October 17, 2013

Written by

Alice Ross
This page is archived from original Bureau of Investigative Journalism reporting on US military actions in Yemen, Somalia, Pakistan and Afghanistan.

Heyns warns about a ‘lack of consensus’ over the international law governing drone strikes (Photo: United Nations)

A UN expert has called for nations that operate armed drones to be more transparent and ‘publicly disclose’ how they use them.

In a report prepared for the UN, Christof Heyns, the special rapporteur on extrajudicial killings, points to international secrecy surrounding who owns armed drones, how they are operated, and who they are killing.

He also warns against ‘wide and permissive interpretations’ of international law to justify lethal attacks using the capabilities offered by armed drones.

The report is the first of two major papers on drone strikes due to be presented to the UN this month. The second, by Ben Emmerson, special rapporteur on counter-terrorism, will be published next week.

Heyns highlights ‘concern that there is uncertainty about which States are developing and acquiring armed drones’ in addition to how nations use them.

He says nations have an obligation to publish details such as their targeting criteria, civilian casualties and investigations – and drone operations should not be run by institutions that are prevented from publishing such details. The CIA, which runs drone operations in Pakistan, operates under tight classification controls.

He points out that there is a ‘lack of consensus’ around the legal framework for their use. But international laws contain provisions that should regulate the use of armed drones, he adds.

The report examines the thorniest issues in the US’s covert drone campaign – although it does not refer directly to the US. Heyns explores civilian harm, ‘double-tap’ strikes, sovereignty and the consent of other nations, accountability, and the pillars of the US’s legal justification for using armed drones in Yemen, Pakistan and Somalia, where it is not on a formal war footing.

He cautions that drone technology lowers the bar for lethal action, making it ‘easier for States to deploy deadly and targeted force on the territories of other States’.

Hina Shamsi of the American Civil Liberties Union said: ‘Once again, a top UN rights official has confirmed that the international legal framework restricting the use of lethal force is clear and doesn’t need to change, but that the ease with which lethal drones can be used threatens that framework and the right to life.  Violations of law and the right to life are real under the US targeted killing program, and the precedent it is setting for other countries such as China, Russia, or Iran is a very dangerous one, which the U.S. may well come to regret.’

She added: ‘Although top US officials insist publicly that the targeted killing program is lawful, effective, and wise, the government refuses to provide the meaningful transparency Mr. Heyns’ report requires, which would allow the American public and the international community to test those claims. In response to an on-going ACLU lawsuit seeking basic information about the use of lethal drones, the government has refused to disclose even the number and identity of who it has killed, on what legal basis, and why.’

Kat Craig of legal charity Reprieve said: ‘This report rightly states that the US’ secretive drone war is a danger not only to innocent civilians on the ground but also to international security as a whole. The CIA’s campaign must be brought out of the shadows: we need to see real accountability for the hundreds of civilians who have been killed – and justice for their relatives.’

Heyns calls for strong protections for civilians, writing: ‘If there is any doubt whether a person is a civilian, the person must be considered a civilian’.

The report also addresses ‘double-tap’ strikes – a controversial tactic first exposed by the Bureau and the Sunday Times in which drones attack a site, and then return to attack again as people are carrying out rescue work. Heyns told a meeting in Geneva last year: ’Reference should be made to a study earlier this year by the Bureau of Investigative Journalism… If civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: those strikes are a war crime.’

In the new report, Heyns says attacks on rescuers could be legal if they target civilians who are ‘directly participating in hostilities’ at the time of the strike. But where the strike is carried out in order to target the wounded it ‘constitutes a war crime’.

The US case for drones
The US has justified drone strikes using two main arguments, which were repeated by President Obama in a major speech in May: that they are part of a war against al Qaeda and its ‘affiliates’, and that they are an act of ‘self-defence’.

In order for a state of war – in this case a non-international armed conflict – to exist, Heyns argues, a threshold of ‘protracted armed violence’ at a certain level of intensity must be met. He adds: ‘It is to be questioned whether the various terrorist groups that call themselves Al-Qaida or associate themselves with Al-Qaida today possess the kind of integrated command structure that would justify considering them a single party involved in a global non-international armed conflict.’

Senior US officials including Brennan and attorney general Eric Holder have claimed that drone strikes are an act of self-defence in the face of an ‘imminent threat of violent attack’.

But a governmental memo on lethal targeting obtained by NBC News showed officials at the Department of Justice embracing a ‘broader concept’ of what might constitute an ‘imminent threat’, with no requirement for ‘clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future’.

Heyns adopts a narrower definition of what constitutes legal lethal action in self-defence. ‘It may not be done pre-emptively to prevent a threat from arising in the future,’ he writes. ‘The necessity of the self-defence, in the well-known phrase, must be instant, overwhelming and leaving no choice of means, no moment of deliberation.’

The US has long claimed that its drone operations have the consent of the countries in which they operate. Yemen’s President Hadi has openly acknowledged his government’s support for US drone operations in his country, while Pakistan’s former President Musharraf has admitted to giving his private approval for some early drone strikes – and in several cases the government even claimed such attacks were Pakistani military operations.

However relations between the US and Pakistan have grown increasingly rocky and senior politicians have claimed the US no longer has consent for strikes – although rumours persist that the strikes operate with the support of Pakistan’s intelligence services.

President Sharif, who entered power in May, announced after his first cabinet meeting: ‘The policy of protesting against drone strikes for public consumption, while working behind the scenes to make them happen, is not on.’

‘Only the State’s highest government authorities’ can offer consent for strikes, writes Heyns: ‘It is not sufficient to obtain consent from… particular agencies or departments of the Government’. Such consent doesn’t have to be made public, although he recommends that nations should acknowledge such consent ‘openly and clearly’.