Legalizing Assassination With Drone Strikes

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Image courtesy of Pixabay.

Katie Aguilera

According to numbers compiled by the Bureau of Investigative Journalism, the low estimate of civilians killed by US drone strikes in Pakistan, Yemen, Somalia, and Afghanistan is in the hundreds, high estimate is over one thousand.  US officials would have us believe the number of civilians killed is much lower, that strikes by UAVs are accurate, precise, and incur less collateral damage than strikes by manned aircraft.  However, there is no shortage of information showing otherwise.

In light of this growing body of information refuting the official claims of the US administration, more and more critics are calling into question the use of UAV’s for targeted killings, but we have heard little discussion of that in the mainstream media here in the US.

There has been some recent discussion in the UK press after the British Parliament Joint Committee on human rights released a report that calls on the Government to “clarify legal case for lethal drone strikes outside armed conflict.”  The report covers the findings of an investigation launched as a result of the killing of Reyaad Khan, a British citizen fighting for ISIS in Syria, by a targeted drone strike in August, 2014. Because this strike took place before Parliament voted on military action in Syria it raised questions on the legality of targeted killings outside of areas where the UK is involved in armed conflict with terrorist organizations, as well as questions on targeting a British citizen for execution without a trial.

Similar questions arose in the US after the September 30, 2011 targeted drone strike in Yemen that killed US citizen Anwar al-Awlaki, the first US citizen to be placed on the list for such a strike.  Also in the killing of his 16-year-old son, Abdulrahman al-Awlaki two weeks later, reportedly by mistake.  But, just as the UK’s strike on Khan in Syria, al-Awlaki’s targeting and eventual killing was quickly justified as both he and Khan were considered imminent threats and capture was infeasible.  Little more has been said about the al-Awlakis deaths since.  The US Justice Department did release a white paper explaining their legal justification for the killing, and that seemed to satisfy the media and the public.*

The New York Times stated that the white paper explains that “Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if ‘an informed, high-level official’ of the government decided that the target was a ranking figure in Al Qaeda who posed ‘an imminent threat of violent attack against the United States’ and if his capture was not feasible.”  The article goes on to say that the paper “adopts an elastic definition of an ‘imminent’ threat,” that does not mean an actual attack needs to be in progress.  The target need only be “generally engaged in terrorist activities aimed at the United States.”  The Times article also says that the paper “asserts that courts should not play a role in reviewing or restraining such decisions.”

As for the strike on Reyaad Khan, David Cameron stated it was a “new departure” in UK drone strikes as it occurred in a country where the UK is not at war.  But he asserted that it was an act of self-defense, stating, “we took this action because there was no alternative.”

But for the Joint Committee on human rights, that wasn’t sufficient explanation in the case of Khan, and others.  They state in their report:

“Clarification of the legal basis is essential in order for Parliament and the public to be satisfied that the Government is complying with the rule of law and to provide absolute clarity for all those involved in the chain of command for such actions (intelligence personnel, armed forces, officials, Ministers et al) so they have a legal defence against any possible future criminal prosecution for murder from within or outside of the UK. The need for clarification is urgent in view of the increasing use of lethal force in Libya.”

This Guardian article states, “British drone pilots, intelligence officers and ministers could face murder charges if the government does not clarify its policies on targeted killing, a parliamentary committee has warned.”  The article points out that while it would be unlikely for such charges to be brought forth from within the UK, other nations might bring charges if their own citizens are targeted and killed outside of areas of armed conflict.  In other words, the real concern of the Parliament is that the laws are clarified to protect and justify the use of targeted drone strikes, anywhere in the world.

Consider what Chris Cole writes in a Guardian article published yesterday:

“While these are at some level sensible recommendations, we must be careful not to fall into the trap of putting in place policies and procedures that normalise and legitimise extrajudicial killing. The UK must not follow the US down the path of adding suspects to a “kill list” in order that they will be assassinated at the first opportunity in an ever-expanding, global battlefield.”

It is not a question of whether the entire program of targeted killing through drone strikes is moral, humane, effective, or even truly supported by national and international law.  It is a question of whether the laws can be explained in such a way as to make drone strikes legal.  To make state-sponsored assassination legal, at least as long as it is called ‘targeted killing’ and is not utilized by enemies of the west.

After all, it is clear that the US and UK have no qualms about violating international law by inventing justifications to invade a sovereign nation. Neither did the US hesitate to create documentation that justified its use of torture.

According to Kate Martin in this April 1, 2016 Center for American Progress article, the largest controversy over the use of drones for targeted killing “stems from confusion about whether the strikes outside of Afghanistan are part of the armed conflict-the war-with Al Qaeda and its associated forces.”  She asserts that clarifying that is critical in determining whether targeted killing is legal.  She writes:

“The applicability of the law of armed conflict is key to determining the legality of the strikes because, in a war, a party is entitled to deliberately target and kill the enemy so long as other requirements of the LOAC [laws of armed conflict] are met.  Outside war, such killings are likely to be murder.”

US officials claim that the United States is in fact in armed conflict with al Qaeda, and the Authorization For Use of Military Force passed in September 2001 after the 9/11 attacks authorizes the deliberate targeting of al Qaeda affiliated people involved with the orchestration of the 9/11 attacks.

Steven Groves writes in this April 10, 2013 article, “targeted drone strikes by the United States against terrorists comply with international law, particularly with the law of war, both because the U.S. is engaged in an armed conflict with al-Qaeda and associated forces and because the U.S. has an inherent right of self-defense.” This engagement in armed conflict allows the US to “lawfully target them [al Qaeda and associated forces] with lethal force.”  Groves adds:

“Critics contend, however, that the United States is not now—and perhaps never has been—in an armed conflict with al-Qaeda that would be recognized under international law and that, accordingly, drone strikes in places such as Pakistan, Yemen, and Somalia are not justified and are in fact “extrajudicial executions” prohibited by international human rights law.[8]

However, as a sovereign and independent nation, the United States may determine for itself whether it is at war with another nation or, in this case, with a transnational terrorist organization. U.S. officials have considered the United States to be in a state of armed conflict with al-Qaeda since at least the attacks on September 11, 2001.”

Groves goes on to write, “whether the sum total of these attempted terrorist attacks are of an intensity sufficient to sustain an armed conflict is a debatable point, but in the end analysis the United States will make that final determination.”  He points out that the Geneva Conventions do not give a definition of armed conflict or set a level of intensity that must exist in order for conflict to be defined as armed.  So, if the US wants it to be war, then war it shall be, because the US says so.

Another key aspect of the debate is the claim that targeted killing is justifiable as a means of self-defense, that the US and the UK have the right to target individuals who pose an imminent threat.  But documents leaked to the Intercept, described in The Drone Papers give much more detail to the process of targeting an individual, including the fact that once an individual is approved for targeting, the Pentagon and CIA have a full 60 days to act.  As James Downie writes in this May 5, 2016 Washington Post opinion piece, “you don’t need a dictionary to know that 60 days is not ‘imminent.'”

Kate Martin points out in her Center for American Progress article linked above that the laws of armed conflict require distinction when targeting individuals.  That means only “lawful targets-such as combatants and other military objectives-be intentionally targeted.  Also necessary is proportionality, “which requires that the anticipated collateral damage of an attack not be excessive in relation to the anticipated concrete and direct military advantage from the attack.”

This is the most egregious aspect of the debate.  US officials repeatedly claim that great care, and much intelligence, goes into the decision to target someone, as well as a ‘near certainty’ that civilians won’t be at risk.  But again that is refuted in details published in The Drone Papers, as well as reports from other drone whistleblowers.  Individuals are targeted because they are identified as ‘terrorists’ by paid informants or they possess a certain SIM card in their cell phone that has been identified as belonging to a person believed to be a terror suspect.

In James Downie’s opinion piece linked above, he writes, “the leaked documents show the disturbing ease with which an innocent civilian — American or not — can be added to the U.S. government’s main terrorist database, such as on the basis of a single ‘uncorroborated’ Facebook or Twitter post.”  He goes on to add that of the 469,000 names nominated for the “known or suspected terrorists” database, only 4,900 were rejected.

So, if any of those 464,100 who made the list happen to borrow the wrong cell phone, or write the wrong rant on their Facebook page, or infuriate their neighbor enough that the neighbor decides to turn them in as a terrorist in exchange for payment, or interact in any way with other known terror suspects, they will likely end up on the target list. And when the ‘intelligence’ is wrong?  Just label anyone killed an enemy combatant, a ‘military-aged male,’ and therefore a legitimate target in this ‘armed conflict’ on terror.

It isn’t as if, for the most part, anyone is verifying who is being killed.  Consider that Reprieve, a human rights charity, reported that “US drone strikes in Yemen and Pakistan have killed as many as 1,147 unknown people in failed attempts to kill 41 named individuals.”  It goes on to identify 41 men who are reported to have been killed more than once!

So much for ‘distinction’ and ‘proportionality.’ But then, when did empires ever abide by laws of armed conflict set forth by the international community?  Empires make their own rules.  At least as long as those ruled by them allow them to.  It is obvious that the Obama administration will not stop using targeted killing (assassination), and it seems highly unlikely that Obama’s successor will end the practice either. As long as we continue to give consent with our silence, as long as we allow the media to ignore the facts, as long as we continue to allow officials to justify it with laws they create or manipulate to legalize it, targeted killing with drones will continue, and will undoubtedly increase.

———-

*Adam Klasfield reported today that “Dueling battles to uncover the CIA’s legal rationale for drone strikes on U.S. citizens crashed this week, as the American Civil Liberties Union’s unsuccessful lawsuit sank another one filed by an investigative reporter for Vice News.
The ACLU and Vice News reporter Jason Leopold have spent years trying to obtain a ‘white paper’ justifying the bombings that killed Anwar al-Awlaki and Samir Khan, two al-Qaida propagandists.”

***As if the ease in which an individual can be targeted, and the ease in which a drone can strike a target, aren’t terrifying enough, consider this article out today by Nafeez Ahmed:  “Official US defence and NATO documents confirm that autonomous weapon systems will kill targets, including civilians, based on tweets, blogs and Instagram.”

***********

Read an article I wrote for Newsbud with more information about the Obama administration’s policies on targeted killing here.

Update: That link above to the Newsbud article I wrote doesn’t work as Newsbud has removed all my work.  You can read that article here instead.  11/2/2017.

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3 thoughts on “Legalizing Assassination With Drone Strikes

  1. What’s “collateral damage” then?
    ‘wink’
    From across the pond…
    Watching Closely the Decline Of the West…
    Thanx
    🙂

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