Drone Strikes: A Violation of International Law?

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Although it received almost no media coverage outside of one or two alternative news sources, on March 1 Ben Emmerson released his second report into the year-long investigation on the use of drones in counterterrorism operations. Emmerson, British barrister and UN Special Rapporteur, was tasked last year with investigating the program by the Human Rights Council in Geneva due to rising concerns from UN member states, including two of the five permanent members of the U. N. Security Council (UNSC). Based on the interim report last year, the UN General Assembly adopted a resolution by consensus that all counterterrorism measures (including unmanned aerial vehicles) must comply with international law. Two weeks ago, the European Parliament passed a similar resolution.

One of the obstacles in examining whether drones strikes violate international human rights law is the lack of transparency around the program, and Emmerson implored the CIA to release the suspected number of civilian casualties. The CIA had previously refused to acknowledge the drone targeted killing program, citing classified information and national security concerns, when presented with a FOIA by the ACLU to gain records on the strikes. Even though President Obama and a former director of the CIA have spoken publicly about drone strikes, in response to the ACLU’s lawsuit the CIA has again refused to acknowledge the program’s existence. However, in response to criticisms the administration agreed to move the program to the Department of Defense by the end of 2014 to improve transparency, and established clear guidelines for targeted killings that follow international law.

In spite of the new guidelines, Emmerson (2014) identified 30 (of 37 analyzed) strikes carried out in Afghanistan, Pakistan, Yemen, Somalia, and Gaza by ISAF (US and UK) and Israel as suspicious enough to warrant a legal explanation and justification. In addition, although civilian deaths by drones had decreased in the FATA (Federally Administered Tribal Areas) of Pakistan in 2012, and none were reported there in 2013, there was a “three-fold increase in the number of recorded civilian casualties from the use of drones” in Afghanistan (pg. 6). Further noted was this number “represents a significant increase in the number of civilian casualties from drone strikes as a percentage of the overall number …from aerial operations” and that drone strikes accounted for “almost 40% of the total number of civilian fatalities” (pg. 6).

In regard to Yemen, Emmerson (2014) reported that drone strikes have increased and a significant number of civilian deaths were reported at the end of last year. Yet, because of the definition of ‘internal armed conflict’ under international humanitarian law, “the majority of those killed is believed to have been individuals with a ‘continuous combat function’” (pg. 7). Human Rights Watch (2013) investigated six of these drone strikes in Yemen and agreed that although the cases may not violate international law, they do not meet the standards for targeted killings that President Obama identified last year. One concern is that the US defines “combatant” broadly, and includes “targets based on their merely being members, rather than having military operational roles, in the armed group” (pg. 87). Furthermore, some targeted killings focus on behavior signatures (i.e. a pattern of behavior that indicates possible involvement). These “signature strikes” increase the risk of civilian deaths and are beyond the international laws of war.

Critics also claim the targeted killings, especially deaths resulting from signature strikes, are merely extra-judicial executions and should be considered war crimes. The US has claimed the legal definition of “self-defense” in the global War on Terror as the reason for the expansion of the drone program under the Obama administration. Emmerson noted the danger, however, in the lack of an international legal consensus on the definition of self-defense, and argued this “leaves dangerous latitude for differences in practices by States” (2014, pg. 19). Moreover, it is difficult to prove a violation of international humanitarian law or a war crime when “most of the relevant evidence which could confirm or dispel such a suspicion remains in the exclusive possession of the alleged perpetrator States” (Emmerson, 2014, pg. 10).

Even if evidence was presented that the US had violated international law with drone strikes, how would the international community handle the violation? A referral to the International Criminal Court (ICC)? One of the goals in establishing the ICC was to have an international court free from political influence. Referrals to the Court come in one of three ways: state party, the UNSC, and by authorization from the Prosecutor. Although three of the permanent members of the UNSC (US, China, and Russia) did not ratify the ICC treaty, they maintain political influence over the Court through the referral and authorization processes. Furthermore, political influence on the Court by member states has been observed in the heavy focus on Africa (Mamdani, 2008), the hindrance of the peace process in Northern Uganda (Beitzel & Castle, 2013), the delay in establishing “crimes of aggression” (O’Connell & Niyazmatov, 2012), and the Court’s refusal to open investigations into cases involving US allies (Ainley, 2011).

Finally, the UNSC is charged with maintaining international peace, yet critics argue that drone strikes result in blowback from Muslims who may not have harbored negative feelings toward the US prior to the killing of innocent civilians. Some of these individuals may join insurgent groups seeking vengeance, and the cycle continues as the US initiates more targeted killings. In that regard, counterterrorism policies, including the drone program, fuel terrorism and threaten international peace. In response, the international community finger-wags while “combatants” are executed without due process and civilians are killed.

Tammy Castle, PhD
Associate Professor
Department of Justice Studies
James Madison University

Sources:

Ainley, K. (2011). The International criminal court on trial. Cambridge Review of International Affairs, 24(3): 309-333.

Beitzel, T. & Castle, T. (2013). Achieving justice through the international criminal court in northern Uganda: Is indigenous/restorative justice a better approach? International Criminal Justice Review, 23(1): 41-55.

O’Connell, M. & Niyazmatov, M. (2012). What is aggression? Journal of International Criminal Justice, 10: 189-207.

Emmerson, B. (28 February, 2014). Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. New York: United Nations Human Rights Council.

Human Rights Watch. (2013). Between a drone and Al-Qaeda: The civilian cost of US targeted killings in Yemen. Washington DC: Human Rights Watch.

Mamdani, M (29 September, 2008). The New Humanitarian Order. The Nation.

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