Targeted Killing: Drones

Mary Laurie Writes a "Chinese White Paper"

By Benjamin Wittes
Sunday, April 21, 2013, 2:00 PM

Mary M. Laurie, a third-year law student at Penn State Law, has rewritten the DOJ White Paper on targeted killing from the perspective the Chinese government. She explains:

China considered using a drone strike against Naw Kham, the Burmese drug lord, but chose not to take this path and instead captured Kham alive. He was tried in a court of law, received a death sentence and was executed earlier this year. I found it interesting that out of all the human rights violations that China has carried out, targeted killing was not one of them. Yet the U.S., a bastion of freedom, continues to do [use it].

The case of Naw Kham is not identical to that of al Qaeda, but it does not take much extrapolation to use the Department of Justice’s logic to justify targeting him. This “Chinese White Paper” goes back in time to before Kham’s capture and imagines how the PRC could have applied this Administration’s legal arguments, slightly modified, for its own use.

The Chinese White Paper opens:

This white paper sets forth the reasoning for a lethal operation against a foreign national who is an operational leader of Naw Kham’s Hawngleuk Militia (NKHM) and associated forces against citizens of the People’s Republic of China (PRC).

NKHM is an armed drug trafficking gang that has terrorized PRC crews and vessels. Between 2008 and 2011, NKHM and associated forces instigated 28 attacks against Chinese cargo ships on the Mekong River, killing a total of 16 of our citizens and injuring several. In 2008, NKHM and associated forces attacked a Chinese maritime police patrol boat, which resulted in three Chinese police officers being seriously injured. In 2009, NKHM and associated forces stopped four Chinese cargo boats, resulting in one of our boats being hit by a grenade and multiple Chinese soldiers being wounded. One soldier later died from his injuries. In April of 2011, NKHM took three boats and 19 people hostage on the Mekong River and demanded 60,000 yuan for the release of each person. In October of 2011, NKHM and associated forces attacked two Chinese cargo ships and killed 13 Chinese soldiers.

NKHM dominates large stretches of the Mekong River, which has long been under-policed by local governments. NKHM has evaded capture for years and Burmese and Laotian government forces have been unsuccessful in reducing the group’s activities. The region on the Mekong where NKHM operates has long-served as an outpost for drug traffickers. Naw Kham himself, the leader of NKHM, has been able to avoid capture by Burmese troops for over ten years while his group has grown more aggressive and deadly.

The Ministry of Justice of the People’s Republic of China finds that, given the repeated attacks against PRC by NKHM over a period of years, the inability or unwillingness of the Burmese or Laotian government to control NKHM in a historically lawless region, and the brutal nature of the attacks targeting citizens of the PRC, our government may treat NKHM and associated forces as an entity with which the PRC is at war.  Though NKHM is not a state, and has not yet inflicted mass casualties, as have terrorist groups such as al Qaeda and like-minded terrorist groups operating in Xinjiang, it is reasonable to assume that it may grow to pose an even greater threat.  The experience of Mexico and Colombia demonstrates that armed drug trafficking organizations, if left unchecked, are capable of killing tens of thousands of people, displacing millions, and gaining effective control of large parts of a country’s territory.  The absence of an ideological element or territorial ambitions in the NKHM’s aims also does not preclude the existence of an armed conflict between the PRC and NKHM.  Neither is a determining factor when deciding the lawfulness or necessity of conducting lethal operations against senior leaders of a group that has killed and is planning to kill our citizens.  In the same way, the United States’ fundamental concern in its war against al Qaeda is protecting its citizens from deadly attacks. The PRC has the same fundamental concern regarding NKHM.

The President of the People’s Republic of China has authority to respond to the imminent threat posed by NKHM and associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the People’s Republic of China to self-defense under international law, and the recent classified authorization of the President and the National People’s Congress for the use of all necessary and appropriate military force against this enemy under international law. Based on these authorities, the President may use force against NKHM and associated forces. As detailed in this white paper, in defined circumstances, a targeted killing of a foreign national who has joined NKHM or associated forces would be lawful under Chinese and international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the PRC is not unlawful. It is a lawful act of national self-defense. Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted. In addition, the PRC retains its authority to use force against NKHM and associated forces outside the area of active hostilities when it targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill citizens of the PRC.