Predators over Pakistan …

by Kenneth Anderson

My new Weekly Standard essay – although “polemic” is probably closer to it.  And thanks, Julian, for the plug below! Well, regular readers have been hearing about this piece for a while, and I have posted various arguments from it (concerning targeted killing and Predator drones and the CIA and armed conflict and self-defense, and my general concern that the Obama administration has embraced a policy that its lawyers have not so far stood up publicly to defend as lawful against its gradually emerging critics in the international “soft law” community) here at Opinio Juris and at Volokh Conspiracy.  I will post a couple of comments on the piece later, including of couple of things I wish I had clarified or said differently.  Meanwhile, if you are interested, it is the cover in this week’s Weekly Standard (March 8, 2010).  It is also very, very long, at some 8,000 words — for which I am deeply grateful to the WS’s editors but you perhaps will not be — and so you might find it easier to read a pdf of the print edition at SSRN.

I have been meaning to add, though, that several positions are emerging in new scholarship coming out on this topic.  I’m not the only person defending “self defense” as the correct paradigm, for example.  Jordan Paust has an important new paper on this, and although we come to very different conclusions as to what and how self-defense does things for you, we share a foundation in international law of self-defense.  Mary Ellen O’Connell also has a well known position, ably set out in this book chapter, and which I criticize in passing in the WS.  John Radsan and Richard Murphy stake out an interesting position that calls for some form of judicial review of targeted killing, in this new Cardozo paper.  And, of course, the Ur-Text on the subject (even when I disagree with it!) Nils Melzer’s treatise, Targeted Killing in International Law (Oxford 2008), which I see is now out in paperback at $50 (but no Kindle edition).  I will come back in a separate post both to comment on some things from the WS essay at a less political level, and also to give a better sense of where my position sits in relation to others in the international law community.  Finally, I’d like to thank and congratulate the Harvard National Security Journal for its upcoming symposium on robotics, drones, and related topics this week – it promises to be very interesting, and I believe the journal might post some account of it or perhaps some video of the program.

2 Responses

  1. Ultimately the problem is in the title. The US will neither confirm nor deny officially that it is operating Predators over Pakistan. A legal justification for a hypothetical operation in a future hypothetical conflict will satisfy nobody. The US cannot provide a solid justification for an operation that, no matter how widely it is publicized, is not officially happening.

    If you can figure out how to write this article while removing all references to Pakistan, then maybe you  can figure out how to structure the US response. Otherwise, the policy will be to err on the side of caution, and some non-statement like the Koh formula is as much as can be expected.

  2. The respect of human rights of terrorists is a challenging issue, since their complete disregard for human rights of others reduces the inhibitions among western societies towards grave violations, such as torture. The most of the world appears to accept the legitimacy of targeted killings. Rhetoric of war permits an exemption from human rights requirements, especially for those countries that retain the law of human rights and the law of war mutually exclusive. Considering the world as a comprehensive battlefield in which democracies are combating the war on terror is contrary to the rules of war. As in other different sectors of international law, the scope of a regulation is primarily territorial. Since we cannot consider the entire world as a battlefield, outside the zone of operations, there are no combatants, and thus no targets a priori. The reasoning of those who think that the term “war” to refer to international struggle against terrorism is a misnomer and that, when an armed conflict has ceased, the human rights standards have to be applied in the normal fashion is not legally complicate but logically consequential. Also the argument of self-defence is untenable. We can make distinctions between domestic law, international law, jus ad bellum, jus in bello. However, it is at the core of self-defence, and in the American (and global) legal view of it well illustrated by the Webster’s doctrine, that the resort to lethal military force in self-defence is allowed to tackle a threat which is instant, overwhelming, leaving no choice of means and no moment for deliberation. Therefore, a targeted killing is justified against individuals engaged in an attack or its imminent preparation. We all agree on that the use of drones is convenient. Indeed, we have few good options besides UAV. However, as Gideon Levy wrote on Haaretz, we risk to create a system which not only dispatches death, but in which no questions are asked afterward.

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