The report will also help clarify US compliance with its international and domestic legal obligations. The report, Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, was issued on December 5, 2016, on the basis of a presidential memorandum issued the same day, encouraging future administrations to issue such reports annually.
“The Obama administration’s release of this counterterrorism report is an important step toward greater transparency and public accountability,” said Laura Pitter, US national security counsel at Human Rights Watch. “While certain US positions raise serious international law concerns, this comprehensive description of US policy and practice lays out minimum standards that the next administration should meet and improve upon.”
The report was the product of extensive inter-agency review and reflects a consensus among agencies, according to senior US government officials. Though some of the positions are problematic under international law and have contributed to abuse in the past, many are helpful and should be maintained.
Standards Applicable to Lethal Force Outside Armed Conflict
The Obama administration has said that since May 2013, it has been applying a policy laid out in a Presidential Policy Guidance (PPG) that allows the US to apply lethal force in targeting operations outside “areas of active hostilities” only when it has been determined that a target poses a “continuing, imminent threat” to US persons; that capture is not feasible; and that there is “near certainty” that no civilians will be killed or injured.
While the PPG includes some important restraints on US targeting operations, many of these situations should instead be covered by international human rights law. This means that outside armed conflict a government may use lethal force only as a last resort to stop an imminent threat to human life. Human Rights Watch has documented instances when the US government has applied lethal force in apparent violation of both the laws of war and international human rights law. In Yemen, for example, Human Rights Watch investigated seven US air strikes where civilians were alleged to have been killed that took place from 2009 to 2013 and found that at least 57 of the 82 people killed were civilians, along with possibly 14 others, 12 of them in a strike on a wedding convoy.
At the same time, the PPG includes important procedures for preparing after-action reports following the use of lethal force and requirements for congressional notification. In July, the Obama administration issued Executive Order 13732 to complement the PPG, promising to offer voluntary payments and other forms of condolence to survivors and families of civilians killed in lethal strikes, regardless of whether it considers the attacks that caused the deaths and injuries unlawful. It also requires the release of an annual summary of the number of airstrikes outside areas of active hostilities and the resulting civilian casualty figures. The next administration should maintain these and other safeguards.
Transfers of Detainees to Countries Where There is Risk of Torture
The report maintains the position of the George W. Bush administration that the US is not legally prohibited under the Convention against Torture from transferring individuals to countries where they are likely to face torture if the transfer occurs outside the US. Rather, the report states that the Obama administration will not transfer individuals in such circumstances as a matter of policy.
“The Obama administration still seems unwilling to accept that the Convention against Torture bars the US from transferring individuals outside the US to any country where they face a real risk of torture,” Pitter said. “While it’s positive that the Obama administration has respected this obligation, the incoming administration should at minimum adopt the same position but also understand that it is not a matter of choice but a legal requirement.”
Human Rights Watch has long considered diplomatic assurances ineffectual in preventing transferred detainees from being tortured or otherwise ill-treated. In addition, individuals in US custody abroad must be provided a fair process that would allow them to adequately challenge beforehand the legality of their transfer to another government. It is not clear whether the process the Obama administration uses to take such factors into consideration prior to transfer would satisfy this obligation.
Obligation to Compensate Victims of Torture
The report puts forward a position that provisions of the Geneva Conventions providing for war reparations between states at the end of armed conflict displace provisions in the Convention against Torture that require the US to compensate people it tortured outside its borders. The position was first reported in Power Wars, by Charlie Savage where it is stated that it was taken, according to an Obama administration official, as a “work-around” to avoid obligations under the Convention against Torture to provide compensation to former detainees at Central Intelligence Agency (CIA) “black sites.”
The ClA tortured and ill-treated scores of men in the years after the September 11, 2001, attacks. Human Rights Watch, news organizations, and others, have documented the impact of US torture on former CIA detainees, many of whom are now broken men, emotionally and physically, and destitute. The Senate Select Committee on Intelligence’s report on the CIA program documents that at least 119 men were held by the CIA in secret detention, the vast majority of whom were never charged with a crime, and at least a quarter of whom did not even meet the CIA’s own standard for detention.
“The US government is under an obligation to provide compensation to those it tortured at CIA black sites,” Pitter said. “Invoking law of war rules selectively to this provision of the Convention against Torture, not applicable in this context in any case, reveals a thinly veiled attempt to circumvent obligations and sets a bad example for other states seeking creative ways to try to avoid their responsibilities.”
