Below is an article, “Five Reasons Drone Assassinations are Illegal,” that
recently appeared in the Pax Christi USA website.
“I think the difference between me and some people is that I’m content to do
my little bit. Sometimes people think they have to do big things in order to make change. But if each one would light a candle, we’d have a tremendous light.”
–Sr. Thea Bowman
Peace and good will,
Five Reasons Drone Assassinations are Illegal
By Bill Quigley, Pax Christi USA Teacher of Peace
U.S. civilian and military employees regularly target and fire lethal unmanned drone-guided missiles at people across the world. Some of those killed were rescuers and mourners. These killings would be criminal acts if they occurred inside the U.S. Does it make legal sense that these killings would be legal outside the U.S.?
The U.S. 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 of the identities of most of those killed. In Pakistan alone, the New America Foundation reports U.S. forces have launched 297 drone strikes killing at least 1800 people, 3-400 of whom were not even combatants. Other investigative journalists report four to eight hundred civilians killed by U.S. drone strikes in Pakistan.
Very few of the 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 kills 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 U.S. 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. …
Civilian deaths in drone strikes are 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. Glen 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 the U.S. 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 U.S. 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 includes “indirect participation.” …This ban still stands.
The reason for the ban on assassinations was the CIA was involved in attempts to assassinate national leaders opposed by the U.S. Among others, U.S. 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 U.S. drone killings. The UN (did so) 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 (e.g., Afghanistan where the U.S. 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 U.S. 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 U.S. 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 if 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 U.S. 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 t the current U.S.. 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 fo human life is allowed. Some argue precision-guided weapons llike drones can be used only when there is no probable cause of civilian deaths. But the U.S. military disputes that burden and instead directs “all practicable precautions” be taken to weight 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 killing of people whose identities are unknown.
Five. Retired high-ranking military and CIA veterans challenge the legality and efficacy of drone killings. Retired U.S. 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 of 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 may 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 agenda will become dedicated enemies of the West in response to U.S. military action against them.
Recent polls of the Pakistan people show high levels of anger in Pakistan at U.S. military attacks there. This anger in turn leads to high support for suicide attacks against U.S. military targets
Bill Quigley is a human rights lawyer who teaches law at Loyola University New Orleans and works with the Center for Constitutional Rights. He is a Pax Christi USA Teacher of Peace. A longer version of this article is available on the PCUSA website (www.paxchristiusa.org).