Are the use of targeted drone strikes by the CIA and U.S. military legal? In March, Harold Koh, the State Department’s legal adviser, defended the use of drones after complaints by many legal experts and the United Nations Special Rapporteur for Extrajudicial Executions. But Koh’s comments failed to quell criticism of the civilian casualties that accompany the strikes and also the involvement in the CIA in the operations.
Now, however, a team of international lawyers have made a fresh argument against drone attacks, citing what they claim is an existing but previously unacknowledged requirement in international law for those who use or authorise the use of drone strikes to record and announce who has been killed and injured in each attack.
A new report, ‘Drone Attacks, International Law, and the Recording of Civilian Casualties of Armed Conflict’, was published today by the London-based think tank Oxford Research Group (ORG). It can be found here. It has several main findings:
• There is a legal requirement to identify all casualties that result from any drone use, under any and all circumstances.
• The universal human right which specifies that no-one be “arbitrarily” deprived of his or her life depends upon the identity of the deceased being established, as do reparations or compensation for possible wrongful killing, injury and other offences.
• The responsibility to properly record casualties is a requirement that extends to states who authorise or agree the use of drones, as well as those who launch and control them, but the legal (as well as moral) duty falls most heavily on the latter.
• There is a legal requirement to bury the dead according to the rites of the religion to which they belonged, and this may not be in mass or unmarked graves. The site of burial must be recorded, particularly in the event that further investigation is required.
• A particular characteristic of drone attacks is that efforts to disinter and identify the remains of the deceased may be daunting, as with any high explosive attacks on persons. However, this difficulty in no way absolves parties such as those above from their responsibility to identify all the casualties of drone attacks.
• Another characteristic of drone attacks is that as isolated strikes, rather than part of raging battles, there is no need to delay until the cessation of hostilities before taking measures to search for, collect and evacuate the dead.
It’s authors say the report draws from various instruments of law including the Geneva Conventions; the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and other human rights instruments; reports and statements of the United Nations; case law of the European Court of Human Rights and the Inter-American Court of Human Rights; and the principles of customary international law. “It is high time to implement a global casualty recording mechanism which includes civilians so that finally every casualty of every conflict is identified. The law requires it, and drones provide no exemption from that requirement,” Dr Susan Breau, the report’s lead author and Professor of International Law at Flinders University, said:
Dr Breau’s wishes aside, it’s unclear how much of an impact the new report will have, and whether it will compel the Obama administration to articulate further its legal justification for targeted killing.. But there’s no doubt that the debate over drones will continue for some time yet.