U.N. Investigator To Probe Legality Of U.S. Drone War

A U.N. investigative group is set to examine whether the civilian casualties caused by America’s covert targeted killing campaign are violating international law, according to an official at the organization reported by the Guardian.

Ben Emmerson, the U.N. special rapporteur for counterterroism, says his investigation will focus on drone strikes in particular. In Emmerson’s view, the global, indefinite scope of the targeted killing campaign and some of the specific tactics involved may be unlawful under both international human rights law and international humanitarian law:

The [global] war paradigm was always based on the flimsiest of reasoning, and was not supported even by close allies of the US. The first-term Obama administration initially retreated from this approach, but over the past 18 months it has begun to rear its head once again, in briefings by administration officials seeking to provide a legal justification for the drone programme of targeted killing in Pakistan, Yemen and Somalia …

[It is] alleged that since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. Christof Heyns … has described such attacks, if they prove to have happened, as war crimes. I would endorse that view.

The drone strikes have unquestionably killed civilians, but precise estimates are hotly disputed. This is partly as a consequence of the opacity of Obama administration casualty counts, which, among other things, label “all military-age males in a strike zone as combatants.”

The legality of drone strikes is also a subject of heated debate among experts, including those inside the administration. Some maintain that strikes violate the law because they take place outside of formally declared or authorized war zones, but others disagree, arguing that conflict with non-state actors like terrorist organizations should be evaluated by more permissive legal standards than state-to-state warfare. Evaluating these claims is made more difficult by the Obama administration’s refusal to provide a formal, public legal justification.

It is unlikely that Emmerson’s inquiry itself could derail the administration’s commitment to the targeted killing program. Emmerson’s role was established via a mandate of the United Nations Human Rights Council. Founded in 2006, the Council is charged with investigating and reporting on human rights conditions in all 193 of the United Nations’ Member States. Should Emmerson return a negative report on the U.S. drone program, several actions could be taken. By virtue of the Council’s place in the U.N. system, Emmerson could be called upon to present his findings to the full General Assembly. From there, the G.A. could either issue some form of condemnation of the program or call upon the Security Council to take up the issue.

Neither action is likely to cause much of an impact on the U.S.’ program. The General Assembly is only empowered to make non-binding recommendations to its members, leaving any condemnation symbolic. The United States still maintains enough clout in the Assembly to head off any attempt at condemnation. Likewise, sending the matter to the Security Council will have even less of an effect, as the United States holds the power to veto any of the UNSC’s potentially binding decisions.

A recent investigation by the Washington Post also suggests the Obama administration has no plans to scupper the program, but rather plans to institutionalize it into a long-term “disposition matrix” used to decide which terrorism suspects are to be killed or captured. The administration believes targeted killings have been highly effective in degrading al Qaeda’s ability to strike the United States.