Harold Koh Statements on Drone Warfare at ASIL Tonight

Update:  I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release.  And welcome Instapundit readers and any others.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that, on first read, the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

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I was teaching classes and unable to attend, much as I wanted to, DOS Legal Adviser Harold Koh’s keynote address at the American Society of International Law annual meeting tonight.  Shane Harris sent me along the press release from ASIL with these excerpts from Dean Koh’s address specifically on the topic of drones.  I have barely had a chance to skim this and have not seen the full text, so I will refrain from commenting at all until I’ve had a chance to read this through.  But I wanted to post this immediately for interested readers; I will now read it through and watch the video):

Koh’s wide-ranging remarks on the Obama administration’s international law policies included a specific affirmation of the administration’s approach to the use of force, including the use of unmanned aerial vehicles (UAVs), which has recently come into question by some legal experts.  Among Koh’s statements regarding the use of UAVs are the following.

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us.  Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

-                             First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

-                             Second, the principle of proportionality, which 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.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Responding to some recent arguments made against the use of UAVs, Koh defended the administration’s policy saying:

“[S]ome 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….[S]ome 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….[S]ome 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.  Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.  In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting.  They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations.  But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – 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.’”

To view video of the relevant portion of Koh’s address to the Society, visithttp://fora.tv/v/10561.