UN expert criticises targeted killings, US drone attacks

The international community has to be more forceful in demanding accountability for extrajudicial killings, including such targeted killings by the use of drone aircraft, says a UN rapporteur.

Kanaga Raja

TARGETED killings pose a rapidly growing challenge to the international rule of law and they are increasingly used in circumstances that violate the relevant rules of international law, Philip Alston, the United Nations Special Rapporteur on extrajudicial executions, has said.

'The international community needs to be more forceful in demanding accountability,' said the rights expert in a statement, just as his report to the UN Human Rights Council on legal issues raised by targeted killings was released on 2 June.

'The most prolific user of targeted killings today is the United States, which primarily uses drones for attacks. Some 40 States already possess drone technology, and some already have, or are seeking, the capacity to fire missiles from them,' he said.

'The result is that the rules being set today are going to govern the conduct of many States tomorrow. I'm particularly concerned that the United States seems oblivious to this fact when it asserts an ever-expanding entitlement for itself to target individuals across the globe.'

'But this strongly asserted but ill-defined licence 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 executions,' stressed the UN expert.

The report (A/HRC/14/24/Add.6) identifies two major issues, namely, the excessively broad circumstances in which targeted killings are alleged to be legal, and the absence of essential accountability mechanisms in situations where they are used.

'In terms of the first problem, there are indeed circumstances in which targeted killings may be legal,' said Alston, noting that 'they are permitted in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities.'

'But they are increasingly being used far from any battle zone. The United States, in particular, has put forward a novel theory that there is a "law of 9/11" that enables it to legally use force in the territory of other States as part of its inherent right to self-defence on the basis that it is in an armed conflict with al Qaeda, the Taliban and "associated forces", although the latter group is fluid and undefined.'

'This expansive and open-ended interpretation of the right to self-defence goes a long way towards destroying the prohibition on the use of armed force contained in the United Nations Charter. If invoked by other States, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos,' said Alston.

On the problem of accountability, the rights expert noted that 'it is an essential requirement of international law that States using targeted killings demonstrate that they are complying with the various rules governing their use in situations of armed conflict.'

'The clearest challenge to this principle today comes from the programme operated by the United States' Central Intelligence Agency in which targeted killings are carried out from unmanned aerial vehicles or drones. It is clear that many hundreds of people have been killed as a result, and that this number includes some innocent civilians.'

'Because this programme remains shrouded in official secrecy, the international community does not know when and where the CIA is authorised to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed,' he said.

'In a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated,' he stressed.

The report by the Special Rapporteur describes the publicly available information about new targeted killing policies and addresses the main legal issues that have arisen. Amongst others, the report addresses the issues of the legality of targeted killings under the laws of war, international human rights law and the law applicable when States invoke their right to self-defence, the definition and scope of armed conflicts in which the laws of war apply, as well as the legality of drone killings and the international law requirements of transparency and accountability.

Targeting policies

According to the report, in recent years, a few States have adopted policies, either openly or implicitly, of using targeted killings, including in the territories of other States. Such policies have been justified both as a legitimate response to 'terrorist' threats and as a necessary response to the challenges of 'asymmetric warfare'.

New technologies, and especially unarmed combat aerial vehicles or 'drones', have been added into this mix, making it easier to kill targets, with fewer risks to the targeting State. The result of this mix has been a highly problematic blurring and expansion of the boundaries of the applicable legal frameworks - human rights law, the laws of war, and the law applicable to the use of inter-State force.

In terms of the legal framework, says the report, many of these practices violate straightforward applicable legal rules.

The phenomenon of targeted killing has been present throughout history. More recently, however, a few States have either openly adopted policies that permit targeted killings, or have formally adopted such a policy while refusing to acknowledge its existence, the report notes, citing as examples Israel, the US and Russia.

Although in most circumstances targeted killings violate the right to life, in the exceptional circumstance of armed conflict, they may be legal. Targeted killing is only lawful when the target is a 'combatant' or 'fighter' or, in the case of a civilian, only for such time as the person 'directly participates in hostilities'.

In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimise harm to civilians, says the report.

These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a State and a non-State armed group (non-international armed conflict), including alleged terrorists. Reprisal or punitive attacks on civilians are prohibited.

Outside the context of armed conflict, the report says that under human rights law, a State killing is legal only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary). The proportionality requirement limits the permissible level of force based on the threat posed by the suspect to others. The necessity requirement imposes an obligation to minimise the level of force used, regardless of the amount that would be proportionate, through, for example, the use of warnings, restraint and capture.

This means that under human rights law, a targeted killing in the sense of an intentional, premeditated and deliberate killing by law enforcement officials cannot be legal because, unlike in armed conflict, it is never permissible for killing to be the sole objective of an operation. Thus, for example, a 'shoot-to-kill' policy violates human rights law.

On the issue of the right to self-defence, the report says that in the absence of consent, or in addition to it, States may invoke the right to self-defence as justification for the extraterritorial use of force involving targeted killings.

The report adds that international law permits the use of lethal force in self-defence in response to an 'armed attack' as long as that force is necessary and proportionate. Controversy has arisen, however, in three main areas: whether the self-defence justification applies to the use of force against non-State actors and what constitutes an armed attack by such actors; the extent to which self-defence alone is a justification for targeted killings; and the extent to which States have a right to 'anticipatory' or 'pre-emptive' self-defence.

According to the report, reported targeted killings by the CIA have given rise to a debate over whether it is a violation of international humanitarian law (IHL) for such killings to be committed by State agents who are not members of its armed forces. Outside of armed conflict, killings by the CIA would constitute extrajudicial executions assuming that they do not comply with human rights law.

'If so, they must be investigated and prosecuted both by the US and the State in which the wrongful killing occurred.'

The report further notes that if a targeted killing violates IHL (by, for example, targeting civilians who were not 'directly participating in hostilities'), then regardless of who conducts it - intelligence personnel or State armed forces - the author, as well as those who authorised it, can be prosecuted for war crimes.

Drone killings

Noting that the use of drones for targeted killings has generated significant controversy, the report says that outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal. A targeted drone killing in a State's own territory, over which the State has control, would be very unlikely to meet human rights law limitations on the use of lethal force.

The United States has used drones and air-strikes for targeted killings in the armed conflicts in Afghanistan and Iraq, where the operations are conducted (to the extent publicly known) by the armed forces. The US also reportedly adopted a secret policy of targeted killings soon after the attacks of 11 September 2001, pursuant to which the government has credibly been alleged to have engaged in targeted killings in the territory of other States.

According to the report, the secret targeted killing programme is reportedly conducted by the CIA using 'Predator' or 'Reaper' drones, although there have been reports of involvement by special operations forces, and of the assistance of civilian contractors with the implementation of the programme.

The report finds that since the first credibly reported CIA drone killing on 3 November 2002, there have reportedly been over 120 drone strikes, although it is not possible to verify this number. The accuracy of drone strikes is heavily contested and also impossible for outsiders to verify. Reports of civilian casualties in Pakistan range from approximately 20 (according to anonymous US government officials quoted in the media) to many hundreds.

The report cites the Legal Adviser to the US Department of State recently outlining the government's legal justifications for targeted killings. They were said to be based on its asserted right to self-defence, as well as on IHL, on the basis that the US is 'in an armed conflict with al Qaeda, as well as the Taliban and associated forces'.

According to the report, while this statement is an important starting point, it does not address some of the most central legal issues including: the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.

Transparency and accountability

The failure of States to comply with their human rights law and IHL obligations to provide transparency and accountability for targeted killings is also 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, said the rights expert.

In order to ensure that accountability is meaningful, States must specifically disclose the measures in place to investigate alleged unlawful targeted killings and either to identify and prosecute perpetrators, or to extradite them to another State that has made out a prima facie case for the unlawfulness of a targeted killing.

Transparency and accountability in the context of armed conflict or other situations that raise security concerns may not be easy. States may have tactical or security reasons not to disclose criteria for selecting specific targets (e.g. public release of intelligence source information could cause harm to the source). But without disclosure of the legal rationale as well as the bases for the selection of specific targets (consistent with genuine security needs), States are operating in an 'accountability vacuum'.

The fact that there is no one-size-fits-all formula for such disclosure does not absolve States of the need to adopt explicit policies, the report concludes.

Inter Press Service (IPS) adds from New York:

In a statement on the report, the American Civil Liberties Union (ACLU) said the report 'underscores the alarming legal questions raised by the US programme of targeting and killing people - including US citizens - sometimes far from any battlefield'.

Jamil Dakwar, director of the ACLU Human Rights Programme, said, 'The US should heed the recommendations of the rapporteur and disclose the full legal basis of the US targeted killings programme, and it should abide by international law.'

'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,' he added.

The ACLU filed a Freedom of Information Act (FOIA) lawsuit in March 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 Barack Obama condemning the US policy on targeted killings and urging him to bring it into compliance with international and domestic law.

'The US programme 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 programme, the Obama administration should disclose how many civilians have been killed, how the programme is overseen, and what accountability mechanisms exist over the CIA and others who conduct the targeted killings,' he said.

While welcoming an initial effort by the Obama administration 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 in March, State Department Legal Adviser Harold Koh insisted that such operations were being conducted in full compliance with international law. 'The US 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, 'US 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 to 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 Bush.

Conducted by the CIA, they reportedly killed 'several hundred' al Qaeda and Pakistani Taliban militants since Obama took office 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.

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', Koh - who was one of the harshest and most outspoken critics of the Bush administration's legal tactics in its 'global war on terror' - 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 UN 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! in March.   

Kanaga Raja is Editor of the South-North Development Monitor (SUNS), which is published by the Third World Network. This article is reproduced from SUNS (No. 6937, 4 June 2010).

*Third World Resurgence No. 237, May 2010, pp 32-35