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 [...]]]> via LobeLog

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:

• Is the United States in an armed conflict with al-Qaeda? This question is central to determining both the extent of US presidential authority (such as whether the White House has the power to include US citizens on a “kill list”) and what constraints are placed upon US activities abroad.
• If the US is in an armed conflict with al-Qaeda, are members of al-Qaeda to be regarded as combatants, civilians, or some third category of persons as the International Committee of the Red Cross has advocated? How we define a member of al-Qaeda under the laws of war determines the conditions under which the President can use force against them. If regarded as combatants, for instance, then all members of al-Qaeda and their affiliates would be legitimate targets of the US, and criticism over drone operations would lose much of its force.
• Is the “unwilling or unable” test that the United States has put forward to justify its intervention in Pakistan, Yemen, and Somalia a new exception to the traditional prohibition on the use of force in the territory of another State? If so, what precedential value does this set for other States, and how does it undo the constraints the UN Charter placed on recourse to war?

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.

How the White House Flung the Door Wide Open

by Tyler Cullis

It is a trope among foreign policy elites that the Obama administration lacks a coherent strategy for dealing with conflict and chaos in the Middle East and South Asia region. Few meanwhile seem to appreciate the most consequential of the [...]]]> via LobeLog

How the White House Flung the Door Wide Open

by Tyler Cullis

It is a trope among foreign policy elites that the Obama administration lacks a coherent strategy for dealing with conflict and chaos in the Middle East and South Asia region. Few meanwhile seem to appreciate the most consequential of the administration’s policies there — the U.S. targeted killing program and the way it is changing the rules of the game in war.

While the U.S.’s targeting guidelines have been a continuing source of controversy, not least among human rights advocates, the fact that the administration’s use of killer drones in Pakistan and Somalia are changing the rules on when force can be deployed in the first place has largely flown under the radar. However, it is this development that might prove most troubling, as dozens of States stand prepared to acquire killer drones in the coming years.

As reported in The Washington Times, the U.S. intelligence community estimates that 87 countries are in possession of drones, and 26 of those have either purchased or are in the process of developing a drone akin in scope to the Predator. It is expected that a dozen or so of these countries are seeking to weaponize their drones and will succeed in short order. Further proliferation like this is a striking concern, but even more disturbing is the fact that States will be deploying lethal gadgets in a legal order undergoing dramatic flux and change, largely thanks to the novel conceptions of law the White House has employed to justify its drone program in Pakistan.

Unable to rationalize the cross-border use of drones while toeing the line of the law, the Obama administration at first ignored the legal repercussion of its drone policy. When pressed, it took an ad-hoc approach to the legal concerns underlying its targeting killing program, without careful consideration of the costs of upsetting and throwing into turmoil the rules and regulations that have governed the use of inter-State violence for more than six decades.

Last month, the United Nations released two draft reports on drones and drone warfare, which spoke to this problem. Following a recitation of the law governing the use of force and implying, but not finding, that the U.S. drone strikes in Pakistan fell afoul of this law, the Emmerson report noted that the U.S. had taken the position that the law of self-defense provided far greater scope for States to undertake cross-border action against non-State armed groups than commonly believed.

Under the U.S.’s preferred approach, the use of killer drones in Pakistan’s tribal areas would be a legitimate form of self-defense so long as Pakistan proved “unable or unwilling” to combat the non-State armed groups within its own borders. This contrasts with the traditional rule that self-defense can be triggered only after an armed attack by the State itself, and that cross-border incursions of the American kind in Pakistan can only be warranted upon the consent of the Pakistanis. Needless to say, the U.S. position has not proven popular amongst other countries.

However, the U.S. rule is one ripe for adoption, especially as other countries acquire the drone technology to make cross-border attacks relatively cost-free. In arguing for a more permissive legal regime, then, the Obama administration has opened the door wide for other countries to pursue their own “counter-terrorism” policies under the stamp of law. It is entirely unclear whether the administration intended this result, or whether it is simply a by-product of the White House’s race to defend its drone program from legal attack. Regardless, the legal argument is ill-considered.

Nowhere will this prove to be a more of a problem than in the Middle East and South Asian region. With the U.S. set to depart Afghanistan by the end of next year, there will soon be an intensified competition over the country’s future from regional neighbors, including Pakistan, India, China, Russia, Iran, and Tajikistan. More than a few have or are at present developing weapons systems for their drones and will not be hesitant to use Afghanistan as training ground for their new gadgets, much in the same way the U.S. did. This bodes ill for the future stability, if not integrity, of the war-torn country.

Drones could see especial use in a number of low-intensity, inter-State conflicts as well. India, which has a limited set of armed drones at present but is looking to purchase vast fleets of them, might well be inclined to deploy drones on its border with Pakistan in order to target hostile groups in Kashmir. Pakistan’s response to this, which it would almost certainly regard as a provocation, is yet to be seen, but it takes little imagination to see how the appeal of the drone — as a limited, low-intensity weapon — could incite a much larger and much deadlier conflict.

These are just two examples, but they demonstrate the point that, absent a more restrictive legal regime governing the use of force, killer drones will be deployed by more countries, and more often, than at present, with unforeseeable consequences. It is thus unfortunate that the Obama administration has pushed the law to evolve in just the opposite direction.

When asked early in his first term whether the war in Afghanistan was winnable, President Obama replied:

I think about [the Afghan War] not so much [as] do you lose a war…? I think about it more in terms of, do you successfully prosecute a strategy that results in the country being stronger rather than weaker at the end of it?

It is ironic, then, that the linchpin of the administration’s strategy in Afghanistan — the targeted killing program — might well invite a world that is more conflict-ridden and chaotic than the one that preceded it.

– Tyler Cullis is a law graduate specializing in international law and U.S. foreign policy. Follow him on Twitter.