Targeting with drone technology: humanitarian law implications.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 7:00 a.m., Friday, March 25, by Naureen Shah of the Human Rights Institute, Columbia Law School. Opening remarks were also made by Rashmi Chopra and Anil Vassanji of the Human Rights Clinic, Columbia Law School. The panel was moderated by Naz Modirzadeh of the Program on Humanitarian Policy and Conflict Research, Harvard University, who introduced the discussants: Chris Jenks of the U.S. Army; and Nils Melzer of the International Committee of the Red Cross.

INTRODUCTORY REMARKS BY NAUREEN SHAH

Good morning, everyone. I'd like to welcome you to our session about drone technology and humanitarian law implications, sponsored by the Lieber Society and the ASIL Human Rights Interest Group.

This morning, you will be hearing from our lead discussants, Nils Melzer and Chris Jenks, in a discussion moderated by Naz Modirzadeh from the Harvard Program on Humanitarian Law and Conflict Research, and you will also be hearing from students at Columbia Law School's Human Rights Institute about a paper which should be circulated among you and which you may have read at six o'clock this morning about the research that the clinic has been doing on drone technology.

We at the Human Rights Institute, of which our clinic is a part, are especially excited about this morning's session, not just because ASIL provided such a great opportunity to present the research that we have been doing and not just because of the kinds of people that ASIL generally brings together every year, but because of the sponsorship of the Lieber Society and the Human Rights Interest Group. We think that we have a great opportunity this morning to have a discussion about these issues among a really diverse group of individuals with different backgrounds.

We can come together and talk about issues raised by drone technology and targeting operations that in other contexts are highly contentious, and, of course, here they will probably remain so, but we can seek to do so in a way that I think is more oriented toward a discussion about placing recent statements by the U.S. government in the context of our ongoing scholarly debates without devolving into a heated discussion about the merits of that enterprise.

I think everyone here in the room is interested in a discussion rather than focusing on disagreements.

We are especially grateful to many of you in the room to whom we have reached out in the course of our research. The clinic started looking at this issue just in the fall of this year, and so many of you have made contributions in this field on unrelated issues to drone technology, and we found again and again in doing our research that we relied heavily on your tremendous contributions. You've been thinking about these issues longer and harder than we have, by far. You spent lifetimes exploring these issues, and yet you welcomed our intervention and our interest. And we are really thankful and grateful to the individuals from the Human Rights Interest Group and the Lieber Society who helped organize the session.

We're also excited about this session because it seems especially appropriate to talk about U.S. targeting operations in light of the address given last year by Legal Adviser Harold Koh, here at the ASIL Annual Meeting. So many scholars and observers have sought to understand his remarks and to put them into context of ongoing debates and ongoing scholarship.

In his address, Legal Adviser Koh spoke not just about the role of international law in U.S. policy generally, but he specifically spoke about the role of international law in ensuring that U.S. targeting operations are in compliance with, in particular, the law of armed conflict.

He really reaffirmed the relevancy of international law in very important ways that the students will talk about.

For Peter Rosenblum, who as many of you know is the faculty co-director of the Human Rights Institute, and myself in thinking about the student research, Legal Adviser Koh's speech here at ASIL was a point of entry for thinking about the international law issues, and it was a starting point for us to understand U.S. policy, as it has been for many people.

Of course, we wanted to dig deeper into the issues of drone technology, but the more we did so, the more we found that the debates that we were having really weren't just about drone technology. They had far-ranging implications, and it's almost a misnomer to say that the research the students have been doing is about drone technology. It's really about debates that go far beyond that.

In thinking about the increased use of drone technology as a source of debate, though, we felt that it was hard to dispute that drone technology and targeting operations with drone technology had been an impetus for debate about the U.S. government's positions. We found in our clinic project that we started so recently that there were already a wide range of individuals who were interested in exploring the ramifications of Legal Adviser Koh's statement and placing it in the context of ongoing debates about drone technology among observers, and ongoing debates among scholars about various humanitarian law questions.

We discussed these issues with a wide range of individuals, members of the U.S. military, humanitarian law experts, and scholars focused on the emerging field of national security law, experts on military and robotic technology, and field researchers and human rights advocates. These individuals were very gracious with their time, and almost across the board, they emphasized how important it was for us to be thinking about how to have a reasonable debate about the issues, and that we needed to be careful to avoid delving into highly contested areas of the law and the policy without really understanding the context for these issues.

We decided in our background note that some of you have before you now that Legal Adviser Koh's statement and other statements by the administration would be the focus of our attempt to understand U.S. policy and legal rationales and standards, although there are many other sources that we could have looked at.

We also decided to think about those statements really in connection to these ongoing debates, as I've mentioned, and we focused on three areas--and the students will talk about this in great detail--the nature and the scope of the armed conflict, who may be targeted, and who conducts targeting.

Now, there is no way that in a 40-page paper, or in an hour-and-a-half discussion, we could do justice to these issues, either here or in the paper. The issues are highly complex, and they are multifaceted, but we wanted to focus the paper in here today on the ways in which Legal Adviser Koh's speech affects the debates that continue about these scholarly issues and about the particular legal standards and rationales, the various theories that scholars have espoused.

Our purpose in discussing these is not to provoke criticism at all of the government or of the military. That's not our focus, and I'm sure that the students didn't come here today to do that. Rather, in their presentation and in the paper, we want to set the foundation for a discussion about the role of U.S. government statements in answering what we call "unanswered questions." Of course, it can be contested whether they're unanswered at all, but what we are going to focus on is whether those unanswered questions matter and where we go from here as a lot of different people with different policy motivations perhaps, but who have a shared interest in understanding U.S. policy and understanding where U.S. legal standards and rationales fit into the conduct of targeting operations.

With that, I will turn it over to our students, Rashmi Chopra and Anil Vassanji. We have a number of students in the clinic and on the team, but they will be presenting for the clinic.

REMARKS BY RASHMI CHOPRA

Good morning. My name is Rashmi Chopra, and I am a member of the student group working on this project for the Human Rights Clinic at Columbia Law School.

I would also like to thank the American Society of International Law, the Lieber Society, and the Human Rights Group for allowing us to quietly slip in at this discreet hour of the morning. We very much appreciate this opportunity today to share some of our work on tracing the broad scholarly debates which have arisen from, and have significant implications for, the U.S. government's clarification of the legal basis of targeting practices using drone technology.

As Naureen mentioned, last year Legal Adviser Koh spoke about the role of international law with reference to a number of contexts, including with respect to the targeting operations conducted with the use of drone technology.

As we formulated our research on this issue, we recognize that before we could focus on what is stated about such targeted killings, it was instructive to look at other parts of the address in which Legal Adviser Koh spoke of the relevance of international law and the clear affirmation of the U.S. government's commitment to respecting the rule of law.

Among other things, he recognized the importance of law in constraining government action, stating that by imposing such constraints, law legitimizes and gives credibility to government action. He also recalled the words of President Obama in his Nobel Peace Prize remarks, in which the President spoke about how adhering to international standards strengthens those who do, and isolates those who don't.

As we now turn to look at what Legal Adviser Koh said about targeting operations using drone technology, it is important to note that these statements about the role and importance of international law have always underpinned our understanding. In his speech, he confirmed the legal basis of U.S. targeting operations by stating that international humanitarian law informs U.S. practice. He also provided us with some indication of how these international humanitarian...

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