I know that I have gone on for awhile, but what I am about to say is important. In the same way in all of our operations involving the use of force, including in the armed conflict with al Qaeda, the Taliban, and associated forces, the Obama administration is committed in word and deed to conducting ourselves in accordance with all applicable law.

With respect to the subject of targeting, which has been much commented on in the media and international legal circles. There obviously are limits to what I can say publicly. What I can say, . . . . that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs) comply with all applicable law, including the laws of war.

– Harold Koh
U.S. State Department Legal Adviser
March 26, 2010

(emphasis added)
(snapshot from fora.tv webcast)

Last night, U.S. State Department legal adviser Harold Koh outlined, for the first time, the Obama administration’s legal justifications under international law for the targeted killings of non-state actors using remotely piloted aircraft, often referred to as “drones.” He inserted the topic of U.S. policy on drones into his keynote at the American Society of International Law 104th Annual Meeting at the Ritz-Carlton in Washington, D.C. His drone-related prepared remarks comprised roughly 7 minutes of his 60-minute speech.

The United States has used drones since at least 2001 to kill high-level terrorist operatives abroad, particularly in Afghanistan, Pakistan, Somalia, and Yemen. According to various organizations, policy forums, watchdog groups, and media outlets, the Obama administration has significantly increased the number of targeted drone killings. In October 2009, Philip Alston, the UN special rapporteur on extrajudicial killings, formally asked for a legal opinion from the Obama administration on why its drone program does not violate international law. Specifically, Alston asserted that the use of drones by the United States, particularly absent appropriate precautions and accountability mechanisms or when conducted by the CIA, would be considered unlawful under international law.

Koh first stated that “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war.” He further explained that the United States is in “an armed conflict with al Qaeda, the Taliban, and the associated forces” and thus has the lawful right to use force “consistent with its inherent right to self-defense” under international law in response to the 9/11 attacks. Under domestic law, he stated that targeted killings are authorized by the 2001 Authorization for Use of Military Force (AUMF). Although he contended that these international and domestic legal grounds “continue to this day,” he also provided additional justification for current U.S. actions based on continued attacks and intent by al Qaeda. He concluded that the existence of this “ongoing armed conflict” grants legal authority to the United States to protect its citizens through the use of force, including lethal force, as a matter of self-defense. Despite his prelude that linked the justification of self-defense to the existence of an armed conflict, he later refers twice to legal obligations with respect to armed conflict or self-defense. In a speech where each word was carefully chosen, this difference is significant and will be discussed further below.

Notre Dame law professor Mary Ellen O’Connell remained unconvinced by Koh’s argument and asserted that the definition of ‘armed conflict’ under international law does not support many of the policies purported by Koh. NPR Story, March 26, 2010. American University law professor Ken Anderson, who watched the archived webcast, praised the administration for providing a public statement and for its broad interpretation, which includes the right to pursue enemies hiding in “safe havens.” Opinio Juris posting, March 25, 2010. At ASIL’s 103rd Annual Meeting in 2009, Judge Rosslyn Higgins, the then-outgoing President of the International of Court Justice, questioned which factors should be considered when deciding the legality of drones, particularly in light of possible silent acquiescence by other States. Inside Justice posting April 8, 2009.

In this posting, I look at the specific legal reasoning and standards put forth by Koh, the reactions by international law experts, and the unanswered questions under international law.

Koh: Legal Reasoning and Standards Under International Law

Upon establishing the larger framework for his justification in context of armed conflict, self-defense, and the laws of war, Koh then addressed specific legal reasoning and standards considered by the United States “when defending itself against high-level leaders planning the attacks.” He reiterated the widely accepted conceptualization of an “organized terrorist enemy” as one that does not have conventional forces. Instead, such an enemy plans and executes its attacks while hiding among civilian populations, he said. As such, “that behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians.”

Koh identified three elements related to situational considerations that the United States uses when determining whether a specific targeted drone killing at a particular location will occur:

• Imminence of the threat
• Sovereignty of other States involved
• Willingness and ability of those States to suppress the threat the target poses

He stated that the “rules” of targeting operations used by the United States are consistent with principles under the laws of war. He cited two well-known principles that govern the State’s use of force during an armed conflict:
distinction and proportionality. These principles are designed to protect civilians once armed conflict has begun. They are recognized under customary international law as part of jus in bello (conduct during war). Yet, Koh omitted any reference to the role of distinction and proportionality in assessing the third principle of military necessity. He provided the well-established legal rules related to the two principles:

• Distinction
  Requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack.
• Proportionality
  Prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

Koh said that the United States adheres to these standards and that the United States takes great care in the “planning and execution to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

He next responded to four legal objections to targeted drone killings, saying that he was unable to address all objections at this time with a detailed legal opinion.

• Objection #1: The act of targeting a particular enemy leader during an armed conflict violates the laws of war.

  Koh’s Response: Individuals are “belligerents” and therefore are lawful targets. During World War II, U.S. aviators tracked and shot down the architect of the Japanese attack on Pearl Harbor who was also the enemy leader of the battle of Midway. It was a lawful attack then and would be if conducted today. Targeting particular individuals focuses the objective and decreases the risks of broader harm to civilians and civilian objects.

• Objection #2: Advanced weapon systems, such as UAVs, are unlawful.

  Koh’s Response: The legality of targeting individuals does not turn on the type of technology used. There is no prohibition on technologically advanced weapons under the laws of war. Thus, pilotless aircraft and so-called smartbombs are lawful so long as they are employed in conformity with the applicable laws of war. He highlighted the benefit of these technologies in minimizing civilian casualties when carrying out these operations.

• Objection #3: Use of lethal force against specific individuals fails to provide adequate process and constitutes unlawful extrajudicial killing.

  Koh’s Response: “A State that is involved in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the State may use lethal force.” U.S. procedures and practices for targeting are robust; the planning and implementation of targeting pursuant to the principles of distinction and proportionality comport with all applicable law.

• Objection #4: Targeted drone killings violate domestic law, specifically the prohibition of assassinations.

  Koh’s Response: “The use of lawful weapons systems, consistent with the applicable laws of war for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict, is not unlawful, and, hence, does not constitute assassination.

He concluded by stating that the Obama administration is committed to ensuring that its detention and drone targeting practices are lawful. Koh then transitioned to prosecutions of individuals detained under the laws of war.

Reactions by International Law Experts

Onsite Question
Thomas M. McDonnell of Pace University School of Law observed that when we took down Admiral Isoroku Yamamoto during WWII, at least one of the U.S. planes was shot down and that this would not be possible when someone at Langley is remotely operating a plane. He then asked: “Even if we could argue that this is legal — and I think I would agree with you that, certainly in certain situations, it would be legal — is it wise to use this type of device against an enemy that basically embraces a suicide bombing ethos based on religious fanaticism?

• Koh’s response
  
  He said he could not comment on “real or alleged intelligence activities.” He continued, “The question that I have put [forth to you] is simple: that U.S. targeting operations, including lethal operations conducted with unmanned aerial vehicles, comply with all applicable law.” On the question of whether it is wise, that is for the policy-makers. He said he would not share any more about the discussions he has with his “clients” (i.e. Obama officials).

Onsite Question
Mary Ellen O’Connell of The Law School at the University of Notre Dame serves as the Chair of the ILA’s Committee on the Use of Force. She praised Koh for articulating the Obama administration’s viewpoint on many issues, such as the basis for decisions “to kill without warning, to detain without trial, and to try before military commissions.” She then stated that she understood his remarks to mean that the Obama administration continues to see the conceptualization of a “Global War on Terror.” She urged him to reconsider.

“What is the definition of armed conflict under which decisions to use combat drones in some parts of Pakistan where there are no hostilities to detain people, as was asked by the previous questioner, to take them out of situations where there are no hostilities, and to try people who are detained outside of hostilities before military commissions – this depends on what the Administration is considering the definition of armed conflict to be. Our Committee has found the definition of armed conflict in international law, and it would not support many policies that you just told us you believe are consistent with all applicable law.”

• Koh’s response
  
  Koh refuted her characterization of the continued reliance on a “Global War on Terror,” saying he did not say that. He admitted to saying much in his remarks but not that. He also said that he had read her work. He said he could not comment on many of the hypothetical facts in her statement, which he said also contained misstatements. He clarified that what he said by recapturing the situational considerations taken into consideration: imminence, sovereignty of States involved, and ability by those States to suppress the threat.

Post-Keynote Reaction

Kenneth Anderson at the American University School of Law wrote on Opinio Juris blog:

Unanswered Legal Questions Under International Law

The following are just a few quick observations and questions that come to mind related to the justification of drones under international law. Many of these also reflect historical uncertainties related to the limits to state sovereignty, the right to use force, and the best means to safeguard civilians — both in protecting them from harm from external threats and in limiting possible incidental harm when combating those external threats.

• What constitutes an ‘imminent threat’ under contemporary international law?
• What constitutes an ‘armed conflict’ under contemporary international law?
• Does the legal justification change if the remote pilot is a military contractor? a civilian?
• Does the legal justification change if the remote pilot is under the effective control of a civilian?
• If other States are silent on drone flyovers, does that acquiescence convey political acceptance? legal acceptance?
• Is it lawful to assist, or to collaborate with, other States to conduct drone attacks when the assisting State is not threatened?
• Who determines whether a State is unwilling or unable to suppress a threat within its territory?
• Who determines whether the target is ‘legitimate’?
• Can drones be used in a case of pre-emptive self-defense? If so, when? Does ‘intent’ by an enemy group constitute legal grounds for a pre-emptive strike?

Biography of Harold Koh

Harold Hongju Koh is the Legal Adviser of the Department of State, the 22d to serve in that position. He is one of the country’s leading experts on public and private international law, national security law, and human rights. He is on leave from Yale Law School, where he is the Martin R. Flug ’55 Professor of International Law at Yale Law School. From 2004 to 2009, Koh served as the 15th Dean of Yale Law School. From 1993 to 2009, he was also the Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School. From 1998 to 2001, Koh served as Assistant Secretary of State for Democracy, Human Rights and Labor. He previously served on the Secretary of State’s Advisory Committee on Public International Law. A Marshall Scholar, Koh graduated from Harvard, Oxford, and Harvard Law School, and has received eleven honorary degrees and more than thirty awards for his human rights work, including awards from Columbia Law School and the American Bar Association for his lifetime achievements in International law. Following clerkships with Judge Malcolm Richard Wilkey of the D.C. Circuit and Supreme Court Justice Harry Blackmun, he served as Attorney-Adviser at the Office of Legal Counsel, Department of Justice and practiced law at Covington & Burling. As a Yale law professor since 1985, Koh has taught courses, authored or co-authored eight books, published more than 170 articles, testified before Congress, and litigated numerous cases involving international law issues. A Fellow of the American Philosophical Society and the American Academy of Arts and Sciences and a member of the Council of the American Law Institute, he has served on the Board of Editors of the American Journal of International Law and as a Counselor of the American Society of International Law. He has sat on the boards of Harvard University, the Brookings Institution, Human Rights First, the American Arbitration Association, and the National Democratic Institute. He has been named one of America’s “45 Leading Public Sector Lawyers Under The Age of 45” by American Lawyer magazine and one of the “100 Most Influential Asian-Americans of the 1990s” by A Magazine.

About the American Society of International Law

ASIL’s Annual Meeting historically attracts legal scholars, government officials, and practitioners from countries worldwide. ASIL is a membership-based nonprofit headquartered in Washington, D.C. Membership is not limited to US citizens or professionals residing in the US. Approximately 40% of their 4,000+ members reside outside the United States. The Annual Meeting coincides with the White & Case International Rounds of the Jessup International Law Moot Court Competition, March 21-27 2010 at the Capital Hilton in Washington, D.C.

American Society of International Law 104th Annual Meeting: “International Law in a Time of Change”
Date: March 24-27, 2010
Location: Ritz-Carlton, 1150 22nd Street, N.W., Washington, D.C. 20037
Website: http://www.asil.org/am10/    
Live webcast: http://fora.tv/conference/asil_104th_annual_meeting

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