Killing by Drones: Legality under International Law

Author: 
Rory O. Millson and David A. Herman
Publication date: 
Fri, 9 Jan 2015
In this policy brief, lawyers from the New York City Bar Association Committee on International Law outline the key findings of an eighteen-month investigation into the legality of the use of drones by the US to conduct targeted killings in Iraq, Afghanistan, Syria, and elsewhere.
 
The policy brief finds that drone strikes do comply with international law if they:
 
  • are carried out with the consent of the territorial State or in the valid exercise of the right of self-defence;
  • take place in an armed conflict; and
  • comply with the rules of International Humanitarian Law, particularly the principle of distinction.
The authors note that, in most cases, the territorial State does consent to US drone strikes, but in Pakistan, where the largest number of drone strikes has been carried out, the facts are unclear, as public statements by the US and Pakistan contradict the evidence of secret agreements between the two parties.
 
Among a series of policy recommendations, the authors call for a move away from the Bush-era relic of a ‘global war’ and a focus instead on the reality, namely that the US is participating in discrete domestic armed conflicts, and doing so largely in secret.
 
While they identify no broad international law duty of transparency, the authors recommend that the US should rethink this policy of secrecy, which arguably compromises democratic values domestically, and hinders them in the propaganda war against non-State actors.