Killing civilians as legal
U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAV or drones), comply with all applicable law, including the laws of war is the authoritative opinion of the Obama administration’s Chief Legal Counsel attached to Hillary Clinton’s State Department.
The domestic and international outcry in opposition to the Drone attacks in Afghanistan and Pakistan by the Central Intelligence Agency (CIA) - started during the previous Bush administration in 2002 and increasingly used by the current Obama administration – is for the collateral damage – the vast civilian deaths – that results.
During the first year of the Obama administration, there were 51 drone attacks, compared to 45 drone attacks during the full two terms (8 years) of President George W. Bush's presidency, according to "The Year of the Drone," a report by the Washington-based New America Foundation released last month. The report also cites a 32 percent civilian fatality rate in drone attacks since 2004.
"Drones are currently killing people in Afghanistan, Pakistan, Yemen and Somalia. It should be noted that the United States is not at war with any of those countries, which should mean that in a sane world the killing is illegal under both international law and the U.S. Constitution," states Philip Girald, a former CIA officer and fellow of the American Conservative Defense Alliance.
Girald's observation is seconded by Mary Ellen O'Connell, a professor at Notre Dame Law School. In a research paper titled "Unlawful Killing with Combat Drones," professor O'Connell writes: "The CIA's intention in using drones is to target and kill individual leaders of al-Qaida or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750 to 1,000 unintended victims – meaning innocent civilins.
But Obama administration’s Chief Legal Counsel Harold Hongju Koh doesn’t touch the issue of civilian deaths: he is justifying the drone attacks and, in a major policy address on behalf of the administration and U.S. State Department on March 25 before the Annual Meeting of the American Society of International Law in Washington, DC, he declared 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.”
In his own words Mr. Koh “serves as a conscience for the U.S. Government with regard to international law. The Legal Adviser, along with many others in policy as well as legal positions, offers opinions on both the wisdom and morality of proposed international actions.”
He further says that “the role Legal Adviser plays is defender of the United States interests in the many international fora.”
The Asian Tribune thought that the interpretation the Obama administration’s Chief Legal Counselor gives about the legality of using UAV or Drones discriminately killing innocent civilians in the Afghanistan/Pakistan region does not match with the continuous rhetoric the State Department discharges accusing Sri Lanka, which was engaged in a serious one-on-one battle with the secessionist/terrorist Tamil Tigers, of killing innocent ethnic Tamil civilians who were taken by the Tigers as human shield to find an escape route for the top leaders of the terror outfit.
There is a difference between the US Special Forces using Drones in Afghan/Pak region devoid of face to face battle and the manner in which the Sri Lankan armed forces were driven to face the Tamil Tiger (LTTE) fighting cadre.
The Sri Lankan administration could cite the interpretation the Obama administration’s Chief Legal Counselor who directly functions under Secretary of State Clinton gave to question the basis of the accusation the U.S. is making against the Sri Lankan administration projecting it as a regime that has committed war crimes and genocide.
Here is the section of Harold Hongju Koh Legal Adviser, U.S. Department of State declared at the March 25 address which is the official position of the Obama administration:
Use of Force
(Begin Quote) “In the same way, in all of our operations involving the use of force, including those in the armed conflict with al-Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law. With respect to the subject of targeting, which has been much commented upon in the media and international legal circles, there are obviously limits to what I can say publicly.
What I can say is that it is the considered view of this Administration—and it has certainly been my experience during my time as Legal Adviser—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.
“The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.
“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. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians. Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.
In particular, this 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.
Recently, a number of legal objections have been raised against U.S. targeting practices. While today is obviously not the occasion for a detailed legal opinion responding to each of these objections, let me briefly address four:
“First, some have suggested that the very act 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 belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
“Second, some 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 used, 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. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations and that civilian casualties are minimized in carrying out such operations.
“Third, some 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 an 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 meetings.
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 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.”
“In sum, let me repeat: as in the area of detention operations, this Administration is committed to ensuring that the targeting practices that I have described are lawful.” (End Quote)
The Asian Tribune will continue to bring broad details of the use of UAVs or Drones in the Afghan/Pak region by the U.S. Special Operation Forces and the legality of the operation.
- Asian Tribune -