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Thoughts on the Targeted Killings Report

By Ben Heath

To con­tin­ue the dis­cus­sion of Pro­fes­sor Philip Alston’s report on tar­get­ed killings, I can imag­ine no bet­ter dis­cus­sion on the self-defense ratio­nale for drone strikes than that pre­sent­ed by Marko Milanovic at the EJIL blog.  (At Opinio Juris, Ken­neth Ander­son promis­es a response, which will most cer­tain­ly pro­vide for inter­est­ing debate.)

I also ful­ly agree with Milanovic’s cri­tique of Alston’s asser­tion that, out­side of armed con­flict, “the use of drones for tar­get­ed killing is almost nev­er like­ly to be legal.”  This state­ment is unnces­sar­i­ly con­clu­so­ry: there should be some lim­it­ed room for these strikes in the law enforce­ment par­a­digm of human rights, pro­vid­ed that the tar­get pos­es a sig­nif­i­cant dan­ger, that no oppor­tu­ni­ty for cap­ture exists, etc.  One imag­ines that this might be the case in coun­tries where the gov­ern­ment holds only loose con­trol over wide swaths of ter­ri­to­ry.  But, to be sure, drone strikes on the New Jer­sey Turn­pike are almost cer­tain­ly ille­gal.

I would not pre­sume to step fur­ther into such well-cov­ered ground.  Instead, I will use this space to high­light some oth­er aspects of the report, while rec­og­niz­ing that these are def­i­nite­ly side­notes to the major issues.

Trans­paren­cy, Account­abil­i­ty and Rea­son-Giv­ing in Tar­get­ed Killings

Those inter­est­ed in the Glob­al Admin­is­tra­tive Law project (GAL) may wish to note Sec­tion III(H) of Pro­fes­sor Alston’s report, and not just because it toss­es out terms like “trans­paren­cy” and “account­abil­i­ty.”  In this sec­tion, the spe­cial rap­por­teur stress­es the fail­ure of States to dis­close the legal basis of their tar­get­ed killing poli­cies and the cri­te­ria for tar­get selec­tion.  The report also con­cludes by rec­om­mend­ing that States make pub­lic their poli­cies, as well as the ratio­nale for “deci­sions to kill rather than cap­ture” and the pro­ce­dures in place to pre­vent errors of fact and law. (See para. 93).

The tar­get­ed killings poli­cies of States like the U.S. seem to be fac­ing the same prob­lem as much of glob­al admin­is­tra­tive prac­tice.  Oper­at­ing large­ly in secret and lack­ing an artic­u­lat­ed legal basis, the exer­cise of this pow­er oper­ates with lit­tle account­abil­i­ty and is wide­ly per­ceived as ille­git­i­mate, even in cas­es where the vic­tims of these strikes are clear­ly dan­ger­ous.  Thus, it is sug­gest­ed that the basic prin­ci­ples of admin­is­tra­tive law — such as trans­paren­cy, find­ings on sub­stan­tial evi­dence, and account­abil­i­ty mech­a­nisms — will help cure these defects, at once lim­it­ing States’ pre­vi­ous­ly unchecked pow­er to kill ter­ror sus­pects while legit­i­mat­ing strikes that con­form to these pro­ce­dur­al prin­ci­ples.

If States or human rights bod­ies do begin to artic­u­late such pro­ce­dur­al safe­guards, this devel­op­ment will pro­vide use­ful lessons for the study of glob­al gov­er­nance and GAL.  It rais­es a num­ber of dif­fi­cult ques­tions.  When a State takes this extreme mea­sure, what lev­el of delib­er­a­tive deci­sion-mak­ing and fact-check­ing should be required?  How do you weigh the due-process require­ment for clear, pub­lic cri­te­ria on tar­get­ed killings against nation­al secu­ri­ty inter­ests? What can be done to guar­an­tee that injured bystanders and the fam­i­lies of those killed have an oppor­tu­ni­ty to chal­lenge the State’s deci­sion?  The answers to these ques­tions may help schol­ars and pol­i­cy­mak­ers approach future issues of emer­gency pow­ers in glob­al gov­er­nance.  (See, for exam­ple, Kings­bury & Cassini’s fram­ing paper on the emer­gency pow­ers of inter­na­tion­al orga­ni­za­tions, which rais­es some of these ques­tions.)

I am inclined to agree with Pro­fes­sor Alston that artic­u­lat­ing clear cri­te­ria for tar­get­ed killings would not over­ly bur­den nation­al secu­ri­ty inter­ests.  It seems to me that to argue the con­verse would be anal­o­gous to say­ing that pub­lish­ing the ele­ments of crim­i­nal offens­es would frus­trate the state’s abil­i­ty to fight crime.  Such cri­te­ria would not need to give away evi­dence-gath­er­ing meth­ods or the means used to track down and kill the sub­ject.  And it’s not clear that post fac­to pub­li­ca­tion of the fac­tu­al find­ings sup­port­ing indi­vid­ual strikes would give away such sen­si­tive infor­ma­tion, either.  In many cas­es, the crimes of ter­ror­ist lead­ers are so wide­ly known that their pub­li­ca­tion would not jeop­ar­dize any par­tic­u­lar chan­nel of infor­ma­tion.

But the dis­cus­sion in Sec­tion III(H) of the report also demon­strates the lim­its of these pro­ce­dur­al safe­guards.  Pub­li­ca­tion of clear rules, and of find­ings sup­port­ed by evi­dence, is cru­cial to assess­ing the legal­i­ty of a par­tic­u­lar exer­cise of gov­er­men­tal author­i­ty.  But these ex post con­trols are hard­ly suf­fi­cient when the exer­cise of author­i­ty in ques­tion amounts to a sum­ma­ry exe­cu­tion. (Of course, the spe­cial rap­por­teur does not sug­gest that they are.)  And the ex ante con­straints nor­mal­ly pro­vid­ed by due process — notice, pro­ce­dur­al par­tic­i­pa­tion, input from stake­hold­ers, etc. — are large­ly unavail­able if tar­get­ed killings are to be at all effec­tive.

The fore­go­ing only empha­sizes the absolute neces­si­ty for sub­stan­tive lim­its on tar­get­ed killings, and these con­sti­tute most of Prof. Alston’s rec­om­men­da­tions.

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