Global Trends by Martin Khor

Monday 9 May 2011

Human rights concerns on “targeted killings”

The killing of Osama bin Laden, the bombing of Gaddafi’s house, the deaths of many civilians by drone missile attacks, have highlighted many concerns and questions of legality and human rights.

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The killing of Osama bin Laden was undoubtedly the biggest news last week.  While the shooting of the al-Qaeda chief filled the headlines for days, the confusion over what happened and questions over legality of the killing had taken over the discussion by week’s end.

United States officials had originally announced that Osama had been killed in a fierce fire-fight in the house in Pakistan he was occupying, and that he used his wife as a human shield.

A few days later it was admitted he had been unarmed, and there was no use of a human shield. Instead, there was no firing at the US forces, excepting from one person at the initial stage.

The death of Osama bin Laden came a few days after the NATO bombing of the house of Libyan leader Colonel Gaddafi, which the Libyan authorities said had killed his son and several grandchildren. 

This raised the question of whether and when it is legal for one state or states to kill persons, including political leaders, in other states.

These two events, in Pakistan and Libya, highlight the whole issue of targeted killings carried out by a government agency in the territory of other countries.

For example, drones controlled by operators thousands of miles away are increasingly being used to fire missiles at buildings and vehicles in which the targeted persons are believed to be in, with high “collateral damage”.

Drone attacks killed 957 civilians in Pakistan in 2010, according to the Human Rights Commission of Pakistan.  This was almost as many as the 1,041 civilians killed by suicide bomb attacks in the same year.

The high civilian deaths and casualties caused by US drone attacks have caused great public resentment in Afghanistan and Pakistan, with the leaders in these countries warning the US to control or curb the attacks.

As worldwide public clamour increased last week for more information on what really happened during the raid on Osama bin Laden’s house, United Nations human rights officials also called on the United States to disclose the full facts, including whether there had been plans to capture him.

The U.N. High Commissioner for Human Rights, Navi Pillay, called for light to be shed on the killing, stressing that all counter-terrorism operations must respect international law.

Last Friday, a joint statement was issued by Christof Heyns, U.N. special rapporteur on extrajudicial, summary or arbitrary executions, and Martin Scheinin, special rapporteur on protecting human rights while countering terrorism. Both report to the UN Human Rights Council.

They said that in certain exceptional cases, deadly force may be used in operations against terrorists. "However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially-decided punishment,” they added.

"In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. It will be particularly important to know if the planning of the mission allowed an effort to capture bin Laden."

The U.S. announcement that Osama bin Laden was unarmed when killed has drawn criticism that he should instead have been captured and brought to trial.

A Reuters report from New York on 5 May said:  “The legality of the commando killing of the al-Qaeda leader is less clear under international law, some experts said.  President Barack Obama got a boost in U.S. opinion polls, but the killing raised concerns elsewhere that the United States may have gone too far in acting as policeman, judge and executioner of the world's most wanted man.”

The German newspaper Sueddeutsche Zeitung expressed misgivings about the legality of the killing. "Which law covers the execution of bin Laden?" wrote its senior editor Heribert Prantl.  "U.S. law requires trials before death penalties are carried out. Executions are forbidden in countries based on rule of law. Martial law doesn't cover the U.S. operation either. The decision to kill the godfather of terror was political."

In May last year, the issue of “targeted killings” was addressed in a landmark report to the Human Rights Council by Philip Alston, who was then UN Special Rapporteur on  extrajudicial, summary or arbitrary executions.  

Alston, who is Law Professor in New York University, criticized CIA-directed drone attacks, which he said had resulted in the deaths of many hundreds of civilians. "Intelligence agencies, which by definition are determined to remain unaccountable except to their own paymasters, have no place in running programmes that kill people in other countries," the report said.

Alston suggested that the drone killings carry a significant risk of becoming war crimes because intelligence agencies "do not generally operate within a framework which places appropriate emphasis upon ensuring compliance with international humanitarian law".

More generally, the report said that in targeted killings, there has been a highly problematic blurring and expansion of boundaries of the relevant legal frameworks -- human rights laws, laws of war and use of inter-state force.

Targeted killing is mostly illegal, but in exceptional circumstances of armed conflict it may be legal.

The report said that states failed to specify the legal justification for policies and to provide accountability. They refuse to disclose who was killed, why and with what collateral consequences.

“The result is the displacement of legal standareds with a vaguely defined “license to kill” and the creation of a major accountability vacuum,” said the report, concluding that many of the practices violate legal rules.

The report made comments on Israel’s targeted killings of Palestinians, Russian practices in Chechnya and the US drone attacks in Afghanistan, Iraq, Yemen and Pakistan.

The report also warned that whatever rules the US attempts to invoke or apply to Al Qaeda could be invoked by other States to apply to other non-state armed groups.

“The failure of States to comply with their human rights law and international human rights obligations to provide transparency and accountability for targeted killings is a matter of deep concern.

“To date, no State has disclosed the full legal basis for targeted killings, including its interpretation of the legal issues discussed above. Nor has any State disclosed the procedural and other safeguards in place to ensure that killings are lawful and justified, and the accountability mechanisms that ensure wrongful killings are investigated, prosecuted and punished.

“The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals.”

The report recommended that “States should publicly identify the rules of international law they consider to provide a basis for any targeted killings they undertake. They should specify the bases for decisions to kill rather than capture.

“They should specify the procedural safeguards in place to ensure in advance of targeted killings that they comply with international law, and the measures taken after any such killing to ensure that its legal and factual analysis was accurate and, if not, the remedial measures they would take.

“If a State commits a targeted killing in the territory of another State, the second State should publicly indicate whether it gave consent, and on what basis.”

In light of the increasing use of targeted killings, in recent weeks and years, the issues and proposals raised in the May 2010 report should be seriously followed up.