UN Expert Challenges Foundations of US Covert Drone War

Special Rapporteur on extrajudicial, summary or arbitrary executions

A new report by Christof Heyns, the UN's Special Rapporteur on extrajudicial, summary or arbitrary executions, challenges the lack of transparency in the growing use of drones, and their threats to civilian life and international law.

As Alice Ross writes at the Bureau of Investigative Journalism (TBIJ),

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.

In his report, Heyns blasts drone strikes known as "double-tap" strikes, ones where a second strike follows a first to target rescuers, a tactic TBIJ documented the U.S. has used in its drone war. Heyns states that this is a war crime. He writes:

Where one drone attack is followed up by another in order to target those who are wounded and hors de combat or medical personnel, it constitutes a war crime in armed conflict and a violation of the right to life, whether or not in armed conflict.

"Signature strikes," as ProPublicaexplained, are when

drone operators fire on people whose identities they do not know based on evidence of suspicious behavior or other "signatures." According to anonymously sourced media reports, such attacks on unidentified targets account for many, or even most, drone strikes.

Despite that, the administration has never publicly spoken about signature strikes. Basic questions remain unanswered.

What is the legal justification for signature strikes? What qualifies as a "signature" that would prompt a deadly strike? Do those being targeted have to pose a threat to the United States? And how many civilians have been killed in such strikes?

In his report, Heyns questions the international legality of these kinds of drone attacks.

References are sometimes made to signature strikes, whereby people may be targeted based on their location or appearance. This is not a concept known to international humanitarian law and could lead to confusion. The legality of such strikes depends on what the signatures are. In some cases, people may be targeted without their identities being known, based on insignia or conduct. The legal test remains whether there is sufficient evidence that a person is targetable under international humanitarian law, as described above, by virtue of having a continuous combat function or directly participating in hostilities, and if there is doubt States must refrain from targeting. Insofar as the term "signature strikes" refers to targeting without sufficient information to make the necessary determination, it is clearly unlawful.

Heyns also notes the civilian harm caused by the drone war:

Drones come from the sky, but leave the heavy footprint of war on the communities that they target. The claims that drones are more precise in targeting cannot be accepted uncritically, not least because terms such as "terrorist" or "militant" are sometimes used to describe people who are in truth protected civilians. The principle of proportionality protects those civilians who are not directly targeted but nevertheless may bear the brunt of the force used. According to this principle, it is prohibited to carry out an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

The targets of drone strikes are not brought to trial, but slated for execution. And this, Heyns writes, defies "basic notions of humanity."

Interpretive Guidance, ICRC states that it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.

He adds later in the report that

whether or not they recognize this as a legal obligation, States should capture rather than kill during armed conflict where feasible.

"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," stated Kat Craig, Legal Director at UK-based human rights charity Reprieve, which represents a number of civilian victims of drone strikes in Pakistan and Yemen.

"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," stated Craig.

The UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson, also submitted a report on Thursday on drones and targeted killings, and both his and Heyns' reports will be debated at the UN General Assembly on October 25, 2013.


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