Drone war legal
State Department legal adviser Harold Koh has outlined the Obama administration’s war policies and defended the legality of using one of the premier weapons in the war against al Qaeda: precision-guided missile strikes by unmanned aerial vehicles against terrorist leaders.
Mr. Koh, in a speech March 25, sought to answer critics who say the drone strikes are illegal, stating that “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”
Missile strikes by remotely piloted Predators and other UAVs emerged in recent months as a highly effective weapon for the military and CIA, and one that inflicted heavy losses on al Qaeda and other terrorist groups in Pakistan, Afghanistan and elsewhere.
Mr. Koh told an audience of nearly 200 lawyers gathered for the annual meeting of the American Society of International Law that ongoing al Qaeda attacks give the administration the right under international law to defend Americans with “lethal force, [. . .] including by targeting persons such as high-level al Qaeda leaders who are planning attacks,” he said.
Specific targeting rules currently are based on the immediacy of the threat, sovereignty issues of states involved, and the willingness and ability of states to suppress threats posed by the targets, Mr. Koh said.
The Obama administration adopted several “law of war principles” that include limiting attacks to military objectives, and making sure attacks cause few civilian casualties and damage, and that potential collateral damage will not be excessive when viewed in the context of direct military advantages of a planned strike.
“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,” Mr. Koh said.
As for critics who say drone attacks against terrorist leaders violate the laws of war, Mr. Koh said terrorists are “belligerents” and thus lawful targets.
Significantly, Mr. Koh also said targeting rules do not limit the types of advanced weapons that are used, such as UAVs, noting “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 confor mity with applicable laws of war.”
And Mr. Koh also dismissed critics who say killing terrorists is “unlawful extrajudicial killing.”
“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,” he said.
Last, Mr. Koh said drone attacks against terrorists do not violate domestic laws, such as the ban on assassinations.
A Pentagon official said the speech was coordinated with lawyers throughout government, including CIA and the Pentagon, and reflects a consensus view.
He has serious concerns: Marine Corps Commandant Gen. James Conway