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Legal and Human Rights Abuses of the Obama Administration’s Drones

Legal and Human Rights Abuses of the Obama Administration’s Drones

The Obama administration has largely abandoned one of the most vital elements of governmental responsibility in lieu of national security. The protection of human rights has become an afterthought in the wake of the administration’s foreign policy on drones since President Obama took office in 2008. Although the government will not confirm or deny any specific casualty numbers, independent research groups have found that as of 2014, the United States had carried out at least 400 drone strikes since Obama took office, killing upwards of 2,600 people. From 2009-2012 the Obama administration carried out at least 239 covert drone strikes, a significant increase from the 44 strikes approved under George W. Bush. These strikes violate not only international human rights law, but international humanitarian law--the laws of war--and are the cause of increasing international legal scrutiny against the United States, as well as civil outrage across the world.

In 2008, when Obama took the oath of office, few would have associated the young President with the term “targeted killings,” but these often clandestine counterterrorism operations have become one of the most prominent and controversial characteristics of the Obama administration’s reign. To date, the United States is known to have carried out targeted killings using drones in Afghanistan, Iraq, Libya, Pakistan, Somalia, and Yemen. Many of these operations have breached international human rights and humanitarian laws, have violated certain articles of the United Nations Charter, and are arguably infringing on the national sovereignty of the states in which these strikes are conducted. While drones have supposedly been effective in targeting specific militants that the Administration claims could not have been killed without their use, the large civilian death toll violates human rights so gravely that it renders the policy morally unfeasible, no matter its reported efficacy.

International humanitarian law, also known as the law of war, applies to all states in armed conflicts, or any state in conflict with an armed non-state actor. For an attack to be lawful, it must discriminate between combatants and civilians and “the expected loss of civilian life or property cannot be disproportionate to the anticipated military gain of the attack.” While all attacks that cause civilian deaths violate the laws of war, attacks that target civilians, are indiscriminate, or cause disproportionate civilian casualties do violate these laws.

The Obama administration’s drone strikes have frequently violated one or more of these stipulations. Obama has asserted that the United States strikes only when it has “near-certainty” that no civilians will be harmed. However, a Human Rights Watch investigation of seven U.S. drone operations in Yemen found clear violations of international humanitarian law in two attacks, one of which killed 14 militants and 42 sleeping citizens. The Obama administration evidently contradicts its position that it resorts to targeted killings by drones only when civilian lives are almost certainly safe from harm. “The U.S. says it is taking all possible precautions during targeted killings, but it has unlawfully killed civilians and struck questionable military targets in Yemen,” said Letta Tayler, senior terrorism and counterterrorism researcher at Human Rights Watch. The second unlawful strike identified by Human Rights Watch killed 12 civilians coming home from the market. The other five drone strikes targeted cars in a wedding procession, killing 12 men and wounding 15 others. Although the Obama administration may claim otherwise, the undoubted awareness of civilian loss of life suggests the indiscriminate nature of these attacks.  Each attack was indiscriminate and caused disproportionate civilian loss of life—each of these attacks represented violations of international humanitarian law.

These unconscionable acts of unmitigated violence are not going unnoticed in the states in which they are perpetrated. Terrorist organizations are growing each day, likely in response to the violence caused by American drone strikes. Malala Yousafzai, 18-year-old Nobel Peace Prize winner and survivor of a Taliban assassination attempt, spoke to the Obama administration about the drone strikes in her home country of Pakistan. She claims that drone strikes only cause more violence: “I expressed my concerns that drone attacks are fueling terrorism. Innocent victims are killed in these acts, and they lead to resentment among the Pakistani people.”

While the law prohibits states from targeting civilians, individuals “directly participating in the hostilities” are not legally immune from state aggression. This condition has multiple interpretations, and the United States seems to be exploiting this fact. Human Rights Watch claims, “It is generally accepted to include not only persons currently engaged in fighting, but also individuals actively planning or directing future military operations.” But the United States may be using an “overly elastic” definition of an individual who may be lawfully attacked during an armed conflict, according to Human Rights Watch. A November 2012 drone strike in a military town in Yemen killed an alleged al-Qaeda recruiter in the Arabian Peninsula (AQAP), even though recruiting activities alone are not sufficient legal grounds under the laws of war to target someone for attack, because recruiters themselves are not the ones carrying out attacks that can be considered “imminent threats.” While Obama’s policy guidelines state that the U.S. conducts strikes only against individuals who pose an “imminent threat to the American people,” and when capture is not feasible, the administration has evidently not been accountable on either of these standards.

The Peshawar High Court (PHC), the highest judicial institution of Khyber-Pakhtunkhwa, one of the four Pakistani provinces, ruled in 2013 that the United States drone strikes in Pakistan breached national sovereignty, were in violation of provisions of the Geneva Conventions and the UN Charter, and were in “blatant violation of Basic Human Rights.” Article 2(4) of the UN Charter strictly prohibits “the threat or use of force against the territorial integrity or political independence of any state…” The PHC determined the United State violated Pakistani sovereignty based on this Article, taking into account opposition to the strikes by the president of Pakistan, the prime minister, his cabinet, and parliament.

The court cited 1,449 civilian deaths and 335 civilian injuries since 2008 in the North and South Waziristan, concluding that the majority of individuals killed have been civilians. The PHC referenced provisions of the Genocide Convention as well as the International Covenant on Civil and Political Rights to legitimize their rulings that these killings violated the laws of war. A further legal opinion given by international legal authority Francis Boyle determined that the "murderous drone campaign is both widespread and systematic and thus qualifies as a crime against humanity that verges on genocide.”

The United States has, moreover, failed to meet its international legal obligations in its lack of transparency and accountability in regard to drone strikes. According to the European Court of Human Rights, “There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts.” The lack of transparency does not just give the U.S. a negative international standing, it is against UN policy. Article 51 of the UN Charter states that “measures taken by Members in the exercise of [their] right to self-defense…be immediately reported to the Security Council.” The United States has not made any such report. Unmasking the secrecy surrounding the program and enforcing accountability, especially where civilian casualties occur, is crucial both morally and legally. That the Obama administration has prioritized a stringent, often excessive foreign policy on counterterrorism over basic human rights is abhorrent.

Beyond its violations of the laws of war, the United States' use of drones does not conform to international human rights law, which is defined in the 1948 Universal Declaration of Human Rights as a state’s duty to respect, protect, and fulfil human rights. Particularly sidestepped by the Obama administration is the legal obligation under this Declaration to “protect individuals and groups against human rights abuses.” In recent years, and in response to human rights groups and other pressures, the U.S. has succeeded in reducing the proportion of civilian casualties to militant casualties. However, because of increased operations the total number of human rights violations by civilian deaths has showed no significant decline.

The use of drones for targeted killings does have certain advantages. Drones can help minimize civilian casualties in comparison to manned aircraft operations, and can have enhanced surveillance capabilities that, in theory, allow for a more thorough and accurate strike. But the use of drones, as has been demonstrated in the U.S., can be “hampered by poor intelligence or local actors’ manipulation.” There are also no safeguards in place to ensure that these attacks are completely lawful and appropriate. According to a Justice Department white paper from 2011, any person, including any citizen of the United States, can be targeted and killed if an “informed, high-level official” believes that person poses an “imminent threat of violent attack” and capture is not “feasible.” Citizens of the U.S. have fallen victim to this unbridled display of power, including Anwar al-Awlaki, former al-Qaeda propagandist and United States citizen, who was killed in Yemen in 2011. The 2001 Authorization to Use Military Force Act (AUMF) played a major role in the decision to target and kill al-Awlaki, and this law is as broad as it is controversial. The AUMF is not bound by geographic or temporal limitations, raising many questions about the safety of Americans within the United States. If the Obama administration believes an individual is acting against the United States, regardless of citizenship, location, or time of involvement with an anti-American force, that person is subject to being targeted and killed. Al-Awlaki was the first known U.S. citizen deliberately targeted and killed by an American drone strike, but he may not be the last. The administration’s official policy is that the AUMF should “ultimately be repealed” but does not support its immediate repeal.

The Justice Department white paper that outlined the ability to attack does not disclose who qualifies as a high-level official, what information is necessary to be considered informed, or what qualifies as evidence for a targeted attack to take place. The paper also does not outline the exact definition of an imminent threat. These holes in policy represent only some of the many transparency and accountability violations that are needed in order for the United States’ drone strikes to be considered legal on the basis of international humanitarian law.

The Obama administration has targeted and killed more militants that it believes to be threats to national security via drone strikes than any other administration. Yet this administration has also killed more innocent civilians through drone strikes than any other. These attacks have turned families in Pakistan, Yemen, and several other states into “terrorist sympathizers” and have fueled more anti-American sentiment than ever before. The United States has violated both international humanitarian law and international human rights law in these attacks, setting a dangerous precedent that promotes an abusive foreign policy, while simultaneously undercutting its ability to criticize others’ ability to exercise similar attacks.

The administration’s use of drone strikes has been exceptionally opaque, with covert missions as the norm rather than the exception. No pre-strike or post-strike assessments of civilian harm have been confirmed or presented to the Security Council as mandated by the UN Charter, fostering a dangerous custom without investigation or accountability. No meaningful safeguards against abuse or error currently exist, propagating human rights violations with each strike. Human rights have become an afterthought in the wake of the Obama administration’s foreign policy on drone strikes. It is time to ask the crucial question, “Are we creating new terrorists faster than we can kill them?”

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