The US Drone War and Human Rights

March 13, 2014 Updated: April 23, 2016

The United States has maintained an international persona as a champion of human rights.  President Obama has, in a way, personified this message with his 2009 Nobel Peace Prize.  However, covert action overseas and legal positions of the administration point to a starkly different pattern.  Is it possible the United States is not as forthright on human rights as it conveys?

The New York Times authored a report last week in which they displayed the interpretation of international human rights accords by previous administrations.  In short, the report begins with the Clinton administration’s view that “American officials…had no obligations under the rights accord [a global Bill of Rights-style treaty the Senate had recently ratified] when operating abroad.”  The Bush administration would expand on this thinking with its response to terrorist attacks in 2001 with such practices as “advanced interrogation techniques” or in layman’s terms, torture.  The UN has urged President Obama and his administration to “reverse its thinking,” however, the Times believes this is unlikely. Yet, a spokesperson for the administration reaffirmed its stance on human rights and proper interrogation techniques.

The water gets even murkier when discussing legal and even grammatical interpretations of international laws.  As Professor Peter Margulies of Roger Williams University School of Law wrote in a recent blog post analyzing US interpretation of the international treaty, “Article 2[1] of the [International Covenant on Civil and Political Rights] ICCPR binds parties to ‘respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized… in the Covenant.’  The US, since the Clinton administration, has interpreted the terms, ‘within its territory and subject to its jurisdiction,’ as conjunctive, meaning the US does not assume duties under the treaty unless an individual is within its territory.”  Professor Margulies also examined a memo authored by a former State Department attorney Harold Koh and how miniscule portions of the ICCPR such as words like “respect” or “ensure” can be subjectively interpreted or distorted by the administration.

The US drone campaign is directly related to this conversation in that President Obama affirms the US does not conduct strikes unless there is certainty that no civilian lives will be lost.  However, The US does have blood on their hands and is lethargic to respond to criticism.  In a scathing report by Human Rights Watch titled “A Wedding That Became a Funeral,” the Obama administration is depicted in a dark light.  The report documents a strike, which took place in December, 2013 with cooperation from the Yemeni government and killed 12 individuals during a wedding procession where alleged high profile members of al-Qaeda in the Arabian Peninsula (AQAP) were believed to be.  As the report indicates, no one involved in the wedding had any knowledge that the targets were present and only knew “al-Hotami [a suspected target] had been traveling in the attacked pickup truck. The witnesses said al-Hotami was known locally as a ‘brave man.'”

The Human Rights Watch report outlines possible international laws that were violated as well as international legal standards.  “The burden is on the attacker to take all feasible precautions to ensure that a target is a combatant before conducting an attack and to minimize civilian harm…Had AQAP members deliberately joined the wedding procession to avoid attack they would have been committing the laws-of-war violation of using ‘human shields.’  AQAP shielding would not, however, justify an indiscriminate or disproportionate attack by US forces,” the report stated.

The United States must be involved in an “armed conflict” in order to legally carry out such military action.  Professor Margulies, in further analysis of Mr. Koh’s memo, stated, “Even if the ICCPR applied extraterritorially, US drone and detention operations abroad would be governed by the more specific law of armed conflict (LOAC), under the well-known lex specialis doctrine.”  The Human Rights Watch report questions the legality of the US strike in Yemen (which by their reasoning, would question the legality of most US strikes globally) by asserting, “While hostilities between AQAP and the Yemeni government have in recent years risen to the level of an armed conflict, it is not clear that those between AQAP and the US government meet this threshold.”

Furthermore, a report submitted to the UN Human Rights Council, identifies 30 separate drone strikes “in which there is a plausible indication that civilians were killed or sustained life-threatening injuries, or in which civilian lives were put at immediate risk.”  While the report does not identify any nation in particular, the United States has conducted the majority of strikes globally in the name of the War on Terror.  Recommendations made by the report include a requirement by States to address any strike publicly, as long as it does not impede national security, where unforeseen casualties have occurred in accordance with a duty to uphold international human rights laws.

Despite the US drone campaign’s mercurial decline, five Afghan soldiers were killed by an errant strike recently.  This alone points to the need for international regulations regarding drones.  As the Human Rights Council report indicated, there are currently no international standards and certain legal questions must be addressed.  While it seems the only blowback from such a strike is further alienation from Afghan President Hamid Karzai in signing a bilateral security agreement, there is no international accountability for such actions.

The United States must remain a leader on the international human rights front but in order to do so, they must not only talk the talk but also walk the walk.  Drones have been a controversial subject given their rapid ascent and circulation.  There must be accountability and established international standards so that existing human rights laws are not blurred or subjectively interpreted.  Several countries are beginning to develop drone technology and it is only a matter of time before they become commonplace in combat, which increases the necessity of international regulation.