by Bill Quigley / May 15th, 2012
US civilian and military employees regularly target and fire
lethal unmanned drone guided missiles at people across the world.
Thousands of people have been assassinated. Hundreds of those killed
were civilians. Some of those killed were rescuers and mourners.
These killings would be criminal acts if they occurred inside the
US. Does it make legal sense that these killings would be legal outside
the US?
Some Facts about Drone Assassinations
The US has used drones to kill thousands of people in Afghanistan,
Iraq, Pakistan, Yemen and Somalia. But the government routinely
refuses to provide any official information on local reports of civilian
deaths or the identities of most of those killed.
In Pakistan alone, the New America Foundation reports US forces have
launched 297 drone strikes killing at least 1800 people, three to four
hundred of whom were not even combatants. Other investigative
journalists report four to eight hundred civilians killed by US drone
strikes in Pakistan.
Very few of these drone strikes kill high level leaders of terror
groups. A recent article in FOREIGN AFFAIRS estimated “only one out of
every seven drone attacks in Pakistan kills a militant leader. The
majority of those killed in such strikes are not important insurgent
commanders but rather low level fighters, together with a small number
of civilians.”
An investigation by the
Wall Street Journal in November 2011
revealed that most of the time the US did not even know the identities
of the people being killed by drones in Pakistan. The WSJ reported
there are two types of drone strikes. Personality strikes target known
terrorist leaders. Signature strikes target groups of men believed to
be militants but are people whose identities are not known. Most of the
drone strikes are signature strikes.
In Yemen, there have been at least 34 drone assassination attacks so
far in 2012 alone, according to the London based Bureau of Investigative
Journalism. Using drones against people in Yemen, who are thought to
be militants but whose names are not even known, was authorized by the
Obama administration in April 2012, according to the
Washington Post. Somalia has been the site of ten drone attacks with a growing number in recent months.
Civilian deaths in drone strikes are regularly reported but more
chilling is the practice of firing a second set of drone strikes at the
scene once people have come to find out what happened or to give aid.
Glen Greenwald of Salon, a leading critic of the increasing use of
drones, recently pointed out that drones routinely kill civilians who
are in the vicinity of people thought to be “militants” and are thus
“incidental” killings. But the US also frequently fires drones again at
people who show up at the scene of an attack, thus deliberately
targeting rescuers and mourners.
Here are five reasons why these drone assassinations are illegal.
One. Assassination by the US government has been illegal since 1976
Drone killings are acts of premeditated murder. Premeditated murder
is a crime in all fifty states and under federal criminal law. These
murders are also the textbook definition of assassination, which is
murder by sudden or secret attack for political reasons.
In 1976 U.S. President Gerald Ford issued Executive Order 11905,
Section 5(g), which states: “No employee of the United States Government
shall engage in, or conspire to engage in, political assassination.”
President Reagan followed up to make the ban clearer in Executive Order
12333. Section 2.11 of that Order states: “No person employed by or
acting on behalf of the United States Government shall engage in, or
conspire to engage in, assassination.” Section 2.12 further says:
“Indirect participation. No agency of the Intelligence Community shall
participate in or request any person to undertake activities forbidden
by this Order.” This ban on assassination still stands.
The reason for the ban on assassinations was that the CIA was
involved in attempts to assassinate national leaders opposed by the US.
Among others, US forces sought to kill Fidel Castro of Cuba, Patrice
Lumumba of the Congo, Rafael Trujillo of the Dominican Republic, and Ngo
Dinh Diem of South Vietnam.
Two. United Nations report directly questions the legality of US drone killings
The UN directly questioned the legality of US drone killings in a May
2010 report by NYU law professor Philip Alston. Alston, the UN special
rapporteur on extrajudicial, summary, or arbitrary executions, said
drone killings may be lawful in the context of authorized armed conflict
(eg Afghanistan where the US sought and received international approval
to invade and wage war on another country). However, the use of drones
“far from the battle zone” is highly questionable legally. “Outside
the context of armed conflict, the use of drones for targeted killing is
almost never likely to be legal.” Can drone killings be justified as
anticipatory self-defense? “Applying such a scenario to targeted
killings threatens to eviscerate the human rights law prohibition
against arbitrary deprivation of life.” Likewise, countries which engage
in such killings must provide transparency and accountability, which no
country has done. “The refusal by States who conduct targeted killings
to provide transparency about their policies violates the international
law framework that limits the unlawful use of lethal force against
individuals.”
Three. International law experts condemn US drone killings
Richard Falk, professor emeritus of international affairs and
politics at Princeton University, thinks the widespread killing of
civilians in drone strikes may well constitute war crimes. “There are
two fundamental concerns. One is embarking on this sort of automated
warfare in ways that further dehumanize the process of armed conflict in
ways that I think have disturbing implications for the future,” Falk
said. “Related to that are the concerns I’ve had recently with my
preoccupation with the occupation of Gaza of a one-sided warfare where
the high-tech side decides how to inflict pain and suffering on the
other side that is, essentially, helpless.”
Human rights groups in Pakistan challenge the legality of US drone
strikes there and assert that Pakistan can prosecute military and
civilians involved for murder.
While stopping short of direct condemnation, international law expert
Notre Dame Professor Mary Ellen O’Connell seriously questions the
legality of drone attacks in Pakistan. In powerful testimony before
Congress and in an article in America magazine she points out that under
the charter of the United Nations, international law authorizes nations
to kill people in other countries only in self-defense to an armed
attack, if authorized by the UN, or is assisting another country in
their lawful use of force. Outside of war, she writes, the full body of
human rights applies, including the prohibition on killing without
warning. Because the US is not at war with Pakistan, using the
justification of war to authorize the killings is “to violate
fundamental human rights principles.”
Four. Military law of war does not authorize widespread drone killing of civilians
According to the current US Military Law of War Deskbook, the law of
war allows killing only when consistent with four key principles:
military necessity, distinction, proportionality, and humanity. These
principles preclude both direct targeting of civilians and medical
personnel but also set out how much “incidental” loss of civilian life
is allowed. Some argue precision-guided weapons like drones can be used
only when there is no probable cause of civilian deaths. But the US
military disputes that burden and instead directs “all practicable
precautions” be taken to weigh the anticipated loss of civilian life
against the advantages expected to be gained by the strike.
Even using the more lenient standard, there is little legal
justification of deliberately allowing the killing of civilians who are
“incidental” to the killings of people whose identities are unknown.
Five. Retired high-ranking military and CIA veterans challenge the legality and efficacy of drone killings
Retired US Army Colonel Ann Wright squarely denies the legality of
drone warfare, telling Democracy Now: “These drones, you might as well
just call them assassination machines. That is what these drones are
used for: targeted assassination, extrajudicial ultimate death for
people who have not been convicted of anything.”
Drone strikes are also counterproductive. Robert Grenier, recently
retired Director of the CIA Counter-Terrorism Center, wrote, “One
wonders how many Yemenis may be moved in the future to violent extremism
in reaction to carelessly targeted missile strikes, and how many Yemeni
militants with strictly local agendas will become dedicated enemies of
the West in response to US military actions against them.”
Recent polls of the Pakistan people show high levels of anger in
Pakistan at US military attacks there. This anger in turn leads to high
support for suicide attacks against US military targets.
US Defense of Drone Assassinations
US officials claim these drone killings are not assassinations
because the US has the legal right to kill anyone considered a
terrorist, anywhere, if they can argue it is in self-defense. Attorney
General Holder and White House counterterrorism advisor John Brennan
recently defended the legality of drone strikes and argued they are not
assassinations because the killings are in response to the 9/11 attacks
and are carried out in self-defense even when not in Afghanistan or
Iraq. This argument is based on the highly criticized claim of
anticipatory self-defense which justifies killings in a global war on
terror when traditional self-defense would clearly not. The government
refuses to provide copies of the legal opinions relied upon by the
government.
Growing Resistance to Drone Assassinations
In signs of hope, people in the US are resisting the increasing use of drones.
CODEPINK, the Center for Constitutional Rights, and the London-based
human rights group Reprieve co-sponsored an International Drone Summit
in Washington DC to challenge drone assassinations. Investigative
journalist Jeremy Scahill noted that Congress only managed to scrape up
six votes to oppose the assassination of US citizens abroad. “What is
happening to this country? We have become a nation of assassins. We
have become a nation that is somehow silent in the face of the idea that
assassination should be one of the centerpieces of US policy.”
The American Society of International Law issued a report “Targeting
Operations with Drone Technology: Humanitarian Law Implications” in
March 2011. Concerned that drones may be the future of warfare,
scholars examined three questions in the US use of drone technology: the
scope of armed conflict (what is the battlefield upon which deadly
force of drone killing is authorized); who may be targeted; and the
legal implications of who conducts the targeting (since it is often not
military but clandestine CIA agents who decide who dies). Concluding
that the US may soon find itself “on the other end of the drone” as this
technology expands, they criticize official US silence on these key
legal questions.
Others are taking direct action. Select examples include: fourteen
people arrested in April 2009 outside Creech Air Force base in Nevada in
connection with a protest against drones by the Nevada Desert
Experience; in January 2010 people protested drones outside the CIA
headquarters in Langley Virginia; in April 2011, thirty-seven were
arrested at Hancock Air Force base in upstate New York as part of a four
hundred person protest against the use of drones; in October 2011, as
part of the International Week of Protest to Stop the Militarization of
Space, there were protests outside of Raytheon Missile Systems plant in
Tucson; in April 2012, twenty-eight people were pre-emptively arrested
on their way to protest drones at Hancock Air Force Base.
There is a brilliant new book, DRONE WARFARE authored by global
activist Medea Benjamin which documents the nuts and bolts of the drone
industry and the money involved in their production and operation. She
collects many global media reports of innocent civilian deaths,
investigations into these deaths, and gives voice to international
opposition groups like her own CODEPINK, Voices for Creative
Nonviolence, Fellowship of Reconciliation, War Resisters International,
Human Rights Watch, the Catholic Worker movement, Campaign for Nuclear
Disarmament, and others working against the drones.
As National Public Radio and The New Republic jointly editorialized,
there is good reason to doubt the veracity of US claims that drone
killings are even effective. Drone use has escalated and expanded the
US global war on terror and thus should be subject to higher levels of
scrutiny than it is now. As the use of drones escalates so too does the
risk of killing innocents which produces “legitimate anti-American
anger that terrorist recruiters can exploit….Such a steady escalation of
the drone war, and the inevitable increase in civilian casualties that
will accompany it, could easily tip the delicate balance that assures we
kill more terrorists than we produce.”
There is incredible danger in allowing US military and civilians to
murder people anywhere in the world with no public or Congressional or
judicial oversight. This authorizes the President and the executive
branch, according to the ACLU and the Center for Constitutional Rights,
to be prosecutor, judge, jury and executioner.
The use of drones to assassinate people violates US and international
law in multiple ways. US military and civilian employees, who plan,
target and execute people in Pakistan, Yemen and Somalia are violating
the law and, ultimately, risk prosecution. As the technology for drone
attacks spreads, protests by the US that drone attacks by others are
illegal will sound quite hollow. Continuation of flagrantly illegal
drone attacks by the US also risks justifying the exact same actions,
taken by others, against us.
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