The Obama Administration May Be Guilty of War Crimes

Reports on US drone strikes suggest White House policy violates international law. If so, they should be held accountable

Is President Obama a suspected war criminal?

If you have read the recent reports on drone strikes by Ben Emmerson, UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Christof Heyns, UN special rapporteur on extrajudicial, summary or arbitrary executions, Amnesty International and Human Rights Watch, there is only one answer to this question ... and it is not the answer most would want to hear.

If you have not read the reports, let me provide you with a brief summary of the common themes. The reports repeatedly criticized President Obama for what has been a near complete lack of transparency. Lack of transparency, according to the reports, impedes accountability. By failing to acknowledge responsibility for drone strikes in Pakistan and Yemen, there can be no accountability to those who have wrongfully had their innocent loved ones killed in attacks.

Frank La Rue, special rapporteur on the promotion and protection of the right to freedom of opinion and expression, noted the role the right to information plays in promoting good governance. La Rue added that there exists a right to know the truth because the truth enables access to other rights: in this case, the right to reparations and accountability for the wrongful deaths of loved ones.

Connecting the issue of transparency to accountability under the law, Heyns stated:

A lack of appropriate transparency and accountability concerning the deployment of drones undermines the rule of law and may threaten international security. Accountability for violations of international human rights law (or international humanitarian law) is not a matter of choice or policy; it is a duty under domestic and international law.

This brings us to the question of whether President Obama's targeted killing program, implemented through the use of drone strikes, complies with both international human rights law and international humanitarian law. Outside of a defined conflict zone, international human rights law is the applicable law. This is important because human rights law demands significantly more stringent rules for the use of lethal force than does humanitarian law.

If the United States is only involved in an armed conflict in Afghanistan, international human rights law would be the regime that regulates the use of lethal force in Pakistan and Yemen. Therefore, as noted by Amnesty International, the use of lethal force outside of Afghanistan is legal when it can be demonstrated that:

[It was] only used when strictly unavoidable to protect life, no less harmful means such as capture or non-lethal incapacitation was possible, and the use of force was proportionate in the prevailing circumstances.

Amnesty International concluded that it is highly likely that drone strikes in Pakistan fail to "satisfy the law enforcement standards that govern intentional use of lethal force outside armed conflict", and therefore:

[T]heir deliberate killings by drones ... very likely violate the prohibition of arbitrary deprivation of life and may constitute extrajudicial executions.

If we accept the argument made by the Obama administration and the Bush administration before it - that the United States is involved in an armed conflict with al-Qaida and associated forces wherever they are engaged - international humanitarian law is the lex specialis in Pakistan and Yemen. Yet, even with less rigorous limitations on the use of lethal force under international humanitarian law, there is mounting evidence that the Obama administration's use of drones constitute violations of international law in the form of war crimes.

Human Rights Watch examined six strikes in Yemen. According to its report:

Two of these attacks were in clear violation of international humanitarian law - the laws of war - because they struck only civilians or used indiscriminate weapons. The other four cases may have violated the laws of war because the individual attacked was not a lawful military target or the attack caused disproportionate civilian harm.

Going beyond the examination of individual strikes, President Obama has utilized tactics that inherently violate the laws of war. These include the use of so-called "signature strikes" and "double taps". According to Amnesty International:

Under international humanitarian law, US drone operators must at all times abide by the principle of distinction; namely distinguish between civilians and combatants ... All feasible precautions must be taken in determining whether a person is a civilian ... In case of doubt, the person must be presumed to be protected against direct attack.

Signature strikes target individuals for death based not on the confirmed identity or activities of the targets, but rather "behavioral characteristics" identified as those typical of militants. This is a clear violation of the principle of distinction. Further, Amnesty International questions President Obama's assertion that drone strikes are only launched when there is "near certainty" that civilians will not be killed in the strike - a likely reference to President Obama's disputed method of counting "all military-age males" in the vicinity of an alleged target as militants.

Amnesty International argues that the president's precautionary measures "are only relevant if the US applies the status of 'civilian' to unidentified individuals, rather than presuming they are combatants whom they deem directly targetable. Otherwise, these killings could constitute war crimes or extrajudicial executions."

The "double tap" involves launching an initial drone strike, which is followed by a second strike that targets rescuers and first responders. The rationale behind the use of double taps is that those who converge on the scene of the initial strike must be militants themselves.

Thus, the use of double taps relies on two assumptions. The first is that the victims of the initial strike were militants - an assumption the facts simply do not corroborate in numerous cases. And the second assumption, which is that first responders must also be militants, fails because of the failure of the first. Further, even if the victims of the initial strike were legitimate targets, to assume those who converge on the scene of the initial strike to be military targets clearly fails to satisfy the principle of distinction.

Once again, the United States stands at a crossroad. Either it can immunize President Obama and members of his administration from accountability, as it did President Bush and his administration. As seen, this route exposes the hypocrisy of the administration's counter-terrorism policy to full display. Or the US can subject its leaders to the same standards it demands of others.

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