Should International Law Accountability Extend to US Drone Operations?
Opinio Juris recently cited remarks by Philip Alston, the United Nations’ Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, in which he argued that the United States should publicly discuss its unmanned drone activities in Waziristan. The United States Government’s terse response is that the “Predators are targeting combatants in armed conflict.” Insufficient, says Alston, because the drones are striking numerous targets including civilians, without being subjected to international law scrutiny. This begs the obvious question of whether or not the drone attacks are justified. As it’s an interesting question, I hope to read more about it. However, this piece will explore Alston’s conception of international law accountability vis-à-vis the drone attacks. I argue that the drone operations should face international law scrutiny, but in a less publicized fashion
Alston’s argument seems prima facie justifiable. If an actor’s military operations are killing civilians and worry UN investigators, surely the member state government should either issue a convincing public defence of the operations or end them. Yet, if US government lawyers do the former, they may risk compromising key military operations. Why is this, and if it is the case, how can the drone operations face international law scrutiny?
The strongest possible legal memo in defence of drone operations would go into great detail, possibly including even classified military records. Such records could provide insight into CIA and US Armed Forces tactical decisions. Government lawyers might argue that if this information were made publicly available, enemies of the United States could use it to prepare for future US offensives or launch one of their own. The obvious counter-argument is that without exploring the nature of the operations, violations of international law, if there are any, can continue unhindered. How can we know if there are violations of international law if operational details are not publicized? Is there a way to balance these two competing interests? I argue that in an international law context, there is.
In the context of liberal democratic states’ domestic courts, citizens expect that the lion’s share of courtroom proceedings will be publicly broadcast. Where the government is directly responsible to citizens, it makes sense for citizens to demand public accountability. As international law courts are not directly responsible to citizens as domestic courts are, they are not burdened with the same expectations. Perhaps an international law accountability regime should depublicize its activities. This idea is worth exploring given that they are much more likely to be concerned with sensitive military activities than domestic law.
Arguably, this may push the balance too far in favour of the state. But the regime could be modified to respond to violations in different ways. For example, where a particular kind of violation occurs, as a penalty to the offender, the regime may publicize military operations. The other possible criticism of the regime is that if legal memos in defence of military operations and the regime’s analysis of those memos are classified, there is a risk of collusion between state and international officials. Furthermore, the media will have a tougher time holding international law actors and courts to account if their activities are depublicized. My response is that the extent to which the media can hold international courts to account is limited, as there does not tend to be much general interest in international law jurisprudence. Provided offices like those held by Mr. Alston are filled in an independent fashion, collusion seems unlikely.
The conduct of the war on terrorism, as has been frequently observed, requires a delicate balancing act between expeditiousness and the rule of law. There are many different ways for the regime to balance the competing values. Why should the same balancing act not be attempted by the international law accountability regime?
