Law and Public Policy

Harold Koh- U.S. Government Position on Legality of Drones, UAV’s, and Targeted Killings

At the recent American Society of International Law meeting, State Department Legal Advisor Harold Koh delivered a public speech addressing the U.S. position on the use of lethal force against suspected terrorists.

Predator Drone (Air Force Photo)

Predator Drone (Air Force Photo)

In particular he addressed the use of Unmanned Aerial Vehicles (UAV’s such as Predator and Reaper drones), and addressed the question of whether their use amounts to assassination.  This is a lengthy post, so click to continue reading below.

The ASIL press release provides more details about the speech, some key points to note.

First, the Obama administration is fully embracing the law of armed conflict as the governing paradigm for these strikes, noting:

“…[I]t is the considered view of this administration…that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war….As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, 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….[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

  • First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
  • Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”

Moreover, Koh addresses the argument that these strikes violate the U.S. prohibition against assassinations, noting: “…some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of war – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.”

An excerpt of the video is embedded below:

The transcript of his speech is here.

Ken Anderson has a great article on the topic here, and has blogged about the issue here and here.


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