The junior Bush administration’s applied fashion– of techno warfare via military/armed drones– has been unquestionably followed  and accelerated by Obama’s administration. For the most part, the U.S. government does not comment on or acknowledge reported drone strikes that take place outside of ‘hot’ battlefields or the zone of active hostilities/combats, and it does not release lists of those targeted or killed. Senior Obama administration officials have offered oblique accounts of the drone strike program, but these have been at an extremely high level of generality, with few factual details or details relating to the administration’s legal analysis.

Even President Obama’s speech on drones, delivered at the National Defense University on May 23, 2013, did not serve to shed much light on the subject.

Despite the US military strategists’  ‘indoctrinated justification of precision theory’, the U.S. drone strikes represent a significant challenge to the international rule of law. This is not because recent U.S. drone strikes ‘violate’ international law; ironically, they might be less destabilizing, from a rule-of-law perspective, if they could be easily categorized as blatant instances of rule-breaking. Rather, U.S. drone strikes challenge the international rule of law precisely because they defy straightforward legal ‘categorization’. In fact, drone strikes—or, more accurately, the post-9/11 legal theories underlying such strikes—constitute a serious, sustained, and visible assault on the generally accepted meaning of certain core legal concepts, including ‘self-defense,’ ‘armed attack,’ ‘imminence’, ‘necessity,’ ‘proportionality,’ ‘combatant’, ’civilian’, ‘armed conflict’, and ‘hostilities’.

Yet  the correct legal categorization of the conflict (keeping in view, the Law of Armed Conflict) with al Qaeda is not obvious. It is plainly not a civil war or other ‘internal’ armed conflict, such as the conflicts to which Additional Protocol II paradigmatically applies. It is also not an ‘international’ armed conflict in the sense of Common Article 2 of the Geneva Conventions, nor is it a ‘war of national liberation’ in the sense of Additional Protocol I. Nonetheless, under the U.S. Supreme Court’s ‘ruling in Hamdan v. Rumsfeld’, it is an armed conflict ‘not of an international character’ to which at least some elements of the LOAC apply. It is assumed, then, that the conflict is best described as a ‘transnational’ one between a ‘nation state’ (the United States) and its allies, and a ‘transnational terrorist group'(al-Qaeda/Daesh/ISIS) and its non-state affiliates.

International law’s consideration of targeted killings was, not long ago, something of an arcane topic if only because of the sheer rarity of accomplishing the deed. But armed drones take targeted killings from the exception to the weekly (at least) reality. So viewed, armed drones are not just another type of missile delivery system. They are designed to search for and kill individuals, which they do effectively, cheaply, and without significant risk to the attacker. Moreover, armed drones augur an imminent future when technological advances will enable individuals to be killed with remarkable precision virtually anywhere on Earth.

Ben Emmerson United Nations special rapporteur on human rights and counter- terrorism,and an expert on international law acknowledges that: “If used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders.” But, he cautions, there is “no clear international consensus” on the laws controlling the deployment of drone strikes.

The special rapporteur concludes by urging: “the United States to further clarify its position on the legal and factual issues … to declassify, to the maximum extent possible, information relevant to its lethal extraterritorial counter-terrorism operations; and to release its own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft, together with information on the evaluation methodology used.”

Literally, without knowing what hit them and entirely without due process. The prospect of flotillas of aerial missile launchers selectively targeting individuals with lethal force—even those who might deserve such fate—poses a big controversy regarding the use of armed force and, accordingly, in international law. Georgetown University professor Gary D. Solis asserts that since the drone operators at the CIA are civilians directly engaged in armed conflict, this makes them ‘unlawful combatants’ and possibly subject to ‘prosecution’.

The rule -of-law conundrums do not end there. Under international law (customary as well as treaty-based), the use of force in ‘self-defense’ must also be consistent with the principles of ‘necessity and proportionality’. The principle of necessity tracks the ‘just war’ requirement that force should be used only as a last resort, and when measures short of force have proved ineffective; the principle of proportionality relates to the amount and nature of the force used. Given the lack of transparency around U.S. drone strikes, it is impossible to say whether any given strike (or the totality of strikes) satisfies these legal and ethical principles. Are all drone strikes ‘necessary’? Could nonlethal means of combating terrorism—such as efforts to disrupt terrorist financing and communications—be sufficient to prevent future attacks? Might particular terror suspects be captured rather than killed?

Do drone strikes inspire more terrorists than they kill? Also, to what degree does U.S. drone policy distinguish between terrorist threats of varying gravity? If drone strikes against a dozen targets prevented another attack on the scale of 9/11, few would dispute their appropriateness or legality—but we might judge differently a drone strike against someone unlikely to cause serious harm to the United States. Unfortunately, if U.S. decision-makers generally lack specific knowledge about the nature and timing of future attacks—which the White Paper acknowledges—judgments of ‘necessity and proportionality’ literally become impossible. How can one decide if lethal force is necessary to prevent a possible future attack about which one knows nothing? How can proportionality be determined? Here again, the U.S. legal theory underlying targeted killing makes it impossible to apply key principles-‘necessity and proportionality’ in a meaningful way.As for the international law community,the US operated drone strikes are eminently based on justification of ‘unilateral and selective interpretation’.

The argument that the U.S. administration has been trying to make is that members of Al Qaeda are known to be plotting to attack the United States so killing them wherever they are is an act of preemptive self-defense. This argument is completely ‘antithetical’ of the law of self-defense. The law of ‘self-defense’ does not permit states to attack before they possess evidence of an armed attack occurring—evidence of plots does not suffice. Moreover, this law does not permit attacks on individuals and small groups lacking state sponsorship even if they are carrying out actual attacks. In the view of much of the international law community, a targeted killing can only be something other than an extrajudicial execution—that is, a murder—if • It takes place in an armed conflict; • The armed conflict is an act of self-defense within the meaning of the UN Charter, and • It is also an armed conflict within the meaning of IHL; and finally, • Even if it is an armed conflict under IHL, the circumstances must not permit application of international human rights law, which would require an attempt to arrest rather than targeting to kill.

The leading decision on the legality of ‘targeted killing’ is the Israeli Supreme Court’s decision in (2006) Public Committee Against Torture in Israel v. The Government of Israeli, which held that while targeted killing of terrorists may be legal under the law of armed conflict, the discretionary use of force is not unlimited. It is within the judiciary’s purview to address questions as to whether a program of targeted killings satisfies international legal constraints on the use of force. The court’s lady president Beinisch’s concurrence elaborated three important criteria: (1) the information about the target ‘must be well based, strong, and convincing regarding the risk the terrorist poses to human life’; (2) the damage to innocent civilians must not be disproportionate to the military benefit; and (3) ‘targeted killing’ is not to be carried out when it is possible to arrest a terrorist.’

The concept of signature strikes is not a legal term of art and risks creating confusion by suggesting the possible introduction of a new (legal) notion. The way in which this concept is used – i.e., in distinction to ‘personality’ strikes  – also erroneously implies that targeting under IHL will only be lawful if the identity of the person targeted is known. This requirement is not an element of the principle of distinction and would for the most part not be possible to fulfill in the reality of armed conflict. If targeting on this basis has been or is taking place, it would be contrary to the principle of distinction as the vicinity of a person to a particular area, coupled with his age, cannot make him a military objective.The Bureau of Investigative Journalism has documented 415 strikes in Pakistan and Yemen since the Sept. 11, 2001, terrorist attacks. The organization’s most recent estimates put the total number killed between 2,449 and 3,949. Of those, between 423 and 962 are believed to have been civilians.

The U.S. use of drones is failing the relevant tests of the lawful use of force. It is failing under Article 51 of the UN’s charter; failing under the principle of necessity and failing under the principle of proportionality. The U.S.’s use of drones in many cases does not meet these criteria. Professor Kenneth Anderson an expert on international humanitarian law correctly concludes: “[A] strategic centerpiece of U.S. counterterrorism policy rests upon legal grounds regarded as deeply illegal…by large and influential parts of the international community”.

The U.S. State Department recently announced a new policy for exports of military drones (unmanned aerial vehicles).The State Department also included within the new policy four criteria that apply to how exported military drones will be used. They must be:(1) operated “in accordance with international law, including international humanitarian law (IHL) and human rights law,”(2) used only “when there is a lawful basis for use of force under international law,”(3) not used “to conduct unlawful surveillance or use unlawful force against domestic populations,” and(4) used only by technically and doctrinally trained operators so as “to reduce the risk of unintended injury or damage.”

While these criteria clearly raise many questions for case-by-case application, they signal a sensitivity to the fact that drones, especially armed drones, are controversial in international law and that there is ‘no firm legal doctrine’ to govern use of these new weapons.

Indeed, the State Department, recognizing the ambiguity of legal standards, announced that its new policy is part of a broader review which “includes plans to work with other countries to shape international standards” for the use of military drones.

When one or more powerful states challenge the generally accepted meaning of core legal concepts, other states face a choice. They can accept the ‘new’ interpretations, in which case (if a sufficient number of states will go along with it) international law will quietly change. Alternatively, they can take the opposite tack, directly confronting those states seeking to reinterpret the law and demanding fidelity to previously shared interpretations. This route is risky: if it succeeds, legal stability is restored, but if it fails, legal disputes can escalate into open conflict. Finally, states dismayed by new interpretations of once-fixed legal concepts can take a middle ground, quietly questioning new interpretations of the law while reaffirming their own interpretations. This route reduces the likelihood of conflict, but by enabling disparate legal interpretations to coexist without any obvious means of reconciling them, it can also prolong or increase legal uncertainty.

The fact of the matter is that Obama administration’s strategy– of launching the drone strikes (without addressing the issue of legality)  in Pakistan, Yemen, Somalia—seems to have intrinsically transformed the ‘concepts’ of the doctrines of ‘self defence ,preemption and humanitarian intervention’ as shadowy,controversial and divisive .This poses great threat to the gravity, universality and ‘efficacy’ of international law, particularly with reference to the Law of Armed Conflict(‘jus ad bellum’and’jus in bello’),the International Humanitarian Law(IHL) and the International Human Rights Law(IHRL). This paradox of setting a double standard in ‘theory and practice’, has paved the way for ‘legal apartheid or legal schism on this issue of the use of drone technology’, thereby dividing the world community into the categories of ‘powerful states and those of weak or trying nations’.

Without or before concluding an ‘international consensus’ regarding the use of drones, the ongoing drone operations– by the CIA and the US State Department’s current move of trying to export the military drones– are by no means prudent and justifiable acts.