The United Nations General Assembly just released the latest Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions. The report is necessary, in part, because “There is… a notable lack of consensus on how to apply the rules of international law that regulate the use of force to drones.”
The report provides a framework to help states ensure their fatal drone strikes are conducted in line with existing international law. Evaluating US drone strike policy in light of these recommendations, it is clear that the United States is not currently in line with international law concerning targeted killings, first and foremost regarding transparency.
The recommendations include an exhortation for states to be transparent about not just their use of drones, but how they develop them and acquire them as well.
[States] must publicly disclose the legal basis for the use of drones, operational responsibility, criteria for targeting, impact (including civilian casualties), and information about alleged violations, investigations and prosecutions.
The Obama Administration is in clear violation of this recommendation. The United States’ first fatal drone strike killed an American citizen in 2002. But it wasn’t until May of 2013 that the Obama Administration acknowledged that drone strikes have killed at least 4 Americans. In fact, Obama joked about killing a Jonas Brother with a Predator drone while refusing to formally acknowledge the drone war in Pakistan to the press.
The Obama Administration has actually blocked lawsuits brought by the American Civil Liberties Union and Center for Constitutional Rights to delve into, for instance, how targeting American citizens for death without a trial does not violate the Constitution. The administration has consistently shot down Freedom of Information Act lawsuits which request the documents which would explain the legal basis for targeting and killing people.
We’re also in clear violation when it comes to oversight. “Drone operators must not be placed within a chain of command that requires them to report within institutions that are unable to disclose their operations.”
The Central Intelligence Agency runs the United States drone war. the CIA is the definition of an institution which is unable to disclose its operations, as those operations are formally classified.
The other recommendations include exhortations to consider people who states cannot confirm are enemy combatants civilians, and not kill them accordingly. States should also investigate drone use and hold people who misuse them accountable. In addition, capture should be used when feasible, leaving killings for use only as a last resort.
Unfortunately, whether United States drone policy conforms to the rest of the recommendations is unknowable because of the secrecy in which the government conducts targeted killings.
As the report states:
The modern concept of human rights is based on the fundamental principle that those responsible for violations must be held to account. A failure to investigate and, where applicable, punish those responsible for violations of the right to life in itself constitutes a violation of that right.
Legal and political accountability are dependent on public access to the relevant information. Only on the basis of such information can effective oversight and enforcement take place. The first step towards securing human rights in this context is transparency about the use of drones.
The US conducts, on average, one drone strike every four days. This is literally a matter of life and many, many deaths. In these matters transparency is absolutely essential. The United States absolutely must get our drone policy in line with these recommendations to ensure we are following existing international law.
Cathy Reisenwitz is a Young Voices Associate and a D.C.-based writer and political commentator. She is Editor-in-Chief of Sex and the State and her writing has appeared in Forbes, the Chicago Tribune, Reason magazine, Talking Points Memo, the Washington Examiner, the Daily Caller, XOJane, The Freeman, the Individualist Feminist and Penelope Trunk’s Brazen Careerist.