Guide Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities

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Contents:


  1. Civil Rights and Civil Liberties Issues
  2. Your tax deductible gift can help stop human rights violations and save lives around the world.
  3. Targeted Killings in Yemen and Somalia: Can the United States Target Low-Level Terrorists?
  4. Targeted killing

Bush formulated a doctrine of preventative war based on the concept of anticipatory self-defense, otherwise known as the Bush Doctrine. Under Article 51, a state acting in self-defense may use force when an armed attack occurs. The question of whether a state can use justified and proportionate use of force to counter uses of forces which are not considered armed attacks is not resolved by the ICJ. Thus, not all uses of force against a state are necessarily armed attacks.

While the ICJ did not explicitly define the threshold level, Ruys, supra note , at The precise level of gravity necessary to justify the use of force is subject to debate. Under this view, self-defense could not be used against terrorists in another state when that state did not have a connection with the terrorist group. However, others have argued that self-defense can be used against non-state actors because Article 51 does not explicitly state that an armed attack can only be conducted by state actors.

The lack of a specific inter-state restriction of armed attacks in Article 51 is more apparent when contrasted with Article 2 4 , which clearly restricts the use of force between two states. Because an armed attack is not explicitly restricted to be carried out by states, whether non-state actors can conduct armed attacks on states is governed by customary international law.

The September 11 attacks reignited the argument and many scholars now agree that non-state actors, such as terrorist groups, can commit an armed attack that triggers Article The scale of the September 11 attacks, which resulted in a high civilian death toll and extensive property damage, was arguably grave enough to rise to the level of an armed attack. After the September 11 terrorist attacks, the international community has increasingly accepted that non-state actors can commit armed attacks that are unattributable to any state.

In summary, the weight of international opinion has swung increasingly towards the view that non-state actors, such as Al Qaeda, can commit armed attack on states that triggers an Article 51 response. The United States asserted its right to exercise self-defense against terrorist groups before such groups could attack the United States again in its National Security Strategy. While it is clear that there is at least a right for a state to respond to an armed attack with force, there is no strong consensus on whether the state can strike first to prevent an armed attack from occurring.

Striking before another actor has actually launched an attack is known as anticipatory self-defense. Anticipatory force is not the same as, but has a similar meaning to, preventive or preemptive force. All three terms refer to force responding to an attack that has not yet occurred, but is close to occurring. See id. However, a strict interpretation of Article 51 in this respect would require a state to allow an armed attack to be completed before responding, a naturally unappealing thought for almost all state actors.

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Civil Rights and Civil Liberties Issues

A looser interpretation of Article 51 would be that a state does not have to wait until an armed attack has occurred before using self-defense because Article 51 incorporates international customary law. Proponents of this view look to the Caroline doctrine, which was first articulated by U.

Secretary of State Daniel Webster in , as part of existing international customary law. Charter incorporated international customary law on self-defense existing at the time. Totten, supra note , at To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. A middle position called interceptive self-defense has been put forward by scholars such as Dinstein, where a state can use force to stop an armed attack that is in progress.

An armed attack is in progress when it has moved beyond mere threat into an irrevocable act. This approach acknowledges that preventing a state from using force to stop an armed attack is unreasonable, but also limits the time period of when a state may use self-defense to the early stages of an armed attack that has moved beyond mere threat.

Although the U. Charter does not include the principles of proportionality, necessity, or immediacy in Article 51, under customary international law, these principles must be adhered to when using force under the right to self-defense. The requirements of necessity, proportionality, and immediacy apply to self-defense in response to an armed attack, as well as to any kind of anticipatory self-defense. Proportionality, in the self-defense context, is the measure of the amount of force that is reasonably necessary to achieve self-defense.

For self-defense in response to an imminent armed attack, the amount of force used has to be proportional to threat posed by the armed attack. Necessity in the self-defense context means that a state may only use force if there are no other means available Eighth Report on State Responsibility , supra note , para.

The exhaustion of peaceful means requirement is particularly important for using self-defense when an armed attack has not yet been fully carried out. For example, in Israel was condemned by the U. Security Council for bombing an Iraqi nuclear reactor that Israel claimed would construct nuclear weapons. Achieving a peaceful result, such as capture of a terrorist, is considerably more difficult when a non-state actor is located in a failed state or a state with a weak government. If a member of a terrorist organization is located in a state that has the law enforcement capacity to apprehend that terrorist and is willing to do so, then the necessity requirement is not satisfied.

But when a terrorist group is located in a state that is unable or unwilling to prevent terrorists from attacking other states, the necessity requirement is more readily satisfied because exhaustion of peaceful means is easier to demonstrate. The requirement of necessity also involves the concept of immediacy in its formulation because force can only be used as a last resort when the attack is imminent.

It is difficult to determine when an attack is imminent, Schmitt, supra note , at This narrow interpretation of imminence has been criticized by states because waiting until the last moment to stop an attack from occurring, increases the likelihood of the attack succeeding. A looser interpretation of the requirement of immediacy, as discussed above, appeared in the U. Thus, under the middle position of interceptive self-defense the immediacy is tighter than anticipatory defense, but looser than the traditional view.

Scholars who advocate the theory of accumulation of events say that it applies particularly well to attacks staged by terrorist organizations, which are usually part of a series of attacks on a country. Thus, the entire group of attacks including future ones is treated as a single armed attack for the purposes of the immediacy requirement. Jus in bello , also known as international humanitarian law, the law of armed conflict, or the law of war, applies when a state engages in an armed conflict.

International humanitarian law is governed by the Geneva Conventions and customary international law. Unlike jus ad bellum , the law of armed conflict is not concerned with the legitimacy of using force against another state or armed group. Instead, international humanitarian law prescribes the methods in which states or other belligerents can use force in an armed conflict. International humanitarian law applies equally to all parties to an armed conflict regardless of whether a state formally declares war, a state is acting under United Nations authorization, or a state legally uses force as self-defense under Article If, on the other hand, targeted killings of terrorists by the United States do not occur in an armed conflict, they can only be justified under some other legal rubric such as international human rights law, where deadly force can only be used in extreme circumstances.

Instead, domestic laws, as well as international criminal law and human rights govern. Additionally, international humanitarian law allows for the targeting of individuals based on their status, as well as their participation in the hostilities. When status-based targeting is allowed, there is no distinction between the ranks of individuals fighting in an armed conflict.

Thus, any distinction between targeting high-level terrorists, who plan operations, and low-level terrorists, the foot-soldiers carry them out, is not dispositive under the law of war, provided that the terrorists can be targeted based on their status and are not classified as civilians. An armed conflict against a non-state actor such as a terrorist organization cannot be an IAC under the Common Article II of the Geneva Convention because international armed conflicts only exist between states.

Armed conflicts that are not IACs are classified as non-international armed conflicts. NIACs have less protection for non-state belligerents because states do not wish to give organized non-state armed groups fighting against the government legitimacy by recognizing them as equal parties. When looking at NIACs, the first step is to determine if an armed conflict is occurring. An armed conflict must be distinguished from events like riots or crime because international humanitarian law only applies if there is an armed conflict.

In Prosecutor v. Tadic, Case No. ITT, Opinion and Judgment, para. In determining whether the intensity of the conflict rose to the level of an armed conflict necessary to trigger Common Article III, the ICTY looked at the following factors:. The standard for organization of the parties necessary to constitute an armed conflict is relatively low. Limaj, Case No. ITT, Judgement, para. Additionally, the KLA was capable of engaging in constant armed clashes with Serbian forces. Unlike an IAC, where all lawful combatants have the privilege to kill any enemy combatant in any manner lawful under the Geneva Convention and who may in turn be targeted, Dinstein, supra note , at 3; Solis , supra note 17, at All individuals who are not members of the armed forces, members of armed organizations, or otherwise directly participate in hostilities are civilians.

Civilians are legally protected from attack during any kind of armed conflict, but do not have the privilege of engaging in hostilities. However, the lack of a clear status for organized armed groups during non-international armed conflicts causes difficulty in terms of distinguishing such groups from civilians. In addition, someone who has trained to participate in hostilities meets the requirement before he carries out an actual hostile act. Membership in an organized armed group is mutually exclusive with civilian status; Id. This standard would allow status-based targeting both of terrorist organization members regardless of whether they are operational leadership or lower-level foot soldiers, provided their function in the hostilities overcomes the threshold.

If the intensity and organization factors do not rise to the level of armed conflict, terrorist attacks are merely criminal acts. Thus, arguably, an armed conflict can exist against non-state actor like Al Qaeda. Because AQAP and Al-Shabab have similar levels of organization and a strong affiliation with Al Qaeda, an armed conflict can exist with respect to them as well if the other requirements for an armed conflict are met. Others have argued that global armed conflict against terrorist organizations cannot exist because armed conflicts cannot exist without reference to some territory.

Thus, under this view, an amorphous worldwide armed conflict cannot exist because it is not bound to a specific territory. Others argue that terrorist organizations cannot be parties to the conflict because they are not sufficiently organized. Even if a state is lawfully using force under international law, it must still satisfy the requirements of targeting found in the law of war if it is in an armed conflict. Then this Part will address whether the United States is in an armed conflict in Somalia and Yemen and how that affects whom the United States can target.

Under international law, the United States must meet an exception to Article 2 4 of the U. Valid consent to engage in targeted killings would avoid a possible violation of the Article 2 4 prohibition on the use of force. In the case of Somalia, a country without a functioning central government until , See supra Part I.

For Yemen, there is a better case that consent may have been obtained from the Hadi government. There is evidence in press accounts that the United States has been cooperating with Yemeni authorities in coordinating drone strikes against targets in Yemen.

If the Yemeni government gave its consent to U. However, the law of war or international human rights law would still apply as necessary. Given the volatility that Yemen has experienced in recent years, See supra Part I. Thus, Part III. B will analyze targeted killings in Yemen and Somalia under a self-defense framework. One of the main requirements of the U. While requiring that the threat be continuing, imminent, and necessary would satisfy the international law of self-defense, under a self-defense analysis, the United States would not be justified in targeting low-level members of AQAP and Al-Shabab when the involvement of those low-level members in any future armed attacks is too attenuated to satisfy the necessity, proportionality and imminence requirements; the involvement of lower-level members is often too attenuated unless an attack is just about to occur and the United States knows that the lower-level members are participating.

However, the United States can still target operational-level terrorist leaders, provided there is some intelligence that they planning actual terrorist attacks against the United States. The United States has previously asserted that it does not have to perform a new self-defense analysis each time it uses lethal force against the associated forces of Al Qaeda because such forces have joined the armed conflict between the United States and Al Qaeda. Arguably, under this view, the original self-defense justification that the United States invoked after the September 11 attacks obviate any need to perform a new self-defense analysis, as it is part of the same armed conflict.

This view arguably could exist alongside the U. To use self-defense lawfully, the United States must use force in response to an armed attack or an imminent armed attack. It is arguable that the September 11 attacks constituted an armed attack on the United States by Al Qaeda, a non-state actor. In response to that armed attack, the United States invaded Afghanistan, which was harboring Al Qaeda, under its right to self-defense.

The United States engaged in targeted killings as part of that armed conflict against Al Qaeda in Afghanistan and Pakistan and reduced Al Qaeda to a shell in those countries. This line of argument blurs the lines between jus ad bellum and jus in bello. The criteria that a country being unwilling or unable to arrest a suspected terrorist is relevant to a self-defense analysis regarding necessity, but largely irrelevant to an international humanitarian law analysis where an Al Qaeda members can be targeted as part of armed conflict occurring in some territory.

It would be difficult to imagine the United States unilaterally using drone strikes against Al Qaeda associated forces in Canada as part of an armed conflict with Al Qaeda in Pakistan, as Canada is both willing and able to capture and prosecute terrorists. Thus, under this view, the United States would be able to use force to target Al Qaeda and associated forces outside of Afghanistan and Pakistan, provided that the members were in countries that were unable or unwilling to capture them.

The issue with this approach is that it is bypassing international law by attaching associated forces to an ongoing armed conflict. Self-defense has a temporal limitation and must satisfy the imminence requirement. The theory of the accumulation of events allows the temporal window of self-defense to be kept open, See Part II. The temporal window cannot be kept open indefinitely as this approach suggests. Even under an accumulation of events theory, however, it is doubtful that targeting low-level members of terrorist organizations outside of an armed conflict would be lawful if there is no intelligence that they are participating in specific attacks against the United States.

However, the summary of the U. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations abides by this temporal limitation outside areas of active hostilities as it requires that a threat posed by an operational leader against the United States must be continuing and imminent before lethal action can be taken. In many of its policy statements, U. This definition arguably would allow the United States to attach Al Qaeda associated forces to an international humanitarian law framework, See supra Part II.

Any new potential attackers become part of the old armed conflict and targetable under the law of armed conflict. Al-Shabab has Al Qaeda members in leadership position and formally joined Al Qaeda in February , See supra note and accompanying text. But organizational links are not an exception to the prohibition to the use of force. Taken under a normal self-defense analysis, it is arguable that the elements of AQAP that are dedicated to terrorism operations have taken actions which could rise to the level of an armed attack against the United States, independent of any links to core Al Qaeda.

For Al-Shabab it would harder to show an independent armed attack because Al-Shabab has not reportedly launched any major terrorist attacks against the United States. In addition, the United States would not be justified to use force under self-defense against elements of the organizations of AQAP and al-Shabab that are engaged in regional fighting because they are not engaging in an armed attack.

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Under a self-defense analysis, because AQAP has arguably conducted armed attack against the United States, the United States would still need to demonstrate that AQAP are continuing to plan attacks to justify the continued use of force. Given the unpredictable nature of terrorism, the impact and time of a potential attack is often difficult to know in advance. The United States could use force under interceptive self-defense to stop a developing armed terror attack. However, U.

However, not knowing the full impact or time of the attack makes justifying the use of force under anticipatory self-defense difficult with respect to the proportionality, necessity, and immediacy requirements. Targeted killings using drone strikes satisfy the requirement of proportionality as to self-defense. While targeted killings cannot be used to punish past terrorist actions, they can be used to deter future terrorist actions. One way to stop future terrorist actions is to kill those who plan them at an operational level.

Killing terrorist leaders can disrupt the terrorist organization by creating a power vacuum, demoralizing its members, causing loss of operational knowledge, and diverting resources to hiding other leaders. For example, the targeted killings of core Al Qaeda leaders in Pakistan, has reduced the effectiveness of al Qaeda as an organization. However, reducing the effectiveness of one terrorist cell may only have a short-term impact on the security of the United States, as new terrorist cells spring up.

Even significant al-Qaeda facilitators eliminated one at a time will permit replacements to be trained or communications and contacts shifted to other leaders. Still, it is arguable that there is a reasonable connection between targeted killings of terrorist leaders who belong to terrorist organizations who seek to attack the United States and the defense of the United States.

Thus, targeted killings are proportional in the sense that they are used to stop future attacks that could result in great loss of life. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations , supra note 8, at 3; see also supra notes 31, 69—70 and accompanying text. It is unclear what the impact of killing low-level terrorists would have on a terrorist organization. While it is not clear what impact the killing lower-level terrorist members would have, it is clearer with regard to members of terrorist organizations that are involved in regional concerns, which would have little impact to the defense of the United States.

Targeted killings using drone strikes as a method of self-defense also satisfies the proportionality requirement of using no more force than necessary to achieve the defense of the state. Although the number of civilian deaths from drone strikes is greatly debated, U. Times, Aug. While others view the U. They could be 20 percent. They could be 5 percent. But I think the C. UAVs are precise weapons Id. While the law concerning proportionality for self-defense is not concerned with collateral damage per se, the amount of force must be the minimum necessary to achieve the defensive aim.

Using weapons that kill a large number of nearby civilians who are unrelated to the defense objective of stopping a terrorist attack is greater than the minimum force necessary. Firing a guided missile at a target in a location that has been analyzed to minimize civilian casualties is more in line with the idea of using the minimum force necessary. See supra note 9.

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Whether U. For necessity, in most countries, attempts should always be made to capture terrorists instead of killing them. The requirement of necessity was acknowledged as a precondition to the use of lethal force in the U. In countries with effective law enforcement and the willingness to use it to apprehend terrorists, targeted killings are never a viable first alternative due to the availability of peaceful means to achieve self-defense. There is a strong case that Yemen and Somalia, which lack of a strong central government able to assert power over the remote areas of their countries where terrorists reside and are engaged in armed conflict with AQAP and Al-Shabab respectively, See supra note 75; see also supra Part I.

The United States does not have peaceful means of capture available in the more remote regions of Yemen and most of Somalia. Thus, targeted killings in those areas where capture is not feasible would meet the necessity requirement if killing the targeted terrorists was necessary to stop an armed attack. The immediacy requirement creates the main difficulty with targeting low-level terrorists. Under a narrow interpretation of imminence, See supra Part II. Even under a broader interpretation of when an attack is imminent, See supra Part II. The likelihood of an attack comes down to whether there was an attack in the past and whether terrorist organizations are engaged in planning new attacks.

Even if the United States assumes that any terrorist at the operational level of a terrorist organization is constantly engaged in planning attacks, the same cannot be said of lower-level members. While lower-level members of terrorist organization are necessary to carry out an attack, arguably, they are not necessary to any one specific attack, meaning killing a rank-and-file member may not stop the attack unless that member is in the process of carrying out the attack. If the United States had knowledge that a member of a terrorist organization was engaged in carrying out a specific attack against the United States, then that member would be targetable under the international law of self-defense.

The use of force under self-defense is limited to the amount of force necessary to defend against an armed attack. The immediacy requirement also restricts an open-ended justification to use of force. For terrorist organizations such as AQAP and Al-Shabab, some members are not engaged in international terrorism, but rather local concerns. Even if a lower-level terrorist is linked to the core of AQAP, such an individual is not a direct threat to the United States until the immediacy requirement is satisfied.

Mere membership in a terrorist organization alone would not justify the use of force under self-defense. Outside an armed conflict, if the United States cannot justify its use of force against lower-level terrorists under self-defense, the United States cannot lawfully target them. The pattern of reported U. However, there are reports in that low-level members of AQAP and Al-Shabab were being targeted and killed and the frequency of drone strikes increased.


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Unless the United States is an armed conflict in Yemen and Somalia, such targeting practices would not be legal under the law of self-defense unless the United States had knowledge that attacks were about to be carried out by the low-level members. Thus, the importance of what constitutes the area of hostilities in a non-international armed conflict with a non-state actor is of critical importance. Any U. The United States has claimed in the past that it is in an armed conflict with Al Qaeda and its affiliates.

They are both armed organized groups, as they have hierarchical structures and are capable of holding territory and planning attacks. While the non-terror wing of Al-Shabab controlled territory and was armed, it was not fighting U. See supra note The number of U. Furthermore, the United States did not act as if it were engaged in an armed conflict with the terrorist organizations in Somalia and Yemen. But as noted above, the United States views the AQAP and al-Shabab as having an international-oriented terror wing and a locally-oriented militant wing. So the United States may distinguish between the two wings with targeted killings in an armed conflict.

Instead, the United States only targeted the part of the organization that constitutes a direct threat to the United States: the wing of terrorist organizations that plans and carries out transnational terror attacks. And from that group, the U. Many of the reported airstrikes in Yemen and Somalia in resulted in a senior-level member of AQAP or al-Shabab being wounded or killed.

The use of targeting lists by JSOC and the CIA gives further weight to the idea that only senior-level or operational members were being targeted. However, the United States did not engage in the status-based targeting that is permissible under the law of war. The targeted killing of al-Aulaqi See supra pp. Khan, who had a smaller media position in AQAP, was classified as a belligerent by the Obama administration and thus would not prevent the strike from being carried out.

However, Khan was also not actively being targeted by the United States. Like most low-level members of terrorist organizations who die alongside the high-level members in drone strikes, Khan was not being actively targeted; although if the United States were in an armed conflict, he could have been. Given the increase in military support to the new Yemeni government and drone strikes in Yemen, this may be the case. The United States has stated, however, that it does not wish to become too closely involved in local conflicts in Yemen and Somalia.

Targeted Killings in Yemen and Somalia: Can the United States Target Low-Level Terrorists?

Brennan drew a clear line between elements of the organization that are involved in the conflicts in Yemen and Somalia and the elements of the organization that seek to commit terrorist attacks abroad. Brennan stated that the United States would not target those parts of the organizations that are engaged in local conflicts. If Yemen consented to the U. Policy Standards and Procedure for the Use of Force in Counterterrorism Operations limit the use of lethal force outside areas hostilities to what is required by the international law of self-defense. Arguably, the international law of self-defense does not prohibit the targeting of higher-level terrorists members because they pose a direct threat by planning terrorist attacks against the United States.

However, once self-defense gets the United States over the border of another country, targeting is still subject to the law of war or international human rights law. In the case of Somalia, the United States is not engaged in an armed conflict and thus international humanitarian law would not apply. Yemen, however, is a closer case. Blurring the legal justification leaves open the possibility of applying the law of armed conflict to the entire world in pursuit of terrorist organizations. While a separate self-defense analysis each time is not as necessary in the case of continuous armed attacks by a terrorist organization, it is quite a different thing all together to state that a self-defense is not required for affiliates of Al Qaeda, who might not have any intention of attacking the United States, just because they are affiliated.

Of course, judging whether a potential terrorist attack would constitute an armed attack necessary to trigger the international law of self-defense can be unwieldy and uncertain. The legal theory the United States uses to justify using drones to target individuals in foreign countries is important for the future of counterterrorism and the law of nations. UAVs are cheaper alternatives to expensive fighter jets; other countries such as China, Russia, and Israel are starting to build their own drones.

Times , Jan. The Author would like to thank his faculty advisor, Laurie Blank, for her help in developing this Comment, especially with regard to the subject of the international law of armed conflict. The Author is deeply grateful to Anne Berlow and her staff for the time and effort they have spent editing this Comment.

Finally, the Author would like to thank the entire staff of the Emory International Law Review for their time and dedication. Toggle navigation Navigation. Learn More. Learn more. Emory International Law Review. Download as PDF. Abstract Since the tragic events of September 11, , the use of unmanned aerial vehicles—more commonly known as drones—to target individual terrorists has become an important tool for U. Targeted Killing and Low-Level Terrorist Organization Members In the United States, terrorism can generally be defined as violent actions against civilians done with politically coercive intent.

Definition of Targeted Killings There is not yet a clear legal definition of targeted killings in international law. Low-Level Terrorist Organization Members What distinguishes a low-level terrorist from a high-level terrorist? Not only are there disputes about which framework to apply, but the existence of considerable customary international law in both the human rights and law-of-armed-conflict settings makes determining how to apply the law under either framework difficult, even if everyone could agree on a framework. I don't think there is much dispute that as a matter of the law of armed conflict, someone like al-Awlaki would be a valid target, much as Osama bin Laden himself was.

It really comes down to the nature of his conduct toward the United States in the current conflict, which all sides seem to be treating as an armed conflict and therefore subject to the law of armed conflict, even if there has been some argument about it. Other than possible differences in his conduct toward the United States, the only thing that distinguishes al-Awlaki from Osama bin Laden is his U.

But the greater complication that al-Awlaki's citizenship poses is as a matter of U. On the other hand, it seems inconceivable that the U. Where any particular use of force falls in that continuum, though, is the hard question, and one that is controlled by rules that are being written in the course of being applied. Outside of such circumstances, the conditions sanctioning targeted killing of civilians are even more restrictive. Although U.

Targeted killing

Constitutional due process usually means that substantive and procedural safeguards exist to ensure the legality of a government act. It also means that acts of the government are reviewable, particularly the intentional killing of a human being, however strong the justifications appear at the time. The executive branch must anchor its authority in some legal regime that is consistent with both domestic and international law. The legal regime governing the lawfulness of targeted killing includes international humanitarian law IHL, or the law of armed conflict and international human rights law.

IHL allows targeted killing when the target is a 'combatant' or 'fighter' or a civilian 'directly participating in hostilities. Under human rights law, it is never permissible for killing to be the sole objective of an operation. However, human rights law links the right to self-defense with states' obligation to exercise 'due diligence' to protect the lives of individuals from attacks by criminals, including terrorists. Human rights law permits targeted killing only if required to protect life making lethal force proportionate and no other means, e. But even the Israeli Supreme Court which ruled on the legality of targeted killing in a decision rejected the argument that terrorists are unlawful combatants subject to attack at all times.

IHL and human rights law require transparency and accountability. While Attorney General Holder's statement is a positive step in this regard, some core legal questions remain unaddressed. These include who qualifies as a lawful target, and where and when the person may be targeted.