NEW YORK - On the heels of
reports that the Barack Obama administration altered a new manual on
military commission rules to accommodate an illegal drone programme, a
senior United Nations official is expected to call on the U.S. this
week to stop Central Intelligence Agency (CIA) drone strikes against
people suspected of belonging to al Qaeda.
The U.N. challenge will
come from Philip Alston, the United Nations special rapporteur on
extrajudicial, summary or arbitrary executions. On Jun. 3, he is
scheduled to deliver a report to the United Nations Human Rights
Council in Geneva declaring that the "life and death power" of drones
should be entrusted to regular armed forces, not intelligence agencies.
is unlikely that the U.S. will accept the U.N.'s call because drone
attacks have become an increasingly important tactic in
counterterrorism operations in Pakistan.
Alston's views will not
be legally binding, and his report will not assert that the operation
of combat drones by nonmilitary personnel is a war crime, he told The
New York Times.
But he clarified why he was targeting only actions by the CIA, not by the U.S. military.
the Defence Department you've got maybe not perfect but quite abundant
accountability as demonstrated by what happens when a bombing goes
wrong in Afghanistan," he said. "The whole process that follows is very
open. Whereas if the CIA is doing it, by definition they are not going
to answer questions, not provide any information, and not do any
follow-up that we know about."
Reports over the weekend
suggest that the U.S. government has been struggling to justify the
CIA's counterterrorism involvement without violating the laws of war.
American Civil Liberties Union (ACLU) charged last week that the Obama
administration changed a new manual on military commissions rules to
accommodate its illegal drone programme.
Under the old rules,
"murder in violation of the laws of war" was defined as killings by
people who did not meet "the requirements for lawful combatancy", which
would have suggested that CIA drone operators - who are not members of
the military and do not wear a military uniform - could be charged with
war crimes for killing individuals using drones.
The ACLU is
charging that "the U.S. programme of targeting and killing people,
sometimes far from any battlefield, with little oversight or
transparency, is illegal regardless of the military commissions rules".
scholar Chip Pitts, president of the Bill of Rights Defence Committee,
agrees. He told IPS, "The manual's change to the definition of 'murder
in violation of the laws of war' made in order to exempt drone killings
by the CIA further reveals the double standards at play - a problem
which has characterised these commissions since the outset, when normal
rules of evidence, law, and humane treatment were declared
He said, "I don't want to use the old cliché
about 'lipstick on a pig'. But no matter how much you dress up these
commissions, they're still used in circumstances where they shouldn't
be used - i.e. for terrorist suspects and those not amenable to
prosecution under the classic law of war - and they remain flawed
tribunals under control of the executive, like the military courts used
These developments come in the wake of a scathing
report by the U.S. military on the deaths of 23 Afghan civilians,
saying that "inaccurate and unprofessional" reporting by Predator drone
operators helped lead to an airstrike in February on a group of
innocent men, women and children. The report said that four U.S.
officers, including a brigade and battalion commander, had been
reprimanded, and that two junior officers had also been disciplined.
Gen. Stanley A. McChrystal, who apologised to Afghan President Hamid
Karzai after the attack, announced a series of training measures
intended to reduce the chances of similar events.
in which three vehicles were destroyed, illustrated the extraordinary
sensitivity to the inadvertent killing of noncombatants by NATO forces.
Since taking command here last June, McChrystal says he has made
protection of civilians a high priority, and has sharply restricted
The overwhelming majority of civilian deaths in
Afghanistan are caused by insurgents, but the growing intensity of the
fighting this year has sent civilian casualties to their highest levels
The laws of war stipulate that soldiers in
traditional armies cannot be prosecuted and punished for killing enemy
forces in battle. The U.S. maintains that Qaeda fighters do not meet
the requirements of the Geneva Conventions - for example, wearing
uniforms. They are therefore not "privileged combatants" entitled to
such battlefield immunity.
But CIA drone operators are also not in uniform.
Pentagon was forced to address this issue in connection with the plan
to restart military commission trials at Guantánamo Bay. The
commissions began with pretrial hearings in the case of Omar Khadr, a
Canadian detainee accused of killing an Army sergeant during a
firefight in Afghanistan in 2002, when Khadr was 15.
Pentagon issued its new manual laying out commission rules the night
before the first pretrial hearing. The delay was reportedly due to the
time spent by government lawyers who had been rewriting a section about
murder that has implications for the C.I.A. drone programme.
2007 version of the manual defined the charge of "murder in violation
of the laws of war" as a killing by someone who did not meet "the
requirements for lawful combatancy" - like being part of a regular army
or otherwise wearing a uniform. Similar language was incorporated into
a draft of the new manual.
"An accused may be convicted", the
final manual states, if he "engaged in conduct traditionally triable by
military commission (e.g., spying; murder committed while the accused
did not meet the requirements of privileged belligerency) even if such
conduct does not violate the international law of war."
drone operators, who reportedly fly the aircraft from agency
headquarters in Langley, Virginia, might theoretically be subject to
prosecution in a Pakistani courtroom under this new formulation. But it
allows the United States to assure allies that it is in compliance with
the laws of war.