When United States President Barack Obama made a major speech last May on US lethal airstrikes against alleged terrorists, he said one aim was to “facilitate transparency and debate” about their use. Observers would be hard pressed, however, to find commitment to either transparency or debate in the obstructive US response to a draft resolution on targeted killings that is expected to be approved by the United Nations Human Rights Council in Geneva.
The draft resolution urges states to “ensure transparency” on remotely piloted aircraft known as drones, which have become Washington’s preferred weapon for targeted killings. It urges “prompt, independent and impartial investigations whenever there are indications of any violation to human rights” caused by armed drone operations. It instructs the council to convene an expert panel on drone strikes.
The resolution is not perfect. For one thing, it focuses narrowly on drones rather than on targeted killings as a whole. But it would send an important signal that no government—including the US—can shroud deadly drone strikes in an unreasonable level of secrecy. The US has carried out at least 400 drone strikes since Obama took office, reportedly killing upwards of 2,600 people, according to independent research groups. Obama has referred to claims of significant unlawful civilian casualties as “outlandish”. But his administration will not confirm any casualty figures, much less individual strikes or the number of its targeted killing operations.
Human Rights Watch has serious concerns that some if not many US targeted killings may violate international law and Obama’s own policies including his assertion that the US strikes only when it has “near-certainty” that no civilians will be harmed. In examinations of seven US targeted killing operations by drones and other weapons systems since 2009 in Yemen that had killed and wounded civilians, we found clear violations of international humanitarian law—the laws of war—in two attacks.
One unlawful attack killed 14 alleged militants but also 42 sleeping Bedouins, two-thirds of them women and children. The other killed 12 civilians–eight farmers, a mother and three children—coming home from market. We found potential laws-of-war violations in the other five attacks including a strike on cars in a wedding procession that killed 12 men, wounded 15 others and slightly injured the bride.
The resolution was drafted by Pakistan, which has officially denounced drone strikes on its soil even as Pakistani intelligence services appear to be cooperating with the attacks. Publicly, the US says it opposes the resolution because “we just don’t see the Human Rights Council as the right forum for discussion narrowly focused on a single weapons delivery system”. Privately, some Western diplomats told us they fear the expert panel will become politicised. But rather than help shape the process to ensure the measure leads to objective action, the US has pointedly not attended any of the three public sessions this month at the Human Rights Council for states to negotiate a final draft.
The US is also implying that the council has no business looking into targeted killings. Its distorted logic, hinted at by both US officials and UN diplomats from other countries, is as follows: the US claims authority to carry out targeted killings under the laws of war because it is engaged in an armed conflict around the globe against Al-Qaeda, the Taliban and largely unnamed “associated” forces. Therefore, this argument goes, the laws of armed conflict, or a nebulous interpretation of a nation’s right to self-defense, apply to these strikes—but not international human rights law, which applies to policing and other situations outside of a battlefield. The Human Rights Council oversees compliance with international human rights law, not the laws of war, and hence under this theory has no mandate on these strikes.
But the council has consistently addressed laws-of-war violations. Indeed this is part of its mandate, which notes the “complementary and mutually interrelated nature of international human rights law and international humanitarian law”. Council members have also repeatedly affirmed that mandate by approving resolutions that call for action on matters of international humanitarian law such as resolutions on Israel, Darfur, Sri Lanka or Syria and in the context of arms transfers.
The US war-model rationale is on equally shaky legal ground. Although Al-Qaeda and like-minded armed militants represent a very real threat, it is not clear that the level of hostilities between these groups and the US rise to the level of an armed conflict, raising the question of whether the laws of war even apply to targeted killings outside conventional battlefields. And what if some other country kills suspected members of armed militant groups with which it is not at war? Clearly the Human Rights Council, which is entrusted with promoting and protecting human rights around the world, should play a role.
Pakistan seeks to have its draft resolution passed by consensus. However some diplomats in Geneva told us that the US might demand a vote—a process in which the US would then cast a ‘nay’ ballot and try to persuade allied states to do the same. In the case of consensus passage, the US appears set to formally register its dissent.
Diplomats from several countries predicted the measure would still be approved and by a wide margin if it goes to a vote. The resolution would pass just six weeks after the European Parliament passed its own resolution calling for greater transparency and accountability on drones. In recent months, UN Secretary-General Ban Ki-moon and UN High Commissioner for Human Rights Navi Pillay also have emphasized the need to ensure drone strikes comply with international law.
Greater transparency and accountability for drone strikes and other targeted killings is inevitable. The Obama administration should join the discussion, starting with the important multilateral talks under way right now at the Human Rights Council, rather than paying mere lip service to transparency and debate.