04 Jun UN Special Rapporteur to ‘Investigate’ US Drone Strikes
I’m on the fly, but quickly wanted to post this update to my earlier posts on targeted killings and Predator strikes. The UN Special Rapporteur on extrajudicial execution, Philip Alston, has called for an investigation into US Predator drone attacks. Here is a quick news story on it. I think the press account somewhat overstates matters – I would characterize it as more of a request for the US to provide information and assert its legal justification for its Predator strategy, with respect to both collateral damage and identification of targets. Although diplomatic language is often ambiguous in just this way, I don’t think it is precisely an investigation. NYU’s Philip Alston is of course well known to many of us – an old friend of mine and someone I admire and respect. (Also, I like Philip a lot – he’s a great guy, warm and with a wickedly subtle sense of humor.) I can safely say that we don’t have remotely the same views on this, but he is a very careful academic and diplomat. There are probably some better accounts of this, but I didn’t have time to dig them out.
Still, further to my earlier posts on targeted killing and standoff drone technology, I think this is another data point is the increasing divergence between the Obama administration and the international soft-law community on the legal status of targeted killings – as well as some much more basic questions of international law and its interpretation. The US diplomat cited in the news account, Lawrence Richter re-asserted the US position that the special rapporteur on extrajudicial execution (under the mandate of the Human Rights Council, which raises a whole other set of legitimacy issues) does not have the mandate to report on issues related to the conduct of hostilities that rise to the level of armed conflict under the laws of war.
The implied, underlying US position actually consists of at least two things:
- one, that the human rights law to which the special rapporteur’s mandate extends, the ICCPR, does not extend extraterritorially at least as far as the US is concerned and,
- two, that these human rights law concepts do not apply and are set aside by the lex specialis of the laws of war, with its own rules about targeting and collateral damage.
In relying on those views, however, the Obama administration was not asserting a new view, or re-asserting a Bush administration GWOT view, but a view held by the US going all the way back.
Ken,
The two underlying issues that you identify are certainly complex, particularly the extraterritorial application one. The US objection is however also a very formal one – that the Human Rights Council and its rapporteurs lack the mandate to examine armed conflict situations, regardless of the law that is actually applicable. That position is, in my view, unreasonable and contrary to the HRC’s practice. At any rate, for a detailed rebuttal of the US position, please do see this excellent article by Philip Alston et al in 19 EJIL 183, available at
http://www.ejil.org/pdfs/19/1/183.pdf .
Yes, thanks for posting the cite – Philip’s article is a very useful one. I take it this is a publicly accessible pdf? I can never quite tell with EJIL what is public and what is not.
Thanks very much Prof. Anderson.
The lex specialis on human rights law was a Bush era argument pushed by I believe John Bellinger at the time. It also departs from the view that Human Rights law do not go away in times of armed conflict, but underpin the effects of international humanitarian law. If someone has cites to pre-Bush era assertions of the lex specialis argument by the United States – I would be grateful to know them. As to the territory and jurisdiction ICCPR argument, that is another discussion that I believe goes back to Mamie Eisenhower at time of the ICCPR negotiation and the worries about occupied Germany and Japan. But, that position in negotiation and the textual discussions I remember seem to make the ambit broader. I do not know if Pakistan or Afghanistan are signators to the ICCPR. If they are, and the US is acting in these places with consent of the government, it would seem that would be another way in which these obligations of ICCPR would apply – absent the lex specialis exception argument.
Best,
Ben
Sorry, I meant Eleanor Roosevelt – not sure where Mamie Eisenhower came from!
Best,
Ben
Ken,
The pdf is indeed a publicly available one. As far as I recall, all of the articles in the EJIL become available free of charge (only) through the EJIL website after a year or so from their publication. Some of the more recent articles might be available free of charge as well, for instance when the articles are discussed at EJIL Talk! .
Marko,
Thank you very much for posting the link. I am looking forward to reading the articles.
Wondering about your thoughts on the new ICRC interpretive guidance on direct participation in hostilities by civilians as related to the issues raised in this post and to targeted killings generally. Perhaps I have missed previous exposition. See this link: http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/direct-participation-ihl-feature-020609 ICRC takes the position that “The use of time-delayed weapons such as mines or booby-traps, remote-controlled weapon systems such as unmanned aircraft, also “directly” causes harm to the enemy and, therefore, amounts to direct participation in hostilities.” “While members of organized armed groups belonging to a party to the conflict lose protection against direct attack for the duration of their membership (i.e., for as long as they assume a continuous combat function), civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities.” “Loss of protection against direct attack – whether due to direct participation in hostilities (civilians) or continuous combat function (members of organized armed group) – does not mean that the persons concerned fall outside the protection of the law. Even attacks against legitimate military targets are subject to legal constraints, whether based on IHL, or on other branches of international law, such as human rights law. Any military… Read more »
The Alston article fails to recognize the difference between US assertions that human rights law does not apply to armed conflict and a rejection of the strawman assertion that human rights law does not apply during an armed conflict. There is no evidence that the US has ever claimed that a country could violate human rights law just because it happened to be engaged in an armed conflict somewhere in the world. Furthermore, if civilians or enemy combatants are captured during an armed conflict and held under either the Third or Fourth Geneva Convention, and then if some prisoners are summarily executed without trial in violation of the conventions, there is no convincing evidence that the US has argued that this would not be a case of “extrajudicial execution” falling within human rights law. The US is quoted, however, as saying that human rights law is not applicable to the conduct of armed conflict itself. In this particular case, the targeting of enemy combatants using Predator drones is a military operation that the US asserts is outside the mandate of the HRC. I do not see any particular conflict between the claim that a hypothetical execution without trial of persons… Read more »
“The real question, then, is how the US can regard a particular group of individuals to be all the time as a matter of membership combatants subject to military targeting while at the same time asserting that they are not combatants protected by the Third Geneva Convention.” Yes, that is the question. The ICRC interpretive guidance I noted previously suggests an answer. The discussion of the matter in the case of a non-international armed conflict is of particular relevance: As I read the paper, it appears to me to make the rather innovative argument that individuals who are part of organized armed groups of a party to a non-state conflict may be lawfully targeted even when not involved in direct participation in hostilities, yet would nevertheless not enjoy combatant’s privilege — this because they are not in fact “civilians,” but somehow do not have the same status as do members of a state’s armed forces . . . . Perhaps I have not understood the analysis in my one quick scan . . . . Here are some relevant quotes; best to read the whole thing, however: From the guidance: “. . . the decisive criterion for individual membership in an organized armed group is… Read more »
Alan: This is a very interesting analysis and may begin to answer the question. However, stepping back for a minute from the details, I find it difficult to put the Taliban and al Qaeda generically in the category that GC III Article 4 [4] calls “Persons who accompany the armed forces without actually being members thereof” while at the same time adopting the US position that there is/was no actual armed force (that everyone was an unlawful combatant in the same inconclusive situation).
I would propose that the US has to first locate one likely candidate, perhaps randomly, and designate him to be a lawful combatant. Then he can represent officially the “armed forces” that all the others were accompanying. Alternative, if “armed forces” is inherently plural, then we have to designate two persons as official lawful combatants.
You can find Philip Alston’s report to the Human Rights Council here: http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.2.Add.5.pdf
I highlighted some key paragraphs earlier here: http://legalift.wordpress.com/2009/05/30/un-rapport-on-extrajudicial-killings-by-the-us/
Re: However, stepping back for a minute from the details, I find it difficult to put the Taliban and al Qaeda generically in the category that GC III Article 4 [4] calls “Persons who accompany the armed forces without actually being members thereof” while at the same time adopting the US position that there is/was no actual armed force (that everyone was an unlawful combatant in the same inconclusive situation).
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I am puzzled by the fact that there are several contradictory accounts of who constitutes the Taliban and al Queda. I’m just beginning to explore this issue now.