DRONES, TARGETED KILLINGS AND INTERNATIONAL LAW

BACKGROUNDER Nov 2012……………AUSTRALIAN ANTI-BASES CAMPAIGN COALITION

DRONES, TARGETED KILLINGS AND INTERNATIONAL LAW

Unmanned aerial vehicles (UAVs, drones) are the world’s latest space-based weapon and in just 10 years a ‘must-have’ item on the shopping lists of state and non-state military organisations. It is bringing profound changes to military technology and the nature of warfare. Many wise voices are warning of dire consequences if the world does not bring the military use, proliferation and development of drones under strict control.

 

The drone has become the USA’s weapon of choice for its counterterrorism program of intentional and predetermined killing, or ‘targeted killing’. This use of drones is eroding moral and legal norms because:

  • People of nations at peace with the USA are being killed and injured, and communities terrorized, by drone strike. In Pakistan, it is estimated that only 2% of militants killed are so-called ‘high value’ militants http://livingunderdrones.org/report/.
  • Arguably, the sovereignty of those nations not at war with the USA but whose people are being harmed by US drone strike is being violated.
  • The obligation of nations to be accountable to international law is being undermined.
  • Extrajudicial execution (death penalty without trial) is in danger of being legitimized.
  • Targeted killing by US drone strike is fueling worldwide proliferation of drone surveillance and drone weapon systems, and rapid uncontrolled research and development in the technology.

 

The use of drones by states for targeted killings is being led by the USA, and practised also by Israel and the UK. Notoriously, US drone strikes have killed and injured people of nations it is not at war with: Yemen, Somalia, the Philippines and, principally, Pakistan. The practice is also seriously devaluing international law because the USA refuses to abide by the rules of war and provide information necessary for legal scrutiny. Effective international control measures of drone use, proliferation and development are urgently needed. After 10 years of drone-enabled targeted killings, it is more than time that UN member states responded appropriately.

 

The US drone program has set a dangerously seductive precedent both in war-making and in avoiding legal accountability. When free of legal accountability, use of drones makes the decision to go to war too easy; it is relatively cheap and presents no risk to operating personnel. In his 2010 report on targeted killings to the General Assembly as UN Special Rapporteur on extrajudicial, summary or arbitrary killings, Philip Alston states that the relevant legal frameworks – customary norms of war, nations’ own domestic laws, International Humanitarian Law and International Human Rights Law – are, in combination, adequate tools for establishing the legality of the US drone programs, but these frameworks are losing their authority because they cannot compete with the attractiveness to other nations of the precedent of law-free, risk-free war set by the US drone war. The USA refuses to make itself accountable and the world community can’t find the political will to insist that it does, with the result that international law is being eviscerated. For US Congress member Dennis Kucinich, the drone program “… bespeaks an approach which depraves moral law, the constitution and international law.”

 

One of the latest US drone strikes on Pakistan illustrates what is morally abhorrent and legally unacceptable about drone strikes. Mid-afternoon on 24 October 2012, in Tappi Village near Miranshap, North Wazirstan, a CIA drone strike killed an elderly woman and critically burned 2 to 6 of her grandchildren. Two drones lingered in the sky (‘hang time’ in military jargon) delaying rescue. Another 1 to 4 people were killed, either summarily executed or incidentally. As with thousands of its covert counterterrorism operations, the USA defied its responsibility to make itself accountable for the action, maintaining a strict silence about details necessary to establishing its legality. To comply with the law, the USA must show that it has means to, firstly, obtain detailed and reliable information identifying those to be targeted by its attacks as well as those who may also suffer, and, secondly, restrain its practices accordingly. Essentially, the USA must have evidence to show that those it intends to kill pose an imminent threat to life and are unstoppable by other means, which is the only legitimate justification for targeted killing under International Human Rights Law. http://www.guardian.co.uk/commentisfree/2012/aug/10/targeted-killing-flexibility-doctrine-flout-law-war.

 

According to the London-based Bureau of Investigative Journalism (TBIJ), reputed to be among the most reliable of those media and academic organisations trying to fill the transparency gap left by US silence, the death of the Tappi Village grandmother brings the estimates of civilians in Pakistan killed in drone strikes, in the period 2004–2012, to between 472–885, 176 of whom were, reportedly, children. The estimated total number of civilian deaths in US covert counterterror operations (Pakistan, Yemen and Somalia) is in the range 543–1105. Even more damning is the allegation that a portion of US drone deaths results from deliberate targeting of civilians: from 2009 to 2011, at least 50 civilian deaths allegedly resulted from so-called ‘double tap’ strikes, follow-up strikes deliberately targeting rescuers; and approximately 20 from attacks on funeral-goers. TBIJ estimates of total drone killings in US covert operations are: 2586–3375 in Pakistan (2004–2012); 362–1052 in Yemen (2002–2012); and 58–170 in Somalia (2007–2012). These totals are particularly significant given the allegation that approximately 98% of militants who are killed are classified ‘low value’ or foot soldiers. http://www.thebureauinvestigates.com/category/projects/drones/

 

The US claims its covert counterterrorism drone programs are legally justified on the grounds of self-defence, and has asserted the right to wage global war on an adversary vaguely designated as ‘Al Queda, as well as the Taliban and associated forces’. The claims that pre-emptive attacks on suspected terrorists are acts of national self-defence and that nations have the right to wage ‘global’ war are legally controversial. What isn’t controversial, as highlighted by Philip Alston, is that no state may invoke self-defence as justification for its violation of International Humanitarian Law (IHL). For targeted killing to be legal in the context of armed conflict, those that are targeted must be combatants and the killings must meet the IHL requirements of necessity, proportionality and discrimination. “Targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities’. In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians. These standards apply regardless of whether the armed conflict is between States … or between a State and a non-State armed group …” http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf

 

Arguably, none of the three IHL requirements are being met by the US covert drone programs. Prima facie, harm caused to civilians far outweighs any self-defence gains. Analysis also suggests that the USA could better meet its self-defence aims by capturing militants or using less-than-lethal incapacitation. It is likely that political aspects of the relation between the USA and Pakistan have at times been a stronger influence on the intensity of strikes than ‘military necessity’. Comments of former and current administration officers, even the president himself, indicate that US methods of differentiating civilian from militant are often blatantly cavalier: targets do not necessarily have their identities verified but are targeted on the bases of what is assessed as suspicious, that is ‘signature’, behavior. It is also reported that all ‘military-age’ males within strike areas are automatically counted by the USA as militants. More damming still is the alleged deliberate targeting of civilians. Deliberate attacks on civilians who are not directly and at the time partaking in hostility are war crimes.

 

Although drone technology is not yet particularly reliable, it promises what war makers have long fantasised. Hard to detect, potentially anonymous and relatively cheap, the drone is a precision weapon that can spy and kill without risk to the operating personnel. The world seems mesmerized, blind to the dangers of such weaponry; 76 countries already have rushed to acquire or develop some sort of UAV. Proliferation dangers are emphasised in ‘Living Under Drones’, the recent report of the schools of law of Stanford University and New York University: “We are in the midst of a significant period of drone proliferation …. Unchecked armed drone proliferation poses a threat to global stability, and, as more countries and non-state actors obtain access to the technology, the risk of US-style practices of cross-border targeted killing spreading are clear.”

 

At the same time as it has avoided legal scrutiny, the USA has showcased to the world a radical and peculiarly deviant method of waging war and it has ignited a global arms race in drones, seriously compromising safety of its own people, and of people everywhere. “… [I]f the drone programs are not shut down”, says Dennis Kucinich, “then what we are looking at is the potential of war of all against all, a pulverisation of national sovereignty and a rejection of the structure of international law.” The observation of Clive Stafford Smith, director of the UK legal charity Reprieve, is equally bleak, “We sleepwalked into a nuclear age, now we ar