Military justice practitioners with even a passing interest in law of war violations should read the National Journal’s January two part article on the legality of US drone attacks (Part 1 and 2 linked here) and the article “Targeted Killing in US Coiunterterrorism Strategy and Law by AU-WCL Prof. Kenneth Anderson, avaialble from SSRN here. These articles raise fundamental questions about whether drone strikes outside of the battlefield, in places like Pakistan or even Yemen, can be justified under international law and the law of war.
In response to these critiques, State Department legal adviser, Harold Koh, recently outlined the current administration’s legal justification for the drone strikes at the American Society of International law dinner on March 25, 2010, see ASIL press release here, and Prof. Anderson’s reporting of the speech at Volokh, here, and link to the video here. The gist of the argument is that:
[I]n this ongoing armed conflict [with Al Qaeda], the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks. . . .
Mr. Koh’s remarks suggest that the US justification for CIA drone attacks is self defense based and not solely armed conflict based. This distinction leads back to an earlier policy discussion about pre-emptive self defense and questions about (a) what level of threat does a terrorist need be before self defense is triggered, (b) does the US need to request permission from the sovereign nation before executing the drone strike, and other questions. Mr. Koh briefly addressed some of these issues stating that there were three elements related to “situational considerations” that the CIA uses when determining targets for drone attacks, including “imminence of the threat, sovereignty of other States involved, and willingness and ability of those States to suppress the threat the target poses.” See Int’l Law Blog (from Inside Justice) coverage here.
Notably some members of the EU do not share the US’s broad view of the scope of the battlefield or the right of self defense, and as Prof. Anderson noted over at Volokh, here, not everyone is satisfied with the justificaiton given by Mr. Koh.
Here is where MilJus comes in. In addition to raising int’l law issues about the CIA drone program, I think the policy raises fascinating issues about the potential criminal liability of US servicemembers, DoD civilians, and DoD contractors involved in or supporting the DoD or CIA drone programs. For example, the discussion of the legality of drone use in Pakistan is not an academic one for DoD’s drone program as the disputed Af-Pak region doesn’t exactly have road signs welcoming Predator drones to the region.
Other common questions to the DoD and CIA drone programs have military justice implications. For example, given the broad interpretation of enemy combatants advanced by the US, are uniformed military personnel, DoD civilians, or DoD contractors who support or assist the CIA program at risk of being classified enemy combatants? That definition could include anyone that even touches the CIA program, which presumably is not armed conflict based in its legal justification, including the ground maintenance crew, air traffic controllers that assist in takeoff and landing, truck drivers carrying the fuel to re-fuel the drones, etc. etc. etc. And what if a DoD drone strays into Af-Pak teritory and executes an attack otuside of the “battlefield” as defined by those nations with more restrictive views of the “battlefield”?
With respect to the CIA program, legal advisors to commanders in the CENTCOM region are probably already well versed in the issues, but are military justice practitioners? If you’ll recall last year an Air Force Colonel was convicted in Italian court for participation in an alleged rendition by the CIA, see coverage here. In light of the potential criminal law issues raised by even passing inolvement of military personnel in the CIA operation (or mistaken use of DoD drones outside of the “battlefield”) and the ICC’s interest in US actions in Afghanistan, see coverage here, I think this issue is far from resolved after Mr. Koh’s statements.