Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009


Notre Dame Legal Studies Paper No. 09-43

27 Pages Posted: 6 Nov 2009 Last revised: 7 Aug 2010


Within days of his inauguration as president, Barack Obama authorized the CIA to continue President Bush’s policy of attacks using unmanned aerial vehicles (UAVs or drones) in Western Pakistan. In fact, President Obama authorized a significant increase in drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in armed conflict hostilities. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill with battlefield weapons outside an actual armed conflict. The so-called “global war on terror” is not an armed conflict. In addition, members of the CIA are not lawful combatants and their participation in killing—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in an armed conflict against insurgent forces. No express request of this nature has been made. Even if it were made, drone attacks may well be unlawful under the international law governing the conduct of conflict. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio was about 20 leaders killed for 750-1000 unintended victims, raising serious questions about compliance with the principle of proportionality. Even if the loss of civilian lives is not disproportionate, counter-terrorism studies show that military force is rarely effective against terrorism, making the use of drones difficult to justify under the principle of necessity.

Keywords: drones, CIA, targeted killing, Taliban, Al-Qaeda, Pakistan, war on terror, terrorism, armed conflict, combatant, civilian, necessity, proportionality, law of armed conflict, international humanitarian law, IHL, human rights law, HRL

Suggested Citation

O'Connell, Mary Ellen, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009. SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT, Simon Bronitt, ed., Forthcoming, Notre Dame Legal Studies Paper No. 09-43, Available at SSRN: https://ssrn.com/abstract=1501144

Mary Ellen O'Connell (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-7953 (Phone)

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