The Right to Life in War and Peace A Legal and Moral Critique of Targeted Killing Mary Ellen O’Connell? Since 2002, the United States has conducted a relentless campaign of killing persons using military force beyond zones of armed conflict. This is not the first period in American history in which such killing has been carried out, but in 1981, President Ronald Reagan signed an executive order that effectively banned such actions.1 In 1998, President Bill Clinton took the first major step toward undermining the ban. He authorized the CIA to carry out the covert killing of Osama bin Laden. After 9/11, President George W. Bush expanded President Clinton’s authorization, issuing a presidential “finding” that if the president approved of the killing of a person by the CIA, that killing would not violate the Reagan executive order. 2 President Obama has since increased the pace of killing dramatically3 and has expanded the authorized targets to persons or groups acting suspiciously in certain countries, including Americans.4 To distinguish such killing from assassination, the term “targeted killing” is often used.5 At the time of writing, as many as 4400 people have been killed by the United States intentionally or unintentionally in targeted killing operations.6 Targeted killing has taken over from the use of torture as a critical issue requiring the attention of legal scholars, theologians, moral philosophers, and ethicists. Bernhard Koch of the Institute for Theology and Peace in Hamburg organized a workshop on the “Limits on the Use of Force during Legitimate Military Operations” in May 2012, providing an opportunity for a number of such scholars to discuss targeted killing from an inter-disciplinary perspective in the particular context of protecting combatants. Under international law, combatants will not face criminal charges for killing enemy fighters during an armed conflict. This “combatant’s privilege” to kill is restricted to zones of armed conflict, and even then, such killing is restricted by the principles of necessity, proportionality, and humanity. Of all of the limitations on the right to kill in armed conflict, the greatest protection is afforded by the requirement to respect the limited zones where the combatant privilege to kill pertains.7 Targeted killing using missiles and bombs delivered by drone aircraft or other means outside zones of armed conflict simply cannot be justified in law or morality, nor is there any case for relaxing the legal limit on permissible killing to extend beyond the battlefield. These remarks will next provide more details on the nature of targeted killing and the terrible impact of its use by the U.S. during the period 2002-2012. I will then turn to the international law protecting the right to life in peace and in war and survey the legal arguments the Obama administration is using to claim the right to use military force to kill. The conclusion of this survey is that the administration has no valid legal justification for targeted killing beyond armed conflict zones. This means U.S. targeted killing is violating the prohibition on excessive force and is arguably, by now, violating the jus cogens norm against widespread, arbitrary killing by governments. I. Targeted Killing In April 2012, John Brennan, President Obama’s advisor on counter-terrorism policy, gave another in a series of administration speeches attempting to justify the U.S. practice of targeted killing away from what he has called “hot battlefields.” Brennan’s remarks were titled “The Ethics and Efficacy of President Obama’s Counter-terrorism Strategy.” He presented legal arguments as integrally related to the case that U.S. targeted killing is both ethical and effective. After referring to a number of earlier speeches and lectures by a number of top-ranking Obama administration lawyers, Brennan went on to argue: Given these efforts, I venture to say that the United States government has never been so open regarding its counterterrorism policies and their legal justification.  Still, there continues to be considerable public and legal debate surrounding these technologies and how they are sometimes used in the fight against al-Qaida. Now, I want to be very clear.  In the course of the war in Afghanistan and the fight against al-Qaida, I think the American people expect us to use advanced technologies, for example, to prevent attacks on U.S. forces and to remove terrorists from the battlefield.  We do, and it has saved the lives of our men and women in uniform. What has clearly captured the attention of many, however, is a different practice, beyond hot battlefields like Afghanistan, identifying specific members of al-Qaida and then targeting them with lethal force, often using aircraft remotely operated by pilots who can be hundreds, if not thousands, of miles away.  And this is what I want to focus on today.8 Under international law, however, there are no “hot” or “cold” battlefields; there is only the battlefield where killing by the use of military force is tolerated as a matter of law and morality. The killing beyond Brennan’s “hot” battlefields that we read about every week is violating the limitation on excessive use of force. Enough people have died to categorize the killing as violating the jus cogens norm against widespread, arbitrary killing by governments. Jus cogens norms are those higher international legal rules most closely associated with fundamental principles of morality.9 My own focus on the problem of targeted killing began as a member of Princeton’s Center for Theological Inquiry’s group on Theology and International Law. CTI’s Director, Will Storrar, formed the group in response to evidence of America’s official use of torture. The members of the group are all committed Christians with expertise in theology, international law, ethics, and the philosophy of law. We were a natural combination as Christianity, international law, and most schools of ethics teach that torture is absolutely prohibited, and the use of torture by the U.S. was of grave concern to all members of the group. We wanted to try to understand why American officials had come to find the use of torture acceptable and to consider how we might influence a change in that view. Today, more than five years after our CTI group was formed, issues related to the use of torture remain. New revelations continue of the barbarity of what was done in the name of national security: CIA agents waterboarded Ramzi-bin al-Shibh 83 times and Khalid Sheikh Mohammed 183 times; there has been no accountability for these or related crimes to date; a significant number of Americans may now erroneously believe that waterboarding is not torture and that torture is an effective means of preventing terrorism.10 Despite the work that remains respecting torture, the CTI group has increasingly turned its attention to another, arguably more pressing current issue, the use of targeted killing by the United States, especially through the use of unmanned aerial vehicles, commonly known as drones. Unlike torture, “targeted killing” is not a term defined in international law, Church teaching, or Canon Law. It is a term of recent provenance, developed much like the expression “harsh interrogation” to create an impression of a tough but lawful and moral technique to enhance security. Targeted killing seems to have first been employed as a term to replace “assassination,” although the international law scholar Nehal Bhuta persuasively argues that there is no important distinction in international law between the terms “targeted killing” and “assassination.”11 Nils Melzer, a long-time legal adviser with the International Committee of the Red Cross in Geneva, developed a definition of targeted killing for his study of the phenomenon: “The use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them.”12 Since 2008, the U.S. has “selected” persons not only by name but also based on “patterns of life.” These attacks are being referred to as “signature strikes” because they are not aimed at a named target.13 And at least since the Obama administration took over the practice, attacks have been launched at groups as well as individuals. Targeted killing of enemy fighters on the battlefield is arguably permissible, so long as those carrying out the killing follow international humanitarian law (IHL). At the time of writing, the United States is involved in such targeted killing in one place only: Afghanistan. The selection of an individual by name to kill is questionable, however, even during an armed conflict. I know of only one such targeted killing case in Afghanistan War. It involved the first use of a drone in a lethal operation in November 2001. The U.S. fired missiles from a drone at the building near Kabul where Mohammed Atef was staying. Atef was allegedly al Qaeda’s military leader in Afghanistan. He and several others were killed. In November 2002, the U.S. carried out the first killings using a drone far from the battlefields of Afghanistan. The attack occurred in Yemen. In 2004, the U.S. carried out the first targeted killing attack in Pakistan using a drone. In 2006, similar attacks began in Somalia.14 New drone bases are being established around the world, raising the expectation of future drone attacks.15 The fact that killing with drones is sometimes lawful, while the use of torture is never lawful helps explain why it has been more difficult for people to understand the problem with targeted killing. Torture is absolutely prohibited; killing is not. Indeed, most moral philosophers and most international law scholars who reject any use of torture, accept broad justifications for killing. When the use of torture during the Bush administration came to public light, the primary response of the administration was to argue that it was not engaged in torture but, rather, was using “harsh interrogation tactics.” President Obama put an end to those tactics. By contrast, when targeted killing was first reported during the Bush administration, little notice was taken.16 President Obama not only failed to end the practice, he has authorized a dramatic increase in the number of drone strikes with the aim of targeted killing outside armed conflict zones. Yet, to date, few governments outside the countries where attacks are taking place have publicly complained about drone strikes, certainly not Germany, despite its reputation for adherence to international law, especially the international law on the use of military force. Similarly, we have heard from few religious leaders. A 2012 poll of Americans on their attitudes toward killing with drones found that 76% of likely U.S. voters “approve of the use of the unmanned aircraft to kill terrorists.”17 About eighty per cent of Americans self-identify as Christians. Attention and concern are growing, however. This workshop, one at Westminster Abbey in London in February, and others bear similarities to the conference in Princeton that launched the National Religious Campaign Against Torture. People committed to promoting respect for human dignity owing to religious or moral beliefs are increasingly expressing concern about targeted killing with drones. Anti-drone demonstrators were arrested and sentenced to jail in Hancock, New York in 2011. Other demonstrators demanded the closure of an exhibit on drones at the Smithsonian’s Air and Space Museum. Drones were denounced at many of the “Occupy” sites. Lawyers, human rights advocates, and others are becoming increasingly active in efforts to stop drone strikes outside Afghanistan. The American Civil Liberties Union and the Center for Constitutional Rights (CCR) in the U.S. represented the father of a man in Yemen, a U.S. citizen, known to be on the CIA’s “kill list.” Reprieve, a British human rights advocacy group, is conducting investigations of drone attacks in Pakistan. Reprieve and the Bureau for Investigative Journalism are bringing information to public attention about negative consequences of drone strikes. A lawsuit has also been filed in United Kingdom courts for a declaration that British intelligence services should not assist the CIA in targeted killing operations in Pakistan. The named plaintiff, Noor Khan, was a teenager when his father was killed by a drone attack while attending a peace Jirga in Pakistan. Perhaps the most eloquent statement to date against the U.S. policy of targeted killing has come from President Jimmy Carter: The United States is abandoning its role as the global champion of human rights. Revelations that top officials are targeting people to be assassinated abroad, including American citizens, are only the most recent, disturbing proof of how far our nation’s violation of human rights has extended. This development began after the terrorist attacks of Sept. 11, 2001, and has been sanctioned and escalated by bipartisan executive and legislative actions, without dissent from the general public. As a result, our country can no longer speak with moral authority on these critical issues.18 Apparently in reaction to this increasingly critical attention, President Obama has received legal advice on targeted killing, including the targeted killing of American citizens.19 In a dark repetition of history, a memo justifying targeted killing has been authored by the same office in the U.S. Justice Department that prepared the legal memoranda designed to provide a defense for U.S. officials using or authorizing the use of torture and other violations of international law. Reports of this memo have led to a new level of awareness and concern about the U.S. campaign of targeted killing, especially with drones. The memo may have a plausible argument about the legality of killing with drones under U.S. law. It will not have a plausible argument under international law because international law prohibits in general killing with military force in situations such as those found in Yemen, Somalia, and Pakistan. It is international law that matters most when the United States, Israel, Russia, Iran or any state or non-state actor group uses military force to kill people, especially beyond borders. As already mentioned, the first publicly reported targeted killing with a drone occurred after the launch of Operation Enduring Freedom in Afghanistan. The first targeted killing beyond a battlefield was in November 2002 in Yemen. The operation was conducted by agents of the U.S. Central Intelligence Agency, not the U.S. military. The agents were based in the tiny former French colony of Djibouti and apparently had that state’s consent to conduct lethal operations from its territory. Yemen’s authoritarian ruler Ali Abdullah Saleh was informed or consented as well. The operation consisted of an attack with Hellfire missiles on a passenger vehicle driving in a remote part of Yemen. The attack killed all six passengers in the vehicle, including a 23-year old American from Lakawana, New York.20 We know this because CIA agents flew to the scene by helicopter within moments of the killing, repelled down to the ground, and took DNA samples from the persons killed.21 Targeted killings continued in Yemen but Saleh wanted them carried out with cruise missiles launched from ships or piloted jet aircraft—he wanted to be able to deny the U.S. was using military force in Yemen, that Yemen was doing this killing itself. Yemen at the time, however, had no drones. As soon as pro-democracy groups challenged Saleh in 2010-2011, the U.S. returned to attacking with drones. The U.S. attacked multiple times in the first half of 2011 hoping to kill Anwar Al-Awlaki. Awlaki’s father, represented by the ACLU and CCR, had petitioned a U.S. court to issue a restraining order against the killing of his son. The court ruled the father did not have standing. In September 2011, the son was killed along with another American and two other men. Two weeks later, Awlaki’s 16-year old son, 17-year old nephew, and a number other people were killed in another drone attack at a restaurant in Yemen. By now, the U.S. has killed more than 200 people in Yemen with the attacks apparently increasing even while Yemen tried to hold elections to replace Saleh. The United States has also carried out targeted killing operations in Somalia since 2006. The first reports came in articles on Ethiopia’s late 2006, intervention to depose a group known as the Islamic Courts, which was exercising increasing control of much of Somalia at the time. As Ethiopia invaded, members of the U.S. military, using helicopter gunships, pursued fleeing terrorism suspects, killing them from the air. The U.S. has continued to carry out targeted killing operations in Somalia ever since. The operations have for some years also included drone attacks carried out by the CIA. The Bureau of Investigative Journalism in the U.K. published figures in February 2012 of between 46 and 162 persons killed between 2007 and 2012 in Somalia.22 The facts of targeted killing are best known respecting Pakistan. The U.S. used a drone to carry out targeted killing in Pakistan for the first time in 2004. From a variety of websites in the U.S., UK, and Pakistan, we have good estimates of the number of persons killed through drone strikes: by July 2012, it was as many as 3,251.23 The United States has drone bases in the U.S., of course, but also in Djibouti, on the Saudi Peninsula, in the Seychelles, and in a growing number of other places.24 The CIA drone base in Pakistan was ordered to be closed and was closed after the November 2011, killing of 24 Pakistani soldiers on the border of Afghanistan by U.S. forces. The U.S. is creating more drone bases to, apparently, continue targeted killing after the withdrawal of U.S., ISAF and other international forces from Afghanistan. II. Respecting Life How should we assess this killing and the growing capacity and interest in killing far from armed conflict zones? When President Obama was asked about the wisdom of attacking people with drones during a virtual interview organized by Google and YouTube, he answered defensively. Here is a good paraphrase by a reporter of his essential response: Obama then said he wanted to make sure people understood drones have not caused a huge number of casualties. The government has only been using “precise” strikes against al Qaeda and their affiliates. He said there’s a “perception” that the US is engaging in a bunch of strikes “willy nilly” when what is happening is a “targeted effort” to get people on a list, who want to hit Americans and American facilities.25 Neither law nor morality condones killing people suspected involvement in terrorism. It may seem to the President that using force in such a situation is compelled morally despite the law but such an assumption ignores the fact that the law restricting the use of force is derived from fundamental moral and ethical considerations.26 Contemporary rules on the use of force may be traced to the Just War Theories of Saints Augustine and Aquinas. Augustine drew on Aristotle and Cicero for the conception that peace is the normal state and that violence is justified only to restore peace. Moral philosophers continue to teach that the taking of human life may only be justified to protect human life.27 In other words, the exceptional right to resort to force rests squarely on a justification of necessity. Law and philosophy guide us in understanding what necessity means in the context of justifiable force. To support these statements, I need to begin with the fundamental, legal and moral principle of the human right to life. Human beings have at all times a right to life. This is a fundamental, if not the most fundamental legal and moral principle. It is reflected in the Decalogue in the commandment not to kill and throughout the Gospel in Christ’s teaching to love one’s neighbor, to turn the other cheek, to put away swords, and to seek peace. In current international law, the right to life is affirmed in all human rights treaties, including, most importantly, the International Covenant on Civil and Political Rights: Article 6 Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his right to life.28 The affirmative right to life is where we begin. The justification for any intentional taking of life is found in exceptions to the basic right. And, as is appropriate, the justifications are narrow. They fall into two categories; one applies in peacetime and the others under the law of armed conflict. In peace, a state may only take a human life when according to the European Court of Human Rights in the case of McCann v United Kingdom it is: “absolutely necessary in the defence of persons from unlawful violence.”29 Similarly, the United Nations Basic Principles for the Use of Force and Firearms by Law Enforcement Officials (UN Basic Principles), which are widely adopted by police throughout the world, provide in Article 9: Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.30 To get away from these restrictions on killing by government authorities in peacetime, the Bush administration argued within days of the 9/11 attacks that the U.S. was in a “global war on terror” that allowed the killing or detention of suspected members of al-Qaeda, the Taliban and other militant non-state actor groups wherever found in the world. As a presidential candidate, Obama was highly critical of the “global war” paradigm as asserting a right to limitless war in time and space. Upon taking office, however, his legal and policy advisers have developed their own variation on the “global war” concept. Indeed, the Obama variation actually weakens the already flimsy arguments put forward by President Bush’s lawyers. State Department Legal Adviser, Harold Koh, argued in 2010, that “U.S. targeting practices... comply with all applicable law, including the laws of war”31 and that “as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defence under international law.”32 This second statement indicates two attempts at justification. One is that the U.S. is in a worldwide war, only now with terrorist groups, not terrorism. The other is that as against individual terrorists or terrorist groups, the United States is exercising its right of self-defence under the United Nations Charter Article 51. While it may seem to be an improvement to wage war against people rather than a concept that will never end, it is hard to conceive of a world in which all terrorist groups have ended. Even al Qaeda may never end as my colleague John Mueller has written.33 Moreover, Koh made it clear that it is not really a war against terrorists but, rather, a claimed right to use military force in states experiencing instability. The President apparently will not be authorizing drone strikes in the UK, Germany, or the United States. Thus, the legal justification is not based on the permissibility of killing during an armed conflict. It is, rather, an assertion of a right to kill in countries with weak governments. Even if this made any sense from a policy perspective, there is certainly no international legal right to exercise military force on such a basis.34 Similarly, little or no authority exists for the right to exercise self-defense against an individual or a non-state actor with no ties to a state. United Nations Charter Article 51 permits self-defense if an armed attack occurs, but, even then, only until the Security Council takes “measures necessary to maintain international peace and security.”35 The International Court of Justice (ICJ), the chief judicial organ of the United Nations and the only court with general jurisdiction over states on matters of international law, has found that the Article 51 right of self-defense may only be exercised against a significant attack. The ICJ has not ruled on anticipatory self-defense but by requiring a significant attack, the evidence of the nature of the attack must necessarily be of an attack that is at least underway if not completed. Moreover, the response in terms of a counter-attack may only be against the territory, planes, or ships of a state responsible for the initial significant attack. If the non-state actor’s attack is not attributable to a state, force in self-defense may not be exercised on any state’s territory. In the case of attacks on Israel from the Occupied Palestinian Territories, the ICJ determined in the Wall case that Israel is the responsible state for the territories as the occupying power. Article 51 is not the relevant rule in a zone of occupation. The ICJ has also found that the attacks by non-state actor militant groups based in Congo on Uganda did not give rise to Uganda’s right to attack Congo. The ICJ did indicate that Uganda might have had the right to intervene in Congo if the attacks had been more significant—presumably of a kind that could only be carried out if the militant groups were the de facto government of an area. The situation the ICJ seems to be referring to would be like the Taliban’s control of most of Afghanistan in 2001 or the Kurds control of northern Iraq allowing attacks on Turkey aimed at gaining control of Kurdish enclaves.36 In carrying out targeted killing operations, the United States has not declared that it is attacking groups in control of any territory or in response to a significant armed attack by any state on the U.S. as its basis for a claim of self-defence. Another argument attempting to justify killing far from armed conflict is found in some of the scholarship on targeted killing but is not mentioned expressly by Koh. It asserts a right to kill persons suspected of being part of a non-state actor militant group that is taking part in an armed conflict somewhere in the world. Any member of al-Qaeda or an al-Qaeda affiliate may be lawfully targeted wherever found because of fighting in Afghanistan or Iraq. The argument extends to persons who have never even been part of fighting, so long as they are in a so-called “continuous combat function.”37 The International Committee of the Red Cross in its Interpretative Guidance on Direct Participation in Hostilities introduced the term continuous combat function, but it also made clear that killing someone suspected of being in such a status is only justifiable in a situation of necessity.38 It is my interpretation that the standard of necessity that applies depends on the choice of law principles. The peacetime standard applies if the person is not in a situation of armed conflict hostilities. As for the actual current rule about persons directly participating in hostilities, it is of little practical use given the unlikelihood that the U.S. will ever have any evidence of direct participation in hostilities by a person far from an armed conflict zone. The U.S. may have evidence of persons directly participating in the hostilities in Afghanistan who are based in Pakistan. Not surprisingly, U.S. officials do not use this more plausible argument for targeted killing. First, it undermines the arguments for killing people in Yemen and Somalia, and second, when the U.S. pulls its troops out of Afghanistan, it will not longer have the argument even for Pakistan. As just discussed, killing persons with drones far removed from armed conflict hostilities violates the fundamental human right to life. It is equivalent to the excessive use of military force by dictators such as Libya’s Ghaddafi and Syria’s Assad for dealing with violence by those opposed to their regimes. Only when the violence amounted to an armed conflict could the use of missiles, bombs, tanks, grenades, and the life become permissible. When excessive use of force outside of armed conflict zones is significant it also violates jus cogens norms. The Restatement Third of American Foreign Relations Law of which Louis Henkin, the eminent human rights scholar and my mentor, was Chief Rapporteur defines jus cogens as follows: Some rules of international law are recognized by the international community of states as peremptory, permitting no derogation. These rules prevail over and invalidate international agreements and other rules of international law in conflict with them. Such a peremptory norm is subject to modification only by a subsequent norm of international law having the same character… The polish Catholic international law scholar, Krzysztof Skubiszewski has written “There are rights that have an ‘immanence in the notion of Man’ and are not ‘man-made’; there is the ‘quality of inherency’ which attaches to them and which ‘cannot come to attach to what was in origin a deliberate creation.’”39 U.S. Judge Abner Mikva in a case alleging jus cogens violations by the United States against Nicaragua listed the particular and widely recognized jus cogens norms: “the principles of the United Nations Charter prohibiting the use of force,” … and fundamental human rights law that prohibits genocide, slavery, murder, torture, prolonged arbitrary detention, and racial discrimination.40 Murder, to be prohibited, as jus cogens would be widespread killing not justified by absolute necessity in peace or reasonable necessity in armed conflict. This is the type of killing associated with death squads, but could also be the taking of 4400 lives over ten years far from armed conflict zones. Some Workshop participants doubted the need to categorize U.S. targeted killing as a violation of the norm of jus cogens. They pointed to the fact that international law scholars are not united respecting aspects of the doctrine of jus cogens. Yet, international law scholars are united about the existence of the category and the list of norms provided by Judge Mikva. Moreover, it is important and relevant to discuss widespread arbitrary killing as a norm of jus cogens given the fact that jus cogens norms are not changeable by the rules governing change of other international legal norms. Finally, the existence of jus cogens norms and their basis in fundamental principles of morality stand as evidence against the view that discussions of law and morality should be kept separate.41 As jus cogens, the rule against widespread, arbitrary government killing cannot be changed. If it could be, is there a moral argument in support of targeted killing? Jeremy Waldron has published a highly persuasive philosophical analysis concluding that we should not. There is no compelling reason to loosen the law against killing and every reason to strengthen it. I worry about the attitude towards killing revealed in the reasoning we use. It seems that our first instinct is to search for areas where killing is already "alright"—killing in self-defence … or killing of combatants in wartime … and then to see if we can concoct analogies between whatever moral reasons we can associate with such licenses and the new areas of homicide we want to explore. In my view, that is how a norm against murder unravels. And it unravels in our moral repertoire largely because we have forgotten how deeply such a norm must be anchored in light of the temptations it faces and how grudging, cautious, and conservative we need to be—in order to secure that anchorage—with such existing licenses to kill as we have already issued.42 Within the teaching of the Roman Catholic Church, there is no room for expanding the justifications to kill. My Church has supported with passion and eloquence the establishment of a peace order through international law and institutions against war. In 1963, Pope John XXIII issued his powerful encyclical, Pacem in Terris, in which he extolled the United Nations and its Charter rules against resort to military force. In 1965, Pope Paul VI pleaded at the United Nations for “[n]o more war, war never again! Peace, it is peace which must guide the destinies of people and of all mankind.” And John Paul II said, most relevantly of all, as quoted in an article by Heinz-Gerhard Justenhoven: Violence only generates further violence, violence destroys and never builds up, no type of violence brings about a settlement to conflict between persons or nations…. ; the increase of violence in the world [can] … not be brought to a halt by responding with more [violence].43 Rather, John Paul II called for the “juridical presence” of human rights to be strengthened as the means to enhance respect for them.44 The moral and religious case against expanding the right to kill seems unassailable, but if it were, would counter-terrorism experts be able to make the case that such killing is effective in preventing terrorism? John Brennan’s remarks quoted at the beginning of these remarks are called “The Ethics and Efficacy of President Obama’s Counter-terrorism Strategy.” In law, ethics and effectiveness are integral in assessing legality. The principle of necessity requires that the purpose of resorting to force must be potentially realizable through the use of force. Brennan insists that targeted killing is successful because he can point to the large number of persons killed. A large number of dead is not, of course, a criterion of success. Both President Bush and Obama have indicated that this killing is being carried out to suppress terrorism. For this goal, however, independent counter-terrorism experts provide evidence that killing of this kind does not have longer-term positive effects. In 2008, the Rand Corporation released a study that concluded: All terrorist groups eventually end. But how do they end? Answers to this question have enormous implications for counterterrorism efforts. The evidence since 1968 indicates that most groups have ended because (1) they joined the political process or (2) local police and intelligence agencies arrested or killed key members. Military force has rarely been the primary reason for the end of terrorist groups, and few groups within this time frame achieved victory. This has significant implications for dealing with al Qa’ida and suggests fundamentally rethinking post-September 11 U.S. counterterrorism strategy.45 Indeed, President Obama is cited as knowing that killing with drones will not succeed in effectively suppressing terrorism. Bob Woodward revealed in his book, Obama’s Wars, that President Obama knows this: “Despite the CIA’s love affair with unmanned aerial vehicles such as Predators, Obama understood with increasing clarity that the United States would not get a lasting, durable effect with drone attacks.”46 Why then does he continue? President Obama has assured Americans on many occasions that he is a Christian. His chief counter-terrorism officials are also open about their Christianity; indeed, several key individuals are Roman Catholic, a Church that extols a consistent life ethic. No answer to this puzzling issue has been more compelling to me than the one sent in an e-mail by a major in the United States Army Judge Advocate General Corps following a lecture I gave at the Army’s Judge Advocate General School. This high-ranking military lawyer explained it this way: You seem to assume that the United States, as the preeminent global superpower, wants to promote a world order in which the rule of law prevails over the rule of might.  I am not convinced that this is accurate.  Instead, since 9/11, U.S. policy makers have used international law as a tool for advancing strategic goals rather than a restraint on U.S. action, unilateral or otherwise.  When international law threatens to curtail the United States' desired aims, our elected leaders and unelected executive officials have been quick to distinguish, re-imagine, minimize, or summarily ignore the law and the consensus of the international community. The masses of Americans have been persuaded by more than a decade of bellicose, Orwellian propaganda that only the constant use of military force can bring security and peace to America.  Your advocacy of security through adherence to the law-though reasonable, ethical, and utterly defensible-is at stark contrast to the ends-oriented, insular worldview embraced by an increasingly conservative American populace and, apparently, by many of the uniformed judge advocates who attended your lecture.  I wish I could share your optimism about the underlying principles of America's people, its leaders, and our national defense establishment.  As a nation we raced to the bottom after 9/11 and embraced every justification and pretense to exact our revenge.  I wonder if we will ever find our way back.47 Conclusion Words, “propaganda” in the terminology of the major, have led to the popularity in the United States of killing terrorism suspects. The success of such words is due, at least in part, to the failure of international law specialists, ethicists, and theologians to teach publicly about the issues at stake. President Obama is a politician. To affect change respecting his position on killing terrorism suspects will require pressure from the courts, churches, and sovereign allies. This is sad to acknowledge given President Obama’s public commitment to Christianity, his years as a law professor, his elite education, his experience in international relations, and, of course, his receipt of the Nobel Peace Prize. But it is the reality. The IIFT Workshop will, I believe, be one of those important steps in raising public awareness about a complex but vital legal and moral issue. I look forward to learning from all of you, praying with some of you, and being re-energized in my own vocation of seeking peace through law. ? Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution—Kroc Institute for Peace Studies, University of Notre Dame. This paper is dedicated to my friend, colleague, and fellow Catholic, Dr. Amanda Perreau-Sausine, a member of the law faculty of the University of Cambridge and the Princeton Center for Theological Inquiry group on Theology and International Law; she passed away 1 August 2012. 1 http://www.archives.gov/federal-register/codification/executive-order/12333.html. 2 See generally, DANIEL KLAIDMAN, KILL OR CAPTURE, THE WAR ON TERROR AND THE SOUL OF THE OBAMA PRESIDENCY (2012). 3 Of 336 attacks as of July 2012 in Pakistan, 284 have occurred under Obama. See the Website of The Bureau of Investigative Journalism for the most reliable total numbers. The data is at “Covert War on Terror” http://www.thebureauinvestigates.com (accessed 8 Aug. 2012). 4 Jo Becker and Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, N.Y. TIMES, 29 May 2012, at http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?pagewanted=all and Greg Miller, CIA Seeks New Authority to Expand Yemen Drone Campaign, WASH. POST, April 18, 2012, http://www.washingtonpost.com/world/national-security/cia-seeks-new-authority-to-expand-yemen-drone-campaign/2012/04/18/gIQAsaumRT_story.html. 5 Barton Gellman, CIA Weighs ‘Targeted Killing’ Missions, WASH. POST Oct. 28, 2001, at A01. 6 The Bureau of Investigative Journalism, http://www.thebureauinvestigates.com (accessed 8 Aug. 2012). 7 For possibly the best overview of the law that applies to the battlefield, what it consists of, and when it applies, see, THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW (Dieter Fleck, ed. OUP 3d ed. forthcoming). 8 Remarks of John O. Brennan, ‘The Ethics and Efficacy of the President’s Counter-terrorism Strategy”, Woodrow Wilson Center, 30 April 2012, available at http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-counterterrorism-strategy (accessed 8 August 2012). 9 See generally on jus cogens norms, Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) 2012 ICJ paras. 92-97 and Mary Ellen O'Connell, ‘Jus Cogens, International Law’s Higher Ethical Norms’, in Donald Earl Childress III (ed), The Role of Ethics in International Law 55 (Cambridge: Cambridge University Press, 2011), available at http://ssrn.com/abstract=1815155. See also infra. 10 At present, a criminal case against ten top Bush administration officials has recently been re-opened in Spain, and two civil lawsuits by American citizens who allegedly were tortured while in U.S. military custody in Iraq are proceeding against former Defence Secretary Donald Rumsfeld. Polish prosecutors are active in a case against officials who made the establishment of secret prisons in Poland possible where the U.S. allegedly tortured individuals. 11 See Nehal Bhuta, States of Exception: Regulating Targeted Killing in a “Global Civil War”, in HUMAN RIGHTS, INTERVENTION, AND THE USE OF FORCE, 243, 246 n. 20 (Philip Alston and Euan MacDonald eds., 2008). 12 NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 5 (Oxford University Press 2008). 13 See Miller, supra note and David S. Cloud, CIA Drones Have a Broader List of Targets, L.A. TIMES, May 5, 2010, http://articles.latimes.com/2010/may/05/world/la-fg-drone-targets-20100506. 14 For more details on these events, see infra, and Unlawful Killing with Combat Drones, in SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT (Simon Bronitt ed. Hart Publishing, forthcoming, available at http://ssrn.com/abstract=1501144) and Seductive Drones: Learning from a Decade of Lethal Operations, J. LAW, INFO. & SCI. (approved for publication Aug. 1, 2011, available at http://ssrn.com/abstract=1912635). 15 See David Vine, The Pentagon’s New General of Secret Military Bases, MOTHER JONES, July 16, 2012,http://www.motherjones.com/politics/2012/07/pentagon-new-generation-military-bases-tom-dispatch. 16 For one of the few, if only scholarly critiques of U.S. targeted killing prior to 2010, see, Mary Ellen O’Connell, Ad Hoc War, in KRISENSICHERUNG UND HUMANITÄRER SCHUTZ—CRISIS MANAGEMENT AND HUMANITARIAN PROTECTION 399 (Horst Fischer et al, eds., 2004). 17 Rasmussen Reports, Voters Are Gung-Ho for Use of Drones But Not Over the United States, http://m.rasmussenreports.com/public_content/politics/current_events/afghanistan/vot... Survey conducted 10 February 2012. 18 Jimmy Carter, A Cruel and Unusual Record, N.Y. TIMES, June 24, 2012, http://www.nytimes.com/2012/06/25/opinion/americas-shameful-human-rights-record.html?_r=1&pagewanted=print (accessed 8 Aug. 2012). 19 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. TIMES, Oct. 8, 2011, http://www.nytimes.com/2011/10/09/world/middleeast/secret-us-memo-made-legal-case-to-kill-a-citizen.html?_r=1&pagewanted=all. 20 Doyle McManus, A U.S. License to Kill, a New Policy Permits the C.I.A. to Assassinate Terrorists, and Officials Say a Yemen Hit Went Perfectly. Others Worry About Next Time, L.A. TIMES, Jan. 11, 2003, at A1. 21 DINA TEMPLE-RASTON, THE JIHAD NEXT DOOR: THE LACKAWANNA SIX AND ROUGH JUSTICE IN THE AGE OF TERROR 196-97 (Public Affairs, 2007). 22 Chris Woods, Militants and Civilians Killed in Multiple US Somalia Strikes, 22 Feb. 2012, The Bureau of Investigative Journalism, http://www.thebureauinvestigates.com. 23 See tbij.org, supra. 24 See Vine supra. 25 Kevin Gosztola, In YouTube Event, Obama Defends Government’s Use of Drones, Jan. 30, 2012, http://dissenter.firedoglake.com/2012/01/30/president-obama-says-us-must-be-judicious-in-drone-use/ 26 At the Workshop, Jeff McMahan commented in connection with these remarks that analysis of law and morality should be kept separate. It is not clear why as a normative matter that should be done but as a practical matter it is basically not possible. Law is generally man-made construct. People bring their moral, religious, political and other commitments with them to parliamentary debates, treaty negotiations and every other type of law-making activity. Law and morality are separate but inter-connected phenomena. 27 See Germain G. Grisez, Toward a Consistent Natural Law Ethics of Killing, 15 AM. J. JURIS. 6, 76 (1970) cited in DAVID HOLLENBACH, S.J., NUCLEAR ETHICS, A CHRISTIAN MORAL ARGUMENT 18-19 (1983). Hollenbach describes how the Just War Tradition evolved from Aquinas’s position presuming that war is sinful to one presuming war is just so long as it is waged by legitimate authorities. Hollenbach argues in favor of returning to the presumption that violent warfare is presumed to be morally wrong and that resort to war is justifiable only in exceptional situations. Id. at 14-16. Hollenbach’s position is consistent with current international law on the use of force, as reviewed above. 28 The Covenant may be found at http://www2.ohchr.org/english/law/ccpr.htm. The U.S. is a party. 29 McCann & Others v United Kingdom, Series A no 324, App no 18984/91 (1995). 30 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, . 31 Harold Hongju Koh, The Obama Administration and International Law, Annual Meeting ASIL, Mar. 25, 2010, Washington, D.C., at 10, http://www.state.gov/s/l/releases/remarks/139119.htm (accessed 8 Aug. 2012)(emphasis in the original.) 32 Id. 33 See John Mueller, Why Al-Qaeda May Never Die, NAT’L INTEREST, May 1, 2012, http://nationalinterest.org/blog/the-skeptics/why-al-qaeda-may-never-die-6873 (accessed Aug. 8, 2012). 34 See Mary Ellen O’Connell, The Prohibition of Force, in The Research Handbook on Conflict and Security Law (C. Henderson and N. White eds. Edward Elgar Publishers forthcoming 2012). 35 U.N. Charter art. 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. 36 Armed Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 2005 I.C.J. 168, ¶ 146, 301 (Dec. 19). See also, James Thuo Gathii, ‘Irregular Forces and Self-Defence Under the UN Charter’, What is War? An Investigation in the Wake of 9/11 in M.E. O’Connell, ed., Leiden: Martinus Nijhof/Brill, forthcoming in 2012.) 37 For this basic argument see e.g., David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence? 16 EJIL 171, 212 (2005). 38 Find the text at http://www.icrc.org/eng/resources/documents/article/review/review-872-p991.htm. 39 Kryzsztof Skubiszewski, Human Rights in the Social Doctrine of the Catholic Church, in PROMOTING JUSTICE, HUMAN RIGHTS AND CONFLICT RESOLUTION THROUGH INTERNATIONAL LAW, LIBER AMICORUM, LUCIUS CAFLISCH 29 (Marcelo G. Kohen ed. 2007). 40 Committee of U.S. Citizens, citing the Restatement, § 702 & comment n; Kenneth Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 830 (1988), and Whiteman, Jus Cogens In International Law, With a Projected List, 7 GA.J.INT'L & COMP. L. 609, 625-26 (1977). 41 See comments of McMahan, supra. 42 Jeremy Waldron, Justifying Targeted Killing with a Neutral Principle? Three Possible Models in TARGETED KILLSINGS, LAW AND MORALITY IN AN ASSYMMETRICAL WORLD (C. Finklestein et al. eds. OUP 2012). 43 Heinz-Gerhard Justenhoven, The Peace Ethics of Pope John Paul II, 3 U. ST. THOMAS L. J. 110, 118 (2005)[footnotes omitted.] 44 Skubiszewksi, supra, at 508, citing John Paul II, Message for the 1998 World Day of Peace, para. 2. 45 SETH G. JONES AND MARTIN C. LIBICKI, HOW TERRORIST GROUPS END, LESSONS FOR COUNTERING AL QA’IDA (2008), available at http://www.rand.org/pubs/monographs/2008/RAND_MG741-1.pdf.Jones and Libicki, supra note, at xiii. 46 BOB WOODWARD, OBAMA’S WARS, 284 (2010). 47 E-mail used by permission; on file with the author. ?? ?? ?? ?? Remarks for the Institute of Theology and Peace 21 Remarks for the Institute of Theology and Peace (Hamburg) 15 August 2012 1