Eric Posner Calls Out Harold Koh on the Legality of Drone Strikes Under International Law

by Julian Ku

In his latest Slate article,  Professor Eric Posner highlights (for non-specialist readers) the  questionable international legal foundation of the Obama Administration’s “drone war on terror” in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan’s consent to the strikes due to Pakistan’s refusal to object to CIA faxes is not terribly persuasive.  I am more attracted to the “unwilling or unable” theory of the drone strikes, but I recognize it is far from flawless either.

Posner goes on to question whether international law can ever really regulate the U.S. government’s use of force, and suggests that Harold Koh may now realize it is a weak constraint at best.

But don’t blame government lawyers like Koh for devising this theory. International law lacks the resources for constraining the U.S. government. Koh knows this now if he did not before. Since he built his academic career on the claim that international law can and should be used to control nation-states and harshly criticized the Bush administration for violating international law, this must have been a bitter pill to swallow. (Though he has swallowed so many bitter pills that perhaps he has lost his sense of taste: The man who told the Senate at the end of the Bush administration that the United States must “unambiguously reassert our historic commitments to human rights and the rule of law as a major source of our moral authority” has backed away from his earlier opposition to expansive war powers, targeted killing, military commissions, and military detention.)

Posner’s general take on these questions can be found in his book, The Perils of Global Legalism.  In it, he argues that most international law doesn’t affect state behavior very much (if at all) and actions by government officials based on the assumption that international law does restrain state behavior is both naive and dangerous.

I am not sure if I completely agree with Posner here, although I concede he can certainly marshal lots of evidence in the use-of-force area.  But I think his focus on Koh’s “conversion” or “awakening” to the limits of international law is interesting.  If we get a President Romney (which looks somewhat more likely than it did just a week ago), we can expect to hear his legal advisers citing Koh on a variety of legal questions  (“Even the liberal transnationalist Harold Koh thinks a drone strike/cyberwarfare retaliation/Guantanamo is legal…”).  The interesting question is whether Koh’s endorsement of the legality of such policies will serve as a shield from international law critics like NGOs, academics, etc.  I doubt it, but it is always worth a try.

4 Responses

  1. This would be funny if it wasn’t so serious on Posner’s part.  It is a typical debater’s trick (pretend that the other side is stuck with some result that you actually prefer so that you can make an overall point of a far different nature).
    There is no international law violation with respect to U.S. use of force in Libya along with NATO or separately under the authorization of the U.N. Security Council on 2011 and U.N. Charter arts. 39, 42, 48.  And there is no international law violation with respect to U.S. use of force against members of the Taliban and/or al Qaeda in Pakistan who are directly involved in ongoing processes of armed attack against U.S. military personnel in Afghanistan and elsewhere, against U.S. embassies and consulates, against U.S. naval ships, against other U.S. nationals here (9/11) and abroad under U.N. Charter art. 51 (without or without the special “consent” of Pakistan, they consented to art. 51, and with or without an “unwilling or unable” construct that some textwriters may prefer but which is not a limit re: permissible self-defense targetings during time of peace or time of war — although Pakistan is apparently “unable”).
    However, the military commissions are still unlawful in view of human rights law, fcn treaties, etc. — see

  2. p.s.  I assume (but am not sure whether he agrees with candidate Romney about torture) that contracts and employment law professor Posner assumes that torture (or cruel or inhumane treatment) of detainees can be permissible.  Of couse, most all of us know that torture and cruel or inhumane treatment are absolutely prohibited with respect to any person of any status in any context anywhere in the world if the person is in the “effective control” of a state, which a detainee undoubtedly would be.  E.g., ICCPR art. 7, CAT arts. 1,2, Geneva Law, customary international law, jus cogens law, all such h.r. law reflected and incorporated through U.N. Charter, arts. 55(c) and 56, the Am. Dec. Rts. & Duties of Man as supplementing the OAS Charter re: conduct in the Americas, etc.
    Harold Koh knows that torture and cruel or inhumane treatment would be unlawful.  President Obama knows that as well and has addressed the fact that common art. 3 of the Geneva Conventions provides a minium baseline for interrogation and has ordered all members of the military, etc. to comply!!

  3. HMMMM…a far cry from Louis Henkin’s “most states comply with most international legal obligations most of the time.” (or words to that effect)

  4. Shorter Paust: “Bush wrong, Obama right!”

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