22 October 2013
The reports are long (HRW’s is 97 pages, AI’s is 74), address a complex range of issues, and describe their investigations into specific strikes at length. This Just Security post is a guide to the key issues the reports address:
Specific US strikes killed civilians in violation of the law and US policy. These are the first major reports by each organization detailing field investigations into specific strikes. HRW reviewed six strikes in Yemen (occurring between December 2009 and April 2013). HRW concluded that two of the strikes violated international law (pp. 54, 67), four may have (pp. 30, 39, 43, 60), and none of the six appeared to have complied with Obama’s May 2013 Presidential Policy Guidance (p. 89). AI reviewed all 45 reported Pakistan strikes between January 2012-August 2013, and investigated nine in detail. AI’s legal findings include that “evidence indicates” that an October 2012 strike unlawfully killed a grandmother and injured eight children (p. 23), and AI had “serious concerns” that a July 2012 strike that killed 18 and injured 22 (p. 24) may have been a war crime or extrajudicial execution (p. 27). AI also investigated a number of strikes on apparent rescuers (those who came to the scene of a first strike to help the wounded), which it concluded may have been illegal (pp. 28-30). Neither report seeks to assess the total number or rate of civilian casualties for all strikes.
Key recommendations: transparency, investigations, compensation. The reports contain recommendations to the US, to Pakistan/Yemen, to the international community, and (for AI) to non-state armed groups. Core recommendations to the US include: disclose information about the factual and legal basis for the strikes documented in the reports (AI, p. 58; HRW, p. 93); ensure investigations into the strikes (AI, p. 58; HRW, p. 93); and provide compensation or condolence payments to civilian victims (AI, p. 58; HRW, p. 93).
The problem isn’t “drones.” The reports do not state that all US targeted killings are unlawful; nor do they state that drones are per se unlawful weapons (AI, p. 56; HRW, p. 85). HRW explicitly states that drones can be used to improve compliance with the laws of war (p. 85). The conclusion that legality must be assessed on a case-by-case basis, and that the weapons as such are not unlawful is consistent with much of the legal scholarship on the issues, as well as with numerous prior UN and NGO reports.
Broader security context for the strikes; civilians caught between armed groups and US strikes. Each report provides information on the broader security context for US airstrikes (AI, p. 12-17; HRW, pp. 11-19, 24-28). In particular, AI describes extensive abuses by the Pakistan Taliban and other armed groups, as well as by Pakistan’s armed forces (pp. 14-17). It also notes that some residents criticized the Taliban for living near the civilian population and thereby “inviting the risk of death from a drone strike” (AI, p. 32), and documents violent retaliation by the Taliban against suspected spies (AI, pp. 33-34). HRW notes some killings by AQAP of alleged spies and abuses against civilians (pp. 15, 43, 52), but notes that AQAP has generally not targeted Yemeni civilians. HRW also states that the strikes have caused anger among civilians (pp. 49, 59, 64) and “generated hostility toward the United States and undermined public confidence in the Yemeni government” (p. 24). HRW was told by a Yemeni official that US strikes had killed at least nine alleged high value military targets (p. 19).
Beyond killings, the strikes had a range of negative impacts. In addition to documenting specific killings in detail, the reports document broader harm to some civilians. These include injuries to civilians (AI, p. 20; HRW, p.78); significant economic impacts of medical expenses for injured survivors (AI, p. 20; HRW p.77); damage to civilian property (AI, p. 20; HRW, pp. 69, 77); economic impacts on families whose breadwinner was killed (AI, p. 25); orphaned children (HRW, p. 77); the grief and psychological impacts of losing a close relative (AI, pp. 21, 22; HRW, pp. 40, 54, 63); and civilian fears of drones and of being killed in another strike, which can also inhibit rescuing victims, gathering in groups, and cause stress and insomnia (AI, pp. 22, 25, 27, 28-30, 31-33, 57; HRW, pp. 26, 31-32, 65, 77).
Does the law of armed conflict, or peacetime law (human rights law) apply? Both reports address the complex question of whether or not the US can properly be said to be in an armed conflict, and note that the applicable framework influences the strikes’ legality. AI examines a number of strikes under both legal regimes (p. 30), and states that while the US was in specific armed conflicts over the last decade, AI does not accept the legal notion of a transnational armed conflict against non-state actors wherever they are found (p. 48). Depending on strike location and time, HRW examines some strikes under an armed conflict analysis (p. 43), and others under human rights law (p. 67). HRW states that it is not clear whether the US is in an armed conflict in Yemen with AQAP (p. 83), and raises the question of whether the US is a party to a conflict between Yemen and AQAP (but notes that the US does not claim that it is involved in such a domestic conflict) (p. 84). HRW also states that, now, it is “not evident” that the US is still in an armed conflict with al-Qaeda (p. 91).
Concerns about how the US is interpreting the law. Each report raises concerns about how the US is interpreting and applying existing law. In particular, the reports both state that the US may be applying a broader notion of targetability, and widening the scope of whom the US considers a lawful target (AI, p. 27; HRW, p. 86). The reports also express concern about an expanded US interpretation of “imminence” (AI, p. 52; HRW, p. 87).
Undue government secrecy and the need for transparency. The reports examine the extent of US secrecy in its Pakistan and Yemen strikes, and conclude that the US has not publicly provided adequate basic legal or factual information about the program (AI, pp. 49-50; HRW, pp. 19-22). Both reports find that Obama’s May 2013 speech and his Presidential Policy Guidance were inadequate on their own to explain the legal basis (AI, p. 51; HRW, p. 89).
The governments did not respond to NGO questions about the specific strikes. Both organizations state that none of the relevant governments would answer their questions about specific strikes. AI stated that the CIA said AI should direct questions to the White House, which did not respond to “repeated requests for comment” (p. 11). HRW stated that neither Yemen nor the US responded to questions (p. 10).
Victim perspectives on transparency, accountability, and justice. Both reports contain interviews with deceased victims’ family members, who state their desires for justice and compensation, and that the lack of redress is a continuing harm (AI, p. 23; HRW, pp. 42, 59, 65, 77).
Investigations and accountability obligations. AI states that the US has legal obligations to investigate any cases where there are “reasonable grounds to indicate that unlawful killings have occurred,” and to prosecute, and remedy where appropriate (pp. 35-37). HRW similarly states that the US has a duty to investigate violations of the laws of war, and that government secrecy effectively denies victims’ right to redress (p. 87). Both reports also state the US should provide compensation or condolence payments for any civilian harm, but that neither organization is aware of the US having done this (AI, p. 39; HRW, p. 88). Both reports note that in some cases, Pakistan and Yemen paid some compensation to family members (AI, p. 39; HRW, p. 58).
Legal responsibilities and duties of host and third states. Both reports address the legal obligations of Yemen and Pakistan to their own citizens. AI concludes that “uncertainty remains about the extent of actual cooperation” from Pakistan for US strikes (pp. 53-54), and that Pakistan has failed to protect the rights of its own citizens (p. 57). HRW calls on Yemen to conduct investigations about strikes on its own territory (p. 95) and to ensure that any strikes that take place in Yemen comply with the law (p. 94). AI’s report notes that third states, including Australia, Germany, and the UK provide assistance to US strikes, and discusses the legal issues around potential complicity that this raises (p. 54).
Evidence and NGO investigation methods; investigation difficulties. Each study is primarily based on interviews with witnesses, victims, and family members of victims; interviews with officials and others were also carried out. (HRW’s report is based on 90 interviews; AI with over 60). Other kinds of fact-finding methodologies and sources of evidence were also used, including videos and photos (AI, p. 9; HRW pp. 10, 64, 69), satellite imagery (AI, p. 9), weapons remnants (HRW, p. 10), and some visits to the sites of attacks (HRW, p. 10). Both reports note the difficulty of investigating US strikes. AI specifically noted that there is misinformation and propaganda about drone strike deaths, and that identifying those killed is a challenge (p. 36); HRW noted the difficulty of accessing strike sites and security concerns (p. 20). AI’s report discussed in detail the threats that some individuals received after having spoken with them (pp. 10, 34).
* * *
These reports are the product of lengthy and detailed investigations into
specific strikes, and raise serious concerns about unacknowledged civilian
harm caused by US strikes, and about whether the US is complying with its own
official policies and binding legal obligations. The extent of investigation
into each of the reviewed strikes is unusual, with only a few prior
international human rights reports containing this level of detail. The
reports released today put the onus firmly on the US government to respond and
to explain its practices.