Sooner or later, countries other than the United States may start killing people with drones as frequently as we do. If and when that happens, Americans are likely to regret the norms President Obama has established around targeted and semi-targeted killing. There is a buzz overhead, a cluster of people blown to bits, and then silence. Who pulled the trigger? Why were they targeted? Were any innocents killed? The Obama administration often answers none of these questions. Its officials don't behave like people confident that their killings are legal and just.
Ben Emmerson, the UN's special rapporteur on human rights, correctly perceives that as drones proliferate, the norms America has established could prove disastrous.
His report on targeted killing, discussed on Tuesday, is partly an effort to spur the United States and other countries to bring drone killing under the auspices of international law. The report sets forth key questions raised by targeted and semi-targeted killing, and encourages the international community to grapple with them.
The questions are paraphrased and quoted below. As you ponder how international law ought to answer them, it is useful to imagine a 9/11-style attack against China or Russia that prompts its leaders to declare their own global war on terrorism.
Okay, the questions:
1) Does the right to self-defense under international law entitle a state to kill people in another state without its permission, if the target is an armed group that poses a direct and immediate threat of attack, but has no connection to its host state? If so, what conditions must be present to justify such an attack? Does it arise when the host state is judged unable or unwilling to prevent the threat from materializing?
2) Is the principle of self-defense "confined to situations in which an armed attack has already taken place," or does it entitle a state to act preemptively on the territory of another state "where it judges that there is an imminent risk of attack to its own interests?" And if so, how is the standard of imminence to be defined?
3) International law decides whether or not a state of "non-international armed conflict" has come into existence based in part on the intensity of hostilities. Does this test "require an assessment of the severity and frequency of armed attacks occurring within defined geographical boundaries?" When applying the test, "is it legitimate to aggregate armed attacks occurring in geographically diverse locations in order to determine whether, taken as a whole, they cross the intensity threshold?" If a state can be engaged in a non-international armed conflict with a non-state armed group that operates transnationally, does that mean a non-international armed conflict can exist without finite boundaries?
4) Does humanitarian law permit targeting people "directly participating in hostilities who are located in a non-belligerent state," and if so, "in what circumstances?"
5) Are al-Qaeda attacks still organized, intense, and coordinated enough to qualify the fight against it as "a single state of armed conflict without finite and defined geographical boundaries?"
6) Has the Red Cross adopted the right standard for determining when a person is a member of an armed group who may be targeted at any time with lethal force?
7) Where should the boundaries be drawn between combatants and non-combatant civilians? "Does providing accommodation, food, financing, recruitment or logistical support amount to 'direct participation in hostilities' for targeting purposes?" Does a person who engages in an armed attack stop being a legitimate target if there is a pause in his or her active involvement in these operations?
8) When must a legitimate military target be captured rather than killed?
There is an urgent need for states to reach consensus on these issues, the report argues. But the United States will not even clarify where it stands on many of them, in part because it would never want other countries to behave as we're behaving.