The N.Y. Times reports, in an interesting article, that the United Nations is going to call on the United States to stop using unmanned aerial vehicles (UAVs) against suspected members of al Qaeda. Such pressure would not be legally binding, and is probably unlikely to put a stop to the military tactic. However, it could certainly deal a blow to President Obama’s national security strategy, which relies heavily on efforts to adhere to international norms.
Harold Koh, the Legal Adviser to the State Department and the former Dean of Yale Law School, gave a great speech at ASIL’s annual meeting; during that speech, he laid out the foundation for a legal argument concerning the legality of UAV strikes both within and external to active combat zones. Such strikes are almost certainly legal if the targets are in fact engaged in an armed conflict against the U.S. As Koh noted, “a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.”
Some potentially serious problems with the UAV program are discussed in greater detail, after the jump.
Several troubling issues remain, however. First, as the Times article discusses, there is a troubling question of accountability when the attacks go awry. The Times quotes Philip Alston of the U.N.:
“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan…The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”
Needless to say, the C.I.A. issued vague assurances that, though they could not discuss them, there were extensive procedures in place to follow up on such tragic events.
The Times also extensively discusses the issues encountered when the Manual for Military Commissions was being crafted. Initial language may have suggested that the closest analogues of the drone killings were violations of International Humanitarian Law.
An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.
But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.
“An accused may be convicted,” the final manual states, if he “engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.”
Such language may render the operators of C.I.A. drones liable under Pakistani criminal law, but it is difficult to conceive of an event that would lead to prosecutions. For now, it appears that the UAV killings are legal both within conventional understandings, and within the Military Commissions Manual’s interpretation of IHL. However, the U.N.’s stance on such killings may be enough to undermine any perceived “legitimating” effect of adherence to international law.