The UN’s New Report on Targeted Killing

by Deborah Pearlstein

Cross-posted at Balkinization

I hate to interrupt the terrific insta-symposium on the Supreme Court’s decision in Samantar already underway at Opinio Juris, but I did want to note the much-anticipated release of Philip Alston’s report as UN Special Rapporteur on Extra-Judicial Killings. I take it the relevant press release and report will be available here. I’m just now paging through it, but for now, a few brief notes.

Broadly, while acknowledging the sometime-legality of targeted killing, the report cautions that “circumstances in which targeted killings are alleged to be legal” have become “excessively broad,” and mechanisms that might help ensure accountability for their legality – including any measure of transparency – are missing. From the press release:

“[T]here are indeed circumstances in which targeted killings may be legal. Targeted killings are permitted in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities,” Mr. Alston noted, “but they are increasingly being used far from any battle zone.” According to the UN Special Rapporteur, the United States, in particular, has put forward a novel theory that there is a ‘law of 9/11’ that enables it to legally use force in the territory of other States as part of its inherent right to self-defence on the basis that it is in an armed conflict with al-Qaeda, the Taliban and ‘associated forces’, although the latter group is fluid and undefined. “This expansive and open-ended interpretation of the right to self-defence goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter. If invoked by other States, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos,” he said. Mr. Alston emphasized that “I do not for a moment question the seriousness of the challenges posed by terrorism. I condemn wholeheartedly the actions of al-Qaeda and all other groups that kill innocent civilians, as well as any groups that increase the danger of attacks on civilians by hiding in their midst. These actions unequivocally violate international law. But the fact that such enemies do not play by the rules does not mean that a Government can cast those rules aside or unilaterally re-interpret them. The credibility of any Government’s claim that it is fighting to uphold the rule of law depends on its willingness to disclose how it interprets and applies the law – and the actions it takes when the law is broken.”

As for the accountability issue, again from the press release, Alston is quoted as saying:

“[I]t is an essential requirement of international law that States using targeted killings demonstrate that they are complying with the various rules governing their use in situations of armed conflict.” The clearest challenge to this principal today, according to the independent expert, comes from the program operated by the US Central Intelligence Agency in which targeted killings are carried out from unmanned aerial vehicles or drones. “It is clear that many hundreds of people have been killed, and that this number includes some innocent civilians. Because the program remains shrouded in official secrecy, the international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed.” The UN Special Rapporteur stressed that “in a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated.”

Importantly, Alston contrasts the CIA program in this regard with “the well-established practice of the US Department of Defense. While it is by no means perfect, the US military has a relatively public accountability process, as demonstrated earlier this week by its report on the incident in Uruzgan, Afghanistan, in which at least 23 civilians were killed based on erroneous intelligence from surveillance drone operators. Intelligence agencies, which by definition are determined to remain unaccountable except to their own paymasters, have no place in running programs that kill people in other countries.”

A final note for now. The report provides, among other things, the clearest, most concise (and usefully footnoted) summary of the complex and overlapping areas of law governing targeted killing I have yet seen – addressing law of war, self-defense, and international human rights law issues. I’ll be most interested to hear from Ken, among others, on what if anything the report gets wrong in this respect. On first glance, it looks awfully solid to me.

http://opiniojuris.org/2010/06/02/the-uns-new-report-on-targeted-killing/

2 Responses

  1. The one notable example of a targeted killing in WWII, the shooting down of Admiral Yamamoto, underscores the mistake implicit in this report, assuming that the military, unlike intelligence agencies, has no secrets to protect. Releasing any information about the operation would have threatened Magic, the project that cracked the Japanese codes.

    Everything that Alston wants to second guess, the evidence that the target was proper, considerations about civilian casualties, it all reveals information about the sources, methods, and capabilities of intelligence. The US should not disclose this information to anyone. Not Ever. Period.

    Obviously the military has a more open after action review when mistakes are made, and it may admit mistakes that the CIA does not acknowledge. That does not, however, provide anyone with information to determine if a successful attack was based on sufficient information to satisfy specific criteria.

    That means that organizations outside the US military and intelligence agencies will never have the information they need to verify that a targeted killing was legal, and the US has no obligation under international law to prove to them that it was legal. In the end, nothing will satisfy those who want to make accusations, anyone who was going to initiate a prosecution will do so, and the US should adopt whatever policies it needs to deal with the result.

    While it would be nice if there was agreement on the principles of international law associated with these operations, experience even reading these postings indicates that there is no agreement on fundamental issues. The current indeterminate situation is preferred by not just the US, but also Russia (which also conducts targeted killings). There is no consensus to change it, and no alternate formulation that everyone will accept.

  2. I think one of my biggest objections to this is the failing of the laws of war in that they are largely based upon 19th and 20th Century warfare.

    The conflict between the US and Al Qaeda is a very different conflict and the rules of war and International Law as a whole aren’t written to encompass this type of conflict.

    So, the US is constantly receiving demands to conform to a legal mold that doesn’t fit reality.  At some point, conforming completely to existing laws and rules crosses a line into directly hampering the US’ ability to conduct this war effectively.

    When the side effect of compliance with every complaint against the US conduct of the war coincides with hampering our ability to wage the war with any real effectiveness I begin to grow suspicious of the reasonings behind these demands.

    I’d prefer if the international community would get around to finally writing up articles that deal with this type of conflict.  The world has known this type of warfare was coming, and it was in general already happening prior to Sept 11th, but has so far refused to address it.  Rather, demands that the US conform to rules that leave Al Qaeda unfettered and handcuff the US is the course of legal action taken.

    At some point this type of warfare needs to be properly addressed since it isn’t going to be going away any time soon.

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