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UN Special Rapporteur Philip Alston Responds to US Defense of Drone Attacks’ Legality

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The Obama administration has publicly defended the legality of drone attacks for the first time. State Department legal adviser Harold Koh said last week the use of drones in the fight against al-Qaeda was both legal and necessary. Koh’s comments come six months after Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, said that the strikes “might violate international humanitarian law and international human rights law.” Alston joins us with his reaction to Koh’s response. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: As the number of civilian casualties from the use of missiles fired from unmanned drones in Pakistan continues to rise, news reports indicate the Pentagon is considering dispatching drones to Somalia for a military offensive against suspected al-Qaeda-linked insurgents.

Well, last week the Obama administration publicly defended the legality of drone attacks for the first time. In a speech to the American Society of International Law, State Department legal adviser Harold Koh said the use of drones in the fight against al-Qaeda was both legal and necessary.

    HAROLD KOH: With respect to the subject of targeting, which has been much commented on in the media and international legal circles, obviously there are limits to what I can say publicly. What I can say is that it is the considered view of this administration, and it has certainly been my experience during my time is legal adviser, that US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, UAVs, comply with all applicable law, including the laws of war.

    Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets or legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.

AMY GOODMAN: Harold Koh’s defense of the use of drones comes six months after Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, said that the strikes, quote, “might violate international humanitarian law and international human rights law.”

Well, we’re joined here in New York by the UN Special Rapporteur, Philip Alston. He’s also a professor of law at New York University and co-chair of the law school’s Center for Human Rights and Global Justice.

Welcome to Democracy Now! What about what Harold Koh, well known as the head of the Yale Law School Center for Human Rights, now in the State Department, said?

PHILIP ALSTON: Well, I think it’s very good that Harold Koh addressed the issue. We’ve been asking for a legal rationale for quite a long time, so that’s a good start. The real problem is that Harold Koh’s statement was essentially arguing that “You’ve got to trust us. I’ve looked at this very carefully. I’m very sensitive to these issues. And all is well.” He didn’t actually answer. In fact, it was a remarkably, I would say, evasive statement by Harold Koh. He, himself, said this is not the time for legal opinion. Of course, my view is that it is the time for legal opinion, rather than for a public relations statement.

So the big issues that he didn’t answer are, first of all, what law are you applying? And he very casually said, well, we are applying either the law of armed conflict or the rules governing the right to self-defense of a state. Now, those two sets of rules are radically different. He didn’t address the issue of whether he is talking about the application of human rights law, as well as international humanitarian law. That’s an issue which the United States, under the Bush administration, contested very strongly, said this has nothing to do with human rights. That’s a real issue, and Harold Koh didn’t take it up.

Then there’s the question of the role of the Central Intelligence Agency. The CIA, as is now very clearly known, is essentially responsible for the operation of the drone program in Pakistan. It is not at all clear what rules govern the CIA. Harold Koh didn’t mention the CIA. He talked about “us” or “we” or whatever, the administration, but in the past there have been very different rules applied by the Department of Defense, on the one hand, and the CIA, on the other. So all of these concerns remain very much on the table.

JUAN GONZALEZ: And as the use of drones has increased, obviously, not just in Pakistan — there have been some drone attacks in Yemen, and now there’s talk about Somalia, as well — the issue of the civilian casualties and who takes responsibility for these killings, when you’re attempting to go after particular, quote, “insurgents.” The issue of the civilian casualties. How is that adjudicated, or in any way the United States held responsible for that?

PHILIP ALSTON: Right. Well, there’s two aspects of that. First of all, as you say, the use of drones is starting to expand. Obviously it’s expanded dramatically just in Pakistan. But this is also a very valuable weapon. The United States is going to start using it in a range of different locations. It’s extremely important then that the policy that is now being developed, where we have in mind a very particular set of circumstances in Pakistan, will actually be acceptable and viable in relation to a number of other situations where we are increasingly going to see these weapons used.

Even more important, of course, is to think ahead. The policy that the United States is now laying out for itself will be a very nice policy for China or Russia or other countries to take up and say, “Great, as the US said some time ago, this is the basis, and we are going to strike terrorists and others wherever necessary.” That’s really problematic.

Second aspect that you raise is the question of civilian casualties. Harold Koh, in the clip that you just showed, talked about the fact that they are not required to give legal process to such individuals. Now, that’s true, but what does “legal process” mean? It conjures up, in our mind, domestic legal process. In other words, we don’t have to take these guys to court. We don’t have to go through such a careful legal analysis. But we are still bound by international law. In other words, when we decide to target these individuals, the international law of armed conflict applies. That limits the question of who can be targeted, the circumstances, what they call “the principle of distinction.” It brings in the second principle of proportionality — in other words, how many other people can you kill while at the same time trying to get that target.

Now, so far, the United States has failed to provide any evidence that it is systematically reviewing the efficacy of its practices in that regard. Instead, what we got from Harold Koh last week was “Trust me. I’m a good guy. These things aren’t happening.” Well, I don’t think we can ask for full transparency. I don’t think the United States is ever going to provide access to all of the information relating to these killings. But until it starts to provide at least some access, we will not be able to conclude that the United States is in fact complying with the law, as Harold Koh insisted.

AMY GOODMAN: Robert Mackey points out over at the New York Times that Harold Koh wrote in 2004 about America’s disregard for international law after the September 11th attacks that earned it a place along with North Korea and Iraq in the “axis of disobedience.” He also told a Senate hearing that the Bush administration had imposed, quote, “unnecessary, self-inflicted wounds, which have gravely diminished our global standing and damaged our reputation for respecting the rule of law.” And, of course, Harold Koh is being talked about as a possible Supreme Court justice now.

PHILIP ALSTON: Well, I think it’s important to recognize what Harold Koh said, and that is that the standing of the United States, in terms of its respect for international law, was extremely low when the new administration came into office. So the question is, what do you do then to reestablish that standing? You get Harold Koh, a man for whom I have immense respect, a man of great principle and so on, but for him to come out and simply say, “Listen, I’ve looked at it. Trust me,” is not going to persuade the people of Pakistan, it’s not going to persuade those who we are trying to influence, and it’s certainly not going to persuade those for whom we’re trying to establish law that they might use in the future.

So I think it’s really essential for Harold, himself, to see that there needs to be more disclosure. We need to know more details about the legal analysis that he’s apparently done. We need to be able to discuss that. And we need to start getting some real information on how these programs of targeted killings are actually being implemented, what exactly the rules are, what sort of follow-up they do, for example.

We don’t know that in Pakistan. There’s immense opportunities, through the drones themselves, to follow up very carefully and to see what sort of damage, excess damage, collateral damage, was done. We have no indication that that is being done systematically. And it does contrast dramatically with what happens in Afghanistan, where the Department of Defense is involved. You’ve got General McChrystal and others going — really bending over more than backwards, if that’s possible, to say we are taking every precaution, we are doing all we can to limit. We don’t have those sort of assurances in relation to what’s going on in Pakistan.

JUAN GONZALEZ: And does it become more difficult in places like Pakistan, or even in Yemen, where the government, the sovereign power in the territory where these drones are being targeted, essentially turns its back or doesn’t acknowledge that these are even occurring to its own population, so it’s very difficult to actually get the information?

PHILIP ALSTON: I don’t think it necessarily makes it harder for the United States, in fact, because everyone knows the US is operating there. Everyone knows that Pakistan, for example, is equivocating, on the one hand, saying, “Well, yeah, OK, we’ll look the other way,” on the other hand saying, “We’re not very happy with this.” It doesn’t matter. The US is clearly in there. It’s operating. It could provide information.

But I think you raise another issue which is important, and that is the question of the sovereignty of the states concerned. In other words, is it Harold Koh’s position that we can only do this in Pakistan because we have the agreement of the Pakistani government? If you have a government which says, “No, we don’t want you coming in,” will the United States still fire these missiles? And Harold lists that as one consideration which will be taken into account. But he doesn’t say that we need to respect the sovereignty of states and leaves open very much the possibility that missiles could then be fired in relation to almost any state, if we conclude that they are not giving us the full cooperation we would want.

AMY GOODMAN: Well, I want to thank you very much for being with us, Philip Alston, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, also a law professor here at New York University.

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