Efforts to bring the rule of law to killing are not always easy or clear-cut. Although as an advocate of non-violence, I can condemn all killing; whether killing in a conflict is “legal” or not depends on the circumstances in which it occurs. International law does not prohibit all taking of life.
Mary Ellen O'Connell, a law professor and research professor of international dispute resolution at the Kroc Institute for International Peace Studies at the University of Notre Dame, is a specialist on the international law of armed conflict. In a column on CNN, she explains that under international law, killing enemy fighters during an armed conflict – a war – is legal. Outside of war, it generally is not, the human right of life prevails. Although this “dual standard for justifiable killing makes the law protecting the right to life more complicated,” it is how international law assesses violent conflicts.
O’Connell analyzes drone attacks in light of this distinction, posing the central question: Is this killing occurring in war? She summarizes the history of the Bush and Obama administration’s efforts to defend it as part of a “war on terror,” and the efforts of a committee of the International Law Association to legally define “war.” Her conclusion:
“Targeted killing with drones in Yemen, Somalia, and Pakistan have generally violated the right to life because the United States is rarely part of any armed conflict in those places. The human right to life that applies is the right that applies in peace.
Today, the United States is engaged in armed conflict only in Afghanistan. To lawfully resort to military force elsewhere requires that the country where the United States is attacking has first attacked the United States (such as Afghanistan in 2001), the U.N. Security Council has authorized the resort to force (Libya in 2011) or a government in effective control credibly requests assistance in a civil war (Afghanistan since 2002).”