Targeted Killing in US Counterterrorism Strategy and Law:

In the last couple of years, much of my research and writing has been devoted to the law and ethics of war, and with particular focus on targeted killing, the concept of who may be targeted on the battlefield for taking “direct part in hostilities,” and robotics on the battlefield. These issues come together in the Predator drone campaign in Pakistan – a centerpiece of the counterterrorism and counterinsurgency campaign that Candidate Obama ran on and his administration has embraced as the ‘smaller footprint’ of warfare.

I am in favor of targeted killing, the drone campaign in Pakistan, and these forms of increasingly targeted warfare. The Obama administration was right to emphasize them in the campaign and right to see them as a means of more discriminating warfare. It is a tragedy when a dozen innocents are killed in a drone missile attack – but much, much more of one when a military undertakes its activities using artillery. I spent a chunk of my NGO career urging the United States to give up landmines as indiscriminate weapons and to focus its military R&D on coming up not with more destructive weapons, but more discriminating ones. Well, to a considerable extent, it is doing so through robotics, and I find it churlish at best for the humanitarian and human rights groups to turn around and denounce these weapons in their turn. There is a principle behind it – but the principle is merely functional pacifism, the denunciation of the US using force that does not quite have the courage to speak its name.

That said, I have grave concerns that the Obama administration does not take sufficient account that even as its appreciation of its strategic, including humanitarian, use grows, the space of its legal rationale shrinks. We are potentially seeing a coming train wreck between the Obama administration and the international “soft-law” community – the NGOs and advocacy organizations, law professors and academics, UN officials, European governments including their universal jurisdiction prosecutors – over these issues. Or, worse, perhaps the Obama administration sees the coming train wreck, and figures that it can kick the can down the road to get past the next eight years and then let a Republican administration take the heat.

I have written a paper on the topic (shameless self-promotion, but this topic is important) which has just been posted as a working paper to SSRN and to the Working Paper series on national security of Brookings; it will appear as a chapter in a book Benjamin Wittes, ed., Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).