U.S. drone strikes may constitute war crimes

Amnesty, Human Rights Watch highlight civilian deaths in Yemen, Pakistan, question legal framework for drone kills

Published October 22, 2013 2:35PM (EDT)

Two reports released in conjunction Tuesday claim that U.S. drone programs in Pakistan and Yemen have carried out war crimes.

The detailed reports, one from Amnesty International and one from Human Rights Watch, constitute the most in-depth studies into the civilian cost of life wrought by U.S. drone strikes. Both studies offer up specific evidence of dozens of civilian deaths, once again giving the lie to administration claims that CIA drone programs carry out "targeted" killings of terrorists.

On the day of the reports' release, Nawaz Sharif, Pakistan's prime minister, will meet with President Obama in Washington to ask for an end to the CIA's drone program in his country. The reports' release also comes just one week ahead of the first congressional hearing in which drone strike victims will be able to tell their own story. Rafiq ur Rehman, a teacher in a primary school in North Waziristan, will appear at a briefing, along with his children Nabila and Zubair who were both injured in a drone attack in October 2012.

Focusing on Yemen, the HRW report looked closely at six U.S. drone strikes, spanning the years since 2009. Two out of the six strikes (one-third of the sample) were found to have clearly violated international law, while the legality of up to all six assessed strikes was deemed questionable by the study. The 97-page report found that in six U.S. strikes alone, 57 out of 82 recorded casualties were deemed to be civilians. In one attack, three children and a pregnant woman were killed -- a violation of a law of war that prohibits attacks that fail to discriminate between civilians and combatants.

“The bodies were charred like coal – I could not recognize the faces,” Ahmad al-Sabooli, a 23-year-old farmer in Yemen, told HRW. According to the human rights group, when al-Sabooli moved closer, he realized that three of the bodies, including those of a woman with a young girl still in her lap, were his father, mother and 10-year-old sister. “That is when I put my head in my hands and cried,” he said.

The incidents highlighted by HRW provide strong evidence that war crimes have been committed by the U.S. in Yemen, as researchers noted. “The U.S. says it is taking all possible precautions during targeted killings, but it has unlawfully killed civilians and struck questionable military targets in Yemen,” said Letta Tayler, senior terrorism and counterterrorism researcher at Human Rights Watch and the author of the report. “Yemenis told us that these strikes make them fear the U.S. as much as they fear Al-Qaeda in the Arabian Peninsula.”

Similarly, Amnesty International's report, which looks at strikes in Pakistan's tribal regions bordering Afghanistan in the last 18 months, found dozens of instances of civilian death and injury. The study, hauntingly titled "Will I Be Next?," stresses that not all drone strikes violate human rights and international law, but unlawful killings may have taken place in a number of the 45 strikes reviewed. The report highlights, for example, two drone strikes carried out in quick succession in July 2012, which killed 18 laborers, including at least one child, as they gathered for an evening meal. Every person interviewed by Amnesty for the report maintained that the men killed in these strikes were not involved in militant activity.

Amnesty's report concludes that "it is impossible to reach any firm assessment [of the legality of each strike] without a full disclosure of the facts surrounding individual attacks and their legal basis." The report, decrying secrecy surrounding the drone program in Pakistan, notes that the U.S. "appears to be exploiting the lawless and remote nature of the region to evade accountability for its violations."

As Sarah Knuckey, NYU lawyer and adviser to the U.N. special rapporteur on extrajudicial killings, noted Tuesday for Just Security, both Amnesty and HRW address the complicated legal frameworks through which drone strikes are carried out. The Obama administration's application of extraordinary executive powers to carry out extrajudicial killings has long been grounded in claims to ongoing war (the sprawling, unbounded War on Terror). The reports both challenge the validity of the U.S.'s claims here, drawing important attention to the sometimes flimsy legal grounds on which the defense of shadowy drone programs stand. Knuckey notes:

Both reports address the complex question of whether or not the US can properly be said to be in an armed conflict, and note that the applicable framework influences the strikes’ legality. [Amnesty] examines a number of strikes under both legal regimes, and states that while the US was in specific armed conflicts over the last decade, [Amnesty] does not accept the legal notion of a transnational armed conflict against non-state actors wherever they are found. Depending on strike location and time, HRW examines some strikes under an armed conflict analysis, and others under human rights law. HRW states that it is not clear whether the U.S. is in an armed conflict in Yemen with AQAP, and raises the question of whether the US is a party to a conflict between Yemen and AQAP (but notes that the U.S. does not claim that it is involved in such a domestic conflict). HRW also states that, now, it is “not evident” that the US is still in an armed conflict with al-Qaida.

It is a crucial question -- whether the international community accepts the U.S.'s claims to war -- since it determines which laws (those of war or peacetime) apply and thus may have been broken in specific strikes. It's for this reason too that both Amnesty and HRW recommend that the U.S. provide more detailed information on each drone strike. Crucially, however, by the lights of both wartime and peacetime legal frameworks, a grave number of civilian deaths highlight how the U.S. has numerous times in recent years abrogated international law, whether a framework of war or peacetime is accepted.

By Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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