June 26, 2010
Washington, D.C. 27 June (Asiantribune.com): "Targeted killings pose a rapidly growing challenge to the international rule of law. They are increasingly used in circumstances which violate the relevant rules of international law. The international community needs to be more forceful in demanding accountability," said Philip Alston, the UN Special Rapporteur on extrajudicial executions.
In a 29-page report to the United Nations Human Rights Council presented early June, the official, Philip Alston, the United Nations special representative on extrajudicial executions, called on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq.
"I’m particularly concerned that the United States seems oblivious to this fact when it asserts an ever-expanding entitlement for itself to target individuals across the globe," Mr. Alston said in an accompanying statement. "But this strongly asserted but ill-defined license to kill withoutaccountability is not an entitlement which the United States or other states can have without doing grave damage to the rules designed to protect the right to life and prevent extrajudicial executions."
The report calls on nations like Pakistan to publicly disclose the scope and limits of any permission granted for drone strikes on their territories. It also calls on drone operators like the United States to disclose the legal justification for such killings, the criteria and safeguards used when selecting targets, and the process for investigating attacks that kill civilians.
In an earlier report by Asian Tribune Harold Koh Obama administration’s chief legal counsel in the State Department outlining the administration’s legal rationale said the United States obeyed legal limits on the use of force when selecting targets, and he defended drone killings as lawful because of the armed conflict with Al Qaeda and because of the nation’s right to self-defense.
"A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force," he said. "Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise."
The Alston report however said that a targeted killing outside of an armed conflict "is almost never likely to be legal." In particular, it rejected "pre-emptive self-defense" as a justification for killing terrorism suspects far from combat zones.
"This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the U.N. Charter," Mr. Alston said. "If invoked by other states, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos."
The report also raised concerns that drone operators might not have the same respect for the laws of war as soldiers in the field who have "been subjected to the risks and rigors of battle."
"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," it said.
The report identifies two major problems: the excessively broad circumstances in which targeted killings are alleged to be legal, and the absence of essentialaccountability mechanisms in situations where they are used.
"In terms of the first problem, there are indeed circumstances in which targeted killings may be legal", Alston noted. "They are permitted in armed conflict situations when used against combatants or fighters, or civilians who directly engage in combat-like activities. But they are increasingly being used far from any battle zone. TheUnited States, in particular , has put forward a novel theory that there is a 'law of 9/11’ that enables it to legally use force in the territory of other States as part of its inherent right to self-defense on the basis that it is in an armed conflict with al-Qaeda, the Taliban and 'associated forces’, although the latter group is fluid and undefined. This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter. If invoked by other States, in pursuit of those they deem to be terrorists and to have attacked them, it would cause chaos."
Alston emphasized that "I do not for a moment question the seriousness of the challenges posed by terrorism. I condemn wholeheartedly the actions of al-Qaeda and all other groups that kill innocent civilians, as well as any groups that increase the danger of attacks on civilians by hiding in their midst. These actions unequivocally violate international law. But the fact that such enemies do not play by the rules does not mean that a Government can cast those rules aside or unilaterally re-interpret them. The credibility of any government’s claim that it is fighting to uphold the rule of law depends on its willingness to disclose how it interprets and applies the law – and the actions it takes when the law is broken."
In terms of the second problem – accountability – Alston observed that "it is an essential requirement of international law that States using targeted killings demonstrate that they are complying with the various rules governing their use in situations of armed conflict. The clearest challenge to this principal today comes from the program operated by the US Central Intelligence Agency in which targeted killings are carried out from unmanned aerial vehicles or drones. It is clear that many hundreds of people have been killed as a result, and that this number includes some innocent civilians. Because this program remains shrouded in official secrecy, the international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed. In a situation in which there is no disclosure of who has been killed, for what reason, and whether innocent civilians have died, the legal principle of internationalaccountability is, by definition, comprehensively violated."
Among the issues addressed in Alston’s report are: the legality of targeted killings under the laws of war, international human rights law, and the law applicable when States invoke their right to self-defence; the definition and scope of armed conflicts in which the laws of war apply; the definition of who may be targeted and killed, when, and by whom, in the context of armed conflict; the rules governing the amount of force that may be used; thelegality of drone killings in particular, and the international law requirements of transparency and accountability.
The report noted: "Reported targeted killings by the CIA have given rise to a debate over whether it is a violation of IHL for such killings to be committed by State agents who are not members of its armed forces. Some commentators have argued that CIA personnel who conduct targeted drone killings are committing war crimes because they, unlike the military, are "unlawful combatants", and unable to participate in hostilities. This argument is not supported by IHL. As a threshold matter, the argument assumes that targeted killings by the CIA are committed in the context of armed conflict, which may not be the case.
Outside of armed conflict, killings by the CIA would constitute extrajudicial executions assuming that they do not comply with human rights law. If so, they must be investigated and prosecuted both by the US and the State in which the wrongful killing occurred."
Philip Alston is John Norton Pomeroy Professor of Law and co-Director of the Center for Human Rights and Global Justice at New York University School of Law.
He was appointed UN Special Rapporteur on extrajudicial executions in 2004 and reports to the United Nations Human Rights Council and the General Assembly. He has had extensive experience in the human rights field, including eight years as Chairperson of the UN Committee on Economic, Social and Cultural Rights, principal legal adviser to UNICEF in the drafting of the Convention on the Rights of the Child, and Special Adviser to the UN High Commissioner for Human Rights.
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