Investigate This

Last week’s headlines alerted readers to the supposed revelation of the United Nations inquiry into U.S. drone strikes policies and practices: "UN to Investigate Drone Attacks;" "UN Expert Launches Investigation of Drones, Targeted Killings;" and "United Nations: That’s It, We’re Investigating Drone Killings." The stories covered an announcement by British human rights lawyer Ben Emmerson, who serves as the "U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism" (say that three times fast).

To put this inquiry into context, most international institutions are mandated to investigate accusations of their member states’ human rights abuses, most prominently the Organization of American States, European Union, and Organization for Security and Cooperation in Europe. The United Nations goes a step further — as it includes nearly all states in the world — with ten separate entities that monitor compliance with international human rights treaties. Emmerson is part of the U.N. Human Rights Council’s special procedures that "examine, monitor, advise and publicly report on human rights situations," either thematically or in specific countries. There are 36 thematic and 12 country mandates covering everything from transnational corporations and freedom of religion to Belarus and Iran.

Emmerson will "look at the evidence that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties in some instances, and to make recommendations concerning the duty of States to conduct thorough independent and impartial investigations into such allegations." Emmerson and an impressive "inquiry team" will examine 25 drone strikes in "Pakistan, Yemen, Somalia, Afghanistan, and Palestine," where attacks were carried out predominantly by the United States, but also by the United Kingdom (in Afghanistan) and Israel (in Palestine). The findings and recommendations of the investigation are scheduled to be presented at the U.N. General Assembly in October.

The announcement was predictably welcomed by the American Civil Liberties Union, condemned by conservative bloggers as "another classic case of the UN trying to emasculate the United States’ power," and acknowledged by an anonymous U.S. official repeating the mantra, "These strikes are conducted in full compliance with the law." Much like other media "revelations" about U.S. targeted killings — see, for example, kill lists and signature strikes — the United Nations has actually been investigating U.S. non-battlefield drone strikes since they first began in November 2002. Most have overlooked both the findings and impact of the U.N. queries as they have been minimal, largely due to the limited cooperation of the Bush and Obama administrations — though the latter has been more willing to engage with U.N. investigators.

However, three previous responses to questions raised by the United Nations about targeted killings underscore not only how the U.S. position has shifted marginally over time, but also why the latest investigation is unlikely to compel increased transparency from the Obama administration.

First, on November 15, 2002, just twelve days after the first U.S. non-battlefield targeted killing — against Qaed Salim Sinan al-Harethi and five suspected al Qaeda affiliates — in Yemen, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions, Asma Jahangir, wrote to the United States and Yemen "requesting their comments" on the widely-reported missile strike. She presciently warned:

The Special Rapporteur is extremely concerned that should the information received be accurate, an alarming precedent might have been set for extrajudicial execution by consent of Government. The Special Rapporteur acknowledges that Governments have a responsibility to protect their citizens against the excesses of non-State actors or other authorities, but these actions must be taken in accordance with international human rights and humanitarian law. In the opinion of the Special Rapporteur, the attack in Yemen constitutes a clear case of extrajudicial killing.

The government of Yemen quickly replied by acknowledging the strike, naming the six people killed, and claiming that "the Government on several occasions had, unsuccessfully, sought to apprehend these six individuals." In April 2003, five months later, the United States responded:

The Government of the United States has no comment on the specific allegations and findings concerning a November 2002 incident in Yemen, or the accuracy thereof…The United States also disagrees with the premise of the letter and the conclusions contained in the report that military operations against enemy combatants could be regarded as "extrajudicial executions by consent of Governments."

The U.S. response concluded by noting what body of international law should apply, and why targeted killings were outside the purview of the special rapporteur:

International humanitarian law is the applicable law in armed con?ict and governs the use of force against legitimate military targets. Accordingly, the law to be applied in the context of an armed con?ict to determine whether an individual was arbitrarily deprived of his or her life is the law and customs of war. Under that body of law, enemy combatants may be attacked unless they have surrendered or are otherwise rendered hors de combat. Al Qaida terrorists who continue to plot attacks against the United States may be lawful subjects of armed attack in appropriate circumstances. For the foregoing reasons, the Commission and Special Rapporteur lack competence to address issues of this nature arising under the law of armed conflict.

Second, in August 2005, Phillip Alston (who replaced Jahangir) wrote to the U.S. and Pakistani governments requesting information about a CIA drone strike that killed Haitham al-Yemeni in North Waziristan, Pakistan, three months earlier. At the time, this was only the second U.S. drone strike in Pakistan (the first occurred on June 19, 2004). Pakistan’s reply is reminiscent of the early days of the CIA’s drone war, when false cover stories were floated in an ultimately futile effort to deny that Islamabad permitted a foreign government to bomb its sovereign territory:

On 8 May 2005, a car blew up with an explosion near Mirali, North Waziristan Agency, resulting in the killing of a local and an unidentified foreigner. The remains of the foreigner were buried at an unknown place. After a few days it was propagated on media that Haitham Al Yemeni had been killed in a missile attack in North Waziristan Agency. There is no evidence to suggest that the deceased foreigner was Hatham Al-Yemeni.

Alston asked the United States to answer four specific questions about the strike: what body of international law applied, what procedural safeguards were in place, why he was killed and not captured, and whether Pakistan consented. The U.S. reply — submitted in May 2006 — does not deviate from the position offered three years prior:

The United States has no comment on the specific allegations regarding the May 2005 incident concerning Mr. al-Yemeni. The United States recalls its response of April 14, 2003 to a similar request for observations regarding an alleged aerial drone incident. The United States respectfully submits that inquiries related to allegations stemming from military operations conducted during the course of an armed conflict with Al Qaida do not fall within the mandate of the Special Rapporteur.

The Bush administration provided similarly oblique responses (or did not respond at all) to Alston’s similar questions in 2007 and 2008. (This is not unusual, as fewer than half of states reply to questions issued by U.N. special procedures.) Interestingly, during this time the Bush administration acknowledged targeted killings in Somalia, but to a different U.N. entity. In June 2007, U.S. Ambassador to the United Nations Zalmay Khalilzad responded to a query from the Security Council monitoring group for Somalia: "The United States has conducted several strikes in self-defense against al-Qaida terrorist targets in Somalia in response to on-going threats to the United States."

In May 2010, Alston produced the "Study on Targeted Killings" summarizing the issues he had raised with the United States over six years as special rapporteur, as well as short sections on alleged Russian and Israeli targeted killings. The reaction of Obama administration officials to the Alston report was unsurprisingly negative. One anonymous official proclaimed: "The United States has an inherent right to protect itself and will not refrain from doing so based on someone else’s exceptionally narrow — if not faulty — definition of self-defense. "Without discussing or confirming any specific action or program," CIA spokesperson George Little asserted, "the accountability’s real, and it would be wrong for anyone to suggest otherwise." On a personal note, many military officials and drone operators that I have spoken with could never get past Alston’s warning that "because operators are based thousands of miles away…there is a risk of developing a ‘PlayStation’ mentality to killing."

Finally, in November 2010 the United States was subjected to the Universal Periodic Review process, which evaluates each member states’ fulfillment of human rights obligations and commitments through an interactive dialogue whereby any other state can question, comment, or recommend changes to the state under review. In other words, any state — Iran, China, Pakistan, and Cuba — could have asked the U.S. delegation for greater clarity into its targeted killings. Who stepped up to the plate? Only the Netherlands, who asked in the advance questions: "Could the U.S. Government provide an update on the status of the recommendations made by [Alston]?"

The official U.S. response is worth quoting at length, since it demonstrates the inherent contradiction about which body of international law should apply to targeted killings:

United States targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law. To the extent that human rights law may apply in armed conflict or national actions taken in self-defense, in all cases, the United States works to ensure that its actions are lawful. The delegation noted first, that international human rights law and international humanitarian law are complementary, reinforcing, and animated by humanitarian principles designed to protect innocent life. Second, while the United States complied with human rights law wherever applicable, the applicable rules for the protection of individuals and the conduct of hostilities in armed conflict outside a nation’s territory are typically found in international humanitarian law, which apply to government and non-government actors. Third, determining which international law rules apply to any particular government action during an armed conflict is highly fact-specific. (Bold added)

It would be commendable if the United States responded to questions from this latest U.N. investigation by Ben Emmerson beyond the existing and oft-repeated talking points. However, it is unlikely that the Obama administration will provide greater clarity over the scope of the conflict, which international bodies of law apply to the strikes, what procedures exist to prevent civilian harm, or whether targeted killings should even be reviewed by the United Nations. Furthermore, it is inconceivable that the United States will hand over the "before and after" video, which Emerson said he will request, of the 25 strikes. Such video footage — for CIA strikes, at least — is only viewed by a tight circle of members and a few senior staffers in the Senate and House Intelligence Committees. The Pentagon might provide some information about operations in Afghanistan, as journalists received — through freedom of information act requests — transcripts of conversations of drone crews, an AC-130 gunship crew, and U.S. soldiers on the ground from a February 2010 Predator strike that accidentally resulted in 23 civilian casualties.

The Obama administration deserves credit for strongly endorsing an extension of the mandate of the U.N. special rapporteur of extrajudicial, summary, or arbitrary executions, and for repeatedly fighting to include language in General Assembly resolutions that specifically condemn extrajudicial killings of members of the lesbian, gay, bisexual, and transgender community. Obama administration officials have also been willing to discuss targeted killings with the special rapporteurs, albeit in general terms. However, as the current mandate-holder, Christopher Heyns, observed after a two-day "interactive dialogue" with U.S. officials in June: "I don’t think we have the full answer to the legal framework, we certainly don’t have the answer to the accountability issues. My concern is that we are dealing here with a situation that creates precedents around the world." This is exactly what his predecessors observed and warned about over the past ten years. The official U.S. positions on targeted killings are by now both well-established and insufficient for U.N. investigators to determine if such operations are lawful. This latest investigation could provide invaluable new factual evidence of those drone strikes under review, but let’s not hold our breath.