Researchers from some of the United States’ top legal programs have published in-depth analyses of the legal, strategic and ethical dimensions of the U.S. drones program. Their works help to provide facts and support for FCNL’s principled call to end the problematic use of armed drones around the world. Here is what they found
Amnesty International
Will I Be Next? U.S. Drone Strikes in Pakistan
Amnesty International conducted firsthand interviews and primary-source research of the 45 drone strikes conducted by the U.S. in Pakistan, focusing on the 9 strikes in the North Waziristan tribal agency between January 2012 and August 2013. Among its chief findings were alarming case studies in which the strikes failed to distinguish between civilian and militant, a lack of justice for victims, and the potential that aspects of the U.S. drone program constitute a war crime.
Failure to distinguish between civilian and militant
One of the strikes examined killed a grandmother while she worked in her garden and severely wounded her grandchildren, including a three-year-old. Another involved a drone strike killing 18 male laborers in a village gathering, followed by a second drone strike which killed those who showed up at the scene to help the injured. NGO and Pakistani governmental figures indicate that between 400 and 900 civilians have been killed by drone strikes, but it is impossible to verify these figures as the U.S. has failed to provide even basic information about the strikes. The use of “signature strikes,” in which people are targeted not because of militant status, but because of their conformance to a profile of certain suspicious behaviors (such as age or gender), is particularly disconcerting, as it fails to adequately distinguish between combatant and civilian.
Lack of justice for victims
Despite its obligation under international law to investigate potential unlawful killings and to deliver justice, the U.S. has not even acknowledged these strikes, much less revealed any post-strike investigation procedures. In addition, Pakistan has shown ambivalence toward the program, and neglected to assist in providing justice to victims – perhaps because they risk losing military and economic aid from the U.S. No victims of the strikes analyzed in this report received adequate compensation.
Potential war crimes
International humanitarian law applies to armed conflicts, which requires that an individual be directly participating in hostilities (not alleged to be a member of a group) in order to become a lawful target. If an attack occurs outside actual armed conflict, then it violates the prohibition of arbitrary deprivation of life. If international humanitarian law does not apply, then international human rights law governs. Under these principles, the U.S. must demonstrate that intentional lethal force was used strictly to protect life, was unavoidable, that no less harmful means was possible, and that the use of force was proportionate in the prevailing circumstances. Further, they must distinguish between civilians and combatants. The United States has failed to show compliance with these international laws.
Human Rights Watch
Between a Drone and al-Qaeda: The Civilian Cost of U.S. Targeted Killings in Yemen
Human Rights Watch examined six strikes in Yemen which have gone unacknowledged by the U.S. government. One attack occurred in 2009, and the others were from 2012-13. The attacks killed 82 people, at least 57 of whom were civilians. At least four resulted from drone strikes, one from either drones strikes or warplanes, and a sixth from cruise missiles releasing cluster munitions. The report outlined the gruesome details of deaths and injuries caused by these attacks, and discussed the lack of evidence that the strikes comply with international law or the policies discussed by President Obama in May 2013.
The report included communications from Yemeni civilians expressing the fear and pain they have suffered as a result of the U.S. drone program. A relative of one of the victims stated that it is Yemenis who suffer in the war, that they are “caught between a drone on one side and Al-Qaeda on the other.” The U.S. has failed to acknowledge or explain the strikes, or to follow through on their promise to provide “condolence payments” to victims.
HRW concluded the report with a series of recommendations to the American and Yemeni governments:
Explain the full legal basis on which the US carries out targeted killings
Publicly clarify all policy guidelines for targeted killings and disclose when each standard went into effect.
Ensure that all targeted killings comply with laws of war
This includes taking all feasible precautions to minimize harm to civilians. Outside of armed conflict situations, use lethal force only when absolutely necessary to protect human life in accordance with international human rights law.
Compensate civilian victims
Implement a system of prompt and meaningful compensation for civilian loss of life, injury, and property damage from unlawful attacks. To address the backlash from civilian deaths, institute a system of condolence payments for losses in which there is no assumption of liability.
Investigate the strikes
Conduct prompt, thorough, and impartial investigations into the cases in this report and other cases where targeted strikes may have resulted in unlawful killings. Make public the findings and seek disciplinary measures or criminal prosecutions as appropriate.
Center for Naval Analyses and the Center for Civilians In Conflict
If the U.S. military is to successfully embrace small-scale operations, this report asserts, and then it must devote more thought to the impact of these unconventional tools on civilian populations. Failing to take into account the negative impact of these new policies and tools, such as drones, on civilians is “neither strategically smart nor ethically acceptable.”
Exaggerated Precision
Despite government reports that drone strikes are exceptionally discerning and result in few civilian casualties, research indicates that that air strikes conducted by drones are “statistically” more likely to result in death of innocents than strikes conducted by manned planes.
Poor Due Diligence
Drones create physical obstacles to identifying civilian deaths. Without eyes on the ground it is difficult to accurately record casualties, and provide the expected acknowledgment and financial support when innocents are killed. This is nearly impossible in covert operations in countries such as Pakistan, Yemen and Somalia.
Losing Credibility
The United States pays heavily for its statements denying the civilian impact of drone strikes. It loses support in affected communities who feel lied to and drives peoples into the arms of militant groups who capitalize on U.S. silence to shape the narrative. Refusal to satisfactorily disclose accurate information about civilian deaths outrages human rights groups and compels them to assume that the numbers are too horrific to fathom.
Columbia Law School Human Rights Clinic and Center for Civilians in Conflict
The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions (Fall 2012)
This report focuses primarily on accountability and humanitarian implications for the drones program, particularly the danger drone strikes pose for civilians and the likely inability of the US to identify or address these matters in a way that is consistent with the laws of war, let alone with the ethics of a humanitarian society.
The Role of Joint Special Operations Command (JSOC)
Embedded in the military, JSOC is even less accountable to Congress or the public than the CIA. Little is known about JSOC, what laws it abides by, how much it works with the CIA and what its legal and strategic guidelines for conducting strikes are.
Identifying Civilian Deaths
The U.S. often fails to identify its wrong doings due to errors including mistaking cultural or communal behavior as threatening in signature strikes, bad technical intelligence and poor human intelligence. While administration officials insist that they go to extraordinary measures to ensure that civilian deaths are minimized, the lack of transparency, high frequency of strikes and expectation of human error all call into question their level of precaution.
Acknowledging and Compensating for Killing Innocents
It is impossible for the U.S. to compensate victims of strikes if it does not know when it kills civilians. Because the administration downplays the occurrence of civilian casualties, the U.S. fails to acknowledge their victimhood. This “vacuum of accountability” incites hatred and frustration.
Congressional Oversight
While the Intelligence Committees can do more to encourage public debate and encourage the administration to disclose more about the civilian-protection protocols in place within the CIA’s drone program, there is less precedent of oversight for JSOC. In order to address this problem, Congress may need to work to bring JSOC into the normal military oversight procedures where its activities, including the drones program, can come under public scrutiny.
A Popular Problem?
The general public acceptance of drones could ensure that drones remain the centerpiece of U.S. counterterror strategy. Unless there is greater public outcry for monitoring and regulating the use of drones, it will continue without alterations to its insufficient precautionary measures that allow civilian harm.
FCNL shares many of the concerns of the authors of this report. The inability to identify and acknowledge the killing of innocents is not only troubling in its own right, but challenges the dignity of people who live under the threat of drone strikes. Greater public and congressional oversight of the administration and the military is the only way to effectively challenge the morally and strategically problematic drones program.
International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law)
Interviewing residents of the Federally Administered Tribal Areas (FATA) whose lives remain intimately affected by the CIA’s drone campaign in their communities, a team of researchers from the International Human Rights and Conflict Resolution Clinic (Stanford Law School) and the Global Justice Clinic (NYU School of Law) was able to highlight and verify many of the allegations against the U.S. government regarding the impact of drones on individuals and their already-fragile communities.
Devastating Civilian Costs
Relying on personal anecdotes related during interviews, this report uncovers some of the darkest realities of the impact of drones. Respondents went to great detail in explaining how attacks not only kill innocents but target first-responders. Along with the human costs, drones also destroy local infrastructure, cripple local economies, challenge local customs and increase poverty. The emotional and psychological costs of such dislocation and devastation, particularly on children, are deeply felt.
A Lack of Transparency
The dizzying number of assertions regarding civilian casualties from drone strikes all starts with the administration’s lack of openness. Due to fuzzy definitions of “militant” and poor human intelligence and reporting requirements, the statistics shared with the American public are discredited in the public eye. Many other groups have tried to tally the figure on their own with different, and flawed, methodologies. Any legal lens to view the drones program through requires a greater understanding of what is actually happening on the ground.
Strategic Failure
The ill-will spread by drone strikes in Pakistan are not reducing the threat of terrorism but increasing it. While many in Pakistan’s northwest once had positive views of the United States, new polling demonstrates the anti-American effect of drone strikes. Such sentiments discredit diplomatic and NGO efforts to address the civilian and political issues in Pakistan, and potentially drive people into the ranks of militant organizations. Finally, in the very long run, they share our concern about the danger of setting precedent. They envision a future where not only do countries have the ability to indiscriminately attack people, but that dangerous and radical non-state actors can do so as well.
