The US decision after Sept. 11, 2011 to use drones to target and kill al-Qa’ida and Taliban operatives in Afghanistan was a significant departure from its previous use of such aircraft. Until 2002 drones had been used for surveillance, with lethal force carried out by either ground troops or manned aircraft. However, in response to the escalating terrorism threat, new elements of the US targeted killing policy began to emerge when on Nov. 3, 2002, a drone fired a Hellfire missile and killed senior al-Qa`ida leader Qaed Salim Sinan al-Harethi and five low-level operatives traveling by car in a remote part of the Yemeni desert. This marked the first use of an armed Predator outside Afghanistan.
Widespread criticism and scrutiny ensued, resulting in growing debate both within the U.S. and internationally over the legality of drones and unmanned targeting. Contemporary laws have not kept up with the dynamics of targeted killing, where relevant spheres of authority regularly overlap—the laws of the US (constitutional, statutory, executive, and customary); international laws (treaty-based and customary); and international humanitarian law (a subset of international law that applies during “armed conflicts”).
In part, the lack of consensus on the legal rules reflects the changing nature of asymmetric warfare. The US now finds itself engaged in military conflicts with non-state groups, and such conflicts were not the subject of the extensive international framework for warfare negotiated after the world wars.
2010 Congressional Testimony & Hearings
The House Committee on Oversight and Government Reform Subcommittee on National Security hosted a second hearing on April 28, 2010, as a follow up to a March 23, 2010 hearing on the legality of drones and unmanned targeting.
The April 28, 2010 testimony included remarks from:
- Kenneth Anderson, American University, Washington College of Law
- Mary Ellen O’Connell, University of Notre Dame Law School
- David Glazier, Loyola Law School, Los Angeles
- William Banks, Institute for National Security and Counterterrorism, Syracuse University
To read William Banks’ testimonial remarks, click here.
- “Drone Warfare: Are Strikes by Unmanned Aircraft Ethical?” CQ Researcher, 20:28 (2010).
- Mary Ellen O’Connell, “Respect the Battlefield: The US Has No More Legal Authority Today to Kill Persons in Yemen than it Had in 2002.” CBS News, April 8, 2010.
- Harold Koh, “The Obama Administration and International Law,” Keynote Speech at the Annual Meeting of the American Society of International Law, March 24, 2010.
- Charles J. Dunlap, Jr., “Lawfare: A Decisive Element of 21st-Century Conflicts?” Joint Force Quarterly, 53
- Nicholas Rostow, “International Law and the Use of Force: A Plea for Realism.” The Yale Journal of International Law, 34 (2009).
- William C. Banks & Peter Raven-Hansen, “Targeted Killing & Assassination: The US Legal Framework.” University of Richmond Law Review, 37 (2003).
- Louis Beres, “The Permissibility of State-Sponsored Assassination During Peace and War.” Temple International Comparative Law Journal, 5 (1991).
LAWshaping in National Security: the Past, the Progress, & the Path Ahead
Feb. 28-March 1, 2014 |Duke Law LENS Conference
Drones, Cyber, & More: International Humanitarian Law & the Path Ahead
- Moderator: William Banks, Director, INSCT
- Geoffrey Corn, South Texas College of Law
- Andrea Prasow, Human Rights Watch
- Sean Watts, Creighton University School of Law
Rise of the Drones: The Legal and Policy Framework for Targeted Killing in the Obama Administration
Sept 22, 2011 | St. Lawrence University
Listen to the podcast:
National Security Since 9/11: New Norms for a New Decade?
April 14-15, 2011 | Duke University
Drones, Remote Targeting, & the Promise of Law
Feb. 24, 2011 | New America Foundation, Washington, DC
William C. Banks was a panelist on “Drones and the Law of War.”
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