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08 June 2012
By Bill Quigley Bill
is a human rights lawyer who teaches law at Loyola
University New Orleans and works with the Center for
Constitutional Rights. A longer version of this
article with sources is available. You can contact
Bill at quigley77@gmail.com US
civilian and military employees regularly target and
fire lethal unmanned drone guided missiles at people
across the world. Thousands of people have been
assassinated. Hundreds of those killed were
civilians. Some of those killed were rescuers and
mourners.
These killings would be criminal acts if they occurred
inside the US. Does it make legal sense that these
killings would be legal outside the US?
Some Facts about
Drone Assassinations The
US has used drones to kill thousands of people in
Afghanistan, Iraq, Pakistan, Yemen and Somalia. But
the government routinely refuses to provide any
official information on local reports of civilian
deaths or the identities of most of those killed. In
Pakistan alone, the New America Foundation reports US
forces have launched 297 drone strikes killing at
least 1800 people, three to four hundred of whom were
not even combatants. Other investigative journalists
report four to eight hundred civilians killed by US
drone strikes in Pakistan. Very
few of these drone strikes kill high level leaders of
terror groups. A recent article in FOREIGN AFFAIRS
estimated "only one out of every seven drone attacks
in Pakistan kills a militant leader. The majority of
those killed in such strikes are not important
insurgent commanders but rather low level fighters,
together with a small number of civilians." An
investigation by the Wall Street Journal in November
2011 revealed that most of the time the US did not
even know the identities of the people being killed by
drones in Pakistan. The WSJ reported there are two
types of drone strikes. Personality strikes target
known terrorist leaders. Signature strikes target
groups of men believed to be militants but are people
whose identities are not known. Most of the drone
strikes are signature strikes. In
Yemen, there have been at least 34 drone assassination
attacks so far in 2012 alone, according to the London
based Bureau of Investigative Journalism. Using
drones against people in Yemen, who are thought to be
militants but whose names are not even known, was
authorized by the Obama administration in April 2012,
according to the Washington Post. Somalia has been
the site of ten drone attacks with a growing number in
recent months.
Civilian deaths in drone strikes are regularly
reported but more chilling is the practice of firing a
second set of drone strikes at the scene once people
have come to find out what happened or to give aid.
Glen Greenwald of Salon, a leading critic of the
increasing use of drones, recently pointed out that
drones routinely kill civilians who are in the
vicinity of people thought to be "militants" and are
thus "incidental" killings. But also the US also
frequently fires drones again at people who show up at
the scene of an attack, thus deliberately targeting
rescuers and mourners.
Here are five
reasons why these drone assassinations are illegal.
One.
Assassination by the US government has been illegal
since 1976
Drone killings are acts of premeditated murder.
Premeditated murder is a crime in all fifty states and
under federal criminal law. These murders are also
the textbook definition of assassination, which is
murder by sudden or secret attack for political
reasons. In
1976 U.S. President Gerald Ford issued Executive Order
11905, Section 5(g), which states "No employee of the
United States Government shall engage in, or conspire
to engage in, political assassination." President
Reagan followed up to make the ban clearer in
Executive Order 12333. Section 2.11 of that Order
states "No person employed by or acting on behalf of
the United States Government shall engage in, or
conspire to engage in, assassination." Section 2.12
further says "Indirect participation. No agency of
the Intelligence Community shall participate in or
request any person to undertake activities forbidden
by this Order." This ban on assassination still
stands. The
reason for the ban on assassinations was that the CIA
was involved in attempts to assassinate national
leaders opposed by the US. Among others, US forces
sought to kill Fidel Castro of Cuba, Patrice Lumumba
of the Congo, Rafael Trujillo of the Dominican
Republic, and Ngo Dinh Diem of South Vietnam.
Two. United
Nations report directly questions the legality of US
drone killings The
UN directly questioned the legality of US drone
killings in a May 2010 report by NYU law professor
Philip Alston. Alston, the UN special rapporteur on
extrajudicial, summary, or arbitrary executions, said
drone killings may be lawful in the context of
authorized armed conflict (eg Afghanistan where the US
sought and received international approval to invade
and wage war on another country). However, the use of
drones "far from the battle zone" is highly
questionable legally. "Outside the context of armed
conflict, the use of drones for targeted killing is
almost never likely to be legal." Can drone killings
be justified as anticipatory self-defense? "Applying
such a scenario to targeted killings threatens to
eviscerate the human rights law prohibition against
arbitrary deprivation of life." Likewise, countries
which engage in such killings must provide
transparency and accountability, which no country has
done. "The refusal by States who conduct targeted
killings to provide transparency about their policies
violates the international law framework that limits
the unlawful use of lethal force against individuals."
Three.
International law experts condemn US drone killings
Richard Falk, professor emeritus of international
affairs and politics at Princeton University thinks
the widespread killing of civilians in drone strikes
may well constitute war crimes. "There are two
fundamental concerns. One is embarking on this sort of
automated warfare in ways that further dehumanize the
process of armed conflict in ways that I think have
disturbing implications for the future," Falk said.
"Related to that are the concerns I've had recently
with my preoccupation with the occupation of Gaza of a
one-sided warfare where the high-tech side decides how
to inflict pain and suffering on the other side that
is, essentially, helpless."
Human rights groups in Pakistan challenge the legality
of US drone strikes there and assert that Pakistan can
prosecute military and civilians involved for murder.
While stopping short of direct condemnation,
international law expert Notre Dame Professor Mary
Ellen O'Connell seriously questions the legality of
drone attacks in Pakistan. In powerful testimony
before Congress and in an article in America magazine
she points out that under the charter of the United
Nations, international law authorizes nations to kill
people in other countries only in self-defense to an
armed attack, if authorized by the UN, or is assisting
another country in their lawful use of force. Outside
of war, she writes, the full body of human rights
applies, including the prohibition on killing without
warning. Because the US is not at war with Pakistan,
using the justification of war to authorize the
killings is "to violate fundamental human rights
principles."
Four. Military law of war does not
authorize widespread drone killing of civilians
According to the current US Military Law of War
Deskbook, the law of war allows killing only when
consistent with four key principles: military
necessity, distinction, proportionality, and
humanity. These principles preclude both direct
targeting of civilians and medical personnel but also
set out how much "incidental" loss of civilian life is
allowed. Some argue precision-guided weapons like
drones can be used only when there is no probable
cause of civilian deaths. But the US military
disputes that burden and instead directs "all
practicable precautions" be taken to weigh the
anticipated loss of civilian life against the
advantages expected to be gained by the strike. Even
using the more lenient standard, there is little legal
justification of deliberately allowing the killing of
civilians who are "incidental" to the killings of
people whose identities are unknown.
Five. Retired high-ranking military
and CIA veterans challenge the legality and efficacy
of drone killings
Retired US Army Colonel Ann Wright squarely denies the
legality of drone warfare, telling Democracy Now:
"These drones, you might as well just call them
assassination machines. That is what these drones are
used for: targeted assassination, extrajudicial
ultimate death for people who have not been convicted
of anything."
Drone strikes are also counterproductive. Robert
Grenier, recently retired Director of the CIA
Counter-Terrorism Center, wrote, "One wonders how many
Yemenis may be moved in the future to violent
extremism in reaction to carelessly targeted missile
strikes, and how many Yemeni militants with strictly
local agendas will become dedicated enemies of the
West in response to US military actions against them."
Recent polls of the Pakistan people show high levels
of anger in Pakistan at US military attacks there.
This anger in turn leads to high support for suicide
attacks against US military targets.
US Defense of
Drone Assassinations US
officials claim these drone killings are not
assassinations because the US has the legal right to
kill anyone considered a terrorist, anywhere, if they
can argue it is in self-defense. Attorney General
Holder and White House counterterrorism advisor John
Brennan recently defended the legality of drone
strikes and argued they are not assassinations because
the killings are in response to the 9/11 attacks and
are carried out in self-defense even when not in
Afghanistan or Iraq. This argument is based on the
highly criticized claim of anticipatory self-defense
which justifies killings in a global war on terror
when traditional self-defense would clearly not. The
government refuses to provide copies of the legal
opinions relied upon by the government.
Growing
Resistance to Drone Assassinations In
signs of hope, people in the US are resisting the
increasing use of drones.
CODEPINK, the Center for Constitutional Rights and the
London-based human rights group Reprieve co-sponsored
an International Drone Summit in Washington DC to
challenge drone assassinations. Investigative
journalist Jeremy Scahill noted that Congress only
managed to scrape up six votes to oppose the
assassination of US citizens abroad. "What is
happening to this country? We have become a nation of
assassins. We have become a nation that is somehow
silent in the face of the idea that assassination
should be one of the centerpieces of US policy." The
American Society of International Law issued a report
"Targeting Operations with Drone Technology:
Humanitarian Law Implications" in March 2011.
Concerned that drones may be the future of warfare,
scholars examined three questions in the US use of
drone technology: the scope of armed conflict (what is
the battlefield upon which deadly force of drone
killing is authorized); who may be targeted; and the
legal implications of who conducts the targeting
(since it is often not military but clandestine CIA
agents who decide who dies). Concluding that the US
may soon find itself "on the other end of the drone"
as this technology expands, they criticize official US
silence on these key legal questions.
Others are taking direct action. Select examples
include: fourteen people arrested in April 2009
outside Creech Air Force base in Nevada in connection
with a protest against drones by the Nevada Desert
Experience; in January 2010 people protested drones
outside the CIA headquarters in Langley Virginia; in
April 2011, thirty-seven were arrested at Hancock Air
Force base in upstate New York as part of a four
hundred person protest against the use of drones; in
October 2011, as part of the International Week of
Protest to Stop the Militarization of Space there were
protests outside of Raytheon Missile Systems plant in
Tucson; in April 2012, twenty-eight people were pre-emptively
arrested on their way to protest drones at Hancock Air
Force Base.
There is a brilliant new book, DRONE WARFARE authored
by global activist Medea Benjamin which documents the
nuts and bolts of the drone industry and the money
involved in their production and operation. She
collects many global media reports of innocent
civilian deaths, investigations into these deaths, and
gives voice to international opposition groups like
her own CODEPINK, Voices for Creative Nonviolence,
Fellowship of Reconciliation, War Resisters
International, Human Rights Watch, the Catholic Worker
movement, Campaign for Nuclear Disarmament, and others
working against the drones. As
National Public Radio and The New Republic jointly
editorialized, there is good reason to doubt the
veracity of US claims that drone killings are even
effective. Drone use has escalated and expanded the
US global war on terror and thus should be subject to
higher levels of scrutiny than it is now. As the use
of drones escalates so too does the risk of killing
innocents which produces "legitimate anti-American
anger that terrorist recruiters can exploit….Such a
steady escalation of the drone war, and the inevitable
increase in civilian casualties that will accompany
it, could easily tip the delicate balance that assures
we kill more terrorists than we produce."
There is incredible danger in allowing US military and
civilians to murder people anywhere in the world with
no public or Congressional or judicial oversight.
This authorizes the President and the executive
branch, according to the ACLU and the Center for
Constitutional Rights, to be prosecutor, judge, jury
and executioner. The
use of drones to assassinate people violates US and
international law in multiple ways. US military and
civilian employees, who plan, target and execute
people in Pakistan, Yemen and Somalia are violating
the law and, ultimately, risk prosecution. As the
technology for drone attacks spreads, protests by the
US that drone attacks by others are illegal will sound
quite hollow. Continuation of flagrantly illegal
drone attacks by the US also risks justifying the
exact same actions, taken by others, against us. |
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