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2014 | L. Wexler; The Role of the Judicial Branch during the Long War: Drone Courts, Damage Suits, and FOIA Requests in Applying International Humanitarian Law in Judicial and Quasi -Judicial Bodies – International and Domestic Aspects

This chapter reviews the role United States (US) courts play in regulating the use of drones for targeted killings, in the context of counter terrorism operations. These drone strikes sometimes kill civilians who are not the target of the attack. Consequently, the question arises whether these strikes are conducted in violation of International Humanitarian Law (IHL), which prohibits targeting of civilians unless civilian casualties, also known as collateral damage, are “proportionate” to the military advantage sought. What role do courts play in regulating this practice?

The author explains that courts tend to see two kinds of lawsuits in relation to drones casualties. Some plaintiffs seek a substantive ruling from the courts as to whether an armed conflict exists or existed at the relevant time, and if so, whether IHL has been properly applied, seeking remedies such as damages and injunctions, while others merely seek access to information that the government will not generally not disclose except by judicial intervention. These are the so-called Freedom of Information Act (FOIA) requests regarding drone strikes. The author suggests that the judiciary may play an important role in the debate over the executive branch’s decisions regarding IHL, even when it declines to speak on the substance of such cases. First, advocates may use courts as a forum in which to argue for greater transparency and accountability in relation to drones practice. Second, individuals whose FOIA requests (including an appeal) have been denied by the agency to which they applied, may file a lawsuit.  Such lawsuits likewise provide a public forum for challenging a lack of transparency and sometimes generate additional media attention to whatever it is that remains undisclosed.

Finally, Congress may pass legislation that would (a) facilitate prospective review of kill lists through a so-called ‘drone court’ that could consider questions about specific strike operations, such as whether the government is acting sufficiently to minimize civilian casualties, or (b) establish a court-ordered damages regime for unlawful targeted killings. This would nullify procedural barriers --such as the state secrets privilege and sovereign immunity doctrines-- that have thwarted suits by plaintiffs affected by unlawful killings by a drone strike. The author argues that even the threat of judicial involvement may influence executive branch behaviour. More generally, lawsuits are part of a larger movement pressing for greater transparency and accountability. They provide a platform for media attention to the issue. Finally, in addition to domestic lawsuits, the article identifies international actors, including UN Special Rapporteurs, that serve as promotors for accountability and transparency through quasi-judicial activity.

While the author is sceptical as to the likelihood that courts will ever reach the point of adjudicating on the merits of IHL questions, he concludes that the creative use of judicial intervention has helped insert IHL into the public debate over targeted killings and encourage greater accountability.