Law-of-war murder definition and its repercussion on the legality of the use of drones

The Vancouver Sun reports that senior officials in the Obama administration sought, without success, to stop and change the prosecution of Omar Khadr, recognizing that such a prosecution rests on a false legal premise.

Insiders have learnt that the officials sought to strip a new commissions manual of a law-of-war murder definition, which would have likely scuttled the war crimes murder charge against Khadr, resulting from the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan.

The failed bid to change part of law-of-war murder rule — as well as separate arguments insiders say took place over other rules — illustrates how the commissions remain a point of division in the Obama administration.

It is reported that the pretext for demanding the draft-rule edit would center on concern about defending the legitimacy of  CIA drone attacks on terror suspects in Pakistan, one insider confided.

According to this official, it was feared that aspects of the commission manual’s “comment” in the section titled Murder in Violation of the Law of War could be applied to the attacks. Key among the contested phrasing is a statement that says murder and some other offences rise to the level of war crimes if committed “while the accused did not meet the requirements of privileged belligerency” — which principally covers regular war law-abiding combatants.

Among those leading the charge against the contested murder segment was Harold Koh, Obama-nominated legal adviser of the State Department. Quite interestingly, Koh previously attempted to justify the use of drones for targeted killings, by saying that

The rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

Scott Horton recently commented on Koh’s argument on the use of drones, by noting that “Koh had failed to address an obvious legal issue—that the drones were being operated by civilian contractors, not uniformed military personnel who are privileged to used lethal force under the law of war.”. Therefore, Horton argues that the prosecution of Khadr as a violation of the law of war could boomerang on the US on the issue of the use of drones for targeted killings

The drone warfare raises the same issue that the Khadr prosecution does: if the operators of these systems are not privileged to use lethal force, are they committing a crime under the law of war when they do so? The language adopted in the manual for military commissions argues that they are, but the position taken by the State Department to justify the use of drones assumes the opposite. These positions are difficult to reconcile.


2 Responses

  1. […] the legality of drone warfare, the crime of “homicide in violation of the law of war” (relevant in the trial of Omar Khadr), the doctrine of self-defense, the death of three Guantanamo […]

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