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.