October 22, 2013

Summary

On the evening of August 29, 2012, five men gathered in a grove of date palms behind the local mosque in Khashamir, a village in southeast Yemen. Moments later, US remotely piloted aircraft, commonly known as drones, launched three Hellfire missiles at the group.

The strike killed four of the men instantly, hurling their body parts across the grounds. The blast of a fourth missile hit the fifth man as he crawled away, pinning him lifeless to a wall.

Yemen’s Defense Ministry described three of the men as members of Al-Qaeda in the Arabian Peninsula (AQAP), the Yemen-based armed group that has been fighting the Yemeni government, and which the United States calls the most active affiliate of Al-Qaeda. The men were killed, it said, while “meeting their fellows.”

But the two “fellows” they were meeting had no known links to AQAP. Rather, they were respected members of their community. Salim bin Ali Jaber, a cleric and father of seven, had long preached against AQAP’s violent methods. The other was the cleric’s cousin Walid bin Ali Jaber, one of the village’s few police officers. Relatives said the three alleged AQAP members demanded a meeting with the cleric because the previous Friday he had made a particularly strong denunciation of AQAP at the local mosque. Walid Jaber had joined the meeting as a security measure.

The strike in Khashamir is one of six unacknowledged US military attacks against alleged AQAP members in Yemen that this report examines. Each of the airstrikes bears the hallmarks of a so-called targeted killing, the deliberate killing by a government of a known individual under color of law.

Two of these attacks were in clear violation of international humanitarian law—the laws of war—because they struck only civilians or used indiscriminate weapons. The other four cases may have violated the laws of war because the individual attacked was not a lawful military target or the attack caused disproportionate civilian harm, determinations that require further investigation. In several of these cases the US also did not take all feasible precautions to minimize harm to civilians, as the laws of war require.

Some of those targeted by US forces as terrorist suspects may not in fact have been valid military targets. Where the laws of war apply, combatants may lawfully be attacked. Persons who accompany or support an organized armed group, but whose activities are not directly related to military operations, such as engaging in recruiting or propaganda, are not lawful military targets.

Where the United States acts as a party to the armed conflict between the Yemeni government and AQAP, US military actions fall within the laws of war. Should the fighting between the US and AQAP not meet the threshold for an armed conflict, any attacks carried out independently of the Yemen-AQAP conflict, including some or all of the attacks detailed here, would fall under international human rights law. Human rights law only permits the use of lethal force where there is an imminent threat to human life.

Beyond international legal considerations, the evidence strongly suggests that the strikes did not adhere to policies for targeted killings that US President Barack Obama disclosed in a speech in May 2013.

These policies, which more closely reflect a law-enforcement model than a war model, provide that the United States will conduct strikes only against individuals who pose an “imminent threat to the American people”; when there is a “near-certainty that no civilians will be killed or injured” and when the target is present. President Obama also said the United States “does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute.” While the attacks detailed in this report predate Obama’s speech, the White House said on the day he disclosed the policies that they were “either already in place or will be transitioned into place over time.”

The Yemeni government has conceded that two of the six attacks described in this report resulted in deaths and injuries to civilians. It has made payments to families of some of the civilians killed but has failed to adequately compensate many others. The US government has not publicly acknowledged involvement in any of the six attacks, and while US officials say they work with local authorities to provide “condolence payments” to civilian victims, we are not aware of any evidence that it has done so in Yemen. Regardless of the lawfulness of specific attacks, the deaths of numerous civilians and the lack of compensation to most families has fueled public anger and frustration in Yemen against the United States, doubtless to the benefit of AQAP.

“We Yemenis are the ones who pay the price of the ‘war on terror,’” said Faisal bin Ali Jaber, a relative of the cleric and policeman killed in Khashamir. “We are caught between a drone on one side and Al-Qaeda on the other.”

Targeted Killings

The US Joint Special Operations Command (JSOC), which is a semi-covert arm of the military, and the Central Intelligence Agency (CIA) are estimated by research groups to have carried out 81 targeted killing operations in Yemen: one in 2002 and the rest since 2009. The strikes by drones, warplanes or cruise missiles by various counts have killed at least 473 combatants and civilians. The United States has also carried out hundreds of targeted killing operations, primarily by drones, in Pakistan and a small number of such strikes in Somalia.

After many years of neither confirming nor denying such strikes, President Obama and other top US officials began publicly acknowledging the targeted killings program in 2010. However, citing national security concerns, the administration has provided only the barest information about individual strikes. For example, US authorities have not revealed the number of strikes, the number of civilians and alleged combatants killed or wounded, or, with a few exceptions, the target of the strikes. Moreover, the administration’s legal rationale for such killings, outlined in various speeches and “fact sheets” by the government in the past two years, has been inadequate.

Yemeni President Abdu Rabu Mansour Hadi has publicly praised the US drone campaign in Yemen, but his government has been almost as silent as the United States on details.

Case Studies

Human Rights Watch investigated the six strikes during two trips to Yemen in 2012 and 2013. These attacks, one from 2009 and the rest from 2012-13, killed 82 people, at least 57 of them civilians. At least four of the strikes were carried out by drones, a fifth strike by either drones or warplanes, and a sixth one by cruise missiles releasing cluster munitions, indiscriminate weapons that pose unacceptable dangers to civilians.

This report assesses whether these attacks comply with the laws of war. It also considers them with respect to the guidelines that President Obama disclosed in May 2013 for targeted killings. Those guidelines seem reflective of international human rights law, which prohibits the use of lethal force in law enforcement situations except when absolutely necessary to protect human life.

In addition to the attack in Khashamir, this report details the following strikes:

  • Wessab, April 17, 2013: Two drones launched at least three Hellfire missiles at a car in Wessab, a township in Dhamar province in central Yemen. The missiles killed a suspected local AQAP leader, Hamid al-Radmi, as well as his driver and two bodyguards. The strike appears not to have complied with the Obama administration guidelines because it appears that al-Radmi could have been captured rather than killed. Al-Radmi was one of the most visible figures in Wessab, traveling openly to mediate disputes among residents, and meeting regularly with security and political officials. While linked to AQAP, it is not evident that he played a role in military operations that would have made him a valid military target.
  • Al-Masnaah, January 23, 2013: One or more Hellfire missiles launched from a drone killed all four people in a truck in the village of al-Masnaah as they traveled to nearby Sanhan, a town about 20 kilometers southeast of Sanaa, the capital. Two passengers were suspected AQAP members. The two others, the driver and his cousin, were civilians hired by the AQAP suspects to drive them to Sanhan. Depending on the military importance of the two targeted AQAP members, under the laws of war the strike may have caused disproportionate harm to civilians. Yemen’s Minister of Interior exonerated the two cousins of any ties to the targets in a letter to the families, but relatives said neither the Yemeni nor the US government provided the families any compensation.
  • Beit al-Ahmar, November 7, 2012: A drone strike killed Lt. Col. Adnan al-Qadhi, an officer in an elite Yemeni army unit who was a suspected local AQAP leader, in Beit al-Ahmar, a military town 15 kilometers from Sanaa. The strike also killed one of his bodyguards. Inconsistent with the Obama administration guidelines, the evidence suggests that Al-Qadhi could have been captured rather than killed. Nor is it clear that he played a military operational role for AQAP. In April 2013, AQAP issued a video in which an 8-year-old boy, held with his father, a soldier, “confessed” that military officers instructed him to plant a tracking device on al-Qadhi.
  • Sarar, September 2, 2012: As two drones flew overhead, two warplanes or drones attacked a vehicle heading north from the city of Radaa in central Yemen. The strike in the hamet of Sarar killed 12 passengers, including 3 children and a pregnant woman, in violation of the laws-of-war prohibition against attacks that do not discriminate between civilians and combatants. The driver and a 13th passenger survived. The strike’s apparent target, tribal leader Abd al-Raouf al-Dahab, was not in the vehicle, and it is not clear that he was even a member of AQAP. The Yemeni government admitted the attack was a mistake but for months provided the victims’ families only limited compensation: 100 Kalashnikov assault rifles and cash for burial costs. Only in June 2013, after Human Rights Watch and other groups raised the case with the United States, did the Yemeni authorities compensate the families for the deaths.
  • Al-Majalah, December 17, 2009: As many as five US Navy Tomahawk cruise missiles armed with cluster munitions struck the hamlet of al-Majalah in southern Abyan province. Yemeni government officials described the attack as a Yemeni airstrike that killed 34 “terrorists” at a training camp. According to a Yemeni government inquiry, the strike actually killed 14 suspected AQAP fighters, including the apparent primary target, Muhammad al-Kazami, but also at least 41 local civilians living in a Bedouin camp, including 9 women and 21 children. Subsequently, cluster munition remnants killed at least 4 additional civilians and wounded 13 others. This attack may more properly be viewed as a violation of international human rights law. However, even within a laws-of-war analysis, the attack used indiscriminate cluster munitions, and caused indiscriminate and possibly disproportionate civilian casualties. The families have not received any compensation for the deaths or injuries.

US and Yemeni officials did not respond to written questions from Human Rights Watch on the six cases and on targeted killings policies. A Yemeni government official with knowledge of the strikes, who spoke to Human Rights Watch on condition of anonymity, acknowledged that in some cases, the targets’ status with AQAP fall into a gray area:

It is not clear in some cases whether they are actually military commanders or operators of attacks. But they recruit openly, openly. . . Striking is not the most ethical position [in some of these cases]. But if you don’t strike them, will they recruit more? That is the debate.

The official said that the Yemeni government has virtually no control over much of Yemen, and therefore is “too weak” to capture many suspects: “Our security apparatus is in shambles. . . . So what do you do? The easiest option is, you take them out.”

International Law and US Policy

The legality of a “targeted killing” under international law may depend on whether the attack was conducted during an armed conflict or during law enforcement operations. International humanitarian law, the laws of war, apply during armed conflicts between states or between a state and a non-state armed group. International human rights law applies at all times, except where superseded by specific laws of war.

The laws of war permit attacks only on enemy combatants and other military objectives. Combatants include members of armed groups taking a direct part in hostilities, but not those who play a purely non-military role. Civilians and civilian objects are protected from attack. Not all attacks that cause civilian deaths or injuries violate the laws of war—only those that target civilians, do not discriminate between civilians and combatants, or cause civilian loss that is excessive compared to the anticipated military gain. Parties to a conflict must take all feasible steps to minimize civilian harm, including by not deploying in densely populated areas. States have an obligation to investigate serious violations of the laws of war and prosecute those found responsible. 

During situations of law enforcement, in which international human rights law applies, lethal force may only be used as a last resort where there is an imminent risk to human life. The standards set out by the Obama administration for targeted attacks appear to reflect this law enforcement approach, requiring that the target pose an imminent risk to the United States, cannot reasonably be captured, and can be attacked without putting civilians at risk. However, the administration has not said that it was adopting an approach consistent with human rights law.

The use of drones does not directly affect the legal analysis of a particular attack. These remotely piloted vehicles and the missiles and laser-guided bombs they carry are not illegal. When used appropriately, drones’ enhanced surveillance capabilities can help minimize civilian casualties in combat operations. But as with other aerial attacks, drone operations may be hampered by poor intelligence or a failure to minimize the risk of civilian harm.

Even if some of the attacks described in this report do not violate the laws of war, they appear to fall short of the thresholds set by the Obama administration for carrying out targeted killings. Attacks that do not meet the US policy guidelines would contravene law enforcement standards under international human rights law.

The applicability of a war model to US operations against Al-Qaeda has increasingly been called into question. Hostilities between a state and a non-state armed group are considered to be an armed conflict when violence reaches a significant threshold and the armed group has the capacity and organization to abide by the laws of war. Hostilities between AQAP and the Yemeni government have risen to the level of an armed conflict in recent years. That is less clear with respect to hostilities between AQAP and the US government. This distinction is legally important because the United States asserts it is

carrying out operations against Al-Qaeda and “associated forces” to protect US interests and not because it is a party to the Yemen-AQAP conflict.

Under that rationale, the US government should be applying a war model to its counterterrorism operations in Yemen only if there is a genuine armed conflict between the US and AQAP. Otherwise the United States needs to be acting in accordance with the higher threshold for the use of force under applicable law enforcement standards found in international human rights law.

Al-Qaeda and other non-state armed groups that the United States considers to be “associated” forces, such as AQAP, continue to threaten US interests, but President Obama has long disavowed the paradigm of a “global war on terror.” The sporadic nature and smaller scale of any successful operations against US targets by these groups in the 12 years since the attacks of September 11, 2001, further diminishes the relevance of this model.

Should the United States continue targeted killings in Yemen without addressing the consequences of killing civilians and taking responsibility for unlawful deaths, it risks further angering many Yemenis and handing another recruiting card to AQAP. In response to these killings, AQAP has issued statements accusing the United States of fighting a war not just against Al-Qaeda but against all Muslims. Residents have set up roadblocks and held demonstrations in which they chant anti-US slogans. Yemen’s National Dialogue Conference, tasked with drafting the country’s new political and constitutional roadmap, has called for criminal penalties under domestic law for any targeted killings that violate international law.

In Khashamir, every man, woman, and child has seen the photos of Salim and Walid Jaber, the cleric and policeman, after they were struck by drone-launched missiles. The images show the men’s bodies charred and in pieces—relatives said they identified Salim Jaber by his cheekbone, and Walid Jaber by the remains of his handgun and his ornate belt.

“Now when villagers see these images,” said a relative, Faisal Jaber, “they think of America.”