On Oct. 18, 2012, Notre Dame Professor Mary Ellen O'Connell gave a lecture at the Sam Nunn School of International Affairs laying out her argument that it is against international law for unmanned aerial vehicles, or drones, to be used for lethal attacks in areas outside of armed-conflict zones in Pakistan, Yemen, and Djibouti.

While the use of unmanned aerial vehicles, or drones, is not new to the United States, Professor Mary Ellen O’Connell’s arguments against the use of drones in non-combat zones begins in 2002. Before 2002, drones had been used for reconnaissance purposes, providing a means for US forces to continuously monitor an area and relieve pilots of the stress of tedious reconnaissance missions. The first time a Predator was used to carry out a lethal operation was in November 2001 in Afghanistan at the beginning of US military involvement there. Professor O’Connell’s focus on the illegal use of drones follows in 2002 when a drone was used in a lethal operation in Djibouti, an area in which the US was not involved in arm-conflict. Since 2002, drones have been used outside of armed-conflict zones in Pakistan, Yemen, and Djibouti.

Professor O’Connell’s argument is based in international law on targeted killing outside an armed conflict zone. Her opponents in the current administration offer five arguments justifying the use of drones for targeted killings in Pakistan, Yemen and Djibouti while a remaining two are presented in literature. The US remains in a global “armed conflict against al Qaida, the Taliban, and associated forces” that began on 9/11 is presented as the main justification for the use of drones in targeted killings. The Geneva Convention defines armed conflict as two or more groups organized engaged in intense fighting. While this is certainly accurate in the context of Afghanistan, where the state forces with the aid of coalition forces battle an insurgent Taliban force, Pakistan, Yemen, and Somalia do not meet this definition of armed conflict.

Proponents of targeted drone strikes also posit that targeted killing is the inherent right of self-defense, referencing Article 51 of the UN Charter, and is lawful counter terrorism in countries that are unable and unwilling to counter terrorists. While the US may lawfully resort to retaliatory force, requirements outside of the Article 51 text restrict this to the response to the state responsible for the initial armed attack. In the case of Pakistan, the state of Pakistan was not responsible to the initial attack to which the US is responding, nor are the attacks across the Pakistan-Afghanistan border attacks on the US (these attacks are aimed at President Karzai’s forces). In the specific case of cross border violence in Afghanistan and Pakistan, precedents set in the case of Uganda-Congo cross border violence exclude Afghanistan-Pakistan from the right to self-defense on the basis of the magnitude of destruction of the attacks. In addition, the qualifier “unable and unwilling” is not presented anywhere in international law as justification for targeted killings outside of an armed conflict zone.

The consent of Pakistan and Yemen is also presented as justification along with the point that targeted killing is precise. Even if consent were express consent from elected leaders, it is not certain that the Pakistani government have the right to authorize the killing of its own citizens by another government when the Pakistani military is not involved in the conflict. It is also argued that the targeted killing is lawful, even in the instance of Pakistan, Somalia, and Yemen, when the victim is directly participating in the hostilities regardless of location. While legitimate, the civilian by-standers are not included in hostile activities, and the target is required to be participating in such activities at the time of targeting and killing. Finally, the introduction of the precision point takes the argument from substantive grounds to process grounds and does not justify the initial use of force. This argument seeks to justify targeted killings using drones by shifting focus to the process itself and is not credible evidence in a legal context.

While Professor O’Connell’s argument is founded in the legal context of targeted killings, she also considers aspects of the issue outside this legal framework. Soon the US is not the only country to possess drone technology; Iran is rumored to have reverse engineered the stealth drone it captured from the US. Instead of supporting international law, the use of drone technology in non-armed conflict zones is weakening the law governing use of force and risks setting dangerous precedents in its use.

Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law and is Research Professor of International Dispute Resolution—Kroc Institute for Peace Studies at the University of Notre Dame.  Her research is in the areas of international legal theory, international law on the use of force, and international dispute resolution.  She is the author or editor of numerous books and articles on these subjects, including, What is War? An Investigation in the Wake of 9/11 (Martinus Nijhof/Brill, 2012) and The Power and Purpose of International Law, Insights from the Theory and Practice of Enforcement (Oxford 2008, paperback 2011).