A question of legality

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.)

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.

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.’