By William Fisher
Targeted killings, including those using drones, are increasingly being applied in ways that violate international law, according to a report issued today by a United Nations expert on extrajudicial killings.
In a statement, the American Civil Liberties Union (ACLU) said the report, by U.N. special rapporteur Philip Alston, “underscores the alarming legal questions raised by the U.S. program of targeting and killing people – including U.S. citizens – sometimes far from any battlefield.”
The report, which will be presented to the U.N. Human Rights Council in Geneva on Thursday, says that while targeted killings may be permitted in armed conflict situations when used against combatants, fighters or civilians who directly engage in combat-like activities, they are increasingly being used far from any battlefield.
It states that "this strongly asserted but ill-defined license to kill without accountability is not an entitlement which the United States or other States can have without doing grave damage to the rules designed to protect the right to life and prevent extrajudicial killings."
Alston also criticized the U.S. invocation of the "law of 9/11," which it uses to justify the use of force outside of armed-conflict zones as part of the so-called global war on terrorism. The report called for the United States and other countries to end the "accountability vacuum" by disclosing the full legal basis for targeted killings and specifically the measures in place to ensure wrongful killings are investigated, prosecuted and punished.
Jamil Dakwar, Director of the ACLU Human Rights Program, said, "The U.S. should heed the recommendations of the rapporteur and disclose the full legal basis of the U.S. targeted killings program, and it should abide by international law.”
He added, “The entire world is not a battlefield, and the government cannot use quintessentially warlike measures anywhere in the world that it believes a suspected terrorist might be located. The Obama administration has pledged to lead by example and restore respect for rule of law, but U.S. targeted killings are impeding U.S. leadership on human rights and sending the message that some causes can be fought outside the rule of law and without transparency and accountability."
In March, the ACLU filed a Freedom of Information Act (FOIA) lawsuit demanding that the government disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas, and in April sent a letter to President Obama condemning the U.S. policy on targeted killings and urging him to bring it into compliance with international and domestic law.
"The U.S. program of targeted killing outside of armed conflict zones is illegal and raises serious policy questions that ought to be debated publicly," said Jonathan Manes, legal fellow with the ACLU National Security Project.
"In addition to the legal basis, scope and limits of the program, the Obama administration should disclose how many civilians have been killed, how the program is overseen, and what accountability mechanisms exist over the CIA and others who conduct the targeted killings."
While welcoming an initial effort by the administration of President Barack Obama to offer a legal justification for drone strikes to kill suspected terrorists overseas, human rights groups say critical questions remain unanswered.
In an address to an international law group last week, State Department Legal Adviser Harold Koh insisted that such operations were being conducted in full compliance with international law.
"The U.S. is in armed conflict with al Qaeda as well as the Taliban and associated forces in response to the horrific acts of 9/11 and may use force consistent with its right to self-defence under international law," he said. "...Individuals who are part of such armed groups are belligerents and, therefore, lawful targets under international law."
Moreover, he went on, "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war," which require limiting attacks to military objectives and that the damage caused to civilians by those attacks would not be excessive.
While right-wing commentators expressed satisfaction with Koh's evocation of the "right to self-defence" - the same justification used by President George W. Bush - human rights groups were circumspect.
Drone attacks, which have increased significantly under Obama, are widely considered to have become the single-most effective weapon in Washington's campaign disrupt al Qaeda and affiliated groups, especially in the frontier areas of western Pakistan.
In Obama's first year in office, more strikes were carried out than in the previous eight years under his predecessor, George W. Bush.
Conducted by the Central Intelligence Agency (CIA), they reportedly killed "several hundred" al Qaeda and Pakistani Taliban militants since Obama in 2009, forcing many of them to flee their border hideouts for large cities where precision attacks would be much harder to carry out without causing heavy civilian casualties.
The weapon itself "is one of the least problematic from a civilian-protection standpoint, because drones can hover over their targets and observe whether civilians are present before delivering a payload, and because they carry relatively small and precisely guided munitions,”
"The question is a legal one: under what circumstances can you use lethal force at all? Our view has always been that it should be limited to zones of active armed conflict where normal arrest operations are not feasible,” noted Malinowski.
In his remarks to the American Society for International Law, Koh, who was one of the harshest and most outspoken critics of the Bush administration's legal tactics in its "global war on terror", acknowledged some of these concerns, noting that his speech "is obviously not the occasion for a detailed legal opinion."
While noting criticism that the use of lethal force against some individuals far removed from the battlefield could amount to an "unlawful extra-judicial killing", he insisted that "a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force."
"Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise," he said.
Alston, the U.N. rapporteur, was far from satisfied with these assurances, however, calling Koh's statement "evasive".
He "was essentially arguing that 'You've got to trust us. I've looked at this very carefully. I'm very sensitive to these issues. And all is well,'" he told an interviewer on 'Democracy Now' Thursday.
"The speech did not provide essential information about the drone/targeted killing programme, including the number and rate of civilian casualties, and the internal oversight and controls on targeted killing, especially within the CIA," said Manes of the ACLU, which has filed a lawsuit to acquire that information.
Tom Parker of Amnesty International was more scathing about Koh's position, suggesting that it was one more concession - along with indefinite detention and special military tribunals for suspected terrorists - to the framework created by Bush's "global war on terror".
"The big issue is where the war is and whether it's a war, and we couldn't disagree more strongly as to the tenor of Koh's comments," he said. "It goes back to the idea of an unbounded global war on terror where terror is hardly defined at all."