ABSTRACT
Introduction The Obama administration argues that the use of targeted killings is consistent with US obligations in international law3; however, many international law scholars disagree.4 Furthermore, questions of international law are often central to debates about targeted killings. Academic writing on international law relevant to targeted killings is one of the richest areas of present debate, but the deeper legal reasoning of the US government has been made public, in fragmentary form, through leaks, memos and speeches.5 The Obama administration’s defence of targeted killings is predicated on a number of premises relevant to international law – that a state of war exists between the United States and al-Qaeda, that targeting individuals with lethal force is legitimate in the context of this war, that the use of force is necessary and that the means used are legitimate. Whereas the previous chapter addressed war in its conceptual and strategic sense, it is now necessary to reconcile this with the definitions of war and armed conflict found in international law. The US government legitimises targeted killings by articulating and maintaining their non-illegality. In order to do this, the Obama administration’s defence relies on the liminal space between positively authorised activities in law and positively prohibited activities. Importantly, there are areas of international law governing
the use of force for which there is an intentional lack of opinio juris.6 Also, as previously noted (see p. 50), treaty law does not provide an immediate fit for classifying the type of conflict that the United States is in. Some commentators referred to the Bush administration’s use of these gaps as creating legal ‘black holes’.7 However, unlike the Bush administration, which sought to limit the application of law and challenged the applicability of basic standards such as the Geneva Conventions, the Obama administration argues that it abides by the ‘principles of the laws of war where the law is unclear’.8 In legal terms, the Obama administration’s defence turns on the argument that the United States has the right to use force in self-defence, and that its use of force does not breach the sovereignty of other states. A second cluster of claims are that IHL applies in the context of targeted killings and that targeted killings do not contravene the jus in bello prohibitions of IHL. There are significant consequences to these arguments. The legitimation of the practice of targeted killing expands grey areas of international law, and the adoption of these positions by other states will serve to widen the scope for the use of force under existing interpretations of law. There are political externalities created by these wider interpretations that, although not positively undermining the Obama administration’s defence, form an integral component of the defence that it offers.
