By Anthony Dworkin
The Obama administration has responded to critics of its use of drones (or unmanned aerial vehicles) to target terrorist suspects in Pakistan and elsewhere by offering the first legal defence of its policy. The justification was offered by State Department Legal Advisor Harold Koh in a speech to the American Society of International Law on 25 March.
The use of drones to carry out targeted killings of alleged terrorists outside battlefield conditions has been one of the most controversial aspects of US counter-terrorism policy since President Obama entered the White House. Research by the New America Foundation has shown a significant increase in the use of drone attacks in Pakistan under Obama’s leadership, and targeted killings have also apparently been carried out by the United States in Somalia and Yemen. Among other critics, the UN Special Rapporteur on Extrajudicial Executions, Philip Alston, said last year that the US needed to provide more information about its approach to targeted killings to answer concerns that they might be in violation of international humanitarian law and human rights law.
Among the questions raised about drone strikes is whether such actions, far from any recognised zone of hostilities, can legitimately be justified with reference to the legal rules of armed conflict. Since drone attacks generally take place in secret, and target suspects in remote locations, there are additional concerns about whether adequate guidelines are followed with respect to possible civilian casualties.
Laying out the legal justification for drone attacks, Koh said that the United States was “in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defence under international law.” Koh added that decisions on whether to target any particular individual would depend on considerations specific to each case, “including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.” And he emphasised that the United States complied in all its drone strikes to principles of the laws of war, notably the principle of distinction (only attacking those who were engaged in hostilities against it) and proportionality (not launching attacks that would cause a level of civilian casualties that was excessive in relation to the importance of the military attack).
Koh also addressed the unease that some critics have expressed about the use of unmanned vehicles operated by handlers far removed from the location where the attack takes place. He argued that “the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war.”
At first sight, Koh’s justification appears to be based on the idea, familiar from the Bush administration, that the United States is engaged in a worldwide armed conflict with al-Qaeda and the Taliban and can use lethal force against anyone fighting on the other side. However a closer reading of Koh’s remarks shows that his position is not so clear-cut. Although Koh clearly refers to an ongoing armed conflict, he also offers the broader notion of self-defence as an alternative justification. This is clear when he answers the possible objection that drone strikes away from a battlefield constitute unlawful extrajudicial killing. Not so, Koh replies—a state “that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force.”
The suggestion here is that a state that is the subject of sustained threat from an armed group may use lethal force when necessary to defend the lives of its citizens, even outside the context of a recognisable armed conflict. And furthermore that this right of self-defence extends not just to targeting those individuals engaged in an imminent attack against the United States, but those members of the armed group who are integral to the group’s broader campaign of violence against US citizens.
What is striking in Koh’s speech is that the existence of an armed conflict and the broader right of self-defence are both offered as possible justifications without any attempt to delineate the boundary between the two: it is not clear how far Koh is claiming that the purported armed conflict against al-Qaeda and the Taliban extends. Does it cover military actions in Pakistan? Somalia and Yemen? The ambiguity here is consistent with the continued lack of a definitive statement from the administration about the precise legal contours of its fight against al-Qaeda, in a way that is visible as regards detention policy as well.
Koh’s suggestion that drone strikes might be justifiable as self-defence even outside a recognisable armed conflict is in line with the position of earlier US administrations, as the legal scholar Ken Anderson recently argued in an article for the Weekly Standard. But what is missing in the administration’s justification for the drone attacks is any sense of what the limits are on the use of lethal force against individuals who do not pose an immediate threat. The restrictions in the laws of armed conflict, which concern only whether the target is engaged in hostilities against the United States and the degree of harm to other civilians, do not seem adequate here.
There is a strong argument that, when the state has sufficient control to target individuals outside battlefield conditions, human rights principles must also form part of the equation in determining when the deliberate taking of life is legitimate. Although the United States has historically resisted the idea that human rights apply outside a state’s own territory or during armed conflict, these positions are now rejected by mainstream legal opinion around the world, though there is little consensus about the precise way that human rights obligations apply in such circumstances. Human rights principles would impose a much higher threshold for the use of lethal force than is generally thought to apply under the laws of armed conflict: for instance, the taking of life would have to be absolutely necessary in every case, rather than merely being allowed under the military law concepts of distinction and proportionality.
The Obama Administration and International Law
By Harold Hongju Koh
Annual Meeting of the American Society of International Law March 25, 2010
Predators over Pakistan
By Kenneth Anderson
The Weekly Standard
March 8, 2010
The Year of the Drone
New America Foundation
A Killer Above the Law?
By Philip Alston and Hina Shamsi
February 8, 2010