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Experts Challenge Legality of U.S. Drone Strikes in Pakistan

In the past week, U.N. investigators and law professors alike have spoken out concerning the CIA-directed drone strikes on al-Qaeda and Taliban suspects in Afghanistan and Pakistan.

Christof Heyns, the U.N. special rapporteur on extrajudicial executions, argued in a report to the U.N. General Assembly that this program raised serious and unexamined concerns regarding the human rights impact. This is the second time this year that the U.N. has dealt with the legal and ethical implications of lethal robotic technologies’ development. Heyns believes that drone strikes should be in compliance with international human rights and humanitarian law. The CIA maintains that the drone program operates under a framework of legal and close government oversight.

Mary Ellen O’Connell, the Robert and Marion Short Professor of Law at Notre Dame Law School, argued on October 22 at a London debate that the program violated international law. She further argued that the program should be handled under a law enforcement, as opposed to a military, framework. The argument against the legality of the drone strikes is simple: there is no legal right to resort to drone strikes because the U.S. is not involved in armed conflict in Pakistan, Yemen, Somalia or anywhere else drone strikes have been used. Furthermore, drone strikes in Pakistan could not be legal nor justified because Pakistan had not given any open consent for the strikes. Nor could they be seen as an act of war because the strikes did not take place on Afghan soil, where U.S. troops currently operate.

Robert Alston, Heyns’ predecessor also took up this topic with the U.N. Human Rights Council in Geneva on June 3 and 4. In his report, he acknowledged that strikes may be lawful in the limited context of armed conflict, but he strongly advises against the use of such killings “far from the battle zone”, and the lack of transparency and accountability in targeted killings operations. He especially questioned the use of CIA-operated drones, because the U.S. does not disclose “when the CIA is authorized to kill, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed.”

Michael Schmitt, the Chair of Public International Law at Britain’s Durham University and a 20-year Air Force veteran, argued that the strikes were completely within the law of self-defense. He argued that the drone strikes were a valid measure against a new transnational form of combatant. These strikes could be justified if the country where they are based either refused or was unable to act against militants.

U.S. lethal operations conducted with the use of unmanned aerial vehicles (UAV or drones), comply with all applicable law, including the laws of war, are the authoritative opinion of the Obama administration’s Chief Legal Counsel attached to Hillary Clinton’s State Department. The domestic and international outcry in opposition to CIA drone attacks in Afghanistan and Pakistan — started during the previous Bush administration in 2002 and increasingly used by the current Obama administration – is for the collateral damage. But Obama administration’s Chief Legal Counsel Harold Hongju Koh, in a major policy address on behalf of the administration and U.S. State Department on March 25 before the Annual Meeting of the American Society of International Law in Washington, DC, declared that “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.”

Legally, the Obama Administration operates under the argument that a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Critics believe that outside of armed conflict, killings by the CIA would constitute extrajudicial executions assuming that they do not comply with human rights law. If so, they must be investigated and prosecuted both by the US and the State in which the wrongful killing occurred.


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