Two prominent human rights groups released reports today examining the on-the-ground effects of the continuing, semi-covert U.S. drone wars in Yemen and Pakistan – both concluding that some U.S. airstrikes violate the laws of war. One of the two reports, written by Amnesty International, goes even further by suggesting some U.S. strikes may rise to the level of war crimes. Both Amnesty, which investigated strikes in Pakistan, and Human Rights Watch (HRW), whose report focused on Yemen, called for the U.S. government to make public the legal theories underpinning the attacks and to publicly account for those killed in the programs.
While there have been reports on the drone and so-called targeted killing programs before, this is the first time that major NGOs have made such a dramatic statement about specific U.S. strikes. It's also the first time organizations of this size have done their own fieldwork and research, allowing them to make such clear accusations.
Both reports stress that until the legal and policy frameworks are declassified, it is impossible to assess the legality of individual strikes or the programs at large. At the center of the debate is the ambiguity over whether the U.S. is operating in a law of war context (also known as international humanitarian law) or a human rights law framework, which covers a state's obligations in peacetime and is more restrictive than the law of war.
Even within the more permissive law of war context, HRW concludes in its report that two strikes in Yemen violated the rules. One attack, in the village of Sarar in 2012, killed 12 people – including three children and a pregnant woman – in a vehicle leaving a market in central Yemen. The apparent target of the attack, a tribal leader, was not in the vehicle, and according to the report may not have been a member of al Qaeda in the Arabian Peninsula. "It can still be a violation [of the law of war] even if it's a mistake," says Letta Tayler, a terrorism and counterterrorism researcher at HRW and author of the report. "They should have been more careful."
The other attack occurred in al Majalah in southern Yemen in 2009, when cruise missiles fired from a U.S. Navy ship killed at least 41 Bedouin civilians. The missiles were armed with cluster munitions, which, following the initial strike, later exploded and killed four civilians and wounded 13 others. The use of weapons that cannot discriminate between a combatant and a civilian, like cluster bombs, is a violation of the laws of war. Says Tayler, "They just showered the place with cluster bombs."
The Amnesty International report, which focuses on Pakistan, is similarly critical, if not more so. The report looks at two cases, one in which a 68-year-old woman named Mamana Bibi was killed while tending her crops and a separate strike that killed 18 laborers. Amnesty writes that these cases "may constitute extrajudicial executions or war crimes." The authors stress, again, that without knowing more from the U.S. government a full legal analysis of the strikes is impossible.
"The U.S. government has never publicly committed itself to investigating credible accounts of civilian casualties," says Naureen Shah, an advocacy advisor at Amnesty International USA. "If they are investigating [those accounts], why won't they tell us? And if they aren't, they're creating the appearance of indifference."
Recent reports have suggested that the Obama administration's counterterrorism strategy has shifted away from using drones, preferring instead to capture targets alive. That's what the administration did in the case of Abu Anas al-Libi, the accused al Qaeda member who was recently indicted for his alleged role in the 1998 bombing of two U.S. embassies in East Africa. Simultaneously, the government attempted to capture a man called Ikrimah, reportedly a leader of al Shabab, in a raid in Somalia. Another al Shabab figure, Ahmed Abdulkadir Warsame, was captured by the U.S. in international waters near Yemen in 2011 and, like al-Libi, held on a warship and questioned without immediate access to an attorney.
Whether the reports that Obama is moving away from drones are accurate or premature, the evidence put forward by both human rights groups presents the last few years of U.S. counterterrorism policy as counter-productive at best and possibly criminal at worst. Other accounts have predicted an imminent move of drone operations from the CIA to the Pentagon, but this has yet to happen; the Amnesty report states, "there is no indication this [shift] will occur in the near future."
Tayler, the author of the HRW report, says it's too early to judge whether there has been a significant shift in Obama's policy. "He wants the latitude to take life and capture [without access to an attorney] offered by the war model, but he also wants to show he's doing his utmost to provide protections under a law enforcement model," she says. "But he can't just change the rules as he goes."