U.S. Drone attacks causing civilian deaths illegal

October last year at a news conference at the New York U.N. head office Philip Alston, the UN’ Special Rapporteur on Extrajudicial Executions, referring to the Drone attacks by U.S. Special Operations forces in Afghan/Pak region which caused deaths of innocent civilians, said that the strikes “might violate international humanitarian law and international human rights law.”

At this news conference Mr. Alston – who has pressed governments, like that of Sri Lanka, to investigate extrajudicial killings during wars – explicitly asked for an explanation from the American government.

It was after several months that the Obama administration through its Chief Legal Counselor Harold Koh who is attached to the Clinton State Department made an attempt to explain why the administration considers the drone attacks legal.
The Asian Tribune in a previous report presented Mr. Koh’s explanation that the drone attacks were within the international law and that there is no violation whatsoever of such covenants.

The New American Foundation study in an analysis of U.S. drone strikes in Pakistan 2004-2010 released in February this year shows that the 114 reported drone strikes in northwest Pakistan from 2004 to the present have killed between 830 and 1,210 individuals, of whom around 550 to 850 were described as militants in reliable press accounts, about two-thirds of the total on average. Thus, the true civilian fatality rate since 2004 according to our analysis is approximately 32 percent.

The killing of civilians in drone attacks is an important and politically charged issue in Pakistan. The strikes are quite unpopular among Pakistanis, who view them as violations of national sovereignty, says the study.

The study shows that the 114 reported drone strikes in northwest Pakistan from 2004 to the present have killed between 830 and 1,210 individuals, of whom around 550 to 850 were described as militants in reliable press accounts, about two-thirds of the total on average. Thus, the true civilian fatality rate since 2004 is approximately 32 percent. Averaging the press reports in 2009 indicates that 502 people were killed, 382 of whom were described as militants, for an average civilian fatality rate of 24 percent.

On The American Prospect’s Web site, analyst Adam Serwer noted: “The United States position (that the drone strikes are within the tenets of the international law) was untenable, in that it claimed that the UN Human Rights Council and the General Assembly, by definition, had no role in relation to killings that took place during armed conflict. That position would remove the great majority of issues that came before those bodies. By example the whole set of issues arising in the Democratic Republic of the Congo, in the Goldstone report (on the war in Gaza), in Kenya, in Sri Lanka (during the January-May 2009 military operation against secessionist/terrorist Tamil Tiger outfit), all concerned areas of armed conflicts. If the United States position were applied, then none of those issues should be discussed by the relevant United Nations bodies.

It is most appropriate to raise that United States needs to provide the legal basis on which it was operating, and indicate, in terms of domestic law, who is running the program, and what accountability mechanisms are in place in relation to that or those organizations; what precautions it is taking to ensure that the weapons are used strictly for purposes that are consistent with international and humanitarian law; and what sort of review mechanism is in place to evaluate what happens when those weapons are used. Otherwise, the result would be that the Central Intelligence Agency would be running a program that was killing significant numbers of people with absolutely no accountability in terms of the relevant international laws.

In his explanation on 25 March the State Department legal counselor Harold Koh said:

In particular, the Obama Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

* First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

* Second, 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.

"Drones are currently killing people in Afghanistan, Pakistan, Yemen and Somalia. It should be noted that the United States is not at war with any of those countries, which should mean that in a sane world the killing is illegal under both international law and the U.S. Constitution," states Philip Girald, a former CIA officer and fellow of the American Conservative Defense Alliance.

Girald's observation is seconded by Mary Ellen O'Connell, a professor at Notre Dame Law School. In a research paper titled "Unlawful Killing with Combat Drones," Professor O'Connell writes: "The CIA's intention in using drones is to target and kill individual leaders of al-Qaida or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750 to 1,000 unintended victims.

Kenneth Anderson Washington College of Law, American University; Stanford University - The Hoover Institution on War, Revolution and Peace testifying before the Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform, US House of Representatives in March 2010 argued that the US government drone program through the CIA is lawful.

But he notes sharply that the US government has conspicuously failed to offer a public rationale for the legality of the program - and that the program's legitimacy is at risk of gradual erosion from the public perception that if the government will not defends its lawfulness, perhaps it is not. His testimony urged the administration and Congress directly to address this issue of vital legal policy, and specifically to address the situation of the CIA and its use of force. It briefly offers grounds of argument on which to do so, starting from the proposition of international law of self-defense as a category broader and separate from armed conflict.

Two issues arise out of the use of drone attacks by the CIA in Afghanistan and Pakistan which cause immense civilian casualties in both countries especially for a country like Sri Lanka which internally defeated the secessionist/terrorist LTTE or Tamils Tigers with utmost success but has faced the wrath of the U.S. State Department and some nations in the European Union regarding the civilian deaths during the intense battle between government armed forces and armed LTTE cadre describing them as ‘war crimes’, ‘human rights violations’ and ‘genocidal acts’.

The two issues are; (a) The Government of Sri Lanka should be conscious that the United States does not want to explain the legality of the drone attack operations but expect Sri Lanka to take responsibility of the civilian deaths during those few months of intense fighting in which the LTTE took a large number of innocent Tamil civilians as human shield. (b) The United States in using the drone attacks has caused thousands of deaths among civilians in Afghanistan and Pakistan and continues to justify the operation as being within the international law.

- Asian Tribune -