Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks.  Philip - a friend and well known to many OJ readers as an NYU law professor - is the UN special rapporteur on extrajudicial execution.  (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)

The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.

Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.

Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.

“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.

“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.

As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, Obama administrations to state plainly the legal basis on which they believe it operates is a serious legal policy mistake.  What the administration needs to do is instruct Legal Adviser Koh to give a speech that re-affirms the views taken by the US in the 1989 speech by then-Legal Adviser Abraham Sofaer.

It is a bad idea for the USG to do what it appears inclined to do (not just the Obama administration, but the Bush and Clinton administrations, too) and assert that the Predators are targeting combatants in an armed conflict, end of discussion.  From conversations I’ve had with various officials and ex-officials, and what little one can glean from the (foolishly, very foolishly) practically non-existent US opinio juris, the view seems to have been, and continues to be, that this is the narrowest and therefore most careful grounds on which to assert the legality of the actions.

Alas, no.  For the critics of targeted killing, for one to assert the right to target combatants, there must be a cognizable armed conflict under IHL - and it is not clear to many of the critics that Pakistan, rather than Afghanistan, counts.  And for the critics, Yemen or Somalia will definitely not count.  USG officials and ex-officials also seem to assume that because Congress authorized the AUMF, that act of jus ad bellum is sufficient to create an armed conflict with a non-state actor as a matter of jus in bello; critics will dispute that the former creates the latter and that it can run geographically wherever a “combatant” AQ operative happens to be, rather than a zone of substantial fighting.

Assuming arguendo that is so, then, according to the critics, you flunk having an armed conflict.  If you flunk having an armed conflict, then status as a combatant is irrelevant.  Any killing would then have to satisfy international human rights laws - also assuming, arguendo, for example, that the ICCPR were regarded as applying extraterritorially, as the critics do.  In the US view up to now, it does not - but it is very far from clear that the Obama administration will stick by that, though one hopes it has figured out the consequences for its Predator program if it does not.

The only real way for the administration to maintain what, in my view is a legally defensible, strategically vital, and indeed humanitarian measure - the alternative, note, is not “no fighting,” it is the Pakistani army fighting via artillery barrage, not a Hellfire missile - is to re-affirm the Sofaer position, which so far as I know the US has never formally dropped in any case, and assert self-defense irrespective of a state of IHL armed conflict.

According to the Reuter’s account, the US responded by telling the

Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to cover military and intelligence.

Alston wants to know the legal basis on which the United States is operating the drones, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.

“The response of the United States is simply untenable,” Alston said.

“And that (U.S. response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”

But note, as well, that the US response that the special rapporteur’s mandate does not extend to these matters is, so far as one can tell from public information, identical to the position taken by the Bush administration.

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