White House: Drones Are Legitimate Self-Defense
Ken Anderson testified before the House Subcommittee on National Security and Foreign Affairs earlier this week and argued that the Obama Administration must publicly justify its use of drones in Pakistan.
Yesterday he got his wish when State Department Legal Advisor Harold Hongju Koh issued this statement, excerpted from his speech at the American Society of International Law conference (scroll down to the section on “Use of Force”):
Some have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law…. Some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, 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…. Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
I will weigh in presently on this, but in the meantime Nathan Hodge has more; and if you want to watch the entire video of Koh’s remarks, you can see it at Anthony Clark Arend’s blog here.
Charli,
Did Koh address the question of who is operating the drones? As you’ve suggested that seems to me to be important…and tricky. The CIA are not lawful combatants. And I have a hard time understanding how they–and the bunkers in the US from which they are operating the drones–don’t become 100% legal targets under the laws of war once they engage in this kind of activity.
Or is this problem inherent to the “no backsies” aspect of the Global War on Terra, in which our killing the enemy is legal and the enemy killing us is not.
No; as far as I can tell he primarily used straw man arguments. His claim rests entirely on the idea that we are at “war” with “al-Qaeda as well as the Taliban and associated forces, in response to the horrific 9/11 attacks” and therefore any terror suspect anywhere constitutes a legitimate target as long as the principles of distinction and proportionality are followed.
I’m sorry to see Koh making such arguments.
1. the US is not at war with Pakistan. If we define the rhetorical device ‘war on terror’ as an actual, legitimate war with global scope then presumably it would also be legal for the U.S to bomb anywhere in the world at any time so long as there are suspected terrorists nearby, does this argument make it legal for the U.S to bomb an east london mosque?
2. In what meaningful sense can it be said that these drone attacks are a legitimate act of self defence? stopping people from plotting a terror attack that they may or may not perform at some unspecified time and place seems a flimsy definition of ‘self defence’.
3. As a side note about the laws of war; what recourse do the families of civilians accidentally killed by these drones have? can they sue the U.S? can anyone be imprisoned, fired or even disciplined for bombing a pakistani wedding party?
1) Yes, to me that seems to be the logical implication of this argument.
2) I don’t think the claim makes much sense, but the logic is that the US has the right to do whatever it takes to protect its citizens against repeat attacks in this “war.”
3) Victims of collateral damage have no right to compensation under international law. In Iraq and Afghanistan the US and other ISAF countries have set up condolence payment systems voluntarily; not sure if the same is true in Pakistan. Some groups are working to get this norm reflected in treaty law but as of now it’s not.
[...] a law professor at George Washington University, has followed up the State Department’s justification for drone attacks in Pakistan with an argument of his own, published in the new issue of Joint Force [...]