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Legality of Drone Strikes Still in Question

by Jim Lobe

WASHINGTON - While welcoming an initial effort by the administration of President Barack Obama to offer a legal justification for drone strikes to kill suspected terrorists overseas, human rights groups say critical questions remain unanswered.

File picture shows supporters of Pakistan's fundamentalist Jamaat-e-Islami party during a protest against US drone strikes in Pakistan. The US government for the first time has offered a legal justification of its drone strikes against Al-Qaeda and Taliban militants, citing the right to "self-defense" under international law. (AFP/File/Tariq Mahmood) In an address to an international law group last week, State Department Legal Adviser Harold Koh insisted that such operations were being conducted in full compliance with international law.

"The U.S. is in armed conflict with al Qaeda as well as the Taliban and associated forces in response to the horrific acts of 9/11 and may use force consistent with its right to self-defence under international law," he said. "...(I)ndividuals who are part of such armed groups are belligerents and, therefore, lawful targets under international law."

Moreover, he went on, "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war," which require limiting attacks to military objectives and that the damage caused to civilians by those attacks would not be excessive.

While right-wing commentators expressed satisfaction with Koh's evocation of the "right to self-defence" - the same justification used by President George W. Bush - human rights groups were circumspect.

"We are encouraged that the administration has taken the legal surrounding drone strikes seriously," said Jonathan Manes of the American Civil Liberties Union (ACLU). "While this was an important and positive first step, a number of controversial questions were left unanswered."

"We still don't know what criteria the government uses to determine that a civilian is acting like a fighter, and can therefore be killed, and... whether there are any geographical limits on where drone strikes can be used to target and kill individuals," he told IPS.

"He didn't really say anything that we took issue with," said Tom Malinowski, the Washington director of Human Rights Watch (HRW), who also complained about the lack of details.

"But it still leaves unanswered the question of how far the war paradigm he's talking about extends. Will it extend beyond, say, ungoverned areas of Pakistan, Somalia and Yemen? Because you don't want to leave a legal theory out there that could be exploited by a country like Russia or China to knock off its political enemies on the streets of a foreign city," he added.

Drone attacks, which have increased significantly under Obama, are widely considered to have become the single-most effective weapon in Washington's campaign disrupt al Qaeda and affiliated groups, especially in the frontier areas of western Pakistan.

In Obama's first year in office, more strikes were carried out than in the previous eight years under his predecessor, George W. Bush.

Conducted by the Central Intelligence Agency (CIA), they reportedly killed "several hundred" al Qaeda and Pakistani Taliban militants since Obama in 2009, forcing many of them to flee their border hideouts for large cities where precision attacks would be much harder to carry out without causing heavy civilian casualties.

But the strikes - as well as cruise-missile attacks carried out by the U.S. military against suspected terrorist targets in Yemen and Somalia - have drawn growing criticism from some human rights groups and legal scholars, notably the U.N.'s Special Rapporteur on Extrajudicial Killings, Philip Alston, who have argued that several aspects of these operations may violate international law.

Their focus has been less on the use of drones in Iraq and Afghanistan, where Washington's forces are engaged in active hostilities and the Pentagon has implemented relatively transparent procedures to maximize compliance with the laws of war, than on the frontier areas of Pakistan and other "ungoverned" areas where al Qaeda and Taliban militants have gained refuge. The CIA, whose procedures remain secret, is in charge of drone operations.

The weapon itself "is one of the least problematic from a civilian-protection standpoint, because drones can hover over their targets and observe whether civilians are present before delivering a payload, and because they carry relatively small and precisely guided munitions," noted Malinowski.

"The question is a legal one: under what circumstances can you use lethal force at all? Our view has always been that it should be limited to zones of active armed conflict where normal arrest operations are not feasible."

A related question involves who may be targeted. While many authorities insist lethal force can be used under the laws of war against those who are actively participating in armed conflict, the U.S. has used defined participation in very broad terms, including membership in - or even financial support of - an armed group.

In his remarks to the American Society for International Law, Koh, who was one of the harshest and most outspoken critics of the Bush administration's legal tactics in its "global war on terror", acknowledged some of these concerns, noting that his speech "is obviously not the occasion for a detailed legal opinion."

"(W)hether a particular individual will be targeted in a particular location will depend upon 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," he said.

Koh added that Washington will ensure the application of the principles of "distinction" and "proportionality" in the laws of war.

While noting criticism that the use of lethal force against some individuals far removed from the battlefield could amount to an "unlawful extra-judicial killing", he insisted that "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."

"Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise," he said.

Alston, the U.N. rapporteur, was far from satisfied with these assurances, however, calling Koh's statement "evasive".

He "was essentially arguing that 'You've got to trust us. I've looked at this very carefully. I'm very sensitive to these issues. And all is well,'" he told an interviewer on 'Democracy Now' Thursday.

"The speech did not provide essential information about the drone/targeted killing program, including the number and rate of civilian casualties, and the internal oversight and controls on targeted killing, especially within the CIA," said Manes of the ACLU, which has filed a lawsuit to acquire that information.

Tom Parker of Amnesty International was more scathing about Koh's position, suggesting that it was one more concession - along with indefinite detention and special military tribunals for suspected terrorists - to the framework created by Bush's "global war on terror".

"The big issue is where the war is and whether it's a war, and we couldn't disagree more strongly as to the tenor of Koh's comments," he said. "It goes back to the idea of an unbounded global war on terror where terror is hardly defined at all."

Jim Lobe's blog on U.S. foreign policy can be read at http://www.ips.org/blog/jimlobe/.

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