The Use of Targeted Killing in the War on Terror
By Meena Yousufzy
The serious threat of terrorism has led the United States to adapt an increasingly aggressive approach to its counter-terrorism efforts, including the use of targeted killings. The use of targeted killings as a tool in the War on Terror has elicited substantial debate and criticism. News of errant drone strikes are often met with public outrage and questions about the efficacy and morality of such practices. Most recently, in late August 2021, a U.S. drone strike on Kabul, Afghanistan killed ten innocent Afghans, seven of whom were children. While this was undoubtedly a tragedy, incidents like the Kabul strike, which result in civilian causalities, can undermine the efficacy and legality of targeted killings as a lawful tool in the War on Terror.
International law permits parties to a conflict to cause collateral damage and make reasonable mistakes. International Humanitarian Law (IHL) arguably governs targeted killings. IHL applies whenever an international or a non-International armed conflict emerges. An International Armed Conflict (IAC) is fought between states and does not require a minimum level of hostilities. A Non-International Armed Conflict (NIAC), on the other hand, emerges when states are fighting non-state actors who are sufficiently organized and are perpetuating systemic, continuous, and intense hostilities. The U.S. targeted killings are conducted as part of a NIAC between the U.S. and its allies on the one side and various terrorist organizations, including Al-Qaeda, and ISIS on the other side. While IHL seeks to limit civilian casualties and damage to private property, it allows for collateral damage and reasonable judgement calls that later turn out to be mistaken.
Targeted killing is arguably one of the most humane tools at the U.S. government’s disposal in its fight against terrorism for two reasons. First, the U.S. targeted killing policy strictly adheres to the principles of necessity, distinction, proportionality, and humanity. Second, only those terrorists whose capture is unfeasible are targeted. Military necessity justifies the use of force in pursuit of a legitimate military objective. A military objective is a “specific leadership target or command structure that could potentially contribute to the enemy’s partial or complete submission.” As part of its targeted killing policy, the U.S. generally seeks to eliminate senior members of terrorist groups and those who are actively engaged in hostilities against the country. The distinction principle calls upon parties to a conflict to direct their hostilities against valid military objectives. The U.S. only targets terrorists who pose a serious security threat to U.S. personnel or interests. The proportionality principle requires that the expected loss of life and damages to property collateral to an attack not be excessive compared to the anticipated/desired military gain. The need to avoid and/or limit civilian casualties is deeply embedded and prioritized in the U.S. targeted killing policy. Similarly, the humanity principle prohibits parties from employing “…arms, projectiles, or material calculated to cause unnecessary suffering.” Targeted killings are not supposed to cause unnecessary suffering beyond what is needed to eliminate the target. The United States’ conduct of its targeted killing policy with strict adherence to these principles makes it one of the most conservative and humane tools of war available.
A targeted killing can only be conducted in a foreign country against terrorists whose capture is unfeasible. Moreover, those included on a kill list are extensively vetted and monitored. The U.S. policy also requires American officials to take into custody and not kill any would-be-targeted terrorists who surrender.
While civilian casualties resulting from the use of targeted killing are tragic, such tragedies, by themselves, do not render targeted killings illegal under international law. Indeed, targeted killings remain a desirable tool in the War on Terror because they are an
effective means of neutralizing security threats while minimizing collateral damage. The U.S. government achieves reduced collateral damage in large part due to its adherence to the principles of distinction, proportionality, humanity, and military necessity in its targeted killing policy.