Featured — March 28, 2010 at 3:15 pm

Obama Administration Offers Legal Defense of Drone Attacks, Targeted Killing

By John Cella, NSJ Current Events Editor -

A key component of the Obama administration’s fight against al Qaeda, the Taliban, and their affiliates has been the increasing use of drone strikes in Pakistan.  In a speech on Thursday, State Department Legal Adviser Harold Koh provided the clearest articulation thus far of the Administration’s legal defense of such drone attacks, justifying them as valid acts of self-defense under international law and as consistent with the law of armed conflict.  Koh pointed to the international law principles of distinction and proportionality, asserting that American drone attacks were limited to military targets and that incidental civilian casualties were proportional to the military advantage gained.  He also dismissed the claim that such attacks constitute “assassinations” illegal under U.S. domestic law.

Data compiled by the New America Foundation on the targets and death counts from U.S. drone strikes in Pakistan provides some basis on which to evaluate Koh’s claims of distinction and proportionality.  According to the New America Foundation data, of the 26 drone strikes carried out so far in 2010, 17 targeted members of the Taliban, 2 targeted members of al Qaeda, and 5 targeted members of the Haqqani network that is closely allied with the Taliban.  Eight of the attacks also targeted groups that were unclear from non-classified sources.  Since drone strikes began in 2004, the civilian fatality rate stands at about 32 percent of the total fatalities inflicted, although this is difficult to measure given that the range of potential deaths caused by all drone attacks ranged from 867 to 1,281.  However, although the number of drone attacks in 2010 is on pace to exceed the number in any previous year, the civilian fatality rate appears to have decreased to between 10.4% and 12.8%.

A video of the relevant section of Koh’s speech is available here.  For a fuller analysis of U.S. drone attacks in Pakistan from the New American Foundation, see “The Year of the Drone,” by Peter Bergen and Katerine Tiedemann.  For Kenneth Anderson’s comments praising Koh’s remarks, visit Opinio Juris.  Anderson had previously criticized the Administration’s failure to defend  drone attacks in the Weekly Standard.

Image courtesy of Getty Images, via the New York Times

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