by Tyler Cullis
Earlier this month the UN Special Rapporteur for Counter-Terrorism and Human Rights, Ben Emmerson, released his annual report to the UN Human Rights Council (the “Emmerson report”). He had been charged with determining best practices for States to respect human rights while engaging in counter-terrorism operations and highlighting [...]]]>
by Tyler Cullis
Earlier this month the UN Special Rapporteur for Counter-Terrorism and Human Rights, Ben Emmerson, released his annual report to the UN Human Rights Council (the “Emmerson report”). He had been charged with determining best practices for States to respect human rights while engaging in counter-terrorism operations and highlighting human rights violations when and where they occurred. While these two elements were fully on display in the report, the Special Rapporteur left us both with more questions than answers and made an urgent appeal that the legal uncertainties surrounding counter-terrorism efforts (especially those of the United States) be resolved so that the rule of law can take root and be observed.
Much attention has been given to the Emmerson report’s determination that States have an obligation to undertake an impartial investigation into civilian deaths, as a matter of human rights and humanitarian law, when those deaths were not expected. The report sifts through 30 cases, most involving the United States, where civilian deaths have been reliably alleged and where the dual duties of investigation and transparency have thus been triggered. Whatever the merits of this conclusion (and I have doubts as to whether the law of armed conflict contains within it a legal requirement for States to undertake investigation into civilian deaths), it is an important one and will go a long way to granting legal advocates another argument to force the Obama administration to be more transparent over its drone program and the civilian deaths that are alleged to have resulted in specific instances. It remains a disconcerting feature of the post-September 11 world that President Barack Obama has not only the power to determine who is a target and to strike at that target, but to do so without any substantive oversight.
But perhaps the most consequential feature of the Emmerson report is its outline of the legal uncertainties that surround not just the US’ drone program, but also its entire “War on Terror.” The lack of consensus on the law applicable to the US conflict with al-Qaeda — whether it is an armed conflict triggering the laws of war or whether it fails to meet the requisite threshold for armed conflict and instead remains a captive of human rights law — has permitted the US to define the rules of the game for itself. In some ways, Bush administration lawyers, who claimed that the traditional way of doing business was rendered an anachronism thanks to the threat posed by transnational terror groups like al-Qaeda and who were rightly derided for the aggressiveness with which they upended basic principles of international law, have won the day. What once seemed like settled law is no longer, and the Emmerson report is a measure of how much we’ve allowed consecutive US administrations to set the parameters of the debate.
Some major areas of international law that remain or have become ambiguous (thanks to US practice) as outlined in the Emmerson report, are:
These are critical questions. Prior to September 11 and for some time thereafter, the answers were clear. Many did not believe the United States could regard itself as in an armed conflict with a transnational terror group. Many believed that members of al-Qaeda should be regarded as civilians, targetable only for self-defense purposes or when directly participating in hostilities against the United States. Few were attuned to the argument that the prohibition on the use of force contained an exception for when a State proved “unwilling or unable” to end cross-border attacks from an insurgent group. It was only over time (and largely thanks to US practice) that the question arose as to whether the law was not as clear, coherent, and complete as international legal practitioners had believed.
Quite adeptly, the Emmerson report centers this legal uncertainty and urges States, legal scholars and practitioners, and human rights groups to build consensus on these questions. Absent a global consensus, the United States is granted de facto authority to lead by the sheer force of example. And as we’ve seen for more than a decade now, that example has proven to be an exceptionally troubling one.
Photo: A protest in Peshawar, Pakistan against drone strikes on Sept. 13, 2012. Credit: Ashfaq Yusufzai/IPS.
]]>by Tyler Cullis
Earlier this week the European Parliament passed a resolution condemning the US drone program and expressing its concern over the desire of some European states to build a program of their own. Here in the US few have paid attention. But if the resolution signals a [...]]]>
by Tyler Cullis
Earlier this week the European Parliament passed a resolution condemning the US drone program and expressing its concern over the desire of some European states to build a program of their own. Here in the US few have paid attention. But if the resolution signals a more serious commitment on the part of Europe to publicly disclaim the legal and policy architecture of the US’s “targeted killing” program, then the White House’s legal footing, which is already on thin ice, could become untenable in the face of near-unanimous global opposition.
The resolution, which is non-binding as a matter of European law, “expresses…grave concern over the use of armed drones outside the international legal framework,” which goes against US pretensions of acting within the bounds of law in conducting its “targeted killing” program. In doing so the European Parliament rejects the novel legal doctrines that the US has used to support its activities in the “global war on terror,” arguing that traditional jus ad bellum and jus in bello rules do not need to be revised in light of the threat posed by transnational terror groups (as the US has long alleged). This is a striking challenge to the United States and its claims to compliance with international norms, and is a sharp reminder of the twin reports from UN Special Rapporteurs last year (whose work is cited in the resolution itself).
This also comes on the heels of a New York Times report that the US is considering adding a US citizen, Abdullah al-Shami, to the White House’s “kill list”. Besides the significant constitutional issues at stake in a unilateral presidential decision to kill a US citizen without due process, international human rights law is implicated as well. The focus on human rights law as the appropriate legal frame, which is evident throughout the Parliament’s resolution, thus takes on added significance in the wake of this report.
More importantly, the resolution signals to other EU bodies that now is the time for unified European action to publicly oppose the US’s “targeted killing” program; to limit the use of drones both globally and in a distinctly European context; and to hold criminally responsible those that assist what the Parliament regards a potentially criminal action on the part of the United States. In fact, as part of its “action program” the Parliament’s resolution “urges the [European] Council to adopt an EU common position on the use of armed drones,” which would be binding on all EU member-states. Such a legislative gambit could include provisions providing for “judicial review of drone strikes…and effective access to remedies [for victims].” Both have thus far largely been barred in European courts.
Such would spell serious trouble for the United States and its continued ability to conduct drone warfare across international borders. It is one thing for official criticism to be done in private and for US and European legal scholars to haggle over applicable laws in the US’s conflict with al-Qaeda. It is entirely another thing for the US’s closest allies to so publicly rebuke the White House (especially one that professes to care as much about toeing the line of the law as this one does) and to threaten to open its court system to the victims of what it regards as “unlawful drone strikes.” While legislative action from the European Council and Commission remains unlikely, the vote count on the Parliament’s resolution (534-49) suggests that sentiment against “targeted killings” has begun to overcome Europe’s squeamishness about upsetting its powerful ally.
This week also saw the respected British human rights organization, Reprieve, submit a communication to the International Criminal Court to start an investigation of NATO personnel complicit in the CIA drone program. Of course, none of this bodes well for the United States. Whereas the Bush administration expressed contempt towards international law and thus was treated in kind from its practitioners, the Obama administration has at least demonstrated concern for international norms and struggled to describe its drone policies as compliant with the law. But as US allies and human rights NGOs close in on the White House, the Obama administration will be forced to either proclaim its adherence to international law and end its “targeted killing” policies, or abandon any pretension to international law-compliance altogether. The sooner the better, too, because the growing outcry against the US’ drone policies shows no signs of losing steam.
]]>by Tyler Cullis
Today Human Rights Watch (HRW) released a rather harrowing report on a US drone strike on an alleged Yemeni wedding convoy this past December:
The [December 12] strike . . . killed at least 12 men ages 20 to 65 and wounded at least [...]]]>
by Tyler Cullis
The [December 12] strike . . . killed at least 12 men ages 20 to 65 and wounded at least 15 others, according to survivors, relatives of the dead, civil society members, and multiple media reports. The relatives said the dead included the son of the groom from his previous marriage. They said shrapnel grazed the bride under one eye, and blew her trousseau to pieces.
For advocates of the US drone program, one convenience is that areas under siege often prove inaccessible to both journalists and other civil society activists. This allows US officials to at first plausibly deny knowledge of/or participation in individual strikes and later leak to the press rosy-colored, post-hoc assessments of the strikes, without much challenge. In this way, the US public is rendered relatively immune to the human consequences of the drone program, as the victims are silenced and thus removed from the ongoing legal, ethical, and policy debates surrounding the U.S.’ targeted killing program.
Some organizations have made it a point to name the nameless. For instance, the Bureau of Investigative Journalism, which has performed important work on tracking US drones strikes and calculating its victims, started up a project in September 2013 called “Naming the Dead,” which is aimed at recording the names of drone victims. Others, like Human Rights Watch and Amnesty International, have undertaken in-depth research and reporting to both accurately assess the civilian toll of US drone strikes and question the legal underpinnings of the US’ drone program as a whole. This work has proved vital for placing pressure on the Obama administration to declare publicly the legal and policy foundations on which its program is based.
The pressure, however, has not proven altogether successful. Despite successive rounds of official statements regarding the drone program — the latest being President Obama’s May 2013 speech at the National Defense University — the White House’s legal rationale for drone strikes remains murky at best. Also, a wide chasm continues to divide the administration’s targeted killing policy (such as the promise that civilians will go unharmed) from what is actually taking place in the field from Pakistan to Yemen and Somalia. The White House has, to this day, refused to offer the legal rationale for individual strikes, as human rights groups have requested, and official post-hoc assessments of the strikes. This makes it impossible to adequately assess the administration’s compliance not only to international legal norms but also to its own “targeted killing” policies.
The initial US reaction to media reports of the drone strike now documented by HRW in Yemen was textbook. Officially, Washington denied any knowledge of or participation in the strike. Unofficially, US officials leaked to the press that all those killed in the strike were militants, targetable under the administration’s drone policy. Yemen’s government contributed to this narrative, likewise alleging that all those killed were “terrorists.” In neither case was any evidence offered to justify the characterization, but transparency was beside the point. Rather, the intended effect was to preempt allegations that civilians had been struck in the attack.
Nonetheless, protests in Rad’a, the capital of the province where the strike took place, as well as the work of Yemeni activists, pushed hard against this narrative, arguing that what was believed to be a military convoy was, in fact, nothing but a wedding procession, and that those struck were neither militants nor terrorists as US and Yemeni government officials alleged. Instead, this event was another case of a US drone strike gone terribly awry, and one that ran directly counter to US drone policy.
With its latest report, entitled, “A Wedding That Became a Funeral,” HRW confirms the basic facts of the case as they have been represented by Yemeni activists: this was indeed a wedding procession en route to the groom’s hometown for additional celebration. Whether members of Al-Qaeda in the Arabian Peninsula (AQAP) were in attendance is unclear, though as HRW astutely notes, “the burden is on the attacker” [i.e., the US] to justify the resort to lethal force and thus the lawfulness of the attack, not vice versa.
Despite US promises to undertake a review of the strike, HRW found no evidence of an ongoing internal investigation. This is particularly troubling, for as the organization notes, “the attack may have violated the laws of war . . . [and]raises serious questions as to whether US forces are complying with [US]policy requirements on targeted killings.” Following the release of the report, a Pentagon spokesperson referred reporters to statements from the Yemeni government alleging that the targets were “dangerous senior al-Qaida militants.”
The Human Rights Watch report is an important read, and one that hopefully will be widely distributed and closely parsed. So long as the pressure remains on the Obama administration to not just enunciate a restrictive targeted killing policy but to ensure internal compliance with that policy and accountability for officials who deviate from it, we are likely to see the administration take additional action to dampen public criticism. The December 12 strike in Yemen looks to be a serious case of non-compliance with both the laws of war and the US’s own drone policies, and justice for its victims will thus require strict accountability here at home.
Photo: Mousid al-Taysi near a vehicle destroyed on Dec. 12, 2013 in an alleged US drone strike. Credit: Rooj Alwazir/Al Jazeera
]]>by Tyler Cullis
Today news broke that the Obama administration is considering targeting a U.S. citizen located in Pakistan with lethal force. This quickly restarted the debate over what legal authorities the President has in drone strikes, what policies the administration has put in place to ensure that the targeted individual, [...]]]>
by Tyler Cullis
Today news broke that the Obama administration is considering targeting a U.S. citizen located in Pakistan with lethal force. This quickly restarted the debate over what legal authorities the President has in drone strikes, what policies the administration has put in place to ensure that the targeted individual, in fact, poses a “continuing, imminent threat to U.S. persons,” and whether the legal criteria being employed for targeting meets international law standards.
The New York Times reports:
The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.
…American officials said that the new discussions about whether to strike the American in Pakistan had been going on since the middle of last year.
That timeline makes this the first case in which the administration will be seriously considering using lethal force against a U.S. citizen since the killing of Yemen-based U.S. citizen, Anwar al-Awlaki, and the leak of the DOJ’s “White Paper”. That memo set forth the legal standards under which the administration would be deciding whether to use force against a U.S. citizen who is believed to be an operational leader of al-Qaeda or one of its associated forces. The White Paper” led to sharp criticism from U.S. and international lawyers, many of whom saw adventurism in the Department’s legal position and little faithfulness to actual law.
Those problems have not abated since last summer and risk embroiling the White House in one further controversy over its drone program – both at home and abroad. Here in the U.S., lawsuits remain pending as to the killing of al-Awlaki, where it is alleged that President Obama circumvented basic constitutional values — like ‘due process’ — in conducting a ‘closed executive process’ to determine whether or not to place al-Awlaki on the ‘kill list’. (From today’s stories, that process seems to have remained intact.)
International law experts, likewise, have questioned the relaxed definition of “imminence” that the White House has employed in targeting individuals. According to the administration’s definition, U.S. persons can be targeted provided they are an “operational leader of al-Qaeda or associated forces,” and are “personally and continually involved in planning terrorist attacks against the United States.” This clearly departs from the prevailing standard in international human rights law, where individuals can be targeted with lethal force only as a last resort against a specific, imminent threat of grave harm.
Finally, the United States continues to face international opprobrium for its insistence on maintaining a “war everywhere” approach to al-Qaeda, thereby running roughshod over traditional jus ad bellum and jus in bello rules. Even amongst its European allies, the White House has faced stinging criticism. Whether the Obama administration is willing to risk further censure over its extensive drone operations — especially while it is gently pulling the reins back on the program — will likely prove to be a major part of White House deliberations in the weeks ahead.
]]>by James A. Russell
The confirmation hearings of John Brennan for director of the Central Intelligence Agency serve as the latest searing reminder of the intellectual rigamortis gripping the national security establishment and how brain dead we have become as a country in addressing strategy and strategic issues.
The sole focus [...]]]>
by James A. Russell
The confirmation hearings of John Brennan for director of the Central Intelligence Agency serve as the latest searing reminder of the intellectual rigamortis gripping the national security establishment and how brain dead we have become as a country in addressing strategy and strategic issues.
The sole focus of these hearings has been the country’s ongoing love affair with targeted assassinations carried out by drones against our Islamic extremist adversaries.
Instead of engaging in a real debate over the efficacy of these assassinations as an element of counter-terrorism strategy, we are left with the voices of Republicans who see nothing wrong with the state drawing up its monthly assassination lists and those of Democrats who worry about civil rights issues and want judges to review who the government proposes to assassinate each month.
If ever there was an example of tactics in search of a strategy, this is it. Sadly, this is only the latest example of the national security establishment confusing the two.
This country has witnessed the substitution of tactics for strategy during the last decade as a series of military and civilian leaders have trumpeted the benefits of “counterinsurgency strategy” as the correct approach to our wars in Iraq and Afghanistan. Yet counterinsurgency is nothing more than a tactical approach on the battlefield, which, by the way, has mostly failed miserably when attempted by western militaries over the last century. It is not a strategy.
Killing terrorists by whatever means is also tactics masquerading as strategy — just like counterinsurgency. Our focus on assassinating suspected terrorist foes both by hellfire missiles from above and by Special Forces kicking in doors on the ground in fact reflects a specific approach to counter-terrorism called leadership decapitation. You won’t hear this mentioned in the hearings — but this is the strategic issue under discussion, without, of course, being discussed.
Leadership decapitation as a strategy is short-sighted, bound to ultimately fail, and may in fact increase threats to our country. What is the evidence to support this assertion and where has leadership decapitation been tried? The answer exists in almost every irregular war undertaken by occupying armies over the last century. The French perfected the technique during their occupation of Algeria in one celebrated example, though that war didn’t turn out well for them. Another current day example is Israel, which has routinely assassinated its adversaries in its futile attempt to prevent terrorist attacks over the last 60 years. Just as the French could not kill their way to victory in Algeria, Israel cannot kill its way to peace and security.
Although you might not realize it, the United States is by far the greatest modern day practitioner of leadership decapitation. How has this strategy worked out for us and why isn’t Brennan being asked about it in his confirmation hearings?
I recall sitting in on a briefing in Afghanistan back in 2010 and seeing the obligatory power point slide with all the red “X’s” through the Taliban’s leadership structure in the province I was visiting. Stupidly, of course, I mentioned to the briefer: “Well, we must be winning, then.” He laughed and responded: “You could have shown up here for every year for the last few years and seen the exact same slide. They just keep coming back.”
Therein lies the problem. The US has implemented the tactic of leadership decapitation on an industrial scale in Afghanistan over the last three years under the military leadership of General Stanley McChrystal and then his successor, David Petraeus. Both unleashed the Joint Special Operations Command (JSOC) in Afghanistan just as they did in Iraq. In Iraq during 2007 and 2008, JSOC killed many Iraqis, which helped cover the US retreat but that’s about it. JSOC teams and the CIA drone mavens have also killed a lot of the Taliban, but has the Taliban given up?
Setting aside the moral and ethical issues related to state assassinations of people without due process, the broader strategic issue remains — we can’t kill our way out of disputes with Islamic militants that are currently on the receiving end of our hellfire missiles. They will keep coming back until a political settlement is reached or until they are all dead. Since we can’t kill them all, the war will go on.
Still worse, by intervening in what are essentially local political disputes in countries like Yemen, Mali and Afghanistan, we run the risk of provoking exactly the kind of attacks against us that we are supposed to be trying to forestall.
Leadership decapitation is a prescription for never ending war, which may be useful for political purposes in some US quarters (like it is in Israel), but remains a terrible strategy. Just ask the Israelis how it has worked out for them. Despite the comforting illusion of the cost-free, push-button war offered by our standoff drone strikes and our darkly clad soldiers jumping out of helicopters to gun down suspected terrorists, we are playing a dangerous game that may only increase threats to this country.
As much as we might want to believe otherwise, there is no military solution to the political problem of extremist violence. It is a square peg being inserted into a round hole. Al Qaeda-inspired militancy around the Islamic world is at heart a violent protest against modernity that commands no broadly based popular political support. Do we see Saudi citizens (or any citizens, anywhere, for that matter) mounting the barricades in a revolution supporting Al Qaeda’s call for a return to the caliphate? We should let Al Qaeda die its natural death. If anything, America’s military interventions in the developing world have prolonged the relevance of the handful of militants flocking to this banner.
At the very least, sound strategic thinking would deliver us the kind of debate that is so desperately needed on the strategic choices facing this country as we try to decide how best to protect ourselves. The recent confirmation hearings offered us the chance to explore these issues, but the silence from both the executive and legislative branches is deafening.
This country is tumbling into a de facto era of apparently endless drone wars with no critical assessment or alternative views being offered. It’s hard not to draw the parallel to Joseph Conrad’s Heart of Darkness, with the United States ceaselessly lobbing missiles into an unpoliceable, dark, and impenetrable interior just as the ship did in Conrad’s story — firing away futilely at unseen targets in a world gone mad.
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