On January 24, 2013, the UN Special Rapporteur on counterterrorism and human rights, Ben Emmerson, launched an investigation of States’ use of armed drones and other forms of targeted killing. The investigation will focus on the legal framework applicable to the use of drones and the technology’s impact on civilians by examining 25 case studies of strikes carried out by the United States, United Kingdom and Israel in Afghanistan, Pakistan, the Palestinian territories, Somalia and Yemen. [AFP; Bureau of Investigative Journalism]
Mr. Emmerson and his team aim to determine whether these attacks were carried out in compliance with international humanitarian law and international human rights law. UN human rights experts have previously characterized drone attacks as extrajudicial killings and possible war crimes, and have criticized States’ failure to investigate such allegations. [IJRC] Ultimately, the Special Rapporteur will likely make a recommendation to the UN General Assembly concerning States’ duties to investigate the lawfulness of drone attacks.
The Use of Drones to Carry out Targeted Killings
Drone warfare, used by both the Central Intelligence Agency (CIA) and United States military since 2002, rose to a peak around 2010 and has decreased somewhat since then. [BIJ] Yemen and Pakistan have witnessed the highest number of drone attacks, but the strikes have been carried out in Somalia and elsewhere. [AFP]
The U.S. government has been notoriously tight-lipped about its use of drone warfare, including with regard to thelegal rationale and procedures used to determine when and where to deploy drones. Outside groups, such as the Bureau of Investigative Journalism, Columbia Law School and the Council on Foreign Relations, have reported on what little can be determined about the targeted killing program in the absence of government transparency. According to such reports, the White House signs off on most drone attacks, although some require confirmation only from the CIA. The number of people killed in these attacks is estimated at between 3,000 and 5,000, and though it is unclear how many of the deceased are civilians, that figure may exceed 1,000. [PBS; BIJ]
Domestically, the Obama Administration faces legal action initiated by both the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) concerning drone attacks that killed three American citizens in Yemen in 2011. One lawsuit alleges that U.S. military and CIA officials lacked the legal authority, under both the U.S. Constitution and international law, to carry out such attacks. The government has moved to dismiss the case. Additionally, a federal court largely dismissed an ACLU Freedom of Information Act action requesting the release of documents relating to the incident in Yemen. The ACLU plans to appeal the dismissal. [ACLU]
In announcing the decision to investigate, Special Rapporteur Emmerson cited frustration with the Obama Administration’s unwillingness to provide information about its use of drones. [Washington Post] Emmerson is hopeful that the U.S. government will take the opportunity the UN investigation presents to show that it has a deliberate and lawful process by which it determines where and when to use drones. [Guardian]
An area of critical concern is the effect of drone strikes on civilian populations, particularly in light of repeated reports that the U.S. deliberately targets rescue workers and mourners in follow-up (“double tap”) strikes. See International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (2012); NYT. Citing the lack of information regarding civilian deaths caused by drones, Emmerson stressed the importance of ascertaining where the truth lies between conflicting accounts that there are “disproportionate civilian casualties on the one hand and that there are few or no civilian casualties on the other.” [Guardian]
Others worry about the human rights and rule of law implications of a worldwide increase in drone warfare. Fifty-one countries, including China and Iran, already have drone capabilities, making the need for consistent legal standards and procedures even more apparent. [CNN; AFP] Accordingly, Christof Heyns, UN Special Rapporteur on extrajudicial, summary or arbitrary executions, expressed concern that more States will begin to use targeted killing practices in the future and that such practices “weaken the rule of law.” [Guardian] Accompanying a 2010 report, Heyns’ predecessor Philip Alston also voiced his worry that the U.S. government’s claim of authority to kill without accountability would lead to erosion of international law governing the right to life and prohibition of extrajudicial killings. [New York Times]
Legal Standards Governing Drone Use
While the Obama Administration has made no official, detailed statement* concerning the legal standards it applies to drone warfare [NOTE: see update below], a series of speeches by government officials sheds some light on internal policies. However, both the facts and rationale presented by the administration are contested by academia and civil society. See generally, Living under Drones; Columbia Law School Human Rights Institute, Targeting Operations with Drone Technology: Humanitarian Law Implications (2011).
Obama officials have stated that the U.S. is involved in an armed conflict against al-Qaeda, the Taliban, and other groups, and that the killings are therefore lawful pursuant to international humanitarian law. Furthermore, they state that the U.S. has a right to national self-defense, and that the President has powers under both the U.S. Constitution and the Authorization for Use of Military Force (AUMF) to implement a targeted killing program.
However, many argue that the government has not properly substantiated the claim that an armed conflict continues. See Living under Drones; Congressional Research Service, Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities (2012). Some, like Special Rapporteur Heyns, find it “difficult to see how any killings carried out in 2012 can be justified as in response to [events] in 2001.” [Guardian]
If the drone strikes have been carried out in a context of armed conflict to which international humanitarian law applies, the U.S. government must show that the attacks meet the requirements of distinction, proportionality, humanity, and military necessity – safeguards intended to limit harm to civilians. See Living under Drones. In 2010, Harold Koh, a Legal Advisor at the U.S. State Department, spoke at the Annual Meeting of the American Society of International Law, where he addressed the principles of distinction and proportionality and insisted that rigorous steps were taken to limit civilian deaths in targeted attacks. There has been no clarification as to what those steps are, and the government has apparently failed to mention how the program ensures compliance with the requirements of humanity and military necessity.
Who the United States Targets
U.S. government officials have stated that the AUMF limits permissible targets to members of al-Qaeda and associated forces. They have also referred to strict procedures for identifying targets, although no details are available. Harold Hongju Koh, The Obama Administration and International Law, Speech to the Annual Meeting of the American Society of International Law, 25 March 2010. All government statements regarding targeted killing also indicate that U.S. citizens are not immune to attack if they fight alongside al-Qaeda, and that the government would not consider such an attack to be an assassination under domestic law. See Congressional Research Service, Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities.
While the administration also claims to prefer capturing rather than killing dangerous individuals, at least one official stated that captures are rare. Attorney General Eric Holder has stated that there is a careful review of whether an individual is an “imminent threat,” including the feasibility of capture. No further details on the review procedure itself are available. See Congressional Research Service, Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities.
*UPDATE: On February 5, 2013, news media obtained a previously confidential Department of Justice white paper that asserts a possible legal justification for targeted killings of U.S. citizens who are members of Al-Qaeda or related groups. [NBC] The white paper reiterates the purported justifications publicly alluded to by government officials in the past and asserts that the U.S. is in an ongoing non-international armed conflict with Al-Qaeda. The paper argues in favor of modifying the meaning of “imminent threat” to include recent involvement in or ongoing planning of terrorist activity (without requiring any specific, immediate threat), and proposes that whether a capture is “feasible” be determined with reference to a specific window of opportunity and taking into account the potential risk to U.S. personnel. It states, in summary:
…in defined circumstances [where the law of armed conflict principles of distinction, proportionality, humanity, and military necessity are met], a targeted killing of a U.S. citizen who has joined al-Qa’ida or its associated forces would be lawful under U.S. and international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense. Nor would it violate otherwise applicable federal laws barring unlawful killings in Title 18 [of the United States Code] or the assassination ban in Executive Order No. 12333. 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 determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.
Interestingly, the white paper cites Obama Administration officials’ statements as authority for some of the legal arguments made in it, including reference to then-State Department Legal Adviser, Harold Koh’s 2010 speech before the American Society of International Law, cited above.
Where the U.S. Carries out Strikes
Obama officials have also stated that while the AUMF is limited solely to al-Qaeda and associated individuals, it imposes no geographical restriction. Therefore, President Obama’s claimed authority may extend beyond Afghanistan into Pakistan and other areas, although the AUMF limitation prevents a global war. Though still vague, this is a notable departure from the Bush Administration’s references to a global war on terror. See Congressional Research Service, Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities; Columbia Law School Human Rights Institute, Targeting Operations with Drone Technology: Humanitarian Law Implications (2011).
Special Rapporteur Heyns requested the U.S. clarify its stance on the sovereignty of States in which they deploy drones, and whether the U.S. seeks consent from such countries. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, Addendum: Follow-up to country recommendations – United States of America, UN Doc. A/HRC/20/22/Add.3, 30 March 2012. Both Holder and Koh have publicly stated that the U.S. can operate where a state has either consented or where it is unwilling or unable to address threats to the U.S. See Congressional Research Service, Legal Issues Related to the Lethal Targeting of U.S. Citizens Suspected of Terrorist Activities. In disagreement, Pakistan’s ambassador to the United Nations, Zamir Akram, told the UN that the United States’ use of drones violates Pakistan’s sovereignty. [Reuters]
Whatever the purported justification for the U.S. targeted killing program, the main objective of the United Nations investigation is to bring some transparency and accountability to States’ use of drones, particularly when they endanger the lives of civilians.