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Are Drone Strikes Legal? Koh Offers Assurances, Not Answers

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Following years of official silence, State Department Legal Advisor Harold Koh's statements on the legality of drone strikes last week were welcomed by many.

But Koh failed to address serious concerns over the U.S.'s use of drones to kill al-Qaeda and Taliban militants, and in particular the debate over strikes in Pakistan and other areas outside Afghanistan. Hopefully Koh's remarks indicate that a fuller account of the U.S.'s legal position is forthcoming. But for now, the program remains shrouded in secrecy and Koh's mere assertions of the program's legality fail to provide the kind of accountability that is urgently needed.

I have met innocent victims of drone strikes, people who have been injured or lost family members due to faulty intelligence or because they were considered acceptable collateral damage. (Reports indicate that up to one third of those killed are civilians and hundreds of innocent civilians have died in drone strikes since 2004). There is no assistance, no compensation, no acknowledgment of their losses. Providing a legal rationale for the strikes would help ensure the program protects civilians and would be major step towards dignifying innocent civilians' losses.

Koh's remarks touched on a number of controversial legal issues. One issue concerns jus ad bellum, or whether the U.S.'s use of military force is legal. Under the U.N. Charter, it is illegal for states to use force against another state or non-state group unless acting with the consent of the other state, pursuant to U.N. Security Council authorization, or in self-defense. Koh made clear that the U.S. considers there to be two separate jus ad bellum justifications for drone strikes: that they are legitimate acts of self-defense and also legitimate killings as part of an ongoing armed conflict. Notably, he did not mention consent of the Pakistani government. His remarks left important legal questions unanswered such as whether there any geographic limitations on the drone program. Can drones target individuals in London or Lincoln, Nebraska and would British or American civilians around them be considered "collateral damage"?

This problem is distinct from the jus in bello issue, which relates to how force is used. Any use of force in an armed conflict must conform to two principles of International Humanitarian Law: distinction, which means civilians or civilian objects must not be attacked, and proportionality, which requires incidental civilian harm or damage to civilian property be proportional to the anticipated military advantage.

When it came to conformity with jus in bello, Koh simply stated that the U.S. complies with international law. From a legal point of view, this is not much different than George W. Bush assuring the American public that "we do not torture." The statement only reassures if everyone shares the same legal definition of torture--otherwise it's a sly equivocation that obscures deep disagreement. In the case of drones, Koh's statement means little unless we know what 'distinction' and 'proportionality' mean in the context of the drone program.

This is important because these legal definitions have very real world implications for civilians. Their meaning and function determine who counts as a civilian and how much protection they are afforded.

At present, we know next to nothing about targeting policy in drone strikes. How is the military advantage of killing low-level Taliban militants balanced against civilian lives? What is the status of family members of militants that provide shelter, food, and other forms of support? How about a local elder that provides financing or political support but does not actively fight? Or Pakistani Taliban that have attacked targets in Pakistan but pose no threat to the U.S. or its forces in Afghanistan? How are civilian casualties assessed and what precautions are taken to ensure civilian casualties are minimized?

According to the International Committee for the Red Cross (ICRC), only those that have a continuous combat function or directly participate in hostilities may be targeted. Civilians providing food, shelter, or financial assistance would generally not qualify as direct participation.

Koh did not clarify whether the U.S. adheres to this standard. Nor did he indicate whether or how the U.S. assesses civilian casualties and ensures proportionality is respected. But a number of recent reports are cause for concern, such as the addition of Afghan drug lords to target lists and agreements to target individuals nominated by Pakistani officials in order to ensure their continued support for the program.

In his remarks, Koh denied that the Obama Administration sees its power to use drones as geographically boundless, rejecting the Bush Administration's view of a "global war on terror." But Koh and the Obama Administration have then failed to articulate what war they are fighting, where the boundaries are and the legal justifications for such limitations. (Deliberations over detainee policy suggest the Administration still lacks a clear legal position on the matter).

The continuing lack of legal rationale and accountability also makes addressing civilian harm from drone strikes more difficult.

Civilian victims I spoke with want compensation for their losses and assistance to recover, but they received nothing, either from the U.S. or the Pakistani governments. Their relatives were killed, houses destroyed, and they are left to pick up the pieces on their own. Somewhat perversely, the drones' widely-flouted precision actually adds to their burden. When drones miss their mark, innocent victims must also fight to clear their name and convince others that they were unjustly targeted.

U.S. and Pakistani secrecy denies victims proper recognition of their losses and makes providing assistance more difficult. There is no official accounting of casualties, no verification of the loss of innocent life, and no acknowledgement that tragic mistakes were made. For civilians, their suffering and losses are ignored.

At present, all we have are officials' assurances that the drone program is legal, that the U.S. is being responsible -- yet we have seen an exponential rise in drone strikes outside conventional battle zones, a greater willingness to strike despite continued risk to civilians, and a broadening list of targets. Koh's remarks are a small step in the right direction, but much more is urgently needed to demonstrate that drone strikes are consistent with international law and to ensure innocent civilians are being protected and their losses addressed.