helped

Al-Aulagis father to take to the court a suit, demanding a ban on the American government

continuing with their attempts to kill his son. The case was, however, dismissed in late 2010 by the

court, which explained that they did not give a sufficient justification for why his son was not able to

come on his own.140 The dismissal was justified because there was evidence that Al-Aulaqi was

directly involved in plotting to destroy US cargo planes. This was confirmed by Attorney General

Holder who stated in his letter that Al-Aulaqi was in this case not only inspiration for the others, but

was directly engaged in the details of the attack to the extent that he himself developed and

analysed some of the bombs located on the planes.141

Al-Aulaqi was considered a global terrorist and remained a serious issue for the US and its safety. In

September 2011, the CIA successfully and reportedly started to monitor and surveillance Al-Aulaqi

and built a classified airfield in case they would need to use the military drones over Yemen.142 On

the 30th of September 2011, the CIA gave an authorization to launch a missile from an unmanned

aerial drone, which eventually lead to the death of Al-Aulaqi. There are no reports, examinations or

reviews by the US government that signify that they attempted to arrest Al-Aulaqi even though he

was the subject of monitoring and surveillance for 14 days.143

138 Mark Mazzetti, Eric Schmitt & Robert F. Worth, C.I.A. Strike Kills U.S.-Born Militant in a Car in Yemen, N.Y. Times, 2011
139 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, 2011.
140 Supra note 45
141 Supra note 131
142 Supra note 122
143 Supra note 45

43
8.2. ANALYSIS AND ARGUMENTS OF HOW THE US JUSTIFIED THE TARGETED KILLING

Based on the events described above, it could be easily argued that Al-Aulaqi indeed presented a

serious threat to US national security. Surely some of his actions could be defended by freedom of

speech and association rights that the US Constitution protects, however his engagement in plotting

to destroy the US cargo planes in 2010 and involvement in planning to lexplode a plane in 2009 are

certainly cases that are beyond any freedom of speech right. However, he was still an individual who

was under surveillance for two weeks and yet killed by a drone; therefore was killing Al-Aulaqi in fact

indispensable?

Lets consider whether if taking into account the legal aspects explained in the previous chapters,

the case of Al-Aulaqi can be justified as a legal killing. Firstly, arguably, the US government has

evidence that Al-Aulaqi was considered to be an individual that took part in hostilities and was a

member and leader of terrorist organizations that were closely associated with Al-Qaeda. Therefore,

yes, Al-Aulaqi satisfies the criterion of a target on which a lethal force can be used with no warning

in advance. However, the more worrying question is whether it is justified that he was killed in

Yemen, which was not at that time a place that could be called an active battle zone. Because on

this matter, the US authorities did not seem to acknowledge the notion that the use of drones in any

armed conflict is legally restricted to only places where there is an active battlefield taking place.

Considering the position of the US government, it appears that in order to justify such killings, one

needs to be directly participating in hostilities and no other legal questions need to be asked. In this

particular case, the US authorities use the notion of hostilities as the lawful touchstone, simply

arguing that wherever the hostiles decide to move, the armed conflict moves there too. However,

arguably, following this logic, the US would be able to target and use drones in London, Berlin or

even New York to kill him. Surely, there might be a slight difference, since the UK or the German

government might have better resources and a willingness to cooperate and to capture the target.

However, even they would not be able or willing; it is very unlikely that there would be Predators

44
over Paris or London. Nevertheless, given the fact that the question of whether the target was in a

theatre of conflict, was not certainly considered, the targeted killing of Al-Aulaqi could be regarded

as an illegal use of drones.

Secondly, another significant question is whether Al-Aulaqi could be targeted and essentially killed

by the CIA. The Domestic law of USA, as explained before, authorizes the President to order the US

military to use force in foreign countries. In this particular instance, it appears that the CIA operated

in the killing on intelligence positions, whilst the operation itself was carried out by the military.144

However, one way or another, it is crucial to note that instances in which military operations and the

CIA are cooperating should be better reported and examined. Nevertheless, is there any legal aspect

that could be considered to justify the CIAs decision to use force against Al-Qaeda in the Arabian

Peninsula, especially when the AUMF clearly relates to US armed forces? As argued before, under

domestic law, the President is provided with privilege to authorize military to use force and

additionally international law enables only the associates of military forces to engage in hostilities,

therefore, since the CIA does not belong under the USs military forces, it can be easily argued that,

legally, it did not have any right use lethal force against Al-Aulaqi.

Someone could easily argue that since AUMF refers to domestic law, it was legal, however, AUMF

does not stand for the Authorization to Use Force, it stands for the Authorization to Use Military

Force. To support this argument, the entire Joint Resolution was examined and here are several

quotes:

To authorize the use of United States Armed Forces against those responsible for the recent attacks

launched against the US.145

This join resolution may be cited as the Authorization for Use of Military Force.146

144 Kevin Jon Heller, Lets Call Killing Al-Awlaki What it Still is Murder, Opinio Juris, 2014, Available at:
http://opiniojuris.org/2014/06/23/lets-call-killing-al-awlaki-still-murder/ Accessed 24 July 2015
145 Richard F. Grimmett, Authorization For Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative

History, CRS Report for Congress, p. 5, 2007, Available at: http://fas.org/sgp/crs/natsec/RS22357.pdf Accessed 26 July 2015

45
Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section

is intended to constitute specific statutory authorization within the meaning of section 5(b) of the

War Powers Resolution.147

In the first note, it can be seen that the President specifically gives permission to use US Armed

Forces against Al-Qaeda. The CIA on their official website (which was last updated in 2014) claims

that to accomplish their mission:

It [The CIA] engages in research, development, and deployment of high-leverage technology for

intelligence purposes.148

Hence, how come there are still arguments that claim that the killing of Al-Aulaqi by CIA was legal,

since AUMF explicitly refers to armed forces only, and the CIAs mission is to research, develop and

deploy technology to gather intelligence? Moreover, the third quote mentions the War Powers

Resolution which, according to the AUMF, is only relevant to the introduction of US Armed Forces

into hostilities. This argument will be used again later in arguing whether the CIA had the right to kill

a US citizen. Therefore, looking at the issue of the CIAs authorization to kill Al-Aulaqi, it needs to be

stated that again it failed to justify the killing.

Thirdly, looking at and examining the case of Al-Aulaqis killing, does it matter that he was an

American citizen, and if it does, what difference does it make? As has been established before, the

Au-Aulaqi case of targeted killing is a very controversial one because of many different aspects;

however, possibly the most commented on factor discussed in this particular case has been the fact

the Au-Aulaqi was a US citizen. Some could argue that Au-Aulaqi was engaged operationally in

organizations that involved him in armed wars with the US, therefore, the aspect of citizenship does

not play any role. Surely, from one point of view, this is one of many answers that asserts that there

146 Id at 5
147 Id at 5
148 The CIA Website, About Us, Last update 2014, Available at: https://www.cia.gov/about-cia/todays-cia Accessed 25 July

2015

46
exists an armed conflict, which is a legal aspect to target someone who is potentially dangerous for

the US national security, notwithstanding the fact that the target was indeed a US citizen, hence it

appears that the US is on a solid ground if thats the allegation. However, there is an important

factor that needs to be considered, and that is 18 U.S.C. 1119 Foreign Murder of United States

Nationals.149 This section criminalizes the instances in which a US citizen abroad is killed. The 18

U.S.C. 1119 could be overruled if the individual/organization responsible for the killing (in this case

the CIA) achieves the public authority justification. Before the CIA killed Au-Aulaqi, the US

government released a memorandum in which they attempted to provide all the legal supporting

aspects for killing Au-Aulaqi. However, the memorandum is slightly disappointing and does not do

the job properly as it does not sufficiently tackle the issue of overruling the 18 U.S.C. 1119 by

referring to the public authority justification. 150

In order to comprehend why this is an issue, it is crucial to deem what the memorandum claims

about the Department of Defenses authority to kill Al-Aulaqi.151 Moreover, it is crucial to note again

that the memorandum was produced before Al-Aulaqi killing, at a point when there were no details

regarding who would target and kill him (whether it will be the CIA or DOD) and in addition it is

important to stress about the fact that the memo was actually produced long after he was added on

the list of people who are going to be killed.152

The memorandum analyses and questions whether the 18 U.S.C. 1119 could essentially incorporate

the public authority justification (PAJ) and at the end concludes that indeed, the 18 U.S.C. 1119

incorporates the PAJ153, therefore, after the memo was released, things have changed and the PAJ

could substantially be applied to the Au-Aulaqis killing. However, after such a conclusion, there is

149 Supra note 144


150 Id
151 Memoramdum of the General Attorney, Applicability of Federal Criminal Laws and the Constitution to Contemplated

Lethal Operations Against Shaykh Anwar Al-Aulaqi, Office of the Assistant Attorney General, Department of Justice,
Availabe at https://www.justsecurity.org/wp-content/uploads/2014/06/OLC-al-Aulaqi-memo.pdf Accessed 25 July 2015
152 Supra note 144
153 Supra note 151

47
another issue, and that is: Can the CIA invoke the PAJ?154 Surely, DOD would be allowed to kill Au-

Aulaqi since the memo argues that the killing would be a compromise to reach a lawful conduct of

conflict, which is a well-known alternative of the PAJ155. The conclusion of the memo attempts to

give strong supporting arguments:

a) AUMF is responsible for the surveillance of the Al-Qaeda in the Arabian Peninsula (AQAP);

therefore Al-Aulaqi could be a potential target, since he is a member of AQAP.156

b) There is applicable evidence that the US government is engaged in a non-international armed

conflict with Al-Qaeda, hence every law of war is valid.157

c) The DOD has promised to comply with the laws of war in every operation that uses lethal force.158

Therefore, most definitely it would be hard to argue against such analysis and it needs to be stated

that the memo provided strong arguments to allow DOD to invoke the PAJ. However, the key issue is

that the CIA, which in the end killed Al-Aulaqi, cannot equally invoke the PAJ.159 This is directly linked

to the issue described earlier, when it was argued that international law allows only the individuals

from armed forces to engage in hostilities and in this case, it needs to be stated again, the CIA does

not belong to any American armed forces.

Certainly, some could argue that PAJ refers specifically to the US domestic law, rather than

international law, therefore, the memo seems to claim that since the AUMF was responsible for

AQAP, the PAJ is applicable to both, the DOD and the CIA as well. However, there is no recollection

in the memo that links AUMF and the CIA together.160 There is an easy answer for this: as explained

before, the AUMF stands for an organization that authorizes use of military force. This is again

directly connected and supported by examining the whole AUMF resolution, which allows

154 Supra note 144


155 Id
156 Supra note 151
157 Id
158 Id
159 Supra note 144
160 Id

48
authorizing the use of United States Armed Forces against its enemies and at the same time

mentions War Powers Resolution, which is only related to the introduction of the US armed forces in

hostilities. The PAJ refers specifically to the domestic US law, and as explained in the second chapter,

the President is allowed to make decisions domestically because of the AUMF, which allows the use

of military force, therefore, the domestic authorization of the PAJ cannot be applied to the CIA.

Hence, considering all of the arguments above, the third issue that the CIA was not allowed to kill a

US citizen, is proved to be correct.

Looking at all the arguments described above, it can be argued that the case of Al-Aulaqi can be

considered an illegal operation for four reasons.

Firstly, the target was not at an active battlefield when he was killed.

Secondly, the killing was conducted by the CIA, who legally were not allowed to kill anyone, since

they are not an armed force.

Thirdly, Al-Aulaqi was a US citizen and the PAJ could not be applied to the CIA.

Fourthly, there were no other reports or evidence as to why the killing was eventually conducted

whilst the target was under surveillance and was not brought to the court.

49
CHAPTER 9

ARE DRONES REALLY PRECISE?

The UK human rights group Reprieve wrote a report on how precise the drones actually are. The

report argues that, amazingly, after 11 years, 500 strikes and thousands of people dead, there is still

a lot to discover about this covert programme.161 The study focused on the issue that even after so

many years it is still hard to find reported cases and create statistics to look at how precise the

drones are and what their success rate is.162 The Bureau of Investigative Journalism (BIJ) made

estimation that the US has launched 468 drones in just two locations: Yemen and Pakistan. The BIJ

however argued that this estimation is very conservative, as many drones have never been reported

and further claims that as many as 4,400 innocent people might have been killed.163

The US authorities however never took responsibility for any of the strikes and always confidently

argued that the strikes are very precise. The president Obama in 2012 stated:

Drones have not caused a huge number of civilian casualties. For the most part, they have been very

precise, precision strikes against Al-Qaeda and their affiliates.164

To make their case stronger, Obamas Counterterrorism Advisor, John Brennan argued that they only

approve operations about which they are very confident and certain that the targeted individual is a

dangerous terrorist and a member of Al-Qaeda.165 Moreover, in 2013 Obama said that they believe

their decisions always lead to actions that are least likely to result in the death of innocent people.166

161 Supra note 6


162 Id
163 Get the Data: Drone Wars, The Bureau of Investigative Journalism, Available at http://www.

thebureauinvestigates.com/category/projects/drones/drones-graphs/ Accessed 17 August 2015


164 Matt Compton, President Obama Hangs Out with America, The White House Blog. 2012, Available at http://

www.whitehouse.gov/blog/2012/01/30/president-obama-hangs-out-america Accessed 17 August 2015


165 John O. Brennan, The Ethics and Efficacy of the Presidents Counterterrorism Strategy, 2012, Available at

http://www.cfr.org/counterterrorism/brennans-speech-counterterrorism-april-2012/p28100, Accessed 17 August 2015


166 Supra note 6

50
To gain support from the public, the US government officially stated that there are 2 criteria which

should be met before any lethal action is conducted;

a) There must be near certainty that the terrorist target is present167

b) There must be near certainty that innocent people will not be killed or injured.168

The data gained from the Reprieve report unfortunately suggest otherwise.

Writers from Reprieve acknowledge that the US has a kill list, which is approved by the President of

the USA; however, no past version has ever been published. However, the main issue that Reprieve

is focusing on is the fact that even if a target has not been killed, the US government still tries to

pursue the terrorist and kill him.169 Surely, this decision is to some extent rational, however, if it

comes to a case when the US government tried to kill the target 7 times which resulted in the deaths

of 161 people and still they did not kill the target, it does not appear as rational as in the beginning.

Reprieve closely looked at 41 individuals targeted by the US government and came up with the

numbers that makes justification and the legality of drones ever harder.170

The author of this dissertation decided to have a look at the numbers and create a table of how

many people died in Pakistan and Yemen and put it to the graphs, so its easier to understand the

issue.171

The information from the table and graphs shows that there were 41 men targeted, whilst 20

individuals were targeted at least twice. Even though Al-Zawahiri was targeted only twice, those two

strikes resulted in the death of 76 children and 29 adults and the individual is still alive. The total

number suggests that up to 1147 innocent people might have been killed in the targeted killings.

Therefore, to put it into a different perspective, on average, it takes killing 28 people to actually

167 Id
168 Id
169 Id
170 Id
171 Viktor Dubrava, Graphs and Tables, 2015, Apendices 1-5,

51
succeed in killing the target.172 Nonetheless, the numbers from Reprieve suggest that out of these 41

individuals, 7 are still alive and one of the men died of natural causes. During the multiple attempts

to kill the 7 men that are still alive, 331 people died, including 103 children. Out of 41 men, 24 were

killed in Pakistan and 17 in Yemen. The missed strikes in Pakistan killed 874 people, including deaths

of 142 children. On average, each individual was killed three times. The US succeeded to kill Qari

Hussain after 6 different targeted killings, however it resulted into 128 people dead, including 13

children.173

In February 2009, the US government launched two drones against a car and three buildings in

Makeen, where allegedly Mehsud was hiding. However, the strike did not kill Mehsud, but instead it

hit the part of the complex where his 8 year son was sleeping. Thirty more residents of the village

were killed that night. Mehsuds father after the funeral stated: How can the US invade our homes

while we are sleeping and target our children?174

Altogether, 142 children died in Pakistan, whilst the US attempted to kill 14 individuals. Six of these

children died in the successful strikes, therefore, 136 children died in the attempts that were not

successful. Reprieve also found out that there was one case of mistaken identity. Someone with the

same name as the person on the kill list was targeted by the US three times, and the US eventually

successfully killed the man. Unfortunately, he was the incorrect target. Moreover, the case is even

more controversial because his brother was then captured and interviewed for a year about the

identity of his dead brother.175 According to the Reprieve report, he was told to just say that the

killed individual was indeed the leader of the terrorist organization they targeted. The authorities

promised to release him if he agreed, however he refused. After he was eventually released, he was

put on the kill list, targeted and the US eventually killed the correct person.176

172 Id
173 Supra note 6
174 Id at 13
175 Id
176 Id

52
In Yemen, there were seventeen targeted men, which eventually lead to death of 273 people. Each

individual was on average targeted at least three times and four of them are still alive. Even though

Qasim Al-Raimi has been a target altogether six times, he proved to be alive by being in a video from

December 2013 where he was discussing events in Yemen. In the first strike on Al-Dhabab, the drone

missed the vehicle he was in and instead hit a mini bus, resulting into a death of 12 adults and 3

children, with 11 injured.177

Looking at all the numbers raises a question: how many times could the US government attempt to

kill an individual? As seen, 6 strikes against one person were not enough and they tried the 7th time.

If that had not worked out, would they have tried more? Most probably yes. One of the bloggers

compared this issue, stating that using drones is like employing a brain surgeon with very shaky

hands. If that is not right thing to do, why is it acceptable in the 21st century? Many argue that this is

collateral damage that needs to happen in order to kill dangerous people, but would these

advocates agree if these killings were happening in New York, London or Oslo? Most probably, no.

Certainly, if someone is responsible and operationally involved in bomb attacks against the western

world, it is considered to be a vile act however, it is no less a vile act than killing 142 children and

hundreds of adults in Pakistan.

177 Supra note 171

53
CHAPTER 10

THE MOST RECENT IMPACT OF USE OF DRONES - REFUGEE CRISIS

Over the last several months (July-September 2015), thousands of people have decided to leave

their countries and seek asylum somewhere else.178 According to The Daily Telegraph, the EU is

facing the worst migrant crisis since the WWII.179 One of these people were parents of a three year

old boy from Syria, whose lifeless body was found on a Turkish beach in the early September 2015.

The parents of the boy Alan Kurdi, decided to leave Syria because of the state of their city after the

US bombing campaign which left the place with no houses, water, food, electricity, hygiene or

medicine. His five year old brother and mother drowned as well.180 Whilst there are many aspects

that could be considered in determining who is to blame, and this may come across just as a

speculation, it must be noted that the use of drones by the US government has had an incredible

impact on the Refugee Crisis in the summer of 2015. It can be argued that use of drones created

more tensions and wars in Iraq and Syria and because of all the chaos, has spurred an exodus of

refugees. In 2014, over 170,000 came to Italy by boat, attempting to escape from bombings,

violence and extreme poverty. This means that the refugees pay 2000-3000 to traffickers to get to

the Europe.181 Unfortunately, since the refugees do not have so much money, they desperately

agree to pay by working for the traffickers. The promised job eventually turns out to be something

else and the refugees end up working as slaves.182

178 James G. Neuger, EU to Deploy Drone Warships Against Human Traffickers, Bloomberg, 2015, Available at
http://www.bloomberg.com/news/articles/2015-06-22/eu-to-deploy-drones-warships-against-mediterranean-traffickers
Accessed 20 August 2015
179 Joe Daunt and Myles Burke, The EU Migrant Crisis Explained in 90 Seconds, The Telegraph, 2015, Available at

http://www.telegraph.co.uk/news/worldnews/europe/italy/11549216/The-EU-migrant-crisis-explained-in-90-
seconds.html Accessed 1 September 2015
180 Joe Parkinson, Image of Drowned Syrian Boy Echoes Around World, The Wall Street Journal, 2015, Available at

http://www.wsj.com/articles/image-of-syrian-boy-washed-up-on-beach-hits-hard-1441282847 Accessed 3 September


2015
181 Supra note 179
182 Id

54
Unfortunately, these are not the only victims. There are thousands more that have lost their lives in

crossing the Mediterranean in attempting to flee from countries that are bombarded by the US

authorities. Many drowned and many others suffocated after being locked in overheated vans.

Those who survived and managed to get into Eastern European countries found that the countries

did not have the funds or places to help them.183 At the time of finishing this dissertation, the

European Unions position on the issue was repressive and deterrent. For instance, in Hungary, the

authorities decided to throw up fences. Other countries similarly set up concentration camps and

employed riot police to create a Europe that is unreachable.184

However, what about the US? Shouldnt authorities consider the roots of this crisis? There should be

a serious consideration of the roots of this tragedy, because it mostly appears that this is a result of

armed conflicts and the use of drones. Just looking at the first slogan from 1991 when the US was in

the first war with Iraq: Force works185, gives one impression that this statement has been

massively pursued over the past 24 years and is in many ways responsible for the crisis of desperate

refugees attempting to save their lives by leaving countries bombarded by the US. Most

interestingly, this is exactly the period of time when drones were employed and when the

technology advanced so much that the US employed weapons of mass destruction and entered the

war on terror. The predatory drones in Libya, Yemen, Pakistan and Syria were justified in the name

of human rights and democracy. And yet, no one has been alleged to be responsible for these

crimes. Arguably, not only is the US government responsible for the death of reported 1147 adults

between 2003 and 2014, but it is also partly responsible for the deaths of refugees in the summer of

2015. Certainly, at this point, the European Union could be held accountable for letting the conflict

get out of control; however, considering the roots of the conflicts and the reasons why the people

decided to leave their countries, it must be noted that the USAs policies and decisions in the armed

183 Bill Van Auken, Who is Responsible For the Refugee Crisis in Europe? World Socialist Web Site, 2015, Available at:
https://www.wsws.org/en/articles/2015/09/04/pers-s04.html Accessed 4 September 2015
184 Id
185 Id

55
conflict in the above mentioned countries, had a major impact on what has happened in July-

September 2015.

Nevertheless, whilst drones to some extent caused the refugee crisis in mid 2015, ironically their use

might be potentially essential in fighting human trafficking gangs. Foreign ministers in Luxembourg

agreed to send off two submarines, two drones, three helicopters and five warships to monitor

smugglers and help out with potential rescues at sea. The EU Foreign Policy Chief, Federica

Mogherini stated that their aim was not to target the migrants, but to catch those who would want

to make their money by trafficking and smuggling innocent people. This was approved by the

UNSC.186 Surely, there still remains the issue of what to do with refugees who reach the European

borders, however, the chances to survive are much better if the refugees do not get caught by a

smuggler. Therefore, ironically, the systems that are partly responsible for what has happened in the

mid 2015, could be the systems that can potentially help migrants that could be in a serious danger.

186
Supra note 178

56
CHAPTER 11

CONCLUSION

Someone could argue that opponents of drones see a drone as an illegal instrument just

because it is a weapon; however, this is not the case. Every case of a targeted killing should be

treated the same, whether a drone was launched, or any other weapon was used. Certainly, the

armed drones and their use are covered by international law and domestic law, and are deemed by

advocates that they are in fact discriminatory. However, there are particular drone strikes that have

been conducted within the last 14 years and which caused deaths of great number of innocent

people. Therefore, the question of legality then becomes more complicated and there are certain

aspects that need to be considered in order to make drone strikes legal. Hence, every case must be

evaluated on an individual basis, which means that the every drone strikes has got a different legal

model, thus a case-by-case examination must always be conducted.

Considering IHRL, targeted killings conducted with the use of drones will most possibly never be

legal or justified. The simple reason is that in most of the cases due process is never met, and using

the lethal force is only lawful just in cases in which it was established that it will protect the life of

innocent people, while the lethal force must be in proportion to the target. Therefore, a drone strike

where the deadly force aims to kill one target, and instead misses and kills innocent people,

including children, must be considered unjustified and illegal. Under IHRL, such violence must be

considered only in exceptional conditions.

Looking at IHL, targeted killings achieved by using drones will depend on several aspects. Firstly, the

legal authorities need to qualify whether the armed conflict in which they want to use drones is

considered to be an international armed conflict or a non-international armed conflict. Secondly, the

government needs to establish and decide who can be a legal target. As argued before, it needs to

be determined whether the target is a combatant, an innocent civilian, a civilian directly involved in

57
hostilities or a civilian who continuously moves, hence comes from an active battlefield back home.

Therefore, as seen from the options above, making a decision determining who is a lawful target is

harder than it first appears to be. Profiles of some terrorists are so asymmetrical and irregular that it

is becoming complicated to decide who to target. Moreover, targeting a person just because the

operator of a drone believes the target is an alleged member of a terrorist group is not an adequate

targeting criterion. Therefore, if the operator is suspicious that a person is a terrorist, that person

must be still treated as a civilian. In this dissertation, a number of cases have been described where

operators believed that certain individuals were rebels or terrorists when in fact they were civilians.

Hence, the only time when a terrorist can be targeted is when he is taking direct part in hostilities or

when he has fulfilled the requirements of a combatant person.

Having analysed the statements of Harold Koh, it appears that the strongest argument for the drone

strikes is that all the actions are performed in the name of the self-defence. Surely, if the US is

involved in an armed conflict with Al-Qaeda, the drones could be considered as legal, however, they

of course must follow the rules and guidelines of jus in bello. Nevertheless, for how long can the US

government claim that they are still in an armed conflict with Al-Qaeda, the Taliban or other

associated forces? Arguably, the whole point of using drones is to end an armed conflict. In the short

term, if the drone is successful and kills the target, it may seem like the target is dead and the armed

conflict is concluded. However, in the longer term, the use of such violent weapons can only create

even more armed conflicts; hence the whole point of ending an armed conflict seems after all

fragile.

From the moral perspective and consideration of the two theories, the use of drones failed as well.

Unquestionably, the right to life, as one of the fundamental human rights needs to be protected by

the state. This goal certainly cannot be achieved by further violence and the abuse of human rights.

Even though the theory of consequentiality attempts to justify lesser evil (killing a suspected

terrorist) in order to prevent a greater one (the terrorist kills more innocent people in the future), it

58
needs to be dismissed as there is always a risk that the suspected terrorist is in fact a civilian, or even

if he is the terrorist and is hit and killed, it will most possibly kill a greater number of other innocent

people. Therefore, if the person is a civilian, or the strike kills more people, it leads to a negative

outcome, thus there are no positives to outweigh the negatives, hence from the consequenitalists

point of view, targeted killings and the use of drones are illegal.

Furthermore, this thesis also considered whether the fully autonomous drones would be able meet

the standards of international humanitarian law. Surely, the argument that human beings can act

differently under stress and hence make wrong decisions is strong. However, the solution would

certainly not be to create a drone that is fully autonomous. Firstly, no one wants a robot that is

under its own control and where no one can command the actions to the system. Secondly, no

involvement of human beings in battle zones and development of such robots might lead to the

temptation to use lethal force against enemies who could be arrested. Every single kill could

potentially result in a new armed conflict; hence the whole point again to finish an armed conflict

becomes pointless, because another conflict is created. Thirdly, there is an issue of accountability

and argument that it might be hard to find a responsible person for the robots actions.

On the other hand, operating a drone by a human being can be complicated as well, since there is a

well known play station effect in which the operators can feel emotionally separated and do not

have to realize the importance of their actions.

The issue becomes even more complex when one thinks of the use of drones by a non-state actor

who is not limited by the list of rules that a state actor must follow. Technology has advanced so

much that people can get all the components on eBay, for as little as $1000. Surely, the drone will

not be as advanced and sophisticated as the drones built by the US armed forces, but it still can do a

lot of harm to innocent people. However arguably the strongest evidence provided in this

dissertation is possibly the report by Reprieve, which concluded that it takes the lives of 28 innocent

people to kill a terrorist. Who can decide whether this is a number that can ever be justified in order

59
to kill a dangerous threat? The reported cases of 46 targets showed that 1147 people were killed

whilst some of the targets were not even killed. This makes drones unjustifiable and therefore the

use of drones in places where there innocent people are located should be illegal. No one from the

western world would approve killing of 1147 people in New York, or any other developed city.

This brings us to the last chapter, which explained that the author believes that the US is partly

responsible for the Refugee Crisis in 2015. The increased use of drones not only killed innocent

people, but also destroyed the houses of civilians. Therefore, they decided to flee their country and

cross Mediterranean which resulted in more deaths and placed responsibility on the international

community to take care of refugees. This particularly supported human traffickers who were able to

catch people and make them slaves to work in factories for free.

All in all, the use of drones and targeted killings, even though legal in some circumstances, is

definitely not an efficient way to solve an armed conflict. Having considered the vast number of

dead civilians and the effects of the use of drones and what serious threat it created to all states,

drones can be considered as insufficient and unsatisfactory mechanisms. Yes, Al-Qaeda is

responsible for 3000 dead people after the 9/11 attacks, however it does not make it right to

conduct the same dirty strategies to resolve the conflict. With an increase in the number of drones,

it becomes a regulation that is used as a first resort, rather than last option. Unfortunately, it

represents a slippery slope that may appear harmless: however, in a few years time, it can become

a legal policy with no consideration of human rights. Justification for use of drones undermines the

rules of human rights and international law, the principles that independent societies rely on. The

absurd argument that the use of drones actually protects human rights and democracy is entirely

unacceptable since they violate democracy and the human rights of people who are killed by the

strikes. Human rights of all the people should be a supreme value, otherwise new armed conflicts

will be created and more drone strikes will be conducted.

60
APPENDIX 1

N Location Name of the target Status No. of strikes No. of people killed
1 Pakistan B. Mehsud Dead 7 164
2 Pakistan Q.Hussain Dead 6 128
3 Pakistan A.U.Al Masri Dead 3 120
4 Pakistan M. S. Zadran Dead 3 108
5 Pakistan A. Al-Zawahiri Alive 2 105
6 Pakistan S. Haqqani Alive 5 82
7 Pakistan H. Mehsud Dead 5 68
8 Pakistan S. Noor Dead 4 57
9 Yemen S. Al-Shihri Dead 4 57
10 Pakistan B. Haggani Dead 3 53
11 Yemen F. al-Quso Dead 4 48
12 Pakistan M.A. Yazid Dead 4 46
13 Yemen A. Al-Aulaqi Dead 4 44
14 Yemen N.A.K. Al Quhayshi Alive 2 38
15 Pakistan I. Kashmiri Dead 4 35
16 Pakistan A.K. Al-Masri Dead 2 34
17 Pakistan J. Haqqini Alive 2 34
18 Yemen N. Shadadi Dead 4 34
19 Yemen S.I.M.S.Al-Banna Dead 5 33
20 Pakistan A. Kasha Dead 2 33
21 Yemen S. Al-Badani Dead 2 32
22 Pakistan A. Sulayman Dead 2 30
23 Yemen Q. Al-Raimi Alive 6 28
24 Pakistan A.Y. Al-Libi Dead 2 28
25 Pakistan H. Omar Unknown 2 27
26 Yemen N. Al-Dhabab Dead 2 25
27 Pakistan M.N.M. Nazir Dead 3 24
28 Pakistan M.Usman Dead 2 23
29 Yemen I. Al-Asiri Alive 4 22
30 Yemen A. Al-Dahab Alive 4 22
31 Yemen Al-Shabwani Dead 3 19
32 Pakistan A. Jabbar Dead 2 19
33 Pakistan Al-Saudi Dead 2 17
34 Pakistan Rabia Dead 2 16
35 Yemen Al-Dhahab Dead 3 14
36 Yemen Al-Waili Dead 2 13
37 Pakistan Al-Rahman Dead 2 11
38 Pakistan Al-Somali Dead 2 10
39 Yemen Lahib Dead 2 9
40 Yemen Naseeb Dead 2 9
41 Yemen Al-Abab Dead 2 7

61
APPENDIX 2

Targets of Drone Strikes 2003-2014 (1-10/41)


No. of strikes No. people killed

164

128
120
108 105
82
68
57 57 53

7 6 3 3 2 5 5 4 4 3

Dead Dead Dead Dead Alive Alive Dead Dead Dead Dead
B. Q.Hussain A.U.Al M. S. A. Al- S. H. S. Noor S. Al- B.
Mehsud Masri Zadran Zawahiri Haqqani Mehsud Shihri Haggani

APPENDIX 3

Targets of Drone Strikes 2003-2014 (11-20/41)


No. of strikes No. people killed

48 46 44
38
35 34 34 34 33 33

4 4 4 4 4 5
2 2 2 2

Dead Dead Dead Alive Dead Dead Alive Dead Dead Dead
F. al-Quso M.A. A. Al- N.A.K. Al I. A.K. Al- J. Haqqini N. S.I.M.S.Al- A. Kasha
Yazid Aulaqi Quhayshi Kashmiri Masri Shadadi Banna

62
APPENDIX 4

Targets of Drone Strikes 2003-2014 (21-30/41)


No. of strikes No. people killed

32
30
28 28 27
25 24 23 22 22

6
3 4 4
2 2 2 2 2 2

Dead Dead Alive Dead Unknown Dead Dead Dead Alive Alive
S. Al- A. Q. Al- A.Y. Al- H. Omar N. Al- M.N.M. M.Usman I. Al-Asiri A. Al-
Badani Sulayman Raimi Libi Dhabab Nazir Dahab

APPENDIX 5

Targets of Drone Strikes 2003-2014 (31-41/41)


No. of strikes No. people killed
19 19
17
16
14
13
11
10
9 9
7

3 3
2 2 2 2 2 2 2 2 2

Dead Dead Dead Dead Dead Dead Dead Dead Dead Dead Dead
Al- A. Jabbar Al-Saudi Rabia Al- Al-Waili Al- Al-Somali Lahib Naseeb Al-Abab
Shabwani Dhahab Rahman

63
APPENDIX 6

Face to face interview with Andre Barrinha Senior Lecturer in Politics and International

Relations at Canterbury Christ Church University

1) Would you think that non state actors have more tendencies to use drones than states that are

bound by International Humanitarian Law and International Human Rights Law?

Andre: Do you have any specific case in mind?

Viktor: There was an individual who was a non state actor and he created a drone for $1000 and he

installed a basic paintball gun. He had volunteers that tried whether they can hide from it, but it was

so developed that they couldnt.

Andre: Thats the thing. Because drones can be, the way we use it nowadays can be anything, it can

be a helicopter, which you can control with remote, or it can be a predator, or a reaper that has a

missile that can destroy a small village, so it depends on what you are talking about. In this specific

case, the issue is the level of portability and how easy it is for anybody to have access to this

technology. So in that sense, you are right, there are a lot of non state actors that can have access to

it and when you are saying non state actors I presume you are talking about actors that are involved

in some sort of activities that have to do with criminal violence or conflict.

Viktor: I am using this basic example just to show how easy in these days is to get just an eBay or

YouTube account you can easily build a drone as he said for $1000 and there was a talk on TEDx. The

speaker spoke about this particular issue that it is getting scarier that non state actors who are not

bound by international humanitarian law and by international human rights law that they can easily

drones for $1000.

64
Andre: Yes, the question then becomes whether you can...its very easy for anybody to have access

to this sort of equipment. The question is whether you can have highly sophisticated and armed

drones. And thats not as easy, as simply having a drone as you like to spy on your neighbour.

Viktor: What that guy with his volunteers tried to show and say was that they wanted to test

whether they are quick or fast enough to run around the targets and whether they can manage to

hide. It was 4 or 5 people and eventually they were all hit, just by a paintball gun, but it shows that if

it would be a normal gun, it could do the same. So the drone was so developed for $1000 that it hit,

and does not matter whether it was a paintball gun or a normal gun because the drone is fast

enough to do that.

Andre: True, the thing is that all those issues have to do with how drones are regulated internally,

domestically; its about criminal law within its country, so its a same way as having a drone that has

capacity to kill someone is the same as, in terms of legal responsibility, as having a shotgun or a

pistol, so in terms of international humanitarian law and international law you talk about a different

question. Its about use of drones either in a conflict situation or as you said a sort of terrorist group

trying to use it to achieve their goals. And in that sense, it is obviously accessible to them, its not

particularly difficult. For example, Hamas etc has got their own drones, but still even for those

groups, it is only, its not so easy to have access to certain type of drones for a simple reason that,

firstly they are not particularly cheap, although they are cheaper than fighter jet, but they are not

cheap, they are sometimes hundreds of millions of dollars, secondly, drones are not just the

aeroplane you see, they are the whole system, they include satellite, they include transmitters, so

you cant just buy a drone to get out of the box and kill someone that easily, so in that sense, there

are still significant obstacles to use drones, as a weapon for non state actors, they need to be very

well funded and you need to obviously have specific strategic goals in mind and even in those cases,

youll find quite a number of obstacles to try to use that, so I would say it is easy to get drones, if you

want to play with them or if would like to try what they can do, to try attach a paintball gun or

65
whatever, but when we talk about serious staff, in terms of war and conflict, obviously there are sort

of questions in terms of privacy and surveillance that again, thats to do more with national

legislation than anything else, but when you talk about staff about war and conflict I would say that

there is still a difference between what you can get as a state and what you can get as a non state

actor.

2) What do you think of fully autonomous drones can their use be justified? Do you think robots

with complete autonomy would be able to meet international humanitarian standards?

Andre: It depends on what you mean by a complete autonomy.

Viktor: I am talking about a technology that has not been developed yet. It would be a robot that is

thinking on its own, no one has got any control of it, other than somehow to switch it on or off

obviously.

Andre: So you mean a drone that has a capacity to identify target and make the decision whether to

hit or not hit?

Viktor: Yes.

Andre: Theoretically yes, it is possible for a drone to meet international humanitarian law and

principles, its just the matter of...and it could do it better than humans as long as you are able to

program it in that way. In terms of whether we should use them, I think, thats a bit of a different

question. I think eventually, we will probably get there. But this is futurology, for now, in a sense

that any decision, any use of drones so far can always be related to someone that is controlling the

machine, someone that gave the order, so there is a chain of command and ultimately there is a

human face behind it.

Viktor: What about accountability of a drone like that? I read reports by Strategist, Human Rights

Watch, and they argued that if the drone essentially kills someone who was innocent, who could be

66
accountable for the death of the person? Could it be the programmer, the manufacturer, the person

who located that drone in that place, or the robot itself? If it would be a robot, how can you punish a

machine?

Andre: Obviously, the robot cannot be accountable as it does not have legal personality, but the

question of accountability in this case has to do with, who owns the machine and what was the

machine and who was the machine operating for. For example, if its being used in the context of the

US armed forces, or the US air forces, there is a whole chain of command, so even if you program

the drone to go somewhere and make the decision whether to kill or not to kill someone, ultimately

that machine is being controlled under the jurisdiction of whatever activities that the US forces is

conducting so obviously you can get into a grey areas in the sense that it might not be sure who gave

the order, it might not be sure who that drone belongs to or these all kind of grey areas that can

happen and those instances but that does not mean that in the most cases, it is easy to identify who

is responsible. Its the same as if you have a dog and the dog bites someone, obviously, ultimately...

Viktor: You cant punish the dog.

Andre: You can punish the dog, but you cant claim legal responsibility to the dog and maybe the

owner will disappear and hide and nobody knows to whom the dog belongs to, but in most cases

you know, so its the same thing.

3) There are statements that because of the use of drones, soldiers have been significantly less

employed in wars, therefore thanks to drones fewer soldiers have died on the battlefield.

However, it has been argued that the less human involvement, the greater the temptation

commanders would have to enter wars. Would you agree?

Andre: I would not say that the greater the temptation to go into wars, but I would say the greater

the temptation to undertake lethal missions.

67
Viktor: Yes. I agree, the question was meant to be more provocative and overreacting to prove the

point, I suppose, but eventually we mean the same thing.

Andre: Yes. Whereas in some circumstances you would either not do anything, because the territory

image, the target is too remote, too difficult to reach and in terms of your risk assessment, the risk

that your men would incur in order to fulfil the mission, just would not pay off. And whereas in the

use of drones, some of those missions become much easier, given that they do not have any human

cost associated with it and that there is a relatively a good chance of being successful. So it always

goes down to that principle of we do it because we can and if you know you can kill twenty targets

that are considered to be terrorists, why bother and taking other type of measures that might be

riskier for humans or for your soldiers that these are highly risky for other humans but not your

soldiers and as an alternative, you might not be able to reach those people and you might have to let

them go. So in this case, I think that the fact that the weapon in this case sort of allows for the

decision makers to have more options, of what they want to do or not to do.

Viktor: So its easier to make a decision maybe.

Andre: Its easier to make the case to kill someone, whereas in other circumstances, you would

either not do anything, or even you probably just try and arrest that person, and bring that person to

justice, it might just now opt to go there and use the drones and kill the person.

4) In July 2015, there were articles that indicated that the EU wants to use drones to carry out

surveillance on human traffickers, monitor smugglers and help with rescues at sea. Would its use

be justified?

Andre: In this sense, yes, I think, the drones are here very useful for that purpose and I dont see any

problem with that. Again, the issue, thats why, using the term drone might not be particularly

helpful in these cases in which the type of equipment that you are going to use, the machine that

68
you are going to employ to do this type of surveillance is not the same as they use to kill terrorists in

Pakistan, but yes, I mean, drones can be very useful and in terms of surveillance and intelligence

gathering they are highly efficient.

5) In August 2015, in Rio de Janeiro, several drones installed with video cameras have been flying

around and recording businesses in suspicious areas where workers are forced to toil away in

slave-like conditions. Would its use be justified?

Andre: Depends who is using it and for what purpose.

Viktor: Lets say legal authorities - the government of Brazil.

Andre: If its a legal authority, using drones in the context of a specific mission, an operation that

intends to disrupt that network of illegal workers then I do not see any problem with that. All the

problems related with the use of drones for surveillance have to do, as I said, whats the national

legislation on the topic, who can use them, for what purpose, and what are the limits, because if you

are the police or another authority, you certainly should not be able to use your drone to look into

my apartment, if I have nothing to do with whatever you want to do, but again, that has to do with,

how you regulate and obviously, some countries, or most countries are far behind in that sense, but

has nothing to do with the ethical question of whether drones should or should not be used, its

more like under what circumstances, should they be used.

6) Operators of a drone targeted an alleged member of a terrorist group. This was purely based on

a suspicion. Would such targeting be a justifiable and legitimate criterion?

Andre: It depends on the context.

Viktor: I do realize, that some of the questions, and this question particularly can be a bit vague.

69
Andre: If you are in the war and conflict context, you should not kill someone, just because you can.

Viktor: Based on suspicion.

Andre: If you are suspicious that the person is related to some sort of criminal or terrorist network,

what you should try to do first of all is to try and arrest the person.

Viktor: And the use of drones should be used as the last resort, not the very first option.

Andre: Yes, the drone should be used as the last resort. Obviously, then the question is how do we

find what the last resort is and many US officials would use the argument that given that these

people are in remote places and usually there is a small window of opportunity to target them that

they prefer to use the drone and eliminate them rather than trying to bring them to justice. But

again, particularly in context in which the United States or other countries are not involved in official

war, I would say that there is no reason to use drones to kill someone in the same way that there is

no reason to use a shotgun to kill someone just because you have a suspicion, unless you are in the

war context in which the rules of humanitarian law apply.

7) A drone is responsible for a death of a high profile terrorist. Would its use be justified?

Andre: Is the same question, as the one before I think. I do not think it is, unless that person was

doing something that could be proven to be at risk for other people at that particular moment, in

which he was hit.

Viktor: There was a case in 2002. Three guys were walking and they all appeared to be suspicious.

They were hit and eventually killed, and at the end, it was discovered that they were innocent

people. But if it would be discovered that they were indeed terrorists and a year ago, they were

responsible for 9/11 attacks, would its use be justified?

Andre: No, because the principle is the same and thats the principle that you cannot legitimately

kill someone, just because you have a suspicion and thats not a reasonable legal ground in which

70
you can kill someone. So, in any case, what you need to do is to bring someone to justice. Only, as I

said, unless you are in the context of war, or you have a clear evidence that the person is about to

commit an attack or to kill someone. Only in those cases, it can be justified; mostly using the

argument of self defence as a very last resort, in other circumstance, what you should do is to bring

the person to justice and not just kill them.

8) Do you think the USA would use fewer drones and targeted killings in last 14 years if the 9/11

attacks had not happened? Do you think that 9/11 attacks were a trigger to all of this, war and

terror, drones, or do you think it came naturally with technology?

Andre: Thats an interesting and good question actually. I think the answer is more or less yes and no

in the sense that what 9/11 allowed was a) for the possibility of undertaking attacks within the

context of less accountability.

Viktor: Yes, the US appears to justify their attacks because they need to defend themselves against

potential attacks, such was 9/11.

Andre: Yes. It generated a framework under the global war and terror, which many things become

acceptable that were before that and that facilitated the way in which the drones are being used. On

the other hand, drones with exception of couple of cases, drones have only been used in a regular

way since 2007-2008.

Viktor: But that could be maybe because the technology was not as advanced in 2001, as in 2008.

Andre: Well, yes and no. The technology was there, in a sense that in 2001, the US undertook at

least 2 operations.

Viktor: Yes, the Operation Enduring Freedom for example.

71
Andre: I dont remember the name of the operation exactly, but yes, the technology was there-they

had the technology to use it extensively. But the numbers of drones were not as high as in 2008.

Because the number of drones that the US employed has increased massively, so they did not have

them. And yes, you are right; the technology was not as advanced and developed, so they could not

rely on drones so much. But I think, most of it has to do with practice, the more they used the

drones, the more they could see the benefits of those drones, such as saving soldiers and being able

to target people that couldnt otherwise.

72
APPENDIX 7

Interview via e-mail with Michal Kovarik (Working for European Institutions).

Because of the nature of work Michal does, he asked not to mention the position of his job.

1) No, I dont think there is any correlation between being a state or non-state actor when it comes

to quantity of drone usage.

2) I think that fully autonomous drones would be able to meet international humanitarian standards

in a same way as man-controlled drones are today.

3) No, definitely not. The decision to enter war is always a political decision, where other factors

contribute to final decision. Drones themselves are not a war-waging weapon, although they bring

some kind of a revolution to the way wars are waged. However, nuclear weapons brought revolution

as well. They save friendly soldiers on the battlefield as well and yet they do not tempt to wage a

nuclear war. Overall possession of a weapon that saves friendly human resources never tempt to

enter a war.

4) I am no expert in international law, but usage of drones against human traffickers with the aim to

carry out surveillance is at least helpful and in my personal opinion even justified.

5) It is all a matter of who owned the drones, under what regime the data were processed etc. In my

opinion if a police uses drones in this matter and proves unlawful behavior, it may be justified.

6) No, suspicion is not a legitimate criterion.

7) Yes, provided that it can be proved with certainty that the target is a high profile terrorist.

8) Cant speculate. Drones seem to be a natural evolution of warfare, 9/11 events dont have any

correlation or effect on their use.

73
APPENDIX 8

Interview via e-mail with Sofia Graca Senior Lecturer in School of Law, Criminal Justice and

Computing at Canterbury Christ Church University.

1) Im not sure I understand the question; do you mean in situations of war? In this case, wont the

non-state actors be contracted to states and therefore have to abide by the regulations that states

are bound by? There have been situations in which the private sector has been found that human

rights legislation also applies to non-state actors, so it depends a little on the type of action and

bodies you have in mind.

2) Not being an expert in the area, I dont know what a fully autonomous drone is. Dont they

always have to be programmed to act according to certain parameters, and if so, there is a human

state/organisation responsible for they actions? I think their used can be justified if we are talking

about delivering packages ordered on-line, Im not sure in situations of war.

3) Do you mean fewer soldiers die for the side that sent the drones? What about the casualties on

the other side and the size of collateral damage? I really dont know enough about military strategy

to say whether it would be more tempting to enter more wars if drones are used instead of soldiers.

I expect there is a political, financial and humanitarian cost to be assessed in making this decision

that would be complicated.

4) It depends on how the surveillance is made and what oversight it is under. If there is reasonable

suspicion of illegal activity, then it would seem that the same principles of law could be applicable

for surveillance (i.e., judicial or political oversight and review, depending on the jurisdiction).

5) Im not aware of this situation. It would be justified in my view if deployed under the parameters

mentioned in my answer to question 4.

6) Same answer as for question 5.

74
7) Same answer as for questions 5 and 6.

8) I dont know whether there was an increase in the use of drones by the USA due to 9/11 or not. I

suspect that progress in military technology would have led to an increase in its use regardless, but I

accept that this may have been pushed forward by 9/11.

75
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