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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 943

Civilian death by drone attacks is high: but US sidesteps the issue arguing legality

Daya Gamage - US National Correspondent Asian Tribune
Washington, DC. 08 May (Asiantribune.com):

Military_Reaper.jpgJohn Brennan, assistant to the US president for homeland security and counterterrorism, speaking on April 30 at the Woodrow Wilson International Center for Scholars in Washington, D.C. acknowledging for the first time the use of Unmanned Aerial Vehicles (UAE or Drones) declared that "Strikes against individuals are subject to high levels of scrutiny and ordered when there is a high degree of confidence that civilians will not be injured or killed, "except in the rarest of circumstances."

Dismissing the notion that the US drone attacks in the Afghan-Pakistan-Somalia and other targeted geographical areas cause the deaths of unarmed civilians, Obama administration's top terrorism adviser further reiterated "Targeted strikes conform to the principle of distinction—the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaeda terrorist and innocent civilians."
Speaking on a previous occasion in June 2011 about the preceding year, he said "there hasn't been a single collateral death because of the exceptional proficiency, precision of the capabilities we've been able to develop."

Mr. Brennan later adjusted his statement somewhat, saying, "Fortunately, for more than a year, due to our discretion and precision, the U.S. government has not found credible evidence of collateral deaths resulting from U.S. counterterrorism operations outside of Afghanistan or Iraq."

In remarks on April 30, US counter-terrorism adviser John Brennan admitted for the first time that US drones have killed civilians. But he said "It is exceedingly rare, but it has happened," he said.

This is just not true says the UK-based Bureau of Investigative Journalism the group that keeps the best count of casualties from U.S. drone strikes in Afghanistan, Pakistan, Yemen and Somalia. According to its figures, since 2004, U.S. has killed between about 2,500-3,000 people in Pakistan. Of those, between 479 and 811 were civilians, 174 of them children.
Here are the statistics that the mainstream media in the United States has not disclosed, and what Mr. Brennan endeavors to side step documented by the Bureau of Investigative Journalism.

CIA Drone Strikes in Pakistan 2004 – 2012

Total US strikes: 321

Obama strikes: 269

Total reported killed: 2,429 - 3,097

Civilians reported killed: 479 – 811

Children reported killed: 174

Total reported injured: 1,169-1,281

US Covert Action in Yemen 2002 – 2012

Total US strikes : 41 - 128

Total US drone strikes: 31 - 67

Total reported killed: 294 - 651

Civilians reported killed: 55 - 105

Children reported killed: 24

US Covert Action in Somalia 2007 – 2012

Total US strikes: 10 - 21

Total US drone strikes: 3 - 9

Total reported killed: 58 - 169

Civilians reported killed: 11 - 57

Children reported killed: 1 - 3

The Bureau of Investigative Journalism is a not-for-profit organization based at City University, London.

The New America Foundation, which monitors the drone campaign in Pakistan, has estimated that civilians account for between 11 percent and 17 percent of those killed. Overall, U.S. officials have said that more than 2,000 militants and civilians have been killed in Pakistan, Yemen and elsewhere since Obama took office in 2009.

In what added up to the Obama administration's most sustained argument to date about use of armed unmanned aerial vehicles abroad to kill al Qaeda operatives, Brennan said the White House has come to conclude that it "must do a better job of addressing the mistaken belief among some foreign publics that we engage in these strikes casually." He was speaking at the Woodrow Wilson International Center for Scholars in Washington, D.C. April 30.

"The Constitution empowers the President to protect the nation from any imminent threat of attack," Brennan said. The Authorization for Use of Military Force approved by Congress following the terrorist attacks of Sept. 11, 2011, also authorizes "the president 'to use all necessary and appropriate force' against those nations, organizations and individuals responsible for 9/11," Brennan added.

Mr. Brennan argued: "As a matter of international law, the United States is in an armed conflict with al-Qaeda, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat."

He further insulated the Obama administration reminding to his Washington audience on April 30 said "Targeted strikes conform to the principle of proportionality—the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.
"For the same reason, targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering."

The Bureau of Investigative Journalism in its extensive investigative work reveals the human suffering and deaths in releasing statistics.

The US counterterrorism adviser reassured: "As the President and others have acknowledged, there have indeed been instances when—despite the extraordinary precautions we take—civilians have been accidently injured, or worse, killed in these strikes. It is exceedingly rare, but it has happened."

Nevertheless, the account of civilian death registered by credible international organizations gives a different story as mentioned before.

Speaking in late January this year during a live web-chat hosted by Google, President Obama took on a series of issues submitted by the American people when he answered about drone attacks and civilian deaths said "Those drone attacks, carried out by unmanned aircraft controlled thousands of miles away, don’t do a lot of harm."

According to Mr. Obama, drones had "not caused a huge number of civilian casualties” and he added that it’s "important for everybody to understand that this thing is kept on a very tight leash.”

In a special address on The Obama Administration and International Law to an audience in Washington on March 25, 2010, The US State Department's Legal Adviser Harold Hoh said this:

"Some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict-- such as pilotless aircraft or so-called smart bombs-- so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations and that civilian casualties are minimized in carrying out such operations."

He argued, while concealing the civilian casualties as does the mainstream media in America said, "some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense 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. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law."
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.’

Contentious

The London-based Bureau of Investigative Journalism asks: 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.

This is the situation the Sri Lanka military forces faced during the final months (Jan-May 2009) of the battle with separatist Tamil Tiger fighting cadre.

‘Not to mince words here, if it is not in a situation of armed conflict, (in Sri Lanka's case it was a clear 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 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 in this 2011 address claimed that no civilians have been killed in CIA drone strikes since mid-2010, despite an investigation by the Bureau of Investigative Journalism which has proved the contrary.

- Asian Tribune –

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