Harold Koh on Targeted Killings

Author: Marko Milanovic
Filed under: EJIL Analysis, EJIL Reports

Saturday
Mar 27,2010

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.

For reactions to Koh’s speech, see these two posts at IntLawGrrls, here and here, and this post at OJ by Ken Anderson.

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.

9 Responses for "Harold Koh on Targeted Killings"

Mihai Martoiu Ticu March 27th, 2010 at 10:03
If I understand Koh correctly there is an armed conflict and it is perfectly legal to target and kill guys all over the World. Therefore, Koh argues, all those guys all over the World are allowed to target and kill Obama or bomb wedding parties in US.
Tutku Candaş March 28th, 2010 at 17:00
“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.”

Dear Marko,

Would you mind explaining why you think those arguments are deeply problematic?
Mihai Martoiu Ticu March 29th, 2010 at 9:39
@Tutku

There is a nice recent paper on ssrn, that would give you an answer: Paust, J. J. (2010). Ending the U.S. Program of Torture and Impunity President Obama’s First Steps and the Path Forward. TLNJICL, Vol. 18, 2010

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1569764

I quote from this piece:

‘Article 3 of the 1949 Geneva Conventions and, necessarily therefore, that all persons of any status “shall in all circumstances be treated humanely” and, in particular, that no one shall be subjected to torture, cruel treatment, outrages upon personal dignity, humiliating treatment, or degrading treatment “at any time and in any place whatsoever”.’

‘It is widely known that human rights law applies in time of armed conflict….human rights law applies in all social contexts, including contexts in which humanitarian law applies’

Please download that article for his argument and a whole lot of material cited. For instance: ‘Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005 I.C.J. 1, at paras. 216-20, 345(3), reprinted in 45 I.L.M. 271 (2005); Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136, at paras. 104-106; Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 95, 226, 239-40, para. 25 (July 8);’
Nehal Bhuta April 1st, 2010 at 16:18
I agree with Marko that Koh’s implicit claim that IHL is the principal or only legal framework governing these strikes is problematic. In this respect, it seems to me that Mary Ellen O’Connell’s observation that Koh has accepted the logical of the Global Battlefield is right (even though Koh rather testily rejected that). I develop some of these arguments here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1574342

But even if we accept the contention that these strikes are to be evaluated under IHL principles (and that the US Government conducts such a review before they authorize a strike), we face a vast information deficit concerning how the IHL standards are being applied to the facts. What level and kind of participation in Al Qaeda qualifies one as targetable? What notions of “direct participation in hostilities” are being applied – indeed, are they being applied at all, or is some kind of “official position” test being applied? (eg. a financial courier for Al Qaeda is targetable because of who he is, not what he does).

How do we know these facts? Are we relying on human intelligence or electronic surveillance such as “footprints” (eg. black mercedes are the vehicle of choice by senior figures; this compound regularly has several black mercedes parked inside every other day at 2 pm; therefore, it may be a military target).

It seems to me that these critical facts must be known before we can ever evaluate the legality of a given strike or even the policy of strikes. Speaking in broad terms about the in principle right to target combatants/belligerents in self-defense and as part of an armed conflict does not get us to what is most problematic and potentially insidious about this policy.
Mihai Martoiu Ticu April 1st, 2010 at 16:35
@Nehal

I like Koh’s argument: There is a global military conflict against terrorists. Therefore we may kill whoever we want, wherever on the globe, whenever we like it. We are not going to provide evidence that the killed was a terrorist, because we put our agents at risk. We are not going to let ICC try any of our guys and we are going to invade Holland if one is arrested. We are not going to accept the jurisdiction of the ICJ if we are sued in relation with this self defense killings. Take it or leave it. QED.
Shahzada Sultan April 5th, 2010 at 1:45
My questions may be very basic but I do find the notions of “a global military conflict against terrorists”, “armed conflict”, “self defence”, and belligerents very vague when used in the context of counterterrorism. The terms are being oversimplified or overstretched to fit a situation as complex as we are faced with. The whole policy of targeting so called belligerents/combatants engaged in a perpetual war of aggression by virtue of their very existence and assumed association with an Omnipresent and universal enemy “army” called Al-Qaeda, hinges on too many assumptions that can’t stand the rigour of a simple cross-examination in a court of law. It is an assumption that there is going on an eternal armed conflict between the forces of the US and those of Al-Qaeda. This assumption is being used to engage actively in aggression against the alleged forces of Al-Qaeda. Those responsible for the 9/11 were/are criminals and must be treated as such. Similarly, those engaged in terrorism anywhere in the world, are again criminals, and should be treated as such. Raising them to the stature of war heroes and then eliminating them through an un-proportionate use of force, in utter disregard to fundamental principles of law and justice is compounding the problem not only legally but also politically. In achieving justice, we place witnesses and victims at risk, and do not allow law-enforcement officers to execute the killers and the rapists without a fair trial even when we are convinced that sometime a trial can expose the witnesses and victims to mortal risks. We do adopt protective measures, relocations and other safety measures for the safety of witnesses. Why can’t we do the same for our agents and operators? The grossness of a crime and the essential evil of a criminal are not good grounds for abandoning due process, and fair trial principles. Armed conflict is not synonymous with enmity. Enemy forces/elements are different from armed elements engaged in a war of aggression. But carrying out unprovoked attacks on individuals who have allegedly committed acts of aggression or associate with an entity accused of having committed acts of aggression against the US is not an area amenable to the laws of war as such. A terrorist movement has to be distinguished from a war pure and simple. Individual, isolated and scattered acts of terrorist war are different from the idea of a war of agression or a regular armed conflict. I think we have to define properly our terms before we can apply laws of war minus the international principles of human rights law to terrorism. Convenience must not supplant convention and the rule of law.
jpaust April 9th, 2010 at 23:13
my updated draft article now has exracts from Harold Koh’s speech and can be viewed at
http://ssrn.com/abstract=1520717
Use of Self-Defense against non-state actors who are directly engaged in ongoing processes of armed attack on U.S. nationals in Afghanistan and elsewhere is recognizably lawful under Article 51 of the U.N. Chater, and so forth.
JJ Paust
Anthony D'Amato April 15th, 2010 at 2:47
This is one of Jordan Paust’s best articles, and we all profit from its fine scholarship. I agree with Mary Ellen O’Connell’s point that targeted assassinations outside of war are illegal, and Jordan could have improved his argument against her by saying that a state of war really exists against the terrorist organizations that President Obama is targeting. Outside the context of war, as for example in The Caroline Incident, individual self-defense is still possible (it’s simply a matter of domestic law), and that Webster won the immediacy argument. Nevertheless Professor Paust is meticulous about recounting the facts of The Caroline, giving his readers some leeway to apply either his theories, Professor O’Connell’s, or the garden-variety criminal law view of self-defense.
Mary Ellen O'Connell April 19th, 2010 at 18:25
With great respect for my colleagues and friends, Jordan Paust and Tony D’Amato, the UN Charter is still with us! Resort to force in self-defense is governed in the first instance by the Charter, not the correspondence over the 1837 Caroline incident. The Charter requires either an armed attack or Security Council authorization to use major military force of the kind represented by combat drones on the territory of another state. If the state is itself participating in a civil war, another state may join in THAT effort with an invitation to do so. (Not the case for the U.S. in Yemen; rarely the case in Pakistan.) The necessity to use force must always be apparent–that is the only contemporary rule that we get from Caroline. It is a secondary condition after the primary condition is met.

I know many American colleagues prefer to view Caroline as the threshold test for self-defense but it does not displace the Charter, as the ICJ has told us again and again. And why should we want such a low, subjective threshold to killing? See the UN report on the U.S. drone strike in Yemen in 2002. That is an accurate statement of the law. It reflects the further point–and where Harold Koh’s position is unsupportable–that there can be no armed conflict against persons as opposed to in places. (The Gulf War was not the War against Saddam Hussein.)

Major military force cannot be used against a person separate from the place where he is. If the person is not in a SITUATION of armed hostilities, the combatant’s privilege does not apply. Any use of lethal force must follow law enforcement rules. Again, if we are interested in deterring violence and lawless killing, why would we look for loopholes and interpretations around this law?

MEO’C