The use of drones and other forms of targeted killings are being increasingly criticized at the international and domestic level. Before the backdrop of the most recent news that the United Nations has launched an inquiry into the overall legality of such a method of warfare and counterterrorism and its associated loss of civilian life, this article aims to give an overview on targeted killings as a means of warfare. The article asks what constitutes targeted killing and what distinguishes it from assassinations. It reflects on the safeguards, which are necessary to ensure the legality of the targeting process. This article further introduces the reader to an updated account of the use of Unmanned Combat Aircraft Systems, or ‘drones’, in targeted killings, employed as a means of warfare by the USA in its ‘War on Terror’. The US drone campaign in Pakistan also raises questions in respect to State Sovereignty and potential violations of this central tenet of International Law. The article will also touch upon another field of global security, so called ‘Hybrid Threats’, where the use of targeted killing may have an operational military benefit as part of a holistic counterstrategy. It concludes with a sobering warning that while targeted killing operations may be an effective means of achieving short-term tactical goals within the scope of a wider operational objective, the unregulated and increased use of targeting killings by the USA in the ‘War on Terror’ would be both immoral as well as illegal in the long run.
1. Introduction and Overview
The use of armed Unmanned Aerial Vehicles (UAVs) (also known as Unmanned Combat Aircraft Systems (UCAS) or ‘drones’)1 by the USA to target and kill leaders and commanders of Al-Qaeda, the Taliban and their affiliates in Pakistan (as well as for covert operations in Yemen and Somalia) has increased significantly during Obama’s first term as President. According to open sources, up to 3176 people have been killed in 337 drone strikes since 2004, of which nearly 290 took place since 2009.2 Targeted killing as a method of warfare and counterterrorism has been used by the USA and its allies post 9/11 in the ‘war on terror’ to target and ‘decapitate’ the leadership and command structure of Al-Qaeda, the Taliban and their affiliates.3 These strikes lead to the death of a significant number of leaders and commanders.4 US drone strikes killed Al-Qaeda’s deputy leader, Abu Yahya al-Libi, as well as its local leader in Pakistan, Badar Mansoon.5 These ‘leadership decapitation’ operations are part of a wider US anti-terrorism and counterinsurgency strategy against Al-Qaeda, adopted post 9/11 as part of the US National Security Strategy6 and supplementing the ongoing combat operations under Operation Enduring Freedom (OEF).7 The targeting of terrorist and enemy leaders led to the successful elimination of Osama bin Laden, the leader of Al-Qaeda, on 2 May 2011, when he was killed after a brief firefight with US Navy Seals.8 This operation, codenamed ‘Operation Neptune Spear’, was one of the more prominent capture and kill9 operations undertaken by the USA as part of its National Security Strategy aimed at targeting and eliminating leaders and commanders of Al-Qaeda and its affiliates.10 According to the USA, Operation Neptune Spear was the culmination of its successful strategy of decapitating Al-Qaeda’s leadership, which has sent, ‘al Qaeda into a decline that will be hard to reverse’.11 The success and outcome of this raid, however, also refuelled a continuing debate concerning whether targeted killing could ever be regarded as lawful and overall moral. This debate was spurned by recent critical media reporting,12 the release of increasingly critical academic reports on the civilian impact of drone strikes,13 unsuccessful legal challenges14 and finally, the decision by the United Nations UN Counter-Terrorism Expert, Ben Emmerson, to launch an inquiry into the killing of civilians by drones and other methods of targeted killings.15
Targeted killing seems to achieve tangible returns in terms of ‘decapitating’ terrorist networks: recent reports indicate that Obama’s policy of targeting Al-Qaeda’s top and mid-level leadership has led to significant losses among the ranks of leadership of the organization.16 Another emerging field of security threats where targeted killing may be used in the future, is in response to countering so-called ‘Hybrid Threats’, which refers to asymmetric threats like terrorism and cyber threats, and which will be discussed in more detail below. The use of UCAS and Special Forces has other benefits too: it serves as a ‘force multiplier’, which basically allows achieving more in terms of tangible military objective with less ‘boots on the ground’. Such considerations matter in times of shrinking defence budgets and an increasing unwillingness in the West to suffer casualties in combat.
This article provides the reader with an updated introduction to targeted killing as a means of warfare with a focus on the use of UCAS as weapon platforms for the execution of such strikes. It describes the targeting process as part of an attempt to ensure overall legitimacy by complying with the necessary legal tenets of humanitarian law. It introduces a new terminus of military risk, so-called Hybrid Threats, and reflects on its significance for the future use of UCAS borne Targeted Killing. The article reflects on some of the legal questions arising from the use of targeted killing during hostilities and peacetime and also touches on more recent concerns raised in the context of operational necessity, operational morality and overall legitimacy. The article concludes with a short outlook on the future use of drones on the battlefield.
2. Targeted Killing as a Method of Warfare
Targeted Killing can be used for the physical elimination of enemy combatants during hostilities in times of armed conflict but also of suspected terrorists in peacetime. Depending on the circumstances the legal repercussions differ: targeted killing in times of war may be justifiable as a lawful and legitimate method of warfare during hostilities, while such an operation outside an armed conflict may qualify as an act of extrajudicial killing, murder or assassination, unlawful under international and domestic law. Human Rights Watch highlights this potential difficulty in qualifying and assessing such kinetic action, whereas
‘targeted killing’ has commonly been used to refer to a deliberate lethal attack by government forces against a specific individual not in custody under the color of law. It is not a technical legal term. Depending on the circumstances, a particular targeted killing may or may not be lawful under international law. For instance, a sniper shooting at an enemy general on the battlefield would normally be a lawful targeted killing. Targeted killings should be considered distinctly from the summary execution of anyone in custody, which is never lawful.17
A. Definition of Targeted Killing and Some Reflection on its Operational Use
‘Targeted killing’ refers to a method of warfare whereby individuals are selected and confirmed as so called ‘High Value Targets’,18 followed by a separate and individual targeting process19 which ultimately leads to the execution of an military operation aimed at killing these individuals. This definition is reiterated in one of the leading academic texts on the subject of armed conflict, the Handbook of International Law of Military Operations, whereas:
[…] the term targeted killing refers to military operations involving the use of lethal force with the aim of killing individually selected persons who are not in the physical custody of those targeting them.20
An early example of ‘targeted killing’ in the history of armed conflict can be found in the military tactics applied mainly by snipers. Prominent and well-documented examples of sniper warfare can be found in the annals of the Eastern Front during World War II: German and Soviet forces used snipers to annihilate systematically the enemy’s mid-level military leadership: German losses to Soviet snipers were so severe during the battle for Stalingrad in autumn of 1942 that officers as well as non-commissioned officers had to adapt means of camouflage to blend in with their (enlisted) men and in order to avoid being targeted by enemy snipers.21
Operation ‘Neptune Spear’ as well as the alleged Israeli Mossad Operation to kill the Hamas official Mahmud al-Mabhuh in Dubai in 201122 involved the use of Special Forces on the ground, or intelligence operatives/assets respectively, constitute commando operations as well targeting operations in the wider sense. Such tactical capture and kill operations executed by Special Forces assets are not the focus of this short contribution: its focus is solely on targeted killing, as a means of warfare which is executed by using remotely piloted aircraft, UAVs or drones respectively, as weapons platform.
Falling outside the scope of targeted killings discussed in this article is the continuing use of Improvised Explosive Devices (IEDs) in Iraq and Afghanistan by the Taliban and other affiliated groups. Targeted terrorism, involving the use of IEDs, suicide bombings or suicide attack squads as impressively shown in the 2011 Mumbai attacks, seem to constitute a hybrid form of unconventional warfare which combines elements of both, assassination and targeted killings in the widest sense. The scope of this article is on targeted killing as a means of warfare and hence does not warrant a further discussion of this form of attacks as a potential example for targeted killings.
Targeted killing as a means of killing enemies of a state has been employed most frequently by the USA as part of its overall military strategy against Al-Qaeda and the Taliban.23 While the USA did not ‘invent’ this form of warfare it has taken the lead in advancing its development and overall design in respect of targeting processes, command and control as well as the use of increasingly sophisticated technology.24 The use of drones for executing kinetic, lethal, strikes against hostile and enemy targets has its tangible military benefits in terms of operational capabilities, readiness and its overall availability as a defensive as well as offensive form of warfare. Targeted killing by UCAS can be executed at very short notice and does not require the deployment of and the presence of substantial own forces in the theatre of operations. This availability and flexibility of using drones as a platform for the execution of targeted killings makes this form of warfare (without own casualties) so formidable when responding to present threats at an ad hoc basis. Consequently, both proliferation and expansion of the use of UCAS are increasing.25 Examples hereof are the present discussions in the UK to increase the availability of UAV systems for reconnaissance and combat, the RAF’s decision to relocate its UAV assets from the US to RAF Waddington near Lincoln and to establish a new Unmanned Air Systems Capability Development Centre (UASCDC) there. The overall capabilities of such airborne weapon platform systems has also found supporters among nations who were initially opposed to this form of warfare, such as Germany which for historical as well as political reasons has been known to be more reluctant to the use of force and to participate in combat operations in a more active role.26
B. Targeted Killing by States and International Organizations
Reported cases where targeted killings have been employed against High Profile Targets involve Russia, Israel, the UK, the USA and NATO.27 Israel has been using targeted killings as a means of combating Islamist security threats and has a track record of using targeted killing in its fight against militant Islamist organizations and their leaders for years.28 The most recent examples of using drones in the execution of such operations took place during the Israeli Defence Forces’ (IDF) military operations during Operation ‘Pillar of Defence’ in Gaza in November 2012. Israel has been employing its own mix of airborne operations, using both, UCAS as well as attack helicopters and jet fighter aircraft, in addition to ground forces, including special forces and intelligence operatives.29 In 2006, the Israeli Supreme Court ruled on the issue of targeted killings in its so-called ‘Targeted Killing’ case. There the court recognized the use of targeted killing as a means of warfare, characterized the nature of its conflict with terrorist actors as ‘armed conflict’ and confirmed the legality of targeting killings of terrorists under certain circumstances:
[…] Therefore terrorists may be targeted by armed forces if they take a direct part in hostilities. The targeting of terrorists by armed forces must satisfy the requirements of art. 51(3) [of the First Additional Protocol to the 1977 Geneva Conventions]; the terrorists must take a direct part in hostilities and the targeting of terrorists may be carried out for such time as they do so. The principle of proportionality in carrying out these attacks should also be observed.30
The Israeli court did, however, make it clear that targeted killings were to be regarded as an exceptional means of warfare and subject to stringent controls and balances: ‘Each case should be examined prospectively by the military authorities and retrospectively in an independent investigation, and the findings should be based on the merits of the specific case. These findings will be subject to the scrutiny of the court.’31
Targeted killing has also been used by the USA in theatres of actual combat operations, such as Afghanistan and Iraq, as well as outside these theatres of war and as part of CIA and US military run covert operations in Pakistan. The USA is using drone strikes and Special Forces there to conduct pre-emptive as well as defensive targeted killing operations against Al-Qaeda and the Taliban. The argument is brought forward that such operations are necessary to protect US forces and its allies in Afghanistan and to disrupt the existent terrorist infrastructure. The focus of such operations is on the so-called ‘Tribal Areas’ of Pakistan, Waziristan, where the Taliban have effectively established an autonomous sphere of influence to the exclusion of the central government in Peshawar.32 Other such covert operations have seen CIA operated drone strikes in Yemen, Somalia as well Sudan, where a lack of cooperation and/or relative capabilities of the respective governments have created areas which are outside effective state control.33
Just to clarify: acts of targeted killing, which are carried out of vengeance or other heinous motives, or as part of an assassination strategy or which are conducted outside the conduct of hostilities or those executed within the context of hostilities but outside military necessity, may constitute crimes committed under the veil of war—and may qualify as crimes under national as well as international law.34
C. Targeted Killing in the Context of Political Assassinations and Terrorism
Historical and contemporary terrorism, anti-colonial struggles and revolutionary intra-state war, have changed the nature of global violence over the last 60 years. The assassinations of political opponents within the context of intra-state conflict, including cases of internationalized intra-state war, where third parties intervene, have always been part of irregular warfare. A historical example can be found in the practices of the Viet Cong during the Vietnam War, whose policy of large-scale assassinations of South Vietnamese government officials willing to work for the US supported government of the Republic of Vietnam was so effective that the US military had to counter this threat by the use of targeted killing operations against the Viet Cong (as well as covert operatives from the North Vietnamese Army, NVA) under the controversial but successful Phoenix program, which used a mix of both targeted killing and assassination for the neutralization of threats.35 Targeted killing operations, executed outside the context of hostilities and directed against political leaders are often executed by intelligence agents and are usually referred to as ‘assassinations’. Sometimes, the boundaries between such assassinations and targeted killing within hostilities are overlapping.36 Such operations are now prohibited in Western democratic States.37 The USA after years of employing such acts changed tack when in the aftermath of a congressional committee, the Church Committee, investigated and condemned earlier CIA led political assassinations by the USA.38 The official US position banning such practices was clarified by President Ford in 1976 when he issued Executive Order (EO) 11905 which officially banned any USA complicity in political assassinations and reigned in excessive powers of the CIA.39 Confirmed and extended under President Carter, this policy had been used by subsequent US Administrations, including President Bush, who issued EO 13470 in 2008. While none of these EOs authorize the assassination of political and other enemies of the USA, it seems as if the ongoing extended targeting of terrorist leaders around the globe post 9/11 by the USA questions this official caveat on US assassinations, at least in regard to terrorists. One key distinction between assassinations and targeted killings lies in the difference in terms of motivation and purpose, namely the former’s nexus to political warfare as part of a politicized irregular warfare: to annihilate opponents and terrorize for the sake of political objectives. Critics of such forms of killings compare these with punitive killings and compare the notion of ‘assassination’ with operations executed solely for ‘vengeance’.40 The USA tries to avoid such criticism by arguing that targeted operations against leaders of Al-Qaeda do not fall under this prohibition as its forces were engaged in an ongoing armed conflict with Al-Qaeda and its targeting of enemy leaders and commanders constituted acts of combat in execution of state self-defence.41
The ongoing strategy by the Taliban in Afghanistan and Pakistan to systematically target and kill personnel of international and local NGOs involved in health care and social development programmes, constitutes an own category of ‘targeted terrorism’, ‘assassinations’ or targeted killings in a wider sense. The deliberate and systematic targeting by the Taliban of coalition forces, associated civil liaison assets as well as other non-military personnel associated with peacebuilding and post-conflict stability efforts is increasing. The Taliban campaign of killing such non-military targets has significantly impacted on the overall success of these efforts in the short and mid term. Recent victims of such terrorist targeting include personnel working for the World Health Organization and UNICEF, who were involved in literacy as well as vaccination programmes.42 As a consequence, both UN and WHO suspended temporarily some of their vaccination programmes in Pakistan. This targeting of relief and development workers is perhaps as effective as the Taliban sustained campaign of using more and more sophisticated IEDs in their attacks against US, NATO, as well as Afghan/Pakistani security forces and government officials.43 This terrorist targeting may be part of a wider campaign to force the international community to ‘abandon’ Afghanistan. It is clear that such indiscriminate, often heinous, acts committed by the Taliban do not comply with international humanitarian law,44 most notably the criteria of distinction and proportionality, and therefore such kind of attacks do not fall under the terminology of targeted killing as discussed in this article.
D. Targeted Killings as a Means of Countering Hybrid and Asymmetric Threats: Some Reflections45
The deteriorating security situation in the Maghreb has turned the ‘Arab spring’ into an ‘Arab winter’ of radicalized Islamist (often failing) states46 and has created a variety of new, multimodal ‘Hybrid’ Threats: from failed state scenarios, civil unrest to the threat of proliferation of sophisticated weaponry47 and even Weapons of Mass Destruction. In 2010, NATO issued its Lisbon Summit Declaration where general challenges to the Alliance’s role as well as potential responses were discussed before the backdrop of falling national defence budgets and the recognition of emerging new threat scenarios, often in the context of ever-increasing globalization.48 NATO defined these threats in its Bi-Strategic Command Capstone Concept as ‘those posed by adversaries, with the ability to simultaneously employ conventional and non-conventional means adaptively in pursuit of their objectives’49 NATO had been working50 on a comprehensive conceptual framework, which was to provide a wider framework for identifying and discussing such threats and possible multi-stakeholder responses.51 Falling under NATO’s definition of ‘Hybrid Threats’ were a variety of security threats, such as multimodal, low intensity, kinetic as well as non-kinetic threats to international peace and security including cyber war, low intensity asymmetric conflict scenarios, global terrorism, piracy, transnational organized crime, demographic challenges, resources security, retrenchment from globalization and the proliferation of weapons of mass destruction.52 As a consequence, NATO adopted a new Strategic Concept which set out its vision for the immediate future and calling for ‘NATO’s evolution, so that it continues to be effective in a changing world, against new threats, with new capabilities and new partners’.53 Despite these developments, NATO had to decide in June 2012 to cease work on Countering Hybrid Threats at its organizational level due to operational constraints but encouraged its Member States and NATO Excellence Centres to continue working on the idea and concept. It is deemed relevant to reflect on this new concept briefly within the scope of this article as it is quite likely that future challenges to peace and security will have hybrid elements which have the potential to warrant conventional as well as non-conventional responses.54
In essence, Hybrid Threats faced by NATO and its non-military partners require a comprehensive approach allowing a wide spectrum of responses, kinetic and non-kinetic by military and non-military actors.55 The use and exploitation of ‘biohacking’56 and nanotechnology for terrorist ends and everything related cyber are potential and likely future security risks for our Western societies.57 Particularly worrying for our security in the West are the threats coming from the proliferation of advanced weapon systems to non-state actors associated with radical Islam as part of the global advancement of radical Islamism, the ‘Green Menace’.58 This threat has gained new momentum with the breakup of the old autocratic order in the Maghreb, which led to a ‘Balkanization’ of Libya and the coming to power of new governments in the region which question the existing balance of power in the region. The new, hybrid nature of present security threats has been highlighted in the last Israeli–Gaza conflict of November 2012, when ‘traditional’ military and security threats59 were supplemented by the use of new communication technologies, in order to influence global opinion in favour of Hamas. The most recent Gaza conflict is hence a good example of how multimodal threats, asymmetric terror and warfare is supplemented by terrorist (dis)information campaigns. Hamas has been employing tools and strategies of disinformation normally associated with clandestine psychological warfare operations of traditional military state actors: such as the sending of emails and text messages60 with hoax news updates as well as propaganda slogans to Israeli and non-Israeli internet addresses and cell phones, the use of the internet to disseminate their propaganda.61 While there is no evidence that these psychological warfare campaigns were successful this time, their potential has to be acknowledged. In the future, Hybrid and dual purpose, ‘joint’ operations of non-state actors, terrorist organizations such as Hamas and Hezbollah, Al-Qaeda as well as global narcotic smuggling syndicates will become more pressing security risks. The example of Mali, where the northern part has become a de facto independent terrorist state has led not only to the export of terrorism in the region62 but also the use of this ‘failed’ state as a smuggling route for narcotics to Europe. These threats, stemming from terrorism, organized narcotic smuggling syndicates as well as arms traders, are of a truly hybrid nature with repercussions around the region.63
Proliferation of Weapons of Mass Destruction, the ‘export’ of Islamist terrorism across the Maghreb region and even to Europe, the emergence of new technological threats such as ‘cyber’ warfare and terrorism with the potential of waging war in the so-called ‘fifth dimension of warfare’,64 the use of nanotechnologies as a means of terrorism, have changed the nature of potential threats to Western democracies. These technological, ecological, economical and scientific threats, including cyber attacks against strategic infrastructures such as nuclear power stations, air traffic control facilities, the use of bio weapons, often designed and made at home, have changed traditional perceptions regarding interstate conflict and hostilities. The necessity to use kinetic options including targeted killings aimed against the originators of such threats, as well as the necessary support network, make it necessary that law enforcement and military options can be used holistically in a supplementing way. While the potential of the use of targeted killings in the context of targeting enemies during hostilities as well as during peacetime in the context of counterterrorism is documented and recognized as a countermeasure, risk challenges posed by future hybrid threats warrant an extension of targeting campaigns and the inclusion of non-terrorist non-state actors who pose threats to national security.
3. Targeted Killing and the Law
As outlined above, Targeted Killing is being used as means of both combat and counterterrorism. Targeted killing takes often place within an operational context which is sometimes ‘hybrid’, which requires responses which combine elements of combat and law enforcement, counterinsurgency or a bit of both.65 This potential ‘dual use’ of targeted killing leads to the applicability of different legal standards, as recognized in a recent statement by Human Rights Watch, whereby
[t]he deliberate use of lethal force against a specific target can be legal in operations against a combatant on a genuine battlefield, or in a law enforcement situation in which there is an imminent threat to life and there is no reasonable alternative. We also recognize the challenges faced in trying to address potential threats that are not in a traditional conflict zone yet are also beyond the reach of any law enforcement.66
This observation concurs with an earlier finding by the former UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, who reflected on targeted killings and the legal complexities of this form of warfare and counterterrorism in his 2010 report, whereas
In recent years, a few States have adopted policies that permit the use of targeted killings, including in the territories of other States. Such policies are often justified as a necessary and legitimate response to ‘terrorism’ and ‘asymmetric warfare’, but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks … .67
The following pages will reflect on the use of targeted killings as Combat during hostilities as well as Law Enforcement and highlight briefly the legal implications of both.
A. Targeted Killings as Combat
The Law of Armed Conflict (LOAC), the jus in bello applies from the moment a state of armed conflict does exist, be it as an international conflict between states or an non-international armed conflict between a state and non-state armed groups.68 In instances of a non-international conflict, the existence of an armed conflict is accepted when the violence reaches a significant threshold69 in terms of reciprocal ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.70
Once this threshold is reached, LOAC applies even in conflict situations where the overall legality of the use of interstate force, the jus ad bellum, is questionable. That means in cases where legitimate self defence is doubtful.71 This distinction is essential for ‘achieving the ultimate objective of maximizing adherence to the rules of IHL’.72 The ongoing conflict between Al-Qaeda and the USA constitutes hostilities between a state and a non-state armed group and as such amounts to an armed conflict. There exists some controversy whether the nature of this conflict constitutes a non-international armed conflict or an international armed conflict, both of a transnational and extraterritorial nature.73 Even if one was to regard the conflict between the USA and Al-Qaeda as a non-international conflict, one would have to regard the ongoing combat operations against the Taliban, Al-Qaeda and its affiliates in Afghanistan as an international armed conflict as they take place in a conflict between occupying forces and insurgents.74 Whether this existence of an armed conflict between the USA and Al-Qaeda also authorizes the USA to conduct drone strikes as hostilities outside its own territory as extraterritorial use of force in Pakistan is a different question and is discussed below.
In order to be lawful, targeted killing during hostilities has to comply with the rules of international humanitarian law, or the LOAC. Its legal sources are the Geneva Conventions of 1949, its two Additional Protocols, the 1907 Hague Regulations, and the customary law principles of armed conflict. Consequently, any deliberate targeting of designated individuals has to comply with the necessary legal safeguards of humanitarian law in order to be legitimate: namely compliance with the fundamental principles of the Law of Armed Conflict, the principles of military necessity, distinction and proportionality.75
The following pages give a brief overlook of how military targeting aims to safeguard compliance with the above principles in order to be legitimate. In so-called ‘personality strikes’76 against High Profile Targets the targeting process is divided into ‘target development’ and ‘target assessment’. Target development refers to the process of identifying the location of a previously designated target and to provide a timely and accurate tracking of it, while target assessment refers to a process of weighting the tactical success of the strike against the overall damage anticipated, including also a ‘collateral’ damage estimate.77 Both phases have to comply with the above legal standards of LOAC. The legality test during the planning phase requires compliance not only with legal constraints such as distinction and necessity under the LOAC and the applicable rules of engagement, valid in the particular theatre of operations, but also with other operational implications, such as the potential impact on relations to other ‘Green’78 forces, friendly, allied local forces.79 The overall success of an operation is assessed in a post-operational assessment where overall compliance of the targeting process, the execution of the strike and the damage is assessed holistically. These requirements also apply in principle to cases of non pre-planned targeting, so-called time sensitive or window of opportunity targeting80 where the actual targeting process is shortened to allow for operational ad hoc decisions.81 Also known as ‘signature strikes’, this form of targeting is based on an ‘ad hoc’ target assessment, where behavioural patterns of potential targets are observed by the drone operator and if falling into a category of predetermined criteria which is linked to ‘militant activity or association’.82 Such ‘Signature’ strikes in particular have led to recent challenges and criticism.83
In the case of the USA, any targeting process has to comply with the wider legitimacy imperative of the US targeting policy as set forth in the respective US military doctrinal guidelines, such as the official Counterinsurgency (COIN) manual84 as well as the US Air Force guideline on targeting.85 According to its Targeting Doctrine of 2006, targeting has to
achieve the effects and objectives outlined in a commander’s guidance and are coordinated and deconflicted with agencies and activities that might present a conflict with the proposed action. It also determines whether a target remains a viable element of the target system. During the development effort, the targets may also require review and approval based on the sensitive target approval and review process, coordinated through the combatant commander to national authorities.86
It is important to remember that the targeting process applicable in the context of targeted killings has to follow the general rules governing any targeting process in land, air, sea, space and even cyberspace combat:87 that is to comply with the basic principles of armed conflict, namely necessity, distinction and compliance with the proportionality requirements in respect to excessive collateral damage, or the prohibition of perfidy.88 The RAF follows these caveats in its Rules Of Engagement (ROE) for air targeting, which are also applicable for the use of ‘Reaper’ UCAS strikes. The rules applying for weapon release in UCAS operations are not different to those used for UK manned combat aircraft:
[…] the weapons are all precision guided, and every effort is made to ensure the risk of collateral damage and civilian casualties are minimized, this may include deciding not to release a weapon. UK Reaper is not an autonomous system and does not have the capability to employ weapons unless it is commanded to do so by the flight crew […].89
This overview of the targeting process concludes with the observation that a distinct advantage of using UCAS for executing targeted killings lies in its enhanced surveillance capability and the non-existent physical threat to its remote operator. This allows for a better tactical target assessment during the operation and can be used to minimize the probability of non-combatant fatalities. This distinction of targets can in theory significantly reduce ‘collateral damage’, if applied thoroughly and systematically, an advantage even recognized by Human Rights Watch,90 and paramount for any justification of targeted killing as lawful under LOAC.
B. Targeted Killing as Law Enforcement
Targeted killing is also employed outside hostilities in instances of law enforcement, where there is no other option as to kill the ‘targeted’ individual. In such instance, legal limitations other than the above discussed rules governing the conduct of hostilities under the LOAC have to be considered. Potential legal sources can be found in international and/or domestic human rights law, domestic criminal law provisions, and domestic and international anti-terrorism law, both as limitations to a state’s right to employ such targeted killings as well as legal grounds authorizing the use of lethal force on grounds of strict necessity, proportionality and/or the right of individual self defence of the personnel tasked with such an operation.
Targeted Killing outside hostilities and which is not directed against legitimate military targets is governed by the ‘law enforcement paradigm’91 which is primarily governed by international human rights law,92 international specialist operational standards93 and domestic implementing legislation. Outside hostilities, the use of lethal force is the exception and a ‘choice of last resort’ in law enforcement operations, when arrest is not possible without endangering other lives and to prevent imminent harm to life. Melzer provides an authoritative account and overview on the subject: he cautions restraint of using lethal force. Given the closeness of targeted killing outside hostilities to the above discussed assassination paradigm and the dangers of constituting ‘extrajudicial killings’ as well, he proposes a three step safeguard check. Targeted killing as law enforcement should only be admissible as lawful if it ‘(a) aims at preventing an unlawful attack by the targeted person on human life; (b) is absolutely necessary for the achievement of this purpose; and (c) is the result of an operation which is planned, prepared, and conducted so as to minimize, to the greatest extent possible, the recourse to lethal force’.94 Any possible legality of such forms of targeted killings as law enforcement is seriously doubted by the UN Special Rapporteur On Extrajudicial, Summary or Arbitrary Executions, Philip Alston, who questions in general the possibility to execute such operations as part of a state’s lawful, legitimate and morally justifiable part of its national policies.95
In cases where the operation is directed against terrorists additional difficulties arise from the potential hybrid nature of the target: the moment counterinsurgency operations and policies single out a terrorist as a potential target, the line between kinetic actions during hostilities and law enforcement becomes blurred.96 The legal challenges for using targeted killings in this context remain. Amnesty International warns of the danger of adopting such a method of law enforcement, and compared it in the context of Israel’s kinetic response to threats arising from its occupied territories with ‘an unlawful and deliberate killing carried out by order of a government or with its acquiescence … which can reasonably be assumed to be the result of a policy at any level of government to eliminate specific individuals as an alternative to arresting them and bringing them to justice. These killings take place outside any judicial framework’.97
Targeting in the context of the ongoing ‘war on terror’ as well as in the wider context of counterterrorism has its challenges: it is often rather difficult to determine the exact nature of the threat in question and: whether it qualifies as hostility in terms of armed conflict, or as an act of terrorism or sometimes a bit of both.98 An IED aimed at killing coalition forces in Afghanistan might fall under the first category while the killing of health workers or school children by the same actor might constitute an act of terrorism. Lacking a universal criminal prescription (and definition) of terrorism,99 any response to such crimes/threats would have to be grounded in the responses available at domestic state and policy level: from criminal prosecution100 to self-defence as part of a domestic counterinsurgency strategy. Understandable that the USA maintain the position that their policies of targeting terrorist targets should fall under the combat paradigm of its ‘Global War On Terrorism’ which does leave less room for legal scrutiny regarding the choice of responses. By following the US position, which characterizes the conflict with Al-Qaeda as an armed conflict as such and its responses like targeted killings as hostilities falling under its inherent right to state self-defence, one would be able to avoid such legal challenges under the rubric of ‘lawfare’.101 Whether this can apply to its covert drone strike programme is however debatable.
C. Extraterritorial Targeted Killing and Questions of State Sovereignty
Such compliance with the principles of the LOAC does, however, not necessarily imply that the wider context in which a state is engaging in combat is a state of interstate self-defence and as such does permit the use of military force against other states.102 The jus ad bellum is distinct from the jus in bello, International Humanitarian Law applies ‘equally to all parties to an armed conflict, irrespective of whether an armed conflict is wages in compliance with, or in violation of, the general prohibition of the use of force’ as enshrined in Article 2(4) UN Charter.103 The last year has seen an increase in US extraterritorial drone strikes conducted in Pakistan and outside the operational theatre of Afghanistan: ‘Estimates state that while there were 52 such strikes during George W Bush's time, this number has risen to 282 over the past three and a half years, with officials justifying it has international “self defence” against a stateless enemy.’104 Two questions may arise from such US military action against the Taliban, Al-Qaeda and affiliated targets in Pakistan: first, can the US exercise its right to state self-defence after the attacks of 9/11 against Al-Qaeda as a non-state actor and secondly if affirmative, does this right to self-defence also allow for the extraterritorial use of force on the territory of a sovereign, allied state?
Under Article 2 (4) of the UN Charter, States ‘shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’. Article 2(4) UN Charter as a customary law principle105 on the prohibition of the use of force does not affect a state’s inherent right of individual or collective self-defence if an armed attack occurs as stipulated in Article 51 of the Charter. The question arises whether this right of state self defence does also apply to cases where the ‘aggressor’ is not a state but a non-state non-governmental organized armed group such as Al-Qaeda. While Art 51 UN Charter does not specify that the use of force or the threat has to originate from a state (actor), it seems that prior 9/11 the prevailing view excluded non-state actors as originators of such attacks.106 This interpretation of the Charter consequently ignored the raising role of non-state terrorist actors in modern conflict, which began with the ascent of Islamist fighter networks during the Soviet occupation of Afghanistan in the mid-1980s. A State’s right to self-defence against such non-state actor violence should solely reflect on the scale and gravity of the attack or threat and less on formalities.107 The magnitude and severity of the attacks of 9/11 by Al-Qaeda allowed the USA to exercise its legitimate right to self-defence,108 recognized by the UN SC in its two post 9/11 UN SC Resolutions 1368 and 1373.109 Consequently, and in line with UN SC 1368, NATO invoked Article 5 of the Washington Treaty, the Alliance’s collective defence clause.110
Time will tell whether we witness a definite change in ‘legal boundaries of the battlefield’,111 recognizing the new reality of non-state actor aggression, and strengthening the position of States facing an armed attack launched by non-state actors.112 While the Israeli operations ‘Change of Direction’ against Hezbollah in 2006113 and ‘Cast Lead’ against Hamas in 2008/9 were accepted as justified acts of Israel’s right to self-defence under Article 51 UN Charter, the ICJ Advisory Opinion on the Israeli Wall  ICJ Rep 136 seems to confirm the traditional inter-state concept of armed conflict which limits the scope of defence to state actors only.114 Whether this view will eventually change towards an explicit recognition under international law of an autonomous legal principle of jus ad bellum, remains to be seen.115
The next question regarding the legality of executing targeted killings on the territory of Pakistan relates to the question whether the USA has a right to cross territorial borders in pursuing their right to self-defence against Al-Qaeda and other non-state terrorist actors. The exercise of transnational and extraterritorial self-defence may raise questions in regard to the scope of the US’s right to self-defence. Prior examples for such transnational, extraterritorial, targeting can be found in the ‘Hot Pursuit’ and/or extraterritorial ‘raid’ operations by the former South African Defence Force (SADF) against cadres and members of the African National Congress (ANC), its armed wing, Umkhonto we Sizwe (MK) and the South West Africa’s People’s Organisation (SWAPO).116 These operations have been mostly condemned as violations of Article 2(4) UN Charter, often based on political reasons.117 As examples may serve the prolonged phase of African armed opposition against colonial domination by white minority regimes in 1970s and 1980s, where Soviet backed ‘liberation wars’ were regarded as manifestations of peoples’ self-determination and self-defence in the wider sense and ‘as wars of national liberation were exceptions to UN Charter’s Article 2(4) prohibition of the use of force’,118 thus precluding the argument of self-defence for non-African opponents. It is questionable whether such a distinction would be upheld today post 9/11 before the backdrop of the growing recognition of a global terrorist threat; an observation of particular relevance today in respect to Israel’s frequent use of force against non-state (terrorist) actors, including the extraterritorial use of force on the territory of third states.
It is not easy to answer the question if the USA can legally use military force on the territory of Pakistan against Al-Qaeda, the Taliban and affiliated targets. Pakistan’s right as a sovereign state as enshrined in Article 2 (1) of the UN Charter has to be weighed against the necessity of the USA to exercise its right to self-defence in terms of Article 2 (4) UN Charter (if one follows the argument that the USA has a right to self-defence against Non State Actors post ‘9/11’). Any such deliberations would have to consider the overall position of Pakistan in this conflict: whether it was unable or unwilling to deny a ‘safe haven’ to terrorists, was playing an active role as aider and abettor or was simply maintaining a position of ‘neutrality’. Pakistan is not only an active partner in fighting terrorism and is undertaking genuine efforts to combat Al-Qaeda and ‘home grown’ Taliban groups, albeit with varying success and changing allegiances, it also supports ISAF operations by allowing NATO (and the USA) to use its territory for resupplying ISAF in Afghanistan. Problematic is the growing discontent among the military and political leaders in Peshawar with the US drone programme within its territorial borders and the rising death toll among Pakistani civilians.119 Unless this discontent was to lead to an explicit policy change by the Pakistani government and to an official request by Peshawar to stop any further drone strikes, the USA will face no serious legal challenge for its extraterritorial drone programme in Pakistan. Such a development is, however, unlikely given that the government in Peshawar seems to support silently the US drone programme out of strategic necessity.120
4. Targeted Killing: Challenges Founded on Combat Morality and Efficiency
Targeted killing by drones has become an increasingly debated subject with criticism not only directed against its overall legality and legitimacy but also its negative impact on Pakistan as a sovereign state in cases of extraterritorial strikes, a potential lack of overall efficiency and in general a growing uneasiness in its overall morality. Generally, it seems that there had been a change in how targeted killing is being viewed: apart from a growing discomfort with civilian deaths involved, there is also growing concern in respect to its overall effectiveness as well as a general uneasiness of accepting targeted killing as a new form or warfare. This was highlighted in a recent statement made by the UN Special Rapporteur on Human Rights and Counterterrorism, Emmerson, who called for more transparency and accountability when employing this form of warfare.121
Targeted killing may have some direct implications for the overall morality of armed conflict and combat as such: the evolving drone technology removes the soldier from the actual battlefield and with it the closeness and ‘intimacy’ of war. UAV technology has created a mechanical and factual distance between operator and his ‘target’, which acts like a moral distance: targeting killings may have removed any remnants of ‘humanity of combat’ and produced the factual dehumanization of the enemy.122 This dehumanizing distance between the protagonists of this new form of armed conflict, thoroughly asymmetric in terms of weapon technologies and capabilities, has led to a growing criticism of the Obama Administration’s use of drones.123
While there were fewer incidents of militant violence in 2016 than in previous years, scores of people were killed in bombings that targeted courts and mosques. Law enforcement and security agencies remained unaccountable for human rights violations and exercised disproportionate political influence, especially on matters of national security and counterterrorism. The military continued to control implementation of a national plan to address terrorism, largely without civilian oversight.
At least 85 people on death row were executed in 2016. Secret military courts continued to operate and hand down death sentences.
The government muzzled dissenting voices in nongovernmental organizations (NGOs) and media. It passed vague and overbroad cybercrimes legislation installing new curbs of freedom of expression and criminalizing peaceful internet use.
Women, religious minorities, and transgender people faced violent attacks, insecurity, and persecution, with the government failing to provide adequate protection and hold perpetrators accountable.
Police pressure and abuses compelled thousands of Afghans living in Pakistan to return to Afghanistan or flee elsewhere in 2016.
Counterterrorism and Law Enforcement Abuses
Suicide bombings, armed attacks, and killings by the Taliban, Al-Qaeda, and their affiliates targeted nearly every sector of Pakistani society, including religious minorities, security personnel, health workers, lawyers, and journalists, resulting in hundreds of deaths. Military courts sentenced at least 100 people to death in connection with the attacks. Shrouded in secrecy, the proceedings raised fair trial concerns.
In May, Aftab Ahmad, a member of the Karachi-based political party, Mutahidda Qaumi Movement (MQM), was killed while in the custody of the Pakistan Rangers, a federal paramilitary force. An autopsy report found that over 35 percent of his body was covered in bruises and abrasions inflicted while he was still alive, indicating torture. In an unusual step, the chief of army staff, Gen. Raheel Sharif, ordered a military inquiry into the death.
Dr. Asim Hussain, a member of the Pakistan People’s Party (PPP), detained on August 26, 2015, on charges including “harboring and treating terrorists and gangsters” at his hospital, remained in custody. Local groups expressed serious concerns about Hussain’s treatment in Rangers’ custody and its impact on his mental health.
In April, Pakistani authorities used anti-terrorism laws and excessive force to prevent tenant farmers in Okara district, Punjab province, from demonstrating in favor of land rights.
At least 19 people remained on death row after being convicted under Pakistan’s draconian blasphemy law and hundreds awaited trial. Most of those facing blasphemy are members of religious minorities, often victimized by these charges due to personal disputes.
The government continued to actively encourage legal and procedural discrimination against members of the Ahmadiyah religious community by failing to repeal discriminatory laws.
In March, at least 74 people were killed and 338 others injured in a suicide bombing in a public park in Lahore. The primary target of the attack was Christians celebrating Easter.
Freedom of Expression and Attacks on Civil Society
Many journalists increasingly practice self-censorship, fearing retribution from security forces, military intelligence, and militant groups. Media outlets in 2016 remained under pressure to avoid reporting on or criticizing human rights violations in counterterrorism operations. The Taliban and other armed groups threatened media outlets and targeted journalists and activists for their work.
In January, the Pakistan Rangers entered and, without a warrant, searched the Karachi house of Salman Masood, a New York Times journalist. The Interior Ministry issued an apology and ordered an inquiry, while other members of the administration claimed the raid was part of a broader search operation in the area. However, only one other house was searched, raising concerns that the raid’s aim was to harass and intimidate Masood.
In May, four unidentified gunmen killed Khurram Zaki in Karachi. Zaki had been publicly critical of extremist cleric Abdul Aziz and militant sectarian groups, and had been receiving threats. He had confided to friends that he was on several militant “hitlists.”
In August, MQM supporters attacked the office of ARY, one of the country’s largest news broadcasters, after Altaf Husain, the party chief, publicly encouraged them to attack media outlets for not covering party protests.
Militant groups targeted lawyers, courts, and teachers. In January, armed militants attacked Bacha Khan University in Khyber Pakhtunkhwa, killing at least 20 people. In March, a suicide bombing at the district courts in Charsadda, Khyber Pakhtunkhwa, killed 17 people. In August, a suicide attack in Quetta, Balochistan, killed 70 people, most of them lawyers gathered at a hospital emergency room following the shooting of Bilal Kasi, president of the Balochistan bar association. The Islamic State (ISIS) and Jamat-ul-Ahrar, a Pakistani Taliban offshoot, claimed responsibility for the attacks. In September, a Jamaat-ul-Ahrar suicide bombing at the district courts in Mardan killed 14 people.
In August, the Prevention of Cybercrimes law was enacted, which allows the government to censor online content and to criminalize internet user activity under extremely broad and vague criteria. The law also sanctions government authorities to access data of internet users without judicial review or oversight.
A year after the government announced a policy for “Regulation of INGOs in Pakistan,” there were credible reports of the policy being used to harass and impede the work of international humanitarian and human rights groups. In March, three Islamabad-based human rights groups had to stop work for not complying with regulatory requirements. Numerous nongovernmental organizations (NGOs), particularly in Punjab province, were intimidated, harassed, and in some case had their offices sealed on the pretext of implementation of the national plan against terrorism.
Women’s and Girls’ Rights
Child marriage remains a serious concern in Pakistan, with 21 percent of girls marrying before the age of 18. In January 2016, a proposal submitted to parliament by WHOM aimed to raise the legal minimum age to 18 for females and introduce harsher penalties for those who arrange child marriage. However, on January 14, 2016, the proposal was withdrawn following strong pressure from the Council of Islamic Ideology, a body that advises the parliament on Islamic law. The council criticized the proposal as “anti-Islamic” and “blasphemous.”
Violence against women and girls—including rape, murder through so-called honor killings, acid attacks, domestic violence, and forced marriage—remained routine. Pakistani human rights NGOs estimate that there are about 1,000 “honor killings” every year.
The government continued to fail to address forced conversions of women belonging to Hindu and Christian communities.
In June, Zeenat Rafiq, 18, was burned to death in Lahore by her mother for “bringing shame to the family” by marrying a man of her choosing. In May, family members tortured and burned to death a 19-year-old school teacher in Murree, Punjab, for refusing an arranged marriage. In May, the body of Amber, 16, was found inside a vehicle that had been set on fire in Abbottabad, Khyber Pakhtunkhwa, after a jirga, or traditional assembly of elders, ordered her death for helping her friend marry of her own choice. In July, Qandeel Baloch, a well-known Pakistani model was killed by her brother in a so-called honor killing.
Pakistani law allows the family of a murder victim to pardon the perpetrator. This practice is often used in cases of “honor” killings, where the victim and perpetrator frequently belong to the same family, in order to evade prosecution. The 2004 Criminal Law (Amendment) Act made “honor killings” a criminal offense, but the law remains poorly enforced. An anti-honor killing bill seeking to eliminate the option of murder committed in the name of “honor” to be “forgiven” was passed by the parliament in October.
Use of child suicide bombers by the Taliban and other armed groups continued in 2016.
In May, the United Nations Committee on the Rights of the Child concluded its review of Pakistan and expressed concern about a number of issues affecting children including executions, the impact of sectarian violence and terrorism, and alleged torture and ill-treatment in police custody.
The Pakistan government failed to meet its international legal obligation to protect more than 2 million Afghans in the country, including those not registered as refugees, from harassment and other abuses.
The number of Afghans repatriating from Pakistan increased in 2016 due to coercive pressure from local governments; at the end of August, about 70,000 registered refugees had been repatriated.
The uncertain residency status of Afghan refugees in Pakistan encouraged police harassment, threats, and extortion, particularly in the Khyber Pakhtunkhwa. Statements by senior Pakistani officials in 2016 raised concerns of new government actions to restrict the rights of Afghan refugees in the country.
Sexual Orientation and Gender Identity
Pakistan’s penal code criminalizes sexual behavior between men with possible life imprisonment. In 2009, Pakistan’s Supreme Court called for improved police response to cases involving transgender people, and to ensure the rights of transgender people to basic education, employment, and protection. However, despite the court order, violent attacks on transgender and intersex women in Khyber Pakhtunkhwa province surged in 2016, with unknown assailants frequently targeting those involved in activism.
Official responses have been inadequate. Since January 2015, human rights groups in Khyber Pakhtunkhwa have recorded dozens of threats to, and attacks on, people and property, including abuses while in police custody. In a widely publicized case in May, Alisha, a 23-year-old transgender activist, was shot eight times in Peshawar, and died in hospital while staff debated whether to put her in the male or female ward. In September, the National Commission for Human Rights called on the government to investigate the attacks.
Pakistan has more than 8,000 prisoners on death row, one of the world’s largest populations of prisoners facing execution. Pakistani law mandates capital punishment for 28 offenses, including murder, rape, treason, and blasphemy. Those on death row are often from the most marginalized sections of society, including people with disabilities. At least 85 people were executed in 2016.
Key International Actors
Pakistan’s volatile relationship with United States, the country’s largest development and military donor, deteriorated amid signs of mistrust. US foreign assistance to Pakistan fell to the lowest level since 2007. In August, the US stopped payment of US$300 million in military reimbursements to Pakistan for not taking adequate action against the Haqqani network, a Taliban-affiliated group that is accused of planning and carrying out attacks on civilians, government officials, and NATO forces in Afghanistan.
Pakistan and China deepened extensive economic and political ties, and work continued the China-Pakistan Economic Corridor, a project consisting of construction of roads, railways and energy pipelines.
The United Nations high commissioner for human rights expressed concern after historically tense relations between Pakistan and India further deteriorated in 2016, with both countries accusing each other of facilitating unrest and militancy. Scheduled talks to resolve longstanding disputes over security, territory, and sharing river water resources stalled.
In September, an armed group attack on an Indian military base in the Indian state of Jammu and Kashmir heightened tensions between the two sides. India claimed that the attackers were backed by the Pakistan government. Pakistan denied involvement.
The United Nations high commissioner for refugees termed Pakistan’s treatment of Afghan refugees as a “concerted push” to repatriate a large number of refugees. Relations with Afghanistan remained characterized by mutual hostility and mistrust. The Afghan government accused Pakistan of allowing the Haqqani network to operate from Pakistan to carry out attacks in Afghanistan. Pakistan maintained that the network had been dismantled.