Professor Harold Koh, the Legal Adviser of the US State Department had a keynote speech on Thursday at the ASIL conference in which he for the first time articulated the Obama administration’s legal rationale for its policy of targeted killings, e.g. by drone attacks in Pakistan. As predicted in many quarters, he basically argued that (1) the US is in a state of armed conflict with Al-Qaeda, and that its power to target combatants/belligerents in that conflict (however defined) derives from the law of war; and (2) that the US has the inherent right to self-defense that allows it to target those individuals who engage in attacks against the US.
Though, like Ken, I think it is admirable that the Legal Adviser has now formally stated the US legal position, that position is in my view still seriously flawed, for one simple reason – it rests on the assumption that human rights law does not apply to the individual being targeted, either because it is displaced by IHL as lex specialis, or because human rights treaties do not apply extraterritorially. Both of these arguments are deeply problematic. As I’ve explained in an earlier post, if human rights law does in fact apply, then the jus ad bellum notion of self-defense in particular is unable to preclude the wrongfulness of any violation of the right to life of the individual in question, just as it would be unable to preclude the wrongfulness of a violation of IHL.
Don’t take me wrong – I am not arguing that targeted killings can never be lawful. Human rights law does permit deprivations of life, so long as they are absolutely necessary. Just as a hostage taker could be shot dead by a SWAT unit, so could a US drone take out Osama bin Laden, if capture was not a feasible option. But human rights law does require a showing of necessity, and I am afraid that the legal justification offered by the Legal Adviser does not grapple with this question. If others are unpersuaded by the claim that human rights treaties don’t apply, then a more meaningful justification will need to be offered to support the lawfulness of targeted killings.