The United States has a long
history of violating international law when its leaders believe foreign policy
objectives doing so. The belief in the right of the United States to
overthrow democratically elected governments (Guatemala), to train and arm
insurgencies (Nicaragua), and to launch aggressive wars (Iraq) free of the
inconvenience of the law grows out of the nationalistic fervor of “American
Exceptionalism.”
Currently, President Obama is directly overseeing a drones program that
potentially violates a number of international legal norms. In October 2009,
Philip Alston, then UN Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, stated that the drones program would be illegal if the U.S. was
failing to take “all of the relevant precautions to make sure that civilians are
not killed, in accordance with the relevant international rules.” Alston
continued, “The problem is that we have no real information on this program.”
In May we learned that the President personally maintains a “Kill List” and
holds weekly meetings during which, as judge, jury and executioner, he
determines who lives and who dies. It was also revealed that the President
counts all military-age males killed in drone strikes as militants. However, as
a show of his compassion and fairness, the President does leave open the
possibility for those killed to be proved innocent posthumously.
Such brazen counting and book cooking would make the sneakiest Wall Street
accountants blush. It is also what allowed Counterterrorism Adviser John Brennan
to maintain for over a year that there had not been a single civilian casualty
from drone strikes. In May, Brennan corrected his patently absurd and dishonest
claim, stating that innocent loss of life “is exceedingly rare, but it has
happened.”
There is also the president’s personal authorization of the use of “signature
strikes” in Pakistan and Yemen. Signature strikes target unidentified and
unconfirmed individuals based in behavioral characteristics that are perceived
to be those of militants or terrorists. Of course, it doesn’t actually matter
whether an individual killed by a signature strike is a militant because he will
be counted as one regardless.
President Obama’s method of distinguishing militants from civilians inherently
violates the principle of distinction precisely because it fails to distinguish
civilians from militants. It also potentially violates the principle of
proportionality. There are limits to even unintentional civilian deaths in war.
The number of civilians killed in a military action cannot be “excessive in
relation to the concrete and direct overall military advantage anticipated.”
The president’s system of counting civilian deaths is only one potentially
criminal component of his drones program. In February, The Bureau of
Investigative Journalism and the Sunday Times published the results of a joint
investigation into the practice of targeting rescuers who converge on the scene
of an initial drone strike. They concluded that between 2009 and 2011, more than
a dozen such attacks occurred, resulting in the deaths of at least fifty
civilians.
After a brief lull, similar attacks were carried out numerous times this year.
The most recent “double tap” occurred last month in Pakistan. Intentionally
targeting rescuers and the wounded are clear violations of international
humanitarian law. Of course, the president attempts to evade accountability by
presuming all those killed in both the initial strike and the follow-up to be
militants.
Not everyone agrees. There is a growing international movement against the
impunity with which President Obama runs his drones program. UN Special
Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson has called for an
independent investigation into each and every death that results from drone
strikes. Such investigations are worthwhile in response to all future drone
attacks, but are too little too late for those already victimized by President
Obama’s potential war crimes.
We need more than an end to the “conspiracy of silence” concerning the
president’s drone attacks; we need an investigation into the legality of the
Obama Administration’s favored means of making war. U.S. foreign policy cannot
be immunized from the very same laws used as the impetus for applying sanctions
and making war against others. International law’s legitimacy is grounded in its
consistent application. Selectively applying and enforcing international law
undermines the law, as well as the moral high ground claimed by those who use it
as a tool against “rogue” elements while immunizing themselves.
Saturday, October 20, 2012 by The Hill (Washington, DC)
by Jeff Bachman