TWO reports issued by United Nations special rapporteurs on extrajudicial, summary or arbitrary executions, one by Philip Alston on May 28, 2010 and the other by South African jurist Christof Heyns in June this year, contain severe censure of the United States’ drone attacks in Pakistan, Afghanistan, Yemen, Somalia and Iraq.
According to news agencies, Heyns called in his report for “prompt, thorough, effective and independent public investigation” of any violations of international law and human rights and noted that “there has been a dramatic increase in [drone attacks] over the past three years”. He quoted figures from the Human Rights Commission of Pakistan according to which drone strikes killed at least 957 people in Pakistan in 2010 and thousands in 300-plus strikes since 2004.
According to a story in The Guardian, at a related conference held in Geneva in June by the American Civil Liberties Union (ACLU), another UN rapporteur, Ben Emmerson QC, said he would be focusing on inquiries into drone attacks.
At the conference, “Heyns ridiculed the US suggestion that targeted [unmanned aerial vehicle] strikes on Al Qaeda or allied groups were a legitimate response to the 9/11 attacks. ‘It’s difficult to see how any killings carried out in 2012 can be justified as in response to [events] in 2001,’ he said. ‘Some states seem to want to invent new laws to justify new practices.
“‘The targeting is often operated by intelligence agencies which fall outside the scope of accountability. The term “targeted killing” is wrong because it suggests little violence has occurred. The collateral damage may be less than aerial bombardment, but because they eliminate the risk to soldiers they can be used more often.’”
Emmerson said “it was ‘for the UN itself to consider establishing an investigatory body. Drones attack by the US raise fundamental questions which are a direct consequence of my mandate.… If they don’t [investigate] themselves, we will do it for them.’” He added that “international law itself” was under attack.
The Pakistani ambassador to the UN in Geneva argued, according to The Guardian, that “Claims made by the US about the accuracy of drone strikes were ‘totally incorrect’… Victims who had tried to bring compensation claims through the Pakistani courts had been blocked by US refusals to respond to legal actions.” He pointed out that the use of drones “leads to greater levels of terror rather than reducing them”.
UN High Commissioner for Human Rights Navi Pillay said in a speech the same week that it was “unclear that all persons targeted are combatants or directly participating in hostilities”. And her remarks at a press conference in Islamabad on June 7, as reported in this newspaper, were also trenchant. “I see indiscriminate killing and injuring of innocent people as a clear violation of human rights. Drone attacks do raise serious questions about compliance with international law. The principle of distinction and proportionality and ensuring accountability for any failure to comply with international law is also difficult when drone attacks are conducted outside the military chain of command and beyond effective and transparent mechanisms of civilian or military control.
“I suggested to the government that they invite the UN special rapporteur on summary or arbitrary executions and he will be able to investigate some of the incidents.”
Figures vary. The ACLU estimates 4,000 total deaths in Pakistan, Yemen and Somalia since 2002. The New America Foundation claims that 307 drone attacks in Pakistan from June 2004 to June 2012 have killed 1,562 to 2,377 suspected militants with an estimated civilian casualty rate of 16 per cent. And according to a July report in Newsline, the Bureau of Investigation Journalism based in London says there have been 327 drone strikes in Pakistan since 2004 killing between 2,464 and 3,148 people — 482 to 830 of whom were civilians, including 175 children — and injuring around 1,200.
Heyns rightly characterised Alston’s report as “trail-blazing work”. Its 29 pages contain a rigorous study of the law and an exposure of its abuse. “Targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities,’” Alston writes, quoting international law. “In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimise harm to civilians. These standards apply regardless of whether the armed conflict is between states (an international armed conflict) or between a state and a non-state armed group (non-international armed conflict), including alleged terrorists. Reprisals or punitive attacks on civilians are prohibited.”
Alston makes another important point. “Because operators are based thousands of miles away from the battlefield, and undertake operations entirely through computer screens and remote audio feed, there is a risk of developing a ‘Playstation’ mentality to killing. States must ensure that training programs for drone operators who have never been subjected to the risks and rigours of battle instil respect for [international humanitarian law] and adequate safeguards for compliance with it.
“Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”
There has been another dangerous development recently. Attacks are based on perceived ‘patterns of behaviour’ near the target. The abuse is growing. It calls for an organised campaign against it by jurists, writers, artists and scholars.
The writer is an author and lawyer based in Mumbai.