JURIST Guest Columnist Jordan Paust of the University of Houston Law Center examines the recent Amnesty International report and provides several possible justifications for drone attacks under international law …

The new Amnesty International report urges the US to conduct a thorough, impartial and independent investigation whether certain CIA personnel may be guilty of “arbitrary” and “extrajudicial executions” in violation of international law. However, there are important points to recall with respect to killings that are lawful under the law of self-defense or the laws of war. First, lawful killings under either paradigm would not be “arbitrary.” Second, lawful killings under either paradigm can be “extrajudicial,” and that is what lawful targetings in self-defense or during war often involve. Third, lawful killings under either paradigm would not be “executions,” a word that could apply to unlawful killings of persons who are actually detained but would not apply to lawful targetings.

With respect to human rights law, such law generally applies at all times and in all social contexts, including during war. For example, there are no geographic or contextual limitations with respect to the UN Charter-based duty of all members to take joint and separate action in order to effectuate “universal respect for, and observance of human rights.”

The preamble to the International Covenant on Civil and Political Rights (ICCPR) affirms this universal reach. Yet, with regard to lawful targetings of (1) those who are taking a direct part in ongoing armed attacks (DPAA) (i.e, those who are DPAA and are targeted during permissible measures of self-defense in time of peace or war), or (2) those who are taking a direct part in hostilities (DPH) (i.e., those who are DPH and are targeted during an armed conflict), the general human right to freedom from “arbitrary” deprivation of life will only be applicable with respect to those persons who are within the jurisdiction, actual power, or “effective control” of the state or other entity using a drone. Therefore, it is evident that those who are being targeted, for example, by a high flying drone in a foreign country will not be protected under the general human right to life, because they are not within the actual power or effective control of the targeting state.

Moreover, even if the human right to freedom from “arbitrary” killing did apply, lawful targeting of such persons in compliance with the principles of distinction, reasonable necessity, and proportionality under the law of self-defense or the laws of war will not be “arbitrary” within the meaning of human rights law (i.e., within the meaning of Article 6 of the ICCPR). Additionally, compliance with the principles of distinction, reasonable necessity, and proportionality will provide a higher form of protection than a general human rights test based merely on what is or is not arbitrary in a given circumstance.

The Amnesty International report states that “[k]illing a civilian who has taken no direct part in hostilities is an arbitrary deprivation of life.” This statement ignores the well-recognized right to target those who are DPAA or DPH even where there will be incidental loss of life among civilians who are not targetable if the principles of distinction, reasonable necessity, and proportionality are followed. When applying principles of reasonable necessity and proportionality with respect to use of drones for targeting, one should consider all relevant features of context. Among appropriate considerations are [1] identification of the target (e.g., as a DPAA, combatant, fighter with a continuous combat function, or DPH as opposed to a non-targetable civilian); [2] the importance of the target; [3] whether equally effective alternative methods of targeting or capture exist; [4] the presence, proximity, and number of civilians who are not targetable; [5] whether some civilians are voluntary or coerced human shields; [6] the precision in targeting that can obtain; and [7] foreseeable consequences with respect to civilian death, injury, or suffering.

The report is incorrect when claiming that “[o]utside a situation of armed conflict, the US authorities must demonstrate, in each strike, that intentional lethal force was only used when strictly unavoidable to protect life, no less harmful means such as capture or non-lethal incapacitation was possible, and the use of force was proportionate in the prevailing circumstances.” The report also alleges that “[d]eliberate killing … without first attempting to arrest suspected offenders, without adequate warning, without the suspects offering armed resistance, and in circumstances in which suspects posed no immediate risk to security forces, would be considered extrajudicial executions.” The report uses alleged “law enforcement” standards when making these claims, but targeted killing under the law of self-defense is not “law enforcement” and the alleged restrictions do not mirror the customary or treaty-based law of self-defense outside of the statement that force must be “proportionate in the prevailing circumstances.” “Law enforcement” standards would only apply during a law enforcement effort even if the alleged standards were part of customary international law.

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center and has extensive experience in international law. Professor Paust is one of the most cited law professors in the US and has published over 190 articles, book chapters, papers and essays addressing treaty law, customary international law and the incorporation of international law into US domestic law.

Suggested citation: Jordan Paust, Drone Attacks Can Be Justified Under International Law, JURIST – Forum, October 23, 2013, http://jurist.org/forum/2013/10/jordan-paust-drones-justification.php