Schmitt and Widmar explore the law of targeting within international humanitarian law (IHL) and its application to international and non-international armed conflict. The article examines the “five elements” of a target operation, including the target, the weapon used, the execution of the attack, possible collateral damage and incidental injury, and location of the strike. The authors suggest that a better understanding of these norms can help international lawyers, policymakers, and operators avoid violations of international law by creating appropriate and well-known boundaries for targeting operations.
Those of us who remember the 1980s lived through the Iran-Contra Affair and its labyrinth of arms-for-hostages deals, secret transfers of U.S. government funds, backdoor support for the Nicaraguan Contras after Congress cut off funding, and the duplicity of Reagan administration officials who tried to hide and then cover up what they were doing. Some of us even recall the covert war in Laos and Cambodia in the 1960s and 1970s where the U.S. military, the CIA, and various paramilitaries pursued Communist forces in campaigns that were common knowledge in the region but kept secret from Congress and the American people. A few seasoned chroniclers of our national security are even able to remember earlier secret support for paramilitary forces, coup attempts, and a plethora of covert operations that were undertaken by the United States as an adjunct to its Cold War with the Soviet Union.
In the post-9/11 environment, the United States confronted the Taliban, al Qaeda, and associated terrorist and insurgent groups, where the conventional military force that quickly forced Iraq’s retreat from Kuwait and subdued the Milosevic regime in Kosovo in the 1990s was far less effective. Paramilitary campaigns waged by the CIA and contractors became an integral part of the counterterrorism response to these new enemies, and our military greatly expanded its own capabilities to collect intelligence and carry out clandestine operations. Over time, first in the Bush administration and now in an expanded and more aggressive strategy by the Obama administration, the United States has been conducting what The New York Times described as a “shadow war against Al Qaeda and its allies”:
In roughly a dozen countries – from the deserts of North Africa, to
the mountains of Pakistan, to former Soviet republics crippled by
ethnic and religious strife – the United States has significantly
increased military and intelligence operations, pursuing the enemy
using robotic drones and commando teams, paying contractors to
spy and training local operatives to chase terrorists.
Just suppose. The Attorney General, lanky as the President, walks into the Oval Office to join a meeting. The top law enforcement officer is slumped down with apparent bad news. He avoids eye contact with the Commander-in-Chief. “Mr. President,” he says looking down at the coffee table, “the ACLU believes our drone program is illegal.” Silence. (The President and the Attorney General both, of course, maintain links to the human rights community, an important part of their political base.) The President’s other advisers fidget and twitch. The Vice President adjusts the
coaster under his drink. Beads of perspiration form on some faces. The Secretary of State and the Secretary of Defense look for the exit; the law is not their thing.
The President is cool. “Could you be more specific,” he says, tapping his finger on a black briefing book.
The Attorney General looks up from the table. “The drone strikes in Pakistan. Remember, the program Leon was not supposed to talk about with the media.”
The President smiles. “Yes, I know that. But which laws are they talking about?”
After an awkward pause, the President, himself a highly sophisticated lawyer, suggests, “Let’s talk this through some more.” The Attorney General agrees. After the lawyer-to-lawyer exchange, the other advisers relax. Maybe the CIA drone strikes are not illegal after all. Or maybe the apparent illegality does not matter that much. The Vice President takes a sip of his drink. And the President asks for tea and coffee to be served. No one wants to leave the room after all. They open their briefing books instead.
This scenario emphasizes a simple point: President Obama, a Harvard Law School graduate, a former teacher of constitutional law at the University of Chicago and a Nobel Peace Laureate, must believe that he has the authority to order the CIA to fire missiles from drones to kill suspected terrorists. Not everyone agrees with him, though.