Reasons Drone Assassinations Are Illegal
These killings would be criminal acts if they occurred inside the US. Does it make legal sense that these killings would be legal outside the US?
Some Facts about Drone Assassinations
The US has used drones to kill thousands of people in Afghanistan, Iraq, Pakistan, Yemen and Somalia. But the government routinely refuses to provide any official information on local reports of civilian deaths or the identities of most of those killed.
In Pakistan alone, the New America Foundation reports US forces have launched 297 drone strikes killing at least 1800 people, three to four hundred of whom were not even combatants. Other investigative journalists report four to eight hundred civilians killed by US drone strikes in Pakistan.
Very few of these drone strikes kill high level leaders of terror groups. A recent article in Foreign Affairs estimated “only one out of every seven drone attacks in Pakistan kills a militant leader. The majority of those killed in such strikes are not important insurgent commanders but rather low level fighters, together with a small number of civilians.”
An investigation by the Wall Street Journal in November 2011 revealed that most of the time the US did not even know the identities of the people being killed by drones in Pakistan. The WSJ reported there are two types of drone strikes. Personality strikes target known terrorist leaders. Signature strikes target groups of men believed to be militants but are people whose identities are not known. Most of the drone strikes are signature strikes.
In Yemen, there have been at least 34 drone assassination attacks so far in 2012 alone, according to the London based Bureau of Investigative Journalism. Using drones against people in Yemen, who are thought to be militants but whose names are not even known, was authorized by the Obama administration in April 2012, according to the Washington Post. Somalia has been the site of ten drone attacks with a growing number in recent months.
Civilian deaths in drone strikes are regularly reported but more chilling is the practice of firing a second set of drone strikes at the scene once people have come to find out what happened or to give aid. Glenn Greenwald of Salon, a leading critic of the increasing use of drones, recently pointed out that drones routinely kill civilians who are in the vicinity of people thought to be “militants” and are thus “incidental” killings. But also the US also frequently fires drones again at people who show up at the scene of an attack, thus deliberately targeting rescuers and mourners.
Here are five reasons why these drone assassinations are illegal.
One. Assassination by the US government has been illegal since 1976
Drone killings are acts of premeditated murder. Premeditated murder is a crime in all fifty states and under federal criminal law. These murders are also the textbook definition of assassination, which is murder by sudden or secret attack for political reasons.
In 1976 U.S. President Gerald Ford issued Executive Order 11905, Section 5(g), which states "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." President Reagan followed up to make the ban clearer in Executive Order 12333. Section 2.11 of that Order states "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." Section 2.12 further says "Indirect participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order." This ban on assassination still stands.
The reason for the ban on assassinations was that the CIA was involved in attempts to assassinate national leaders opposed by the US. Among others, US forces sought to kill Fidel Castro of Cuba, Patrice Lumumba of the Congo, Rafael Trujillo of the Dominican Republic, and Ngo Dinh Diem of South Vietnam.
Two. United Nations report directly questions the legality of US drone killings
The UN directly questioned the legality of US drone killings in a May 2010 report by NYU law professor Philip Alston. Alston, the UN special rapporteur on extrajudicial, summary, or arbitrary executions, said drone killings may be lawful in the context of authorized armed conflict (eg Afghanistan where the US sought and received international approval to invade and wage war on another country). However, the use of drones “far from the battle zone” is highly questionable legally. “Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.” Can drone killings be justified as anticipatory self-defense? “Applying such a scenario to targeted killings threatens to eviscerate the human rights law prohibition against arbitrary deprivation of life.” Likewise, countries which engage in such killings must provide transparency and accountability, which no country has done. “The refusal by States who conduct targeted killings to provide transparency about their policies violates the international law framework that limits the unlawful use of lethal force against individuals.”
Three. International law experts condemn US drone killings
Richard Falk, professor emeritus of international affairs and politics at Princeton University thinks the widespread killing of civilians in drone strikes may well constitute war crimes. “There are two fundamental concerns. One is embarking on this sort of automated warfare in ways that further dehumanize the process of armed conflict in ways that I think have disturbing implications for the future,” Falk said. “Related to that are the concerns I’ve had recently with my preoccupation with the occupation of Gaza of a one-sided warfare where the high-tech side decides how to inflict pain and suffering on the other side that is, essentially, helpless.”
Human rights groups in Pakistan challenge the legality of US drone strikes there and assert that Pakistan can prosecute military and civilians involved for murder.
While stopping short of direct condemnation, international law expert Notre Dame Professor Mary Ellen O’Connell seriously questions the legality of drone attacks in Pakistan. In powerful testimony before Congress and in an article in America magazine she points out that under the charter of the United Nations, international law authorizes nations to kill people in other countries only in self-defense to an armed attack, if authorized by the UN, or is assisting another country in their lawful use of force. Outside of war, she writes, the full body of human rights applies, including the prohibition on killing without warning. Because the US is not at war with Pakistan, using the justification of war to authorize the killings is “to violate fundamental human rights principles.”
Four. Military law of war does not authorize widespread drone killing of civilians
According to the current US Military Law of War Deskbook, the law of war allows killing only when consistent with four key principles: military necessity, distinction, proportionality, and humanity. These principles preclude both direct targeting of civilians and medical personnel but also set out how much “incidental” loss of civilian life is allowed. Some argue precision-guided weapons like drones can be used only when there is no probable cause of civilian deaths. But the US military disputes that burden and instead directs “all practicable precautions” be taken to weigh the anticipated loss of civilian life against the advantages expected to be gained by the strike.
Even using the more lenient standard, there is little legal justification of deliberately allowing the killing of civilians who are “incidental” to the killings of people whose identities are unknown.
Five. Retired high-ranking military and CIA veterans challenge the legality and efficacy of drone killings
Retired US Army Colonel Ann Wright squarely denies the legality of drone warfare, telling Democracy Now: “These drones, you might as well just call them assassination machines. That is what these drones are used for: targeted assassination, extrajudicial ultimate death for people who have not been convicted of anything.”
Drone strikes are also counterproductive. Robert Grenier, recently retired Director of the CIA Counter-Terrorism Center, wrote, “One wonders how many Yemenis may be moved in the future to violent extremism in reaction to carelessly targeted missile strikes, and how many Yemeni militants with strictly local agendas will become dedicated enemies of the West in response to US military actions against them.”
Recent polls of the Pakistan people show high levels of anger in Pakistan at US military attacks there. This anger in turn leads to high support for suicide attacks against US military targets.
US Defense of Drone Assassinations
US officials claim these drone killings are not assassinations because the US has the legal right to kill anyone considered a terrorist, anywhere, if they can argue it is in self-defense. Attorney General Holder and White House counterterrorism advisor John Brennan recently defended the legality of drone strikes and argued they are not assassinations because the killings are in response to the 9/11 attacks and are carried out in self-defense even when not in Afghanistan or Iraq. This argument is based on the highly criticized claim of anticipatory self-defense which justifies killings in a global war on terror when traditional self-defense would clearly not. The government refuses to provide copies of the legal opinions relied upon by the government.
Growing Resistance to Drone Assassinations
In signs of hope, people in the US are resisting the increasing use of drones.
CODEPINK, the Center for Constitutional Rights and the London-based human rights group Reprieve co-sponsored an International Drone Summit in Washington DC to challenge drone assassinations. Investigative journalist Jeremy Scahill noted that Congress only managed to scrape up six votes to oppose the assassination of US citizens abroad. “What is happening to this country? We have become a nation of assassins. We have become a nation that is somehow silent in the face of the idea that assassination should be one of the centerpieces of US policy.”
The American Society of International Law issued a report “Targeting Operations with Drone Technology: Humanitarian Law Implications” in March 2011. Concerned that drones may be the future of warfare, scholars examined three questions in the US use of drone technology: the scope of armed conflict (what is the battlefield upon which deadly force of drone killing is authorized); who may be targeted; and the legal implications of who conducts the targeting (since it is often not military but clandestine CIA agents who decide who dies). Concluding that the US may soon find itself “on the other end of the drone” as this technology expands, they criticize official US silence on these key legal questions.
Others are taking direct action. Select examples include: fourteen people arrested in April 2009 outside Creech Air Force base in Nevada in connection with a protest against drones by the Nevada Desert Experience; in January 2010 people protested drones outside the CIA headquarters in Langley Virginia; in April 2011, thirty-seven were arrested at Hancock Air Force base in upstate New York as part of a four hundred person protest against the use of drones; in October 2011, as part of the International Week of Protest to Stop the Militarization of Space there were protests outside of Raytheon Missile Systems plant in Tucson; in April 2012, twenty-eight people were pre-emptively arrested on their way to protest drones at Hancock Air Force Base.
There is a brilliant new book, Drone Warfare authored by global activist Medea Benjamin which documents the nuts and bolts of the drone industry and the money involved in their production and operation. She collects many global media reports of innocent civilian deaths, investigations into these deaths, and gives voice to international opposition groups like her own CODEPINK, Voices for Creative Nonviolence, Fellowship of Reconciliation, War Resisters International, Human Rights Watch, the Catholic Worker movement, Campaign for Nuclear Disarmament, and others working against the drones.
As National Public Radio and The New Republic jointly editorialized, there is good reason to doubt the veracity of US claims that drone killings are even effective. Drone use has escalated and expanded the US global war on terror and thus should be subject to higher levels of scrutiny than it is now. As the use of drones escalates so too does the risk of killing innocents which produces “legitimate anti-American anger that terrorist recruiters can exploit….Such a steady escalation of the drone war, and the inevitable increase in civilian casualties that will accompany it, could easily tip the delicate balance that assures we kill more terrorists than we produce.”
There is incredible danger in allowing US military and civilians to murder people anywhere in the world with no public or Congressional or judicial oversight. This authorizes the President and the executive branch, according to the ACLU and the Center for Constitutional Rights, to be prosecutor, judge, jury and executioner.
The use of drones to assassinate people violates US and international law in multiple ways. US military and civilian employees, who plan, target and execute people in Pakistan, Yemen and Somalia are violating the law and, ultimately, risk prosecution. As the technology for drone attacks spreads, protests by the US that drone attacks by others are illegal will sound quite hollow. Continuation of flagrantly illegal drone attacks by the US also risks justifying the exact same actions, taken by others, against us.
Bill teaches law at Loyola University New Orleans and is Associate Legal Director of the Center for Constitutional Rights. You can reach Bill at firstname.lastname@example.org