{"id":516676,"date":"2010-04-05T17:19:24","date_gmt":"2010-04-05T21:19:24","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11813"},"modified":"2010-04-05T17:19:24","modified_gmt":"2010-04-05T21:19:24","slug":"drone-warfare-and-the-koh-speech-a-roundup-of-links","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/516676","title":{"rendered":"Drone Warfare and the Koh Speech – A Roundup of Links"},"content":{"rendered":"

by Kenneth Anderson <\/em><\/strong><\/p>\n

It\u2019s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side. \u00a0So here\u2019s a little round-up of links, more or less at random.<\/p>\n

<\/span><\/p>\n

First, the\u00a0New York Times has a front page article today<\/a>, looking at the impact of drones on terrorist and militant activities in Waziristan. \u00a0It is an interesting piece, not least because it acknowledges not just the effectiveness of the campaign, but the effectiveness of the Obama administration\u2019s sharply ramped-up CIA campaign. \u00a0(HT Instapundit.)<\/p>\n

\n

A stepped-up campaign of American drone strikes over the past three months has battered Al Qaeda and its Pakistani and Afghan brethren in the tribal area of North Waziristan, according to a mid-ranking militant and supporters of the government there.<\/p>\n

The strikes have cast a pall of fear over an area that was once a free zone for Al Qaeda and the Taliban, forcing militants to abandon satellite phones and large gatherings in favor of communicating by courier and moving stealthily in small groups, they\u00a0said.<\/p>\n

The drones, operated by the C.I.A., fly overhead sometimes four at a time, emitting a beelike hum virtually 24 hours a day, observing and tracking targets, then unleashing missiles on their quarry, they\u00a0said.<\/p>\n

The strikes have sharpened tensions between the local tribesmen and the militants, who have dumped bodies with signs accusing the victims of being American spies in Miram Shah, the main town in North Waziristan, they\u00a0said.<\/p>\n

The impact of the drone strikes on the militants\u2019 operations \u2014 on freedom of movement, ability to communicate and the ease of importing new recruits to replace those who have been killed \u2014 has been difficult to divine because North Waziristan, at the nether reaches of the tribal area, is virtually sealed from the outside world.<\/p>\n

None of those interviewed would allow their names to be used for fear for their safety, and all were interviewed separately in a city outside the tribal areas. The supporters of the government worked in positions where they had access to information about the effects of the drone campaign.<\/p>\n

Along with that of the militant, the accounts provided a rare window on how the drones have transformed life for all in the region.<\/p>\n

By all reports, the bombardment of North Waziristan, and to a lesser extent South Waziristan, has become fast and furious since a combined Taliban and Qaeda suicide attack on a C.I.A. base in Khost, in southern Afghanistan, in late December.<\/p>\n<\/blockquote>\n

On the legal side, responses trickle in to\u00a0Harold Koh\u2019s statement about drone warfare in his American Society of International Law address<\/a>. \u00a0As I\u2019ve indicated, as someone who had been\u00a0highly critical of the long wait for the US government<\/a> to offer a defense of its lawfulness, I\u2019m very pleased with the statement. \u00a0For precisely the reasons I\u2019m pleased, of course,\u00a0numbers of others are not so pleased<\/a>, as Ari Shapiro, who was at the speech, noted in\u00a0his story for NPR<\/a>. \u00a0For a good, even-handed discussion of the Legal Adviser\u2019s statement, see\u00a0this analysis by Anthony Dworkin of Crimes of War<\/a>, including the several links provided at the\u00a0end.<\/p>\n

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At first sight, Koh\u2019s 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\u2019s 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\u2014a state \u201cthat 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.\u201d<\/p>\n

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\u2019s broader campaign of violence against US citizens.<\/p>\n

What is striking in Koh\u2019s 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\u00a0well.<\/p>\n

Koh\u2019s 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\u2019s 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.<\/p>\n<\/blockquote>\n

I should add that although I do take the view that\u00a0non-international armed conflict is defined by the facts of where sustained, intense, hostilities are underway<\/a> \u2014 which is one reason I think the applicable legal ground in some cases is self-defense \u2014 and in that sense \u201cgeographically\u201d limited, it is important to recognize that many in law and policy in the United States, at least, do not accept that at all.<\/p>\n

The Wall Street Journal was one of the few major newspapers that said much editorially or as news about the speech; its editorial is here, overall praising the Koh speech:<\/p>\n

\n

Count us among those applauding last week for the Obama Administration\u2019s robust defense of the use of unmanned drones for targeted strikes against al Qaeda in Iraq, Afghanistan and elsewhere. In a speech to the American Society of International Law, State Department Legal Advisor Harold Koh presented a broad assertion of the U.S. right to pursue and kill terrorists overseas, on or off an active battlefield. \u00a0In laying out the legal argument for the strikes, the former Yale Law School dean was, to put it mildly, meticulous, even fastidious.<\/p>\n<\/blockquote>\n

Pushback was found, among other places, in\u00a0some commentary at Huffington Post<\/a>, for example, by human rights lawyer Chris Rogers:<\/p>\n

\n

Koh failed to address serious concerns over the U.S.\u2018s use of drones to kill al-Qaeda and Taliban militants, and in particular the debate over strikes in Pakistan and other areas outside Afghanistan. Hopefully Koh\u2019s remarks indicate that a fuller account of the U.S.\u2018s legal position is forthcoming. But for now, the program remains shrouded in secrecy and Koh\u2019s mere assertions of the program\u2019s legality fail to provide the kind of accountability that is urgently needed.<\/p>\n<\/blockquote>\n

My own assessment of the fall-out is that there is a general sense of satisfaction within the intelligence community that Dean Koh specifically distinguished armed conflict from self defense, although many in it would have preferred to see a direct reference to the CIA and the lawfulness of its role. \u00a0Those who were already critical are no more satisfied \u2014 partly, I don\u2019t think it is snarky to say, because the issue is not really about knowing more about it, but fundamental objection to it. \u00a0Knowing more about it isn\u2019t really the issue for the ACLU or the human rights groups or various UN officials. \u00a0Ben Wittes is right in saying that for the international soft-law community, it remains the Next Big\u00a0Thing.<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Kenneth Anderson It\u2019s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side. \u00a0So here\u2019s a little round-up of links, more or less at random. […]<\/p>\n","protected":false},"author":4222,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-516676","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/516676","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4222"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=516676"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/516676\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=516676"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=516676"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=516676"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}