-
commented on the blog post The Legal Basis For The Drone Strikes Is… The Assertion Of Their Legality
The Administration should reveal the legal basis for drone strikes, but I’m not sure under what basis you can argue that the criteria for determining when to use a drone strike should be public information. Is there any precedent for forcing the release of OLC decisions? I know Obama chose to release certain ones relating to torture after he came into office, but I’m pretty sure they’re usually classified. Either way, it’s not clear that drone strikes are illegal.
Within Afghanistan, International Humanitarian Law (the laws of war) applies, so you have to look at proportionality.
There’s no hard line like 30% or 40%, the only limit is that the military objective achieved must be greater than the civilian loss of life. It’s pretty hard to prove that an attack isn’t proportional unless the purpose of the attack was just to kill civilians.
Outside of Afghanistan, some argue that IHL still applies since its a globalized war, but I don’t think that’s a strong argument. So under regular human rights law, is it illegal? No, since ICCPR and other human rights treaties are careful to specify jurisdiction. In other words, countries are only bound to follow those treaties within their effective jurisdiction (the wording varies by treaty, but they’re similar). And for reference, the European Court of Human Rights has in similar cases ruled that effective jurisdiction is more than simply occupation of a country, see Bankovic.
So that’s international law. Under domestic law, Koh rightly asserts that the AUMF is applicable. Because Al-Alwaki is an American citizen, that complicates things, so I hope his case is not thrown out due to lack of standing by his father.
Whether or not it’s the correct or moral policy is distinct from its legality.
