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After the Horse Leaves the Barn: Legal Basis for Assassination by Drones

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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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I have been a professor of political science at Seneca College in Toronto. I have published five books the last of which "Selling Out: Consuming Ourselves to Death" was released in May/08. As well, I have been featured in CounterPunch, Z (more...)
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