Assassination by drones has been a hotly debated subject in
terms of its status according to international law. Obama and his legal acolytes have
posthumously constructed a legal argument for the drone strategy which has its
supporters and critics.
Despite the fact that it seems intuitively obvious that it
violates humanitarian law, it is still necessary to examine both written and
customary international law to determine whether there is any legal basis in
domestic and international law on which to justify the use of drones to execute
suspects.
Assassinating an individual or group by unmanned aerial
vehicles (UAV) is referred to legally as targeted killing and is defined as
"the intentional, premeditated and deliberate use of lethal force by a State or
its agents acting under colour of law, or by an organized armed group in armed
conflict, against a specific individual who is not in the physical custody of
the perpetrator."
One administration argument claims that armed conflict
against terrorists is global in nature and that the law of armed conflict
governs the killing of suspected terrorists wherever they are located. One of the major questions concerning an
analysis of the legality of such killings hinges on the issue of whether it
occurs within an armed conflict. If it
does, then the laws governing armed conflict would apply, otherwise it would
have to be considered under the laws governing self-defense.
There are a number of different sources which define the
meaning of an international armed conflict.
According to the Geneva Conventions of 1949, an armed conflict includes:
"all cases of declared war or of any armed conflict that may arise between two
or more high contracting parties [States], even if a state of war is not
recognized."
According to the International Red Cross: International
armed conflict is characterized as war between two or more States, where there
is a clear border dividing these states."
This definition would fall under the designation of customary
humanitarian law.
In other words, in order for a conflict to be defined as an
"international armed conflict" under international law it would require that
the parties engaged in the conflict be sovereign States. Thus, according to international law, the
drone attacks on terrorists do not meet the criteria of an "international armed
conflict."
On the other hand, the Obama Administration itself does not
define the war on terrorism to be an "international armed conflict". During the 2010 annual meeting of the
American Society of International Law, Harold Hongjub Koh, legal advisor to the
State Department, claimed that: "First we continue to fight a war of
self-defense against an enemy that attacked us on Sept, 2001."
As a result, to examine the legality of the drone war on
terrorists, it must be considered under those international laws relating to
self-defense. International law is very
clear on the actions a state may take to provide for its own defense. Chapter VII, Article 51, of the United
Nations Charter states that: "Nothing in the present Charter shall impair the
inherent right of individual or collective self-defense if an armed attack
occurs"Measures taken by members in the exercise of the right of self-defense
shall be immediately reported to the Security Council and shall not" affect the
authority and responsibility of the Security Council"to take such action"to
maintain or restore international peace and security."
Unless the targets of drone attacks are engaged in an armed
attack against the United States at the time of the assassination, there is no
legal justification for such action.
American attacks by UAV must then be defined as a pre-emptory strike
against a possible threat to the security of the United States which cannot be
justified under international law.
Identification of the location of a suspected terrorist and
their subsequent detention is a police action which necessitates compliance
with all the obligations of due process.
Hence, attacks by UAVs are in violation of international law
and constitute a war crime for which the perpetrators could be tried at the International
Criminal Court. Notwithstanding that the
United States is not a member of the ICC, parties victimized or the Security
Council can still request that the ICC take action. Foolish thought. Of the myriad war crimes committed by the
United States since World War II, not one American leader has been even charged
by the ICC or any other court for that matter.
Maybe that explains why the U.S. has failed to sign so many
international treaties (e.g. Child Soldiers Treaty and Land Mines Treaty) and refuses
to be a member of the ICC.
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