UN investigator Ben Emmerson said investigating civilian casualties is a legal obligation (United Nations).

Yesterday UN investigator Ben Emmerson presented his latest report on drone strikes to the UN Human Rights Council (HRC) in Geneva.

Emmerson, a British lawyer and UN special rapporteur on counter-terrorism and human rights, said countries are under a ‘present and continual legal obligation’ to investigate claims of civilian deaths in drone strikes, and to publicly disclose the results of their investigations.

He said the escalation in reported drone strikes and civilian casualties in Yemen is ‘a cause for concern’. And he highlighted ‘a three-fold increase’ in civilian deaths from drone attacks in Afghanistan last year.

‘This is not a political demand for an explanation… the states responsible for these strikes are under a present and continual legal obligation.’– Ben Emmerson

Emmerson has been investigating the use of armed drones for 14 months. His report examined 37 drone strikes where there are reports of civilian casualties. The 37 is a sample of the strikes the US, UK and Israel have launched in Pakistan, Afghanistan, Yemen, Somalia and Gaza.

Related story: UN report identifies 30 drone strikes that require ‘public explanation’

The report reduces the the 37 strikes to a list of 30 in which either a single credible source or multiple sources report civilians casualties. Emmerson told the HRC these strikes require a ‘legal duty on the relevant states to provide a public explanation of the circumstances and a justification for the use of deadly force’.

He stressed: ‘this is not a political demand for an explanation’. He told delegates to the HRC: ‘In my judgement the states responsible for these strikes are under a present and continual legal obligation to disclose the results of their own fact finding inquiries or explain why it is that no such inquiries have so far taken place.’

The investigation did not conduct field research, but instead surveyed available evidence. Sixteen of the 30 strikes included in Emmerson’s report took place in Pakistan, Yemen and Somalia. The Bureau has identified civilian casualties in each of them. One of the strikes, on June 23 2009, was among those identified by the Bureau when it investigated strikes in which  civilians had been killed whilst attending funerals or going to help those injured in strikes.

Two other strikes in the Emmerson report, those on March 17 and June 15 2011, were included in a Bureau investigation that questioned claims made by John Brennan, then President Obama’s chief counter-terrorism adviser, that drones had gone nearly 11 months without killing civilians in Pakistan.

Related story: US must release data on civilian drone casualties, says UN report

Emmerson also referred to an interactive website produced by Forensic Architecture, based at Goldsmith’s College in London, and Situ Research in New York.

The sites of each of the 30 drone strikes included in the report are marked on an interactive map in the online platform. It combines video footage and pictures of the aftermath of the strike with witness testimony, satellite photographs and computer models to give more detailed analysis of the consequences of four of the strikes on the survivors and the surrounding area.

Emmerson intends to keep working with countries on legal issues around drone strikes and said he will update the website with fresh information.

Patterns of civilian casualties

Emmerson brought the HRC up to date on ‘the patterns of civilian casualties arising in the use of armed drones’. He noted that civilian casualties in Pakistan fell to zero in 2013 – the first time in nine years no confirmed civilian casualties were recorded.

Reports of civilian casualties have been falling since 2010 as has the civilian casualty rate – the average number of civilians reported dead in each drone strike on average.

Related story: UN launches major investigation into civilian drone deaths

There has not been a drone strike in Pakistan so far this year. Emmerson told the HRC: ‘The diplomatic and political efforts of Pakistan to bring these strikes to a halt so as to enable peace talks with the Tehrik e Taliban take place appear to have born fruit.’

Last month Rahimullah Yusufzai, a journalist and member of the Pakistani government’s negotiating team for the peace talks, told the Bureau that Islamabad had requested the hiatus.

However, ‘the picture in Afghanistan and Yemen is much less reassuring’, Emmerson said. Drones accounted for almost 40% of civilian casualties from air strikes in Afghanistan last year.

In Yemen, ‘a sharp escalation in the number of reported civilian casualties’ towards the end of 2013 is ‘a source of concern’, he added. On December 12 2013 a US military drone strike killed at least eight civilians traveling to a wedding celebration. The bride was among the injured.

International consensus

Emmerson told the HRC there is a ‘need to promote an international consensus on the core legal principles applicable to the use of armed drones in counter-terrorism operations.’

‘It’s important that a consensus now be reached, not just regionally but internationally.’ There are eight ‘key legal questions’ in his report ‘which need to be urgently debated and if possible resolved.’ To that end he recommended a panel of experts should be convened to debate these points at the September meeting of the UN HRC – something Pakistan ‘strongly endorses’, its ambassador told the meeting.

He recommended that international panel should discuss the legal issues identified in his report at the September HRC meeting.

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John Brennan accepted President Obama’s nomination as CIA director on January 7 2013. (Peter da Souza/White House)

John Brennan has now completed his first year as director of the CIA. In that time there has not been a confirmed report of a civilian casualty from a CIA drone strike in Pakistan, according to an analysis of Bureau drone strike data.

The frequency of drone attacks and casualty rates – the number of people killed in each strike on average – have been declining in Pakistan since 2010, the Bureau’s data shows. Civilian casualties have also declined. These trends have continued through Brennan’s tenure at CIA headquarters in Langley.

And there has not been a reported drone strike for more than two months in Pakistan.

There are several possible causes for the falls in frequency and death tolls of drone attacks on Pakistan, including increased public scrutiny of the drone campaign, and the mood within Pakistan, where drones – and particularly civilian casualties – have become increasingly politically controversial.

Brennan was closely involved in the drone campaign for years before taking over at Langley, having served since January 2009 as President Obama’s chief counter-terrorism adviser. Obama’s inauguration that month heralded a considerable increase in the frequency of drone strikes and the numbers of people killed.

This analysis of the Bureau’s data, from 2004 to the most recent attack on Christmas Day 2013, shows that two previous directors, Michael Hayden and Leon Panetta, oversaw the bloodiest period in the CIA’s drone programme in Pakistan.

Highly influential

Though Brennan has been in post for only a year, he has been a highly influential figure in Obama’s covert wars since before the president’s inauguration.

‘There are things the agency has been involved in since 9/11 that in fact have been a bit of an aberration from the traditional role’– John Brennan

In the weeks after the election, Obama made Brennan his chief adviser on counter-terrorism. From an office in the basement of the White House, Brennan began to craft the policies and procedures for targeted killings beyond the boundaries of ‘hot’ battlefields like Afghanistan.

CIA drones targeted Pakistan more times in President Obama’s first year in office than in the previous five years combined. But officials were reportedly trying to find ways to codify the lethal strikes in those first few months of the new administration.

It was Brennan who reportedly told Obama about the catastrophic failure of the first two CIA drone strikes of his presidency, according to Newsweek reporter Daniel Klaidman’s book Kill or Capture. On January 23 2009 CIA drones hit two houses in Pakistan’s tribal belt but both attacks missed their intended targets. At least 14 civilians were reportedly killed.

The career intelligence officer has spoken publicly in defence of the US’ use of drones. On June 29 2011 he said during a speech that US strikes in Pakistan were ‘surgically precise’ and had not killed a civilian since August 30 2010. The Bureau’s data shows this claim was untrue – the CIA killed at least 72 civilians in 117 strikes in that time. In April 2012 he defended the use of drones against al Qaeda as legal, ethical and wise.

The drone programme generally seems to be subject to external influence. At the time of writing there has not been a strike in Pakistan for 75 days. This is the longest gap between drone strikes and follows a request from Islamabad to suspend attacks during protracted peace talks between the Pakistani government and the Pakistan Taliban, according to anonymous US officials.

The declining frequency of strikes, which has continued during Brennan’s tenure as CIA director, could be due to external factors such as the fractious US-Pakistani relationship, or it could indicate the CIA’s gradual disengagement from targeted killings.

At his confirmation hearings for the post of CIA director, Brennan alluded to possible changes in the agency’s role in the covert drone war. He told the committee: ‘There are things the agency has been involved in since 9/11 that in fact have been a bit of an aberration from the traditional role.’

He added: ‘The CIA should not be doing traditional military activities and operations.’

In the year since, there have been several suggestions that the CIA would lose control of the drone campaign over Pakistan to the Pentagon’s elite and secretive unit, Joint Special Operations Command (JSOC).

Though it does appear the US is taking greater care in its drone strikes in Pakistan, US drones killed, on average, more civilians per strike in Yemen last year than any year before. There have been two confirmed US drone strikes already in 2014, killing at least five people, and possibly a further seven attacks killing at least nine.

Both the CIA and JSOC operate drones over Yemen and the Bureau cannot always identify which strikes are by the military and which by the CIA. However the CIA reportedly flies lethal operations from a drone base in Saudi Arabia.

Past directors

The CIA has had seven different directors in the nine years since the first strike in Pakistan. Leon Panetta was director from February 2009 to June 2011 – a time in the job that ‘would be known for the CIA’s aggressive – some would come to believe reckless – campaign of targeted killings’, according to New York Times reporter Mark Mazzetti in his book The Way of the Knife.

The casualty rates from drone strikes in Pakistan for each CIA director from 2004 to December 25 2013 (click to enlarge).

Panetta reportedly had a close relationship with Obama. According to both Klaidman and Mazzetti, two months after the CIA killed Baitullah Mehsud, the leader of the Pakistan Taliban, Panetta reportedly went to the White House with a list of requests that would drastically expand the CIA’s targeted killing programme. President Obama granted each demand, reportedly saying: ‘The CIA gets what it wants.’

There were more drone strikes during Panetta’s tenure than all other CIA directors combined. The intensity of the drone campaign meant a considerable number of people were killed. In total at least 1,482 people were killed in 223 strikes – at least 212 of them reportedly civilians.

Panetta’s predecessor, Michael Hayden, was director from 2006 to February 2009. In that time the CIA launched little over a fifth of the strikes they would go on to carry out under Panetta. But strikes under Hayden were far bloodier. The total casualty rate during Panetta’s time was over six people killed in each strike on average, and one civilian killed in each strike on average. Under Hayden drones were killing on average over eight people per strike and more than three civilians per strike.

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Obama has launched over 390 covert drone strikes in his first five years in office (Pete Souza/White House).

Five years ago, on January 23 2009, a CIA drone flattened a house in Pakistan’s tribal regions. It was the third day of Barack Obama’s presidency, and this was the new commander-in-chief’s first covert drone strike.

Initial reports said up to ten militants were killed, including foreign fighters and possibly a ‘high-value target’ – a successful first hit for the fledgling administration.

But reports of civilian casualties began to emerge. As later reports revealed, the strike was far from a success. At least nine civilians died, most of them from one family. There was one survivor, 14-year-old Fahim Qureshi, but with horrific injuries including shrapnel wounds in his stomach, a fractured skull and a lost eye, he was as much a victim as his dead relatives.

Later that day, the CIA attacked again – and levelled another house. It proved another mistake, this time one that killed between five and ten people, all civilians.

Obama was briefed on the civilian casualties almost immediately and was ‘understandably disturbed’, Newsweek reporter Daniel Klaidman later wrote. Three days earlier, in his inauguration address, Obama had told the world ‘that America is a friend of each nation, and every man, woman and child who seeks a future of peace and dignity.’

Fahim Qureshi, injured in the first Obama strike

(Vocativ/YouTube).

The Pakistani government also knew civilians had been killed in the strikes. A record of the strikes made by the local political administration and published by the Bureau last year listed nine civilians among the dead. But the government said nothing about this loss of life.

Yet despite this disastrous start the Obama administration markedly stepped up the use of drones. Since Obama’s inauguration in 2009, the CIA has launched 330 strikes on Pakistan – his predecessor, President George Bush, conducted 51 strikes in four years. And in Yemen, Obama has opened a new front in the secret drone war.

For all the Bureau’s drones data: Get the data – drone wars

Lethal strikes

Across Pakistan, Yemen and Somalia, the Obama administration has launched more than 390 drone strikes in the five years since the first attack that injured Qureshi – eight times as many as were launched in the entire Bush presidency. These strikes have killed more than 2,400 people, at least 273 of them reportedly civilians.

Although drone strikes under Obama’s presidency have killed nearly six times as many people as were killed under Bush, the casualty rate – the number of people killed on average in each strike – has dropped from eight to six under Obama. The civilian casualty rate has fallen too. Strikes during the Bush years killed nearly more than three civilians in each strike on average. This has halved under Obama (1.43 civilians per strike on average). In fact reported civilian casualties in Pakistan have fallen sharply since 2010, with no confirmed reports of civilian casualties in 2013.

The decline in civilian casualties could be because of reported improvements in drone and missile technology, rising tensions between Pakistan and the US over the drone campaign, and greater scrutiny of the covert drone campaign both at home and abroad.

Obama has sharply escalated the drone campaign in Pakistan.

The apparent change in targeting  is well demonstrated by comparing a strike carried out by the Bush administration in 2006 and one seven years later under Obama. On October 30 2006 at least 68 children were killed when CIA drones destroyed a madrassa – a religious school – in the Bajaur area of Pakistan’s tribal belt. The attack was reportedly targeting then-al Qaeda second-in-command Ayman al Zawahiri. He escaped. On November 21 last year, drones again targeted a madrassa, this time in Hangu, outside the tribal regions. As many as 80 students were sleeping in the building. But the strike destroyed a specific portion of the building – just one or two rooms – and killed between six and nine people.

In Yemen, however, civilians continue to die in US drone strikes. Last year saw the highest civilian casualty rate since Obama first hit the country in 2009.

In recent years drones have come to dominate Obama’s war in Yemen as much as in Pakistan.

Drones were not the first weapon the administration turned to when it started to attack the country. On December 17 2009 a US Navy submarine launched a cluster bomb-laden cruise missile at a suspected militant camp in al Majala, southern Yemen.

The missile slammed into a hamlet hitting one of the poorest tribes in Yemen. Shrapnel and fire left at least 41 civilians dead, including at least 21 children and 12 women – five of them were pregnant. A week earlier President Obama had been awarded the Nobel Peace Prize. He used his acceptance speech to defend the use of force at times as ‘not only necessary but morally justified’. He warned that ‘negotiations cannot convince al Qaeda’s leaders to lay down their arms’.

Strikes in Pakistan are carried out by the CIA. But in Yemen the CIA and the US military’s special forces unit, Joint Special Operations Command, have used various weapons including drones and conventional jets as well as cruise missiles to target al Qaeda militants.

However in recent years drones have come to dominate Obama’s war in Yemen as much as in Pakistan. President Bush ordered a single drone strike in Yemen, killing six people in 2002. Under Obama, the CIA and the Pentagon have launched at least 58 drone strikes on the country killing more than 281 people, including at least 24 reported civilians.

Opaque operations

The escalation in the drone war has happened with almost no official transparency from the White House. It took Obama three years to publicly mention his use of drones. In January 2012 he said ‘actually drones have not caused a huge number of civilian casualties’. He added: ‘For the most part they have been very precise, precision strikes against al Qaeda and affiliates.’

In this period Bureau records show drones reportedly killed at least 236 civilians – including 61 children. And according to a leaked CIA record of drone strikes, seen by the McClatchy news agency, the US often did not know who it was killing. In the year after September 2010 at least 265 of up to 482 people were recorded as the documents as killed by drones ‘were “assessed” as Afghan, Pakistani and unknown extremists’.

A letter written by Attorney General Eric Holder and leaked to NBC confirmed drones had killed four US citizens living abroad. US citizen Anwar al Awlaki died in a missile strike in Yemen on September 30 2011. His 16-year-old son Abdulrahman, who was born in Detroit, was killed in a separate strike two weeks later.

In April 2013 a leaked Department of Justice memo outlined the administration’s legal justification for such killings: the US has the right to kill US citizens if they pose an imminent threat, it said. It added that determining a citizen poses an imminent threat ‘does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future’. Jameel Jaffer of the American Civil Liberties Union described the memo as a ‘chilling document’.

For the most part they have been very precise, precision strikes against al Qaeda and affiliates– President Obama

The following month President Obama made a major policy speech in which he codified the rules his administration must follow as it selects targets for drone strikes and special forces teams.

The rules are meant to constrain the use of drones. Obama said the US only carries out such attacks against individuals who pose ‘a continuing and imminent threat’ to US citizens, not ‘to punish individuals’. Obama acknowledged drone strikes had killed civilians, saying: ‘For me, and those in my chain of command, those deaths will haunt us as long as we live.’ And he added: ‘Before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set’.

However Bureau analysis shows more people were killed in Pakistan and Yemen in the six months after the speech than the six months before. And the casualty rate also rose over the same period.

In 2013, there were no confirmed civilian casualties in Pakistan – the first year of the drone campaign that this was the case. But in Yemen, the year ended with mass civilian casualties. On December 12, JSOC drones attacked a convoy taking a bride to her wedding. The attack destroyed several vehicles and flying shrapnel killed up to 15 civilians. It was the biggest single loss of civilian life from a US strike for more than a year. The Yemeni government initially claimed al Qaeda militants were killed. But the Yemeni government quickly negotiated reparations with the families of the victims, sending them $140,000 and 100 rifles. The US has not commented on the strike, but in an unprecedented move Washington is carrying out an investigation.

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