In a speech at the Wilson Center on April 30, John Brennan, Assistant to the President on Homeland Security and Counterterrorism, addressed the subject of targeted killing. In particular, he set out to explain the legality, ethics, and operational wisdom of the policy of using drone-mounted missiles to kill suspected terrorists and insurgents in countries other than Afghanistan – that is countries with which the U.S. is not in an armed conflict. His speech was the most elaborate and open statement yet by the administration on the policy, which remains officially covert, but it provided little new analysis, and it did not respond to the most fundamental challenges to the policy.

The stated objective was a laudable one. He acknowledged that the U.S. policy of targeted killing has been the subject of significant international criticism. He referred to President Obama’s commitment, made in his Nobel Peace Prize acceptance speech, that the “United States of America must remain a standard bearer in the conduct of war,” and that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” Moreover, Brennan stated that President Obama understands the need for greater transparency, and the requirement to explain to both the American people and the world the rationales for the policy.

Unfortunately, however, Brennan provided little new analysis to explain how the targeted killing adheres to the governing principles of international law. Harold Koh, legal counsel to the State Department, provided the basic legal justification two years ago – that is, that the U.S. is in an armed conflict with Al Qaeda, the Taliban and associated forces, such that members of those groups can be lawfully targeted as combatants in an armed conflict; and that the U.S. is entitled to use force in the exercise of its inherent right of self- defense.

Attorney General Eric Holder expanded on that justification somewhat in March of this year, adding that the armed conflict is with a stateless enemy, and that the U.S. is entitled to use force against countries that are either unwilling or unable to prevent the operations of these terrorist groups. John Brennan added nothing new to explain the validity of the assumptions underlying those justifications – that there is an armed conflict with the various terrorist and insurgent organizations, and that the state can use force against countries that are unable or unwilling to prevent terrorist operations.

The problem is that while all of these representatives of the government keep asserting that the policy is in full compliance with international law, the majority of international law scholars and jurists outside of the U.S., and very many within it, do not agree with the most fundamental premises of the rationale. The United Nations Special Rapporteur for Extrajudicial Killing (himself a renowned American legal scholar), has held that such targeted killing constitutes extra-judicial killing in violation of human rights law. Just a few weeks ago, in the keynote address to the American Society of International Law, the President of the International Committee for the Red Cross, one of the key institutions in monitoring compliance with the laws of armed conflict, quite emphatically rejected the U.S. government assertion that it can be in a transnational armed conflict with amorphous terrorist organizations all over the world, without geographic limitation.

This is not the place to attempt an analysis of the highly complex issues raised by the various legal objections to the U.S. policy. But it is important to understand that there are several key questions that remain highly disputed. Koh, Holder and Brennan all emphasized the necessity of U.S. compliance with the laws of armed conflict. Indeed, it is only the privileges granted by such laws that could legitimate killing that would otherwise be murder or extrajudicial execution. But that legal regime itself defines the conditions in which armed conflict exists, thus triggering the operation of the legal regime’s rights, immunities, and constraints.

The sporadic violent attacks launched by various terrorist groups from various countries does not satisfy the criteria for the existence of armed conflict as a matter of law. At best, the U.S. must argue that the law of armed conflict needs to evolve to recognize and accommodate these new kinds of conflict. Brennan, however, did not address the issue, but merely re-asserted the contested claim that the U.S. is in an armed conflict with these groups.

Moreover, even if there were such an armed conflict, terrorists are not “combatants” under the law of armed conflict, but civilians who can only be targeted for such time as they take direct part in hostilities. It is not clear that the targeting process, on which Brennan spent considerable time but about which he disclosed very little, focuses on any such determination. Nor did Brennan address how it is that the killing by non-combatant CIA personnel can be lawful under the law of armed conflict. The U.S. is prosecuting insurgents in military commissions for having allegedly killed US troops without the privilege of being a combatant. Yet the CIA, the personnel of which do not enjoy combatant status under the law of armed conflict, is doing the lion’s share of the killing in the targeted killing program.

Finally, the justification says very little about the use of force against states like Yemen, Somalia, and Pakistan, in which the killings take place. When conducted without their consent, the missile strikes constitute a use of force against those states, in violation of the prohibition on the use of force in the United Nations Charter, unless it can be justified as self-defense.

International law on the use of force only permits the use of force in self-defense against another state for the purposes of striking a non-state actor within that state,  if that state has been substantially involved in supporting, directing, and facilitating the operations of the non-state actor (i.e. the terrorist organization). The fact that it is simply “unwilling or unable” to prevent terrorist operations is not a sufficient to attribute to the state responsibility for the terrorist group’s actions, and thus provide a basis for attacking the state (I have written in some detail on this issue elsewhere). So again, the U.S. might argue that the law on the use of force must adapt, but it is difficult to claim that the strikes are consistent with current international law. This issue too received no explanation.

The bottom line is that the Brennan speech was disappointing. Even the strong supporters of the policy have argued that there must be greater transparency not only in how it is implemented, but in developing a coherent legal justification that is persuasive. The Supreme Court of Israel, in considering the legality of its own targeted killing policy in 2002, held that there must be transparent and independent oversight of any such policy, including ex post review. We still know nothing of the actual process of targeting, and there is certainly no independent oversight. It is known that an Office of Legal Counsel memo has been prepared to provide the legal justification, but it remains classified. The administration has chosen to litigate rather than disclose it in response to an ACLU freedom of information request.

While purporting to address the calls for transparency and proclaiming how important it is for democracies to observe the rule of law, the administration continues to conduct its targeted killing policy in the shadows, and in a manner that leaves the rest of the world questioning America’s adherence to international law. Moreover, it may be establishing new norms and precedents that will justify the conduct of other countries, which will soon develop targeted killing policies of their own. And that, in the end, may not be in the best interests of U.S. national security.

Several blog posts have noted the lack of mainstream discussion on the legality of this missile strike. Prof. Marty Lederman, writing in Slate, suggested that few seem to care whether it was legal. But even among the bloggers, the majority of posts I have seen, as in the case of Prof. Lederman’s, have focused primarily on the constitutional issues of whether the President had sufficient authority, explicit or otherwise, to launch such attacks. There has been some discussion of the jus in bello issues, such as whether the strikes met the criteria of military necessity and proportionality, given the apparent collateral damage. But few have addressed the jus ad bellum issues – was this missile strike, and those prior to it (there have been several such attacks on Somalia since 2006) lawful under the international laws on the use of armed force?

Developments in jus ad bellum?

Prof. Jullian Ku was one of few that has raised the issue, on Opinio Juris, but he merely floated the idea that since such strikes have met with little objection, they may be evidence that the U.S. is operating in a legal paradigm that approximates that of war. Implicit in this is the proposition that there have been developments in international law on the use of force since 9/11 that permit one to wage war on organizations, and which give the global “war on terror” a legal foundation that would permit such strikes against Al Qaeda operatives at large in a “failed state”.

As I commented on his post over at Opinio Juris, I question whether the fact that there has been little formal objection to the strike can be said to support the inference that the strikes were therefore lawful or justifiable under international law, or that it reflects developments in international law that permit such strikes.

The prohibition on the use of force

Under the traditional understanding of jus ad bellum the strikes would appear to constitute a use of force in violation of Art. 2(4) of the U.N. Charter, which prohibits states from using force against the territorial integrity or political independence of a state, or in any other manner that is inconsistent with the purposes of the U.N.

Prof. Lederman questioned whether the strikes might fall outside of the scope of this prohibition, given that it was not really aimed at Somalia per se, but rather at terrorists operating within Somalia. It seems very unlikely that this distinction could negate the application of Art. 2(4). If Mexico fired missiles into Texas to take out some alleged narco-terrorists there, the U.S. would no doubt rightly perceive it to be a violation of its territorial integrity and an armed attack in violation of its sovereignty, inconsistent with the purposes of the U.N.

The right to self-defence

In interpreting Art. 2(4), one also needs to consider the operation of Art. 51 of the U.N. Charter, which provides that member states have an inherent right to exercise individual or collective self-defence in the event of an armed attack. Missile strikes aimed at targets within one’s territory would most certainly constitute such an armed attack and provide a state with the legal justification of responding with force in self-defence.

The missile strikes on Somalia would constitute such armed attacks justifying the right to the exercise of self-defence, and the fact that Somalia is in a state of political disarray, and able neither to effectively object or to mount any sort of self-defence, does not alter the legal analysis. That in turn informs the question of whether such armed attacks, which would justify self-defence, constitute an unlawful use of force in violation of Art. 2(4).

Continued exercise of self-defence?

Of course, attacks that are themselves conducted as part of the exercise of self-defence cannot constitute unlawful acts of aggression. Can it be said that the strikes on Somalia are part of a continued American exercise of the right of self-defence as against Al Qaeda in response to the 9/11 attacks? This brings one back to the issue of whether international law recognizes armed conflict at large against non-state terrorist organizations.

The U.S. invasion of Afghanistan was based on the Art. 51 right of self-defence, but was understood to be against the state of Afghanistan for its harbouring of the terrorists who conducted the attack. Notwithstanding the continued inusurgency in Afghanistan today, the initial invasion and occupation of Afghanistan ended years ago. Has there been some development of international law that permits states to employ military force rising to the level of armed attacks against third states on the basis that enemies from a former conflict have now taken refuge there?

The war on terror and jus ad bellum

The constant refrain that the U.S. is engaged in a so-called “war on terror” does not advance the analysis. An effort against terrorism in and of itself does not come within the definitions of international armed conflict in international law, nor do many aspects of that effort trigger the application of the laws of war. What is hte legal development that provides a legal justification for military strikes on countries in which the operative of an organization defined as “the enemny” may be residing at any given time?

A hypothetical may help us draw the distinction between the so-called criminal law paradigm and laws-of-war paradigm into stark relief. Consider a case where an alleged Al Qaeda operative is found to be residing in Canada. The U.S. requests of the Canadian government that he be apprehended. The Canadian government, however, approaching the issue from the criminal law paradigm, advises Washington that it has insufficient evidence to apprehend or detain him under the criminal laws of Canada (which now include a number of enhanced terrorism-targeting provisions). May the U.S., under the cloak of the war-paradigm of the so-called “war on terror”, and with assertions that Canada is now “harbouring terrorists”, fire cruise missiles into the apartment building where the Al Qaeda operative is holed up?

For those who argue that the “war on terror” is really an activity to which the laws of war apply, and that international law with respect to jus ad bellum has somehow changed since 9/11, the burden is on them to actually describe how, precisely, that is so.

This is not to say that the strikes were unlawful, but rather to emphasize that the questions raised by strikes such as those on Somalia certainly require much greater study and discussion. Their lawfulness ought not to be presumed. The foregoing review merely scratches the surface of the issues, and the questions should be getting more attention in both the mainstream media and in the academy.