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Non-State Actors

Wherein I Break Godwin’s Law in Relation to the New Al-Bahlul Amicus Brief

by Kevin Jon Heller

A group of scholars and former military lawyers, including a number of good friends, have filed an amicus brief that argues the DC Circuit should uphold al-Bahlul’s conviction by redescribing his conviction for conspiracy as an inchoate crime, which does not exist under international criminal law, as a conviction for completed war crimes via conspiracy as a “mode of liability,” which does exist under international criminal law. In their view, the fact that al-Bahlul was charged only with conspiracy as an inchoate offence is irrelevant, because (p. 13) “the defendant had adequate notice that he was charged with conspiracy a mode of liability for a completed war crime and was offered a fair opportunity to put on a defense.”

No, I am not unfairly describing the amicus brief. It really does argue that. And how, exactly, did al-Bahlul have “adequate notice” that he was being charged not with conspiracy as an inchoate crime, as alleged in the charge sheet, but with conspiracy as a mode of liability for a completed war crime, which was not alleged in the charge sheet? Well, because (p. 16) “[w]hile the Convening Authority in al-Bahlul’s case did not cite universally accepted war crimes such as aiding and abetting or conspiracy as a mode of liability for a war crime” — note that these are not actually war crimes; they are ways to hold individuals accountable for war crimes — “the list of overt acts attached to the charge sheet provided the defendant with adequate notice.” In other words, al-Bahlul should not have foolishly inferred that he was charged with conspiracy as an inchoate crime from the fact that the charge sheet pleaded conspiracy as an inchoate crime; what he should have done is look at the overt acts listed in support of conspiracy as an inchoate crime and figured out that, despite the charge itself, he was actually being charged with conspiracy as a mode of liability for the completed war crimes mentioned in the overt acts.

And, of course, al-Bahlul should have structured his defense accordingly. To be sure, the amicus brief acknowledges (p. 16) that “[t]he defendant offered no evidence” at trial to rebut the conspiracy charge. But that couldn’t possibly be because he believed that he was charged with conspiracy as an inchoate offence — as the charge sheet stated — and that conspiracy as an inchoate offence was not actually a war crime. No, al-Bahlul did know he was actually being charged with conspiracy as a mode of liability for the completed war crimes listed in the overt acts, because (p. 17) “the defendant readily acknowledged that he had committed the charged overt act of administering the bayat to Atta and al Jarrah.” Now, you might wonder why, if al-Bahlul knew he was actually being charged with conspiracy as a mode of liability for the completed war crimes listed in the overt acts, not conspiracy as an inchoate offence as alleged in the charge sheet, he would have admitted to committing the completed war crimes. Doesn’t his “confession” actually indicate that he believed he was charged not with the completed war crimes, but solely with conspiracy as an inchoate offence? I have no answer to that. You’ll have to ask the authors of the amicus brief.

It’s not worth going through all of the sources on which the amicus brief relies. But I do want to point out that the brief fundamentally misstates what Justice Stevens said in Hamdan vs. Rumsfeld (Hamdan I) about conspiracy…

What Judge Harhoff Hath Wrought

by Kevin Jon Heller

I considered adding a question mark to the title of this post, but there’s really no need. I argued a couple of days ago that the real scandal concerning Judge Harhoff’s letter was the Judge’s willingness to reveal confidential discussions between the ICTY’s judges. We now have to acknowledge another aspect of the scandal: quite understandably, defence attorneys are making use of the letter to attack convictions in Judge Harhoff’s cases. Just yesterday, counsel for Rasim Delic filed a motion with the Tribunal that seeks to overturn Delic’s convictions — posthumously, no less — on the ground that the letter reveals “serious misconduct and breach of duty” by Judge Harhoff. Unfortunately, I cannot cut-and-paste from the motion. Summarizing, it argues (1) that Judge Harhoff evidently believes that the ICTY exists to convict high-ranking defendants; (2) that Judge Harhoff is willing to convict on the basis of feelings and suspicions instead of reasonable doubt; and (3) that Judge Harhoff does not understand the ICTY’s jurisprudence, particularly concerning command responsibility.

I don’t want to get into the first or second points, although I agree with the defence that the letter creates at least the perception that Judge Harhoff is pro-conviction and not particularly concerned about proof beyond a reasonable doubt. The third point, however, seems unassailable to me. Consider the following passages from Judge Harhoff’s letter:

But that is exactly what the commanders get paid for: They MUST ensure that in their area of responsibility no crimes are committed, and if they are they must do what they can to prosecute the guilty parties. And no one who supports the idea of ethnic eradication can deny the responsibility of, in one way or another, contributing to the achievement of such a goal. However, this is no longer the case. Now apparently the commanders must have had a direct intention to commit crimes – and not just knowledge or suspicion that the crimes were or would be committed.

The result is now that not only has the court taken a significant step back from the lesson that commanding military leaders have to take responsibility for their subordinates’ crimes (unless it can be proven that they knew nothing about it)…

Life is too short to patiently explain why almost nothing in the paragraphs above is accurate. Suffice it to point out that, according to the final sentence, Judge Harhoff believes that military commanders bear the burden of proof with regard to the mens rea of command responsibility. It’s deeply troubling to hear an ICTY judge take that position — and it certainly warrants the Tribunal taking a long look at Judge Harhoff’s cases involving command responsibility.

I have no idea whether the Tribunal will be willing to reverse convictions based on (mis)statements made in an informal letter. I think it should, but I’m skeptical. That said, I see no way that Judge Harhoff can continue to sit on the Seselj case, despite the Tribunal’s insistence that he will (for now). The appearance of bias, if not the actual existence of bias, is simply too great.

Something tells me Seselj is busy preparing a motion to recuse right now…

Note: Edited because Marko Milanovic is picky…

The PTC’s Erroneous Decision Regarding the Surrender of Al-Senussi

by Kevin Jon Heller

On 6 February 2103, the PTC ordered Libya to surrender Al-Senussi to the ICC. Libya failed to comply with that order; instead, on April 2, it filed an admissibility challenge in the case and argued that Art. 95 of the Rome Statute entitled it to postpone surrender pending resolution of its challenge. Yesterday, the PTC agreed with Libya.

The PTC correctly found — in light of previous ICC jurisprudence — that a state is entitled, as a matter of right, to postpone surrendering a suspect pending resolution of an admissibility challenge. The more important question was whether Libya had properly filed its admissibility challenge to the case against Al-Senussi. Art. 19(5) of the Rome Statute requires a state to challenge admissibility “at the earliest opportunity.” According to the Appeals Chamber in the Kenya admissibility proceedings, that means a state must “challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions.”

The PTC rejected the defence argument that Libya had not challenged the admissibility of the case against Al-Senussi “as soon as possible.” Here are the relevant paragraphs (emphasis mine):

30. The Admissibility Challenge was filed by Libya on 2 April 2013, almost seven months after Mr Al-Senussi’s transfer to Libya from Mauritania. The Chamber notes the Defence argument to the effect that this fact “shows without a doubt that Libya [...] has not filed its challenge expeditiously”. The Chamber is not persuaded that this mere chronology per se renders the Admissibility Challenge tardy, and, as such, abusive. Indeed, the Chamber must take into account the circumstances of the individual case, with a view to determining whether the challenge was filed in violation of article 19(5) of the Statute.


32. In the case at hand, and without entertaining, for the purposes of the present decision, the validity of the arguments advanced by Libya in support of its Admissibility Challenge, the Chamber is of the view that the information before the Chamber does not appear to indicate that Libya, despite being in a position to properly and timely challenge the admissibility of the case against Mr Al-Senussi, unduly failed to do so, in violation of article 19(5) of the Statute.

There are three very significant problems with the PTC’s analysis. To begin with, the PTC provides no explanation — literally, none — for why Libya’s decision to wait seven months after Al-Senussi’s extradition qualifies as challenging admissibility “as soon as possible.” We are just supposed to trust that the PTC took the matter seriously, considered all of the available information, and decided that Libya had a good reason for waiting so long. Al-Senussi deserves better, given that he has already spent seven months in detention without access to a lawyer — and that the PTC’s decision means that, if its dilatory approach to the Saif admissibility challenge is any indication, he will spend another ten months or so in the same situation.

Even worse, the PTC seriously misrepresented the defence’s argument concerning the length of time Libya waited to file its admissibility challenge. The PTC says, as the bolded text in para. 30 indicates, that the defence claimed Libya waited seven months. But that is not what the defence argued. Here is the relevant paragraph from the defence response to Libya’s request to postpone Al-Senussi’s surrender (emphasis mine):

35…. The chronology of these proceedings outlined above shows without a doubt that Libya – which has been filing pleadings in respect of admissibility for Mr. Gaddafi for over a year – and has held Mr. Al-Senussi for over 7 months – has not filed its challenge expeditiously. It should therefore not be allowed to use article 95 to cause further unacceptable and unnecessary delay.

Nothing can justify the PTC’s mischaracterization of the defence’s argument. But perhaps the PTC could be forgiven if seven months was the correct length of time that Libya waited to challenge admissibility. But it is easy to see that the defence claim, not the PTC’s, was far closer to the truth. As the defence noted in its response, Libya initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, which it filed with the PTC on 1 May 2012. On May 4 — only three days later — the PTC informed Libya that it did not consider its Al-Senussi challenge to have been properly filed:

8. As a preliminary matter, the Chamber has considered Libya’s submissions as to the scope of the Article 19 Application and considers that it must be understood to only concern the case against Mr Gaddafi. Accordingly, the Chamber will not consider the admissibility of the case against Mr Al-Senussi in resolving the Article 19 Application.

In short: (1) Libya believed that it was in a position to challenge the case against Al-Senussi sometime prior to 1 May 2012 (whenever it began work on the joint admissibility challenge); (2) Libya formally challenged the admissibility of the case on 1 May 2012; (3) Libya learned that it had not filed a proper admissibility challenge on 4 May 2012; yet (4) Libya waited until 2 April 2013 — more than 11 months later — to file a proper admissibility challenge. At a minimum, therefore, the PTC should have determined whether Libya’s decision to wait 11 months, not seven, was reasonable under the circumstances.

Perhaps the PTC would have still given Libya the benefit of the doubt. We have no way to know, of course, because the PTC did not bother to explain its decision concerning a seven month delay. From my perspective, I cannot see how even seven months was reasonable — after all, Libya not only initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, it subsequently formally submitted to the Court (see para. 175) its intention to try the two men together. Both of those facts strongly imply that Libya considers the case against the two men to be substantially similar. So if Libya felt able to challenge the case against Saif on 1 May 2012, it is difficult to understand why it needed an additional 11 months to challenge the case against Al-Senussi.

The PTC’s decision to permit Libya to keep Al-Senussi in custody was clearly erroneous. The defence should appeal — and, at a minimum, the Appeals Chamber should order the PTC to consider whether Libya’s failure to file a proper admissibility challenge for 11 months, not seven, is consistent with Art. 19(5).

Why the ICTY’s “Specifically Directed” Requirement Is Justified

by Kevin Jon Heller

A couple of months ago, the ICTY Appeals Chamber acquitted Momčilo Perišić, the Chief of the General Staff of the Yugoslav Army, of aiding and abetting various international crimes committed by the Army of Republika Srpska (VRS) during the war in the Balkans. According to the Appeals Chamber, when a defendant is accused of aiding and abetting crimes committed by an organization, the prosecution must prove that the defendant “specifically directed” his assistance to the organization’s criminal activities; proof that he provided general assistance to the organization is not enough. That “specific direction” requirement doomed the case against Perišić, because the Appeals Chamber concluded that the prosecution has not proved that his assistance to the VRS was specifically directed toward the VRS’s criminal activities.

The “specific direction” requirement has now doomed another ICTY prosecution. Just yesterday, an ICTY Trial Chamber acquitted Jovica Stanišić and Franko Simatović, the former Chief of the Serbian State Security Service and a former employee of the Serbian State Security Service, respectively, and ordered their immediate release. With regard to allegations that the two defendants aided and abetted international crimes committed by units of the Serbian State Security Service, the Trial Chamber concluded that although Stanišić and Simatović had provided assistance to the units in question, the prosecution had failed to prove that their assistance was specifically directed towards those units’ crimes.

Various scholars criticized the “specific direction” requirement following Perišić’s acquittal, most notably — and very intelligently — James Stewart on this blog (see here and here). Jens Ohlin has also just written an excellent post on the requirement in response to the acquittals of Stanišić and Simatović, but he does not specifically argue that the Appeals Chamber should not have adopted it.

Although I do not necessarily endorse how the Chamber applied the requirement in Perišić and Stanišić & Simatović, I believe that the ICTY Appeals Chamber was absolutely correct to endorse the “specific direction” requirement in the context of organizational criminality…

Inability and Due Process in the Saif Gaddafi Admissibility Judgment

by Kevin Jon Heller

By any standard, the Pre-Trial Chamber’s rejection of Libya’s admissibility challenge is a crushing defeat for the Libyan government. Libya’s challenge failed for two basic reasons: (1) Libya is not investigating the same case as the OTP; and (2) Libya is currently unable to genuinely prosecute Saif. I will address the first ground, which I think is legally correct but practically problematic, in a subsequent post. In this post I want to discuss the second ground, Libya’s inability to genuinely prosecute, with which I basically agree.

The PTC identifies three reasons why Libya’s is unable to genuinely prosecute Saif within the meaning of Art. 17(3) of the Rome Statute, which deems a state “unable” if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” First, the PTC notes that Libya has not demonstrated that is is able to obtain Saif from the Zintan militia that is holding him:

207. The Chamber has no doubt that the central Government is deploying all efforts to obtain Mr Gaddafi’s transfer but, in spite of Libya’s recent assurances, no concrete progress to this effect has been shown since the date of his apprehension on 19 November 2011. The Chamber is not persuaded that this problem may be resolved in the near future and no evidence has been produced in support of that contention.

This rationale for denying Libya’s admissibility challenge is unassailable, as I have pointed out numerous times before. (See here, for example.)

Second, the PTC says that the Libyan government’s lack of control over certain detention centres means it cannot guarantee that all of the witnesses necessary for a domestic prosecution will be able to testify…

Rebels in Syria Threaten Genocide Against the Shia

by Kevin Jon Heller

Bloomberg reports very disturbing statements made by a spokesperson for the Free Syrian Army:

Communities inhabited by Shiite Muslims and President Bashar al-Assad’s Alawite minority will be “wiped off the map” if the strategic city of Al-Qusair in central Syria falls to government troops, rebel forces said.

“We don’t want this to happen, but it will be a reality imposed on everyone,” Colonel Abdel-Hamid Zakaria, a spokesman for the Free Syrian Army in Turkey, told Al-Arabiya television yesterday. “It’s going to be an open, sectarian, bloody war to the end.”

The Colonel apparently made those comments during an interview with Al-Arabiya. You can find the interview (in Arabic) on YouTube here. I asked a friend at the law school to translate for me; here are two other disturbing statements by the Colonel:

“I am telling them, if Al-Qusair falls, then Shia villages in Syria will be wiped off the map. The same applies to Alawite villages. We don’t wish this thing at all, but it will be something out of control.”

“Who would be able to control and restrain thousands of fighters full of spirit of revenge? Who would be able to control all those people?”

Simply put, the Colonel is acknowledging that a government victory at Al-Qusair would almost certainly lead to genocide against the Shia — the Alawites in particular. It is thus worth reminding the leaders of the Free Syrian Army (FSA), in case they read Opinio Juris, that command responsibility applies to them no less than to the leaders of Assad’s forces. The good Colonel has already acknowledged that the FSA is fully aware that its soldiers intend to commit genocide if they lose a key city, so the leaders of the FSA have a duty, in the words of the Rome Statute, “to take all necessary and reasonable measures” to prevent that from happening. If they fail to do so and genocide takes place, they too could be convicted of genocide — even if they did not share their subordinates’ genocidal intent.

The larger point, of course, is that the West should not uncritically valorize the Free Syrian Army as part of its understandable quest to replace the murderous Assad regime. Regime change is not the same thing as regime improvement. Moreover, even if a new regime would be generally better than the Assad regime, that does not mean it would not do terrible things to certain disfavored groups. That is a lesson we should have learned in Libya: although no one is shedding tears for the Gaddafi regime, the new Libyan government has proven all too willing to commit atrocities against groups such as the Tawerghans. Indeed, as I discuss in this essay, there is significant evidence that the Libyan government is responsible for numerous international crimes against the Tawerghans, ranging from the crime against humanity of deportation to perhaps even genocide. Unfortunately, the West has largely ignored those crimes — the result, no doubt, of its deep investment in the new Libyan government’s success.

We can only hope history does not repeat itself.

Two Unpleasant Possibilities Regarding the Drone Program

by Kevin Jon Heller

A number of people have responded to my drone posts (see here and here) by arguing that the “near certainty” standard Obama endorsed regarding the possibility of civilian casualties represents a break from the past — a new targeting standard, not an old one. If that’s the case, someone needs to tell the Secretary of State. Here is what John Kerry said today (emphasis mine):

“The only people that we fire on are confirmed terrorist targets, at the highest levels, after a great deal of vetting,” Kerry told a group of young people at the University of Addis Ababa.

“I am convinced that we have one of the strictest, most accountable and fairest programs,” Kerry said. The United States is the only nation known to operate killer drones against foreign targets.

“We do not fire when we know there are children or collateral,” civilians, Kerry said. “We just don’t. We have absolutely not shot at high-level targets when we have seen that there are people there.”

There are really only two possibilities. The first is that despite the US’s insistence that it refuses to launch a drone attack unless there is near certainty that civilians will not be killed, it actually applies the much less strict principle of proportionality that is at the heart of IHL. The second is that the US does, in fact, apply the near-certainty standard — but is just really, really bad at targeting, routinely mistaking civilians for combatants (at weddings and funerals, during rescue missions, and so on).

I’m not sure which possibility is more disturbing.

The US’s Retreat from IHL (or, the Triumph of Ryan Goodman)

by Kevin Jon Heller

In previous posts (here and here), I discussed the reasons why Obama will never actually enforce the “near certainty” standard regarding civilian casualties and noted that the standard is vastly more restrictive than IHL’s principle of proportionality. In this post, I want to explain why the new targeting standards for the use of lethal force “outside the United States and areas of active hostilities” represent a complete retreat from IHL in general. As I discuss in my article on signature strikes, the US has always insisted that its drone strikes are governed by IHL, not by IHRL, because – to quote John Brennan – “[a]s a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces.” Yet almost none of the requirements articulated in the fact sheet the US released regarding Obama’s speech have any basis whatsoever in IHL. Here are those requirements:

[1] A target that poses a continuing, imminent threat to U.S. persons;

[2] Near certainty that the terrorist target is present;

[3] Near certainty that non-combatants will not be injured or killed;

[4] An assessment that capture is not feasible at the time of the operation;

[5] An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

[6] An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.

Requirement 1 could perhaps be reconciled with IHL’s concept of membership in an organized armed group, which requires the individual to assume a continuous combat function therein, as long as we assume that anyone who qualifies as a member poses “a continuing, imminent threat” of violence. But it cannot be reconciled with the idea of direct participation in hostilities; almost by definition, a civilian who DPHs does not pose a “continuing, imminent threat.” Moreover, nothing in IHL requires a fighter in a non-international armed conflict to pose a threat to the United States; has Obama now abjured the right of the US to act on behalf of other states fighting terrorism, at least outside of the “active zone of hostilities”?

Requirement 2 echoes IHL’s presumption of civilian status and requirement (in Art. 57(2) of AP I) that “[t]hose who plan or decide upon an attack shall… [d]o everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” But Requirement 2 (“near certainty that the terrorist target is present”) seems to articulate a standard that is singificantly more restrictive than IHL, even accepting that the quantum of evidence IHL requires to rebut the presumption of civilian status is unsettled. Israel and New Zealand, for example, believe that IHL prohibits an attack only if there is ”substantial doubt” or “significant doubt,” respectively, about the status of the target. Even the ICRC appears to adopt a less restrictive standard, insisting that an attacker must presume civilian status even in cases of “slight doubt.” (Although perhaps “near certainty” and “slight doubt” are two sides of the same coin.)

Requirement 3 was addressed in my previous post…

Guest Post: Obama Got it Right on Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains.  Echoing statements that have been previously made by a number of his advisers he challenged the continuing claims that drones are inaccurate, counterproductive and continue to cause increasing numbers of civilian casualties.  He also officially provided some new information on oversight and the approval process, although much of this information is found in Klaidman’s “Kill or Capture”.

Although there have been exchanges here at OJ as much as a year ago in which there seemed to be a consensus on all sides that drones were not causing disproportionate or excessive civilian casualties when compared to other tools of warfare, that issue still appears to be the primary criticism of drones.  You have to look no further than yesterday’s New York Times to see an editorial that claims that drones continue to cause increasing civilian casualties.

As a result it was important for Obama to outline the alternatives to the continued use of drones in places where the local government is unable or unwilling to counter a terror threat to the US.  As I pointed out in the LA Times in February the alternatives are special forces, manned aircraft strikes and cruise missiles, invasion or turning over the matter to law enforcement.  It is important to remember that “law enforcement” in these contexts is the Pakistani or the Yemeni Army.  In the past, attempts by the Pakistani Army to regain control of areas of FATA have been humanitarian disasters.  The Swat Valley campaign in 2009 displaced over a million civilians when the Pakistani Army used artillery, armor and airstrikes to go after ~5,000 Taliban/al Qaeda fighters.  Last year rumors of a new Pakistani Army offensive in Waziristan sent thousands of civilians fleeing the area even though no offensive took place.

The other options, night raids by special forces, manned aircraft or cruise missile strikes or a full scale invasion by ground troops, would all cause more displacement and disruption of the local civilian population than drones do.  It is important to emphasize, as Obama did yesterday, that…

Two Problems with the “Near Certainty” Standard

by Kevin Jon Heller

A couple of people have suggested to me that I should be celebrating Obama’s adoption of the “near certainty” standard, because it is more protective of civilians than the principle of proportionality. I will not celebrate the standard, for two very simple reasons. First, I don’t believe for a moment that Obama will actually enforce it, no matter how pure his intentions. If you disagree, consider the following hypothetical (and obviously counterfactual) scenario:

The CIA learns through drone surveillance and a human informant that Osama bin Laden is having dinner with one of his wives inside his Abbottabad compound. It asks Obama to authorize a drone strike on bin Laden. Obama declines, because there is not “near-certainty that no civilian will be killed or injured in the attack.” On the contrary, there is absolute certainty that a civilian will be killed.

If you believe that Obama would decline to act in this hypothetical situation, I have a lovely bridge to sell you. But that is precisely what the “near certainty” standard would require.

Second, and perhaps more importantly, Obama should not enforce the standard, because it is fundamentally inconsistent with his obligation — with any President’s obligation — to protect the US. However skeptical of American power we may be, we have to acknowledge that there are, in fact, times when it is important for a President to use lethal force even though he or she knows innocent civilians will die in the process. The bin Laden hypothetical is one example; another is a situation in which a suicide bomber uses a small child as a human shield while approaching his target. Would we really want a President to refuse to kill the suicide bomber because he or she knows with absolute certainty that the child will die in the attack? The principle of proportionality, for all its subjectivity, exists for a reason: because no matter how attractive objective standards like “near certainty” may seem, anticipated civilian damage does, in fact, have to be balanced against the military advantage of an attack. The loss of innocent civilian life, though regrettable, is not always unjustified.

Note: I have restructured the post for clarity.

Obama Thinks We’re All Rubes

by Kevin Jon Heller

There is a classic jury instruction that reads, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” I immediately thought of that instruction when I read Obama’s national-security speech today, because it contains such a blatant lie that it is impossible to take anything else that Obama said seriously:

And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.

The United States, of course, has used drones to attack wedding parties. And funerals. And rescuers. And densely populated villages. Yet Obama has the temerity to claim that the US does not launch attacks unless there is “near certainty” that no civilians will be harmed. Has there been a bigger — and more obvious — lie since John Brennan’s risible claim in 2011 that drone strikes had not caused “a single collateral death”?

What is most perverse about Obama’s purported requirement is that, from a legal standpoint, it is completely unnecessary. International humanitarian law does not demand perfection; it demands proportionality. Innocent civilians die in legitimate military attacks. They always have, and they always will — no matter how “precise” weapons like drones become. Every military commander in every country in the world accepts that basic fact of warfare. But not Obama, winner of the Nobel Peace Prize. He cannot bring himself to acknowledge that the US is — like every other country — willing to launch attacks that are likely to kill innocent civilians when it believes the targets are important enough. He would rather pretend, in public and seemingly without shame, that the US is more virtuous and has cleaner hands than everyone else, friend and foe alike. Never mind that if the US took his targeting standard seriously, its drone fleet would be gathering dust in a hangar somewhere.

Obama gives a good speech. But, as the jury instruction goes, “[a] witness who is willfully false in one material part of his or her testimony is to be distrusted in others.” I think it is safe to say that we should be deeply distrustful of all the claims Obama made in his speech today, not just the wilfully false one. We simply cannot count on him to tell us the truth about the US’s national-security policy.

Guest Post: The Human Rights Impact of Drone Strikes

by Jonathan Horowitz and Naz Modirzadeh

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States.  On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)

These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories.  This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”

“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country.  Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)

First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law…