A fully armed US military Reaper drone in Afghanistan
Attacks by the CIA on rescuers and funeral-goers may be morally questionable. But are such attacks legal?
It is a war crime under the Geneva Conventions to attack rescuers wearing emblems of the Red Cross or Red Crescent. But what if rescuers wear no emblems, or if civilians are mixed in with militants, as the Bureau’s investigation into drone attacks in Waziristan has repeatedly found?
Speaking publicly for the first time on the controversial CIA drone strikes, President Obama claimed last week that they are used strictly to target terrorists, rejecting what he called ‘this perception we’re just sending in a whole bunch of strikes willy-nilly’. He also claimed that the strikes ‘have not caused a huge number of civilian casualties’.
Despite such assertions, some international legal experts continue to question the covert drone campaign, arguing that the strikes amount to little more than state-sanctioned extra-judicial executions.
Justification
Surprisingly, after almost a decade of drone attacks outside the battlefield, the question of their legality has never been tested in a US or international court, even when US citizens have been targeted.
The Obama administration has however sought to present some legal justification for its actions.
Harold Koh, a legal adviser at the State Department, became the first senior US official to engage with the question in a March 2010 speech. He told an audience of lawyers that ‘US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.’
US drone strikes, Koh claimed, were only aimed at military objectives. And they also followed the principle of proportionality, ‘which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.’
The CIA and Pentagon – which has its own covert drone fleet – also consult with lawyers before each strike. In a frank interview with Newsweek last year, former CIA legal counsel John Rizzo discussed his role in overseeing the agency’s ‘hit list’, at times referred to drone killings as ‘murder’. (Rizzo is currently under investigation for leaking classified information.)
Not to mince words here, if it is not in a situation of armed conflict, unless it falls into this very narrow area of imminent threat then it is an extra-judicial execution.
Naz Modirzadeh, Harvard
Contentious
Do the administration’s claims of legality add up? And what of the specific instances of attacks on rescuers and mourners uncovered by the Bureau?
According to a wide range of international law experts consulted by the Bureau, for the CIA’s drone attacks in Pakistan and Yemen to be legal they would at the very least need to be covered by the Laws of Armed Conflict (LOAC).
Professor Dapo Akande, who heads Oxford University’s Institute for Ethics, Law and Armed Conflict, believes that under LOAC the killing of civilian rescuers is problematic: ‘The question is, can rescuing be regarded as taking part in hostilities, to which for me the answer is clearly “No”. That rescuing is not taking part in hostilities.’
If LOAC does not apply – as some respected lawyers believe is the case – then the far more restrictive international human rights law (IHRL) applies. This explicitly forbids attacks except in the most restricted circumstances, namely when the possibility of being attacked is absolutely imminent.
‘Not to mince words here, if it is not in a situation of armed conflict, unless it falls into this very narrow area of imminent threat then it is an extra-judicial execution. This is absolutely unlawful under IHRL and of course under domestic law in any place in which such an attack might occur. And illegal under US law,’ says Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University.
‘So then we don’t even need to get to the nuance of who’s who, and are people there for rescue or not. Because each death is illegal. Each death is a murder in that case.’
The concept of ‘imminent threat’ may now be in jeopardy. Obama’s chief counter-terrorism adviser, John Brennan, told a recent gathering at Harvard Law School that ‘We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups.’
Brennan also continues to claim that no civilians have been killed in CIA drone strikes since mid-2010, despite a Bureau investigation which has proved the contrary.
Clive Stafford-Smith believes that Obama, like Bush before him, is seeking to undermine international law in order to achieve US military objectives: ‘They’re trying to say that the Geneva Conventions are quaint and outmoded. What they really mean is they’re inconvenient.’
Funeral attacks
The Bureau has also identified a number of CIA attacks on mourners and funeral goers, resulting in at least 23 civilian casualties.
Reprieve’s Stafford-Smith is blunt: ‘Imagine the outrage if the IRA had followed up its assassination of Lord Mountbatten [in 1979] by attacking his funeral. This amounts to trying to cower people into not showing respect for the dead.’
But Harvard’s Modirzadeh points out that if the CIA’s drone strikes are covered by LOAC, then an attack on a funeral might be permitted. LOAC specifically provides for proportionality. The greater the threat a target represents, the higher the ‘collateral damage’ allowed for.
‘If it is excessive then the attack should not be carried out at that time, it should not be carried out at the funeral. But of course the arguments can also be made about timing; about the potential thtat the target may be lost if they were not hit at a certain time when there is clear intelligence that the target is present. And of course there can be mistakes: a mistake is not a war crime.’
‘Within reach of defeating al Qaeda’
Despite concerns about its campaign, the US shows little sign of letting up. There have been 312 CIA drone strikes in Pakistan since 2004. Of more than 2,300 people killed, most are alleged militants according to the Bureau. But at least 464 civilians also appear to have died.
If US policy assumes that those who live with or assist combatants are also necessarily combatants, what about the wife of the drone pilot who drives him to work in the morning? How is that person any different from the people in the house that the Taleban combatant is living in?
Professor Dapo Akande, Oxford University
The strikes cause outrage in Pakistan where political leaders seek to outdo each other in public condemnation. Yet Islamabad has almost certainly signed secret deals permitting the Americans to attack – deals it so far dare not dismantle.
And the US believes it it close to some form of victory. US Defense Secretary (and former CIA chief) Leon Panetta spoke for the Administration when he said in July: ‘We’re within reach of strategically defeating al Qaeda.’ Officials fear any letup in attacks will allow al Qaeda and the Taliban to recover from the CIA’s brutal assaults.
Yet some fear that in its pursuit of victory the US’s changing definitions of who it may attack – and what it views as a conflict – may yet come back to haunt it.
‘If US policy assumes that those who live with or assist combatants are also necessarily combatants, that would be problematic if applied to US combatants and operatives.‘ says Oxford University’s Professor Dapo Akande.
‘What about the wife of the drone pilot who drives him to work in the morning? And she’s got the kids in the back, so she drives the person who’s piloting the drone strikes into work, drops him off, takes the kids into school. How is that person any different from the people in the house that the Taleban combatant is living in? It becomes very difficult, I think, to maintain these distinctions when we turn it around and look at it from our point of view.’
Christof Heyns, the UN Special Rapporteur on Extra-Judicial Executions, agrees that an international legal framework is urgently needed to govern their use.
‘Our concern is how far does it go – will the whole world be a theatre of war?’ he asked. ‘Drones in principle allow collateral damage to be minimised but because they can be used without danger to a country’s own troops they tend to be used more widely. One doesn’t want to use the term ticking bomb but it’s extremely seductive.’
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February 5th, 2012 at 10:49 am (#)
I just wonder how an attack on a funeral of a Soldier in the United States would be viewed? Of course we know,there would be huge consequences, every American Politician would be up in arms. Is it any Different, from attacking a Pakistani, in Pakistan.
The US Supremes Have ruled that everybody is at least a Civilian under Geneva, and it is a War Crime to kill a civilian, the fact is that the US is bypassing its most fundamental requirement of War, the PROPER determination of whether someone is a Combatant and it started with George W By passing Geneva in the first instance in Afganistan, Never ever has ONE Gitmo Prisoner been given an Article 5 hearing to determine status, and it is impossible to determine status from the air!
February 6th, 2012 at 12:17 pm (#)
Interesting article but it reflects a persistent misunderstanding of the applicability of LOAC and International Human Rights Law (IHRL). These fields of law are NOT mutually exclusive but apply concomitantly in armed conflicts. The IHRL applies, and was always intended to apply, with full force not only in peace-time but also in times of serious crisis, including armed conflicts, be they national or international. With regard to the rights to life, freedom from torture and other forms of ill-treatment, security and dignity, there can be NO compromise in ANY circumstances and the US Government is, in principle, strictly responsible under in particular the International Covenant on Civil and Political Rights for any violation of the “inherent right to life” under article 6 thereof, according to which this right shall be protected by law and no one may be “arbitrarily deprived of his life”. It is high time to hold the US Government accountable for its multiple violations of the aforementioned human rights. Sadly, the reckless US actions in Pakistan and elsewhere, including extrajudicial killings, unacknowledged detentions and torture, do nothing to promote peace, but do a lot to undermine security worldwide and the human rights of us all. It is but the expression of a narrow-minded and cynical outlook on the world.
February 7th, 2012 at 3:10 am (#)
The answer to your initial question – assuming war law applies which it probably does NOT in this case – is “yes.” It is a violation of the laws of war to target rescue workers, whether or not they wear the Red Cross emblem, unless they are uniformed combatants constituting a military target. The right to humanitarian relief for those no longer participating in hostilities (included wounded combatants) is one of the cornerstone rules of humanitarian law.
Now, what if the rescuers may themselves be combatants? In that case, the question is whether or not this can be known. If it is NOT known, if some of the rescuers may be civilians, then firing on them would be an “indiscriminate attack” – one that does not or cannot distinguish between civilians or combatants. This is also a war crime: warring parties are to avoid indiscriminate attacks, and the presence of some combatants among a civilian population does not deprive that population of its civilian character.
But the bigger problem here is the assumption that war law applies in this context, which hinges on whether you accept that it is appropriate to characterize our relation to the targeted individuals as one of “armed conflict.” If not – and my sense is the authors of this report do not – then it is human rights law that applies, not humanitarian law.
My view is that arguments against the drone campaign will be stronger if discussions of their legality focus on the human rights angle and avoid treating this as a situation of armed conflict or referring to its as a drone “war” because the Administration’s strategy depends entirely on exploiting grey areas in humanitarian law – including the definition of armed conflict. Human rights law is much clearer on the subject of extrajudicial execution.
February 7th, 2012 at 3:15 am (#)
This is a lot of legalese crap. As news reports have stated over a long period of time, Taliban and other terrorist groups hit by drone attacks “secure” and close off the sites of these attacks in order to do any of the following:
1. rescue any wounded survivors
2. recover the bodies of those killed, not only for the purpose of a funeral, but to prevent anyone from knowing who was killed (i.e. leaders) and how many
3. Recover useable weapons
4. Cover up illegal weapons activities (i.e. smuggling) inside a country where it is considered illegal (though, normal)
5. to put out disinformation re the above, as well as misinformation, the classical line taken from the communists’ handbook – “The bombs/missiles killed innocent women, children and old men”, usually in that order.
I read that crap in Vietnam during the war. Apparently no No. Vietnamese soldiers were ever killed in No. Vietnam, even at anti-aircraft sites, at military bases, on military ships, or at artillery sites, many of which were placed in civilian areas.
The same tactics of placing military weapons in civilian areas was done by the PLO in Lebanon (Lots of photos available of this being done), and more recently, re the rocket firing sites of Hamas and PLO factions in Gaza (caught on film) that were used to attack civilian targets in Israel.
Also forgotten is that the Taliban and related terrorist movement figures targetted in Pakistan, and elsewhere, are not regular, official government troops, just religious fanatics with their own armies (similar to the “Thuggies” in India, the Boko Harem in Nigeria, The Lords Army in Uganda, etc).
The war on terrorism has redefined traditional terms re who is the “enemy” and who is not, as well as who is willingly assisting the terrorists.
My son was ordered not to fire on Saddam’s terrorist forces when they used women and children as human shields. His unit had to honker down and take the fire until the shields were released, or the enemy moved away, or were killed by precision fire snipers.
This happened in Vietnam as well, and there are published mainstream newspaper reports about it.
For those who know anything about the law, the U.S. allows for “long arm” operations against criminals around the world, despite the fact that communist and Islamic nations specifically shield terrorist bombers/murderers, including Maxine Chesimard (Black Liberation Army) cop-killer, an American black muslim assassin named Daud (a movie star in Iran), etc.
Don’t forget that Syria and Egypt, as well as Argentina, protected wanted Nazi war criminals, and when they were seized by Israeli agents and taken to Israel for trial (Eichmann), or killed on the spot (the Germans working on Nasser’s poison gas and rocket programs), the world didn’t say a word about it.
A common theme in the “drone” targetting debate is that the Jihadist movement and the Communist/marxist movements are working in conjunction with each other to protect the terrorist scum of the earth, instead of condemning them and trying to stop their predations. And why not? They are born of the same psychopath ideologies – ones of terrorism, submission, murder, genocide, and eventual slavery of those they attack.
They use the same strategies and tactics that Lenin, Trotskyite and Stalin developed in the early 20th Century, including using all means, legal or illegal, to attain their goals. Using civilian clothing or even civilians to carry out their operations is Standard Operating Procedure (SOP), so what you seem to see in Pakistan at drone strike sites is probably not what it really is.
In a war there will always be “collateral damage.” However, the US armed forces have done the most of any modern military force to avoid/prevent as many needless deaths of the innocents as possible, and we have suffered numerous deaths of our servicemen because of this concern.
There is a difference between us and the enemy, but some don’t want to see it while others deliberately aid the enemy by trying to change who is the good guy.
Long live “Disinformation”!