By Arthur Holland Michel
In just over a week, no fewer than four lengthy reports about drone strikes have been released to the public. Christof Heyns, the U.N. Special Rapporteur on extrajudicial killings and Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, released two separate reports on military drone use in the space of a single week. Half a week later, Human Rights Watch and Amnesty International released coordinated reports about drone strikes in Yemen and Pakistan.
The full reports are all available online:
On the surface, it would seem that four reports is too much. Certainly, there is much overlap and redundancy. But there are also significant methodological and thematic differences between the reports.The reports reach a combination of similar and unique conclusions, and each report offers several unique recommendations. Here’s a quick guide to the four reports, what they have in common, and how they differ from one another.
Raison d’Être
Each report sets for itself a distinct purpose. The Heyns report explores “the ways in which the constitutive regimes of international law, including international human rights law, international humanitarian law and the law on the inter-state use of force, regulate the use of armed drones.” Heyns seeks to clarify how the laws that govern armed conflict apply to drones, and to insist that all drone operations be held to the same strict standards that govern armed conflict.
The Emmerson report is the third of a series of yearly reports about how states that are engaged in counterterrorism efforts can—and must—protect “human rights and fundamental freedoms.” Efforts to quell terrorist groups which, unlike traditional armies, often blur the lines between combatants and civilians, and which often do not obey the standard geographical limitations of declared wars, push against human rights such as the right to life, the right to privacy, and the right to a fair trial. The report examines the use of drones in counterterrorism operations.
The Human Rights Watch report investigate six U.S. strikes in Yemen in order to demonstrate that the U.S. is in “clear violation of international humanitarian law.” The Amnesty International report investigates nine drone strikes that took place in North Waziristan between January 2012 and August 2013. The report serves to entertain Amnesty’s serious concerns “that these and other strikes have resulted in unlawful killings that may constitute extrajudicial executions or war crimes.”
Methodology
Whereas Ben Emmerson and Human Rights and Amnesty conducted on-the ground research about drone strikes in Pakistan and Yemen, Christof Heyns bases his report on legal guidelines, legal theory, and secondary source documentation. Put another way, while the Emmerson, Amnesty and HRW reports deliver new information about specific incidents, the Heyns report reviews literature and law.
According to his report, Emmerson conducted on-the-ground research in Pakistan. The Special Rapporteur “travelled to Islamabad to gather information on the impact of drones on the civilian population for the present report. During his visit, he met officials from the ministries of foreign affairs, defence and human rights and other relevant entities.” In addition, the Special Rapporteur met with senior figures in the Obama administration, the Department of Defense and the CIA. This is the only report that is based in part on direct contact with senior figures who are directly involved in U.S. drone operations
According to the authors of the HRW report, Human Rights Watch investigated the six strikes during two trips to Yemen in 2012 and 2013. The report provides an expansive, narrative portrayal of not only the strikes but Yemen’s history, the history of Al-Qaeda in the Arabian Peninsula, the history of U.S. counter-terrorism efforts in Yemen, and Yemen’s permissive policy on U.S. drone operations in the area.
The researchers who compiled the Amnesty International report conducted “over 60 interviews with survivors of drone strikes, relatives of victims, eyewitnesses, residents of affected areas, members of armed groups and Pakistani government officials.” The report focuses on two strikes in particular: a strike against Mamana Bibi, a 68 year old woman, on October 24, 2012, and a July 6, 2012 strike that killed 18 laborers. The report further examines signature strikes and “double-tap” strikes. In addition to an examination of international and humanitarian law, the report discusses ethical concerns surrounding drone strikes, including the psychological trauma of living under drones, the effects of drone strikes on children and families, and the alleged failure of the U.S. government to properly compensate victims.
Of the four reports, the Amnesty report deploys the most aggressively assertive vocabulary and structure. For example, in section 7.3, “U.S. Drone Policy Reform: Promises Versus Realities,” the report compares Barack Obama’s drone policy “promises” with the “realities” of U.S. drone operations. In contrast to the UN reports, which seek to analyze the situation, the Amnesty and Human Rights Watch reports are structured in order to prove that U.S. drone strikes have violated the laws of war, and have wrought physical, psychological, and financial devastation on affected areas. The reports are therefore less cautious about maintaining an impartial tone.
Both the the HRW and Amnesty reports reproduce samples from local testimonies.
Findings/Conclusions
The Human Rights Watch report contends that the U.S. violated International Humanitarian Law in its drone strikes in Yemen: “two [of the six] attacks,” conclude the authors, “were in clear violation of international humanitarian law—the laws of war—because they struck only civilians or used indiscriminate weapons. The other four cases may have violated the laws of war…In several of these cases the US also did not take all feasible precautions to minimize harm to civilians, as the laws of war require.” The report concludes that two of the strikes caused unnecessary harm to civilians. A drone strike on September 2, 2012 caused 12 civilian deaths; a cluster munition cruise missile strike on December 17, 2009 caused 41 civilian deaths.
The report further concludes that the strikes in Yemen did not comply with the standards that the Obama administration set for U.S. drone operations. In particular, the report notes that even though the administration asserted that lethal force would only be used against an alleged terrorist if he or she posed an “imminent threat” and only when capture was “unfeasible,” several known terrorists killed in the six strikes could have been feasibly captured. In addition, the report alleges that civilian victims of drone strikes have not been sufficiently compensated by the U.S. government, even though John Brennan, the Director of the CIA, asserted in 2012 that the U.S. will, when possible and “if appropriate, provide condolence payments to families of those killed,” in the case of civilian deaths.
The Amnesty report concludes that, as a result of “U.S. authorities’ deliberate policy of refusing to disclose information or even acknowledge responsibility for particular attacks,” it is impossible to determine whether drone strikes have violated international humanitarian law. However, the authors write that they have “serious concerns that the USA has unlawfully killed people in drone strikes, and that such killings may amount in some cases to extrajudicial executions or war crimes and other violations of international humanitarian law.” The report further concludes that U.S. drone strikes in Waziristan “have left deep scars on a population already traumatized by deadly attacks by al-Qa’ida, the Taliban and Pakistan armed forces.”
Ben Emmerson’s report describes how the Special Rapporteur was able to identify 33 drone strikes that resulted in civilian loss of life. Furthermore, the Rapporteur obtained data from the Pakistani government showing that 400 civilians had perished in drone strikes in Pakistan, while an additional 200 victims of drone strikes “were regarded as probable non-combatants.” This contradicts claims by U.S. officials that civilian deaths in Pakistan have been in the single digits each year. In addition the report confirms that the U.S. has used drones in strikes–some of which have resulted in civilian death or injury—in Afghanistan, Yemen, Iraq, Somalia. This is the only report out of the four that discusses drone use by states other than the U.S.. The report confirms that the United Kingdom has engaged targets with drones in Afghanistan and Iraq, and that the Israeli Armed Forces have used drones against targets in Gaza. Nonetheless, Emmerson concludes that “if used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders.”
Emmerson further reports that “the involvement of CIA,” which keeps all of its operations secret, “in lethal counter-terrorism operations in Pakistan and Yemen has created an almost insurmountable obstacle to transparency.”
Since the Heyns report is a review of International Humanitarian Law, it does not include factual findings like the other three reports. However, the Heyns report does conclude that the existing laws governing armed conflict are “coherent and well-established” enough to effectively regulate the use of armed drones. In other words, the report concludes that this technology does not require that the international community amend or adjust the existing legal frameworks that apply to traditional armed conflicts. However, the report stresses that this finding does not mean that any use of drones complies with international humanitarian law. On the contrary, Heyns observes that the fact “that drones make targeted killing so much easier should serve as a prompt to ensure a diligent application of these standards, especially in view of the likely expansion in the number of States with access to this technology in the future.”
Recommendations
The Heyns report calls for states to exercise greater transparency with regards to their drone operations or their plans to acquire drones, and disclose their legal justifications for lethal drones so that the public and the international community can scrutinize these justifications. The report recommends that drone operators “not be placed within a chain of command that requires them to report within institutions that are unable to disclose their operations.” In addition, the report recommends that states in which drone strikes are carried out by foreign powers must not “consent to the violation of human rights or international humanitarian law by foreign States” and “must recognize that the duty to protect the right to life of their subjects rests primarily with them.”
The Emmerson report recommends that if there is any indication that a civilian has died in a drone strike, “the State responsible is under an obligation to conduct a prompt, independent and impartial fact-finding inquiry and to provide a detailed public explanation.” Furthermore, Emmerson, “urges the United States to further clarify its position on the legal and factual issues raised” in the report. The Special Rapporteur requests that the U.S. “declassify…information relevant to its lethal extraterritorial counter-terrorism operations; and to release its own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft.” The report contends that it is impossible to properly assess whether U.S. drone strikes comply with the laws of armed conflict.
The HRW report includes a long list of recommendations. Most of these recommendations mirror the recommendations included in the two UN reports. The HRW report adds that the U.S. should “promptly transfer command of all targeted killing operations from the CIA to the US military” in order to make drone operations more transparent. The report recommends that Christof Heyns, in his capacity as Special Rapporteur, “should devote substantial attention to the issue of targeted killings in Yemen during his next visit to the country” and urges the Human Rights Council to conduct an investigation into U.S. extrajudicial killings in “Yemen and elsewhere.”
The Amnesty report calls for the U.S. to release “facts and the legal basis” for the strikes against Mamana Bibi and the 18 laborers. The report calls for the perpetrators of U.S. drone attacks to be “brought to justice in public and fair trials” The report calls on the U.S. to “Cease to invoke the “global war” doctrine, and fully recognize and affirm the applicability of international human rights obligations to all US counter-terrorism measures, including those outside US territory.” The report calls on the international community to refuse to cooperate in, or serve in support of U.S. drone operations that violate international humanitarian law.” FInally, the report recommends that the Taliban allow human rights groups to more easily investigate in affected areas, and “avoid locating military objectives within or near densely populated areas.”
The dominant theme running through the four reports is that drones have the potential to serve as tools for war crimes, and that there is evidence to suggest that war crimes have been committed with drones, especially by the U.S. The reports all recognize that any attempts to determine whether or not war crimes have been committed with drones are hindered by the intense secrecy that surrounds their use, and the refusal of states to publicly investigate possible war crimes and human rights abuses that have been caused by drone use. The reports share a common call for greater transparency and accountability on the part of states that use drones. Given that these reports were all released at pretty much the same time, the international community will have the opportunity to pick-and-choose from a very long list of recommendations that could ultimately result in greater transparency and a reduction of human suffering. The fact that all four reports were released at the same time indicates the extent to which drone use has fallen into center stage. It remains to be seen whether this choral call for accountability will bring about substantive policy change; that said, when four reports on a single issue appear in slightly over a week, the international community pays attention.
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