UN Report:

Killing civilians to counter terrorism does not violate IHL

by Daya Gamage

“It is important to emphasize that the mere existence of credible allegations that civilians were killed or injured in these incidents does not necessarily establish any violation of international humanitarian law (IHL) or international human rights law (IHRL). Still less does it provide clear evidence of the commission of a war crime”.

A drone firing missiles

This is a determination found in the just released - 28 February 2014 - report submitted to the currently convened UN Human Rights Commission (UNHRC) session in Geneva by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson.

This special report, one may wonder, is connected to the foremost ‘item’ on the UNHRC agenda - the United States resolution on Sri Lanka, according to the draft resolution carried elsewhere in the Asian Tribune columns urging the UN to activate an international investigative mechanism to probe alleged violation of IHRL and IHL and ‘war crimes’ connected to civilian casualties during the final stage of the battle between the separatist and terrorist Tamil Tiger fighting cadre and the Sri Lanka military.

Evidence

No. That declaration by Ben Emmerson was about the United States use of unmanned predator aircrafts or drones in Af-Pak region causing civilian deaths.

In the same vein the US Special Rapporteur Emmerson continues:

(Quote) Indeed, most of the relevant evidence which could confirm or dispel such a suspicion remains in the exclusive possession of the alleged perpetrator States. However, in each of the cases identified, the Special Rapporteur has evaluated the available sources, looking for indication of reliability, and has judged the information and evidence he has seen to be sufficient to cross the threshold identified in his interim report as imposing a duty on the relevant States to provide a public explanation of the circumstances and the justification for the use of deadly force. (End Quote)

Noting that the States responsible for such drone attacks which cause civilian deaths have not being transparent and accountable, Emmerson says in his report:

(Quote) In the opinion of the Special Rapporteur the States responsible are under a continuing obligation to make public, in as much detail as possible, and subject only to such redactions as are strictly necessary to meet legitimate national security concerns, the results of any fact-finding investigations that have been conducted into the incidents identified in this section of the report. If no fact-finding investigation has so far taken place, the Special Rapporteur considers that the States concerned are under an obligation to indicate this publicly, and provide an explanation. (End Quote)

The United States seldom discloses such information.

Civilian casualties

Nevertheless the UN Special Rapporteur in his report to the UNHRC discloses:

“By way of illustration, the Special Rapporteur draws attention to the one instance in which the United States has previously made public significant parts of an investigation report into a strike in which civilian casualties were sustained in Afghanistan. On February 21, 2010 precision-guided munitions were discharged from a US military helicopter aimed at three pick-up trucks travelling near Khotal Chowzar, a mountain pass that connects Daikundi with Oruzgan. The attack occurred 12 km from the village of Khod in the Shahidi Hassas district.

Remotely piloted aircraft under the control of the United States were involved in assessing and determining the target of the operation. Up to 23 civilians were reportedly killed and 12 civilians injured. The victims included eight men, one woman and three children under the age of 14. The findings of an investigation conducted by ISAF were partially declassified. The report concluded that the Predator crew involved had provided misleading situational information, that there was evidence of inaccurate and unprofessional reporting, and a propensity to 'kinetic activity' (the discharge of precision-guided munitions). It recommended administrative and disciplinary sanctions. The publication of the investigation report is a model of accountability and transparency and sets a benchmark to be followed in other cases. In the opinion of the Special Rapporteur the States implicated in the incidents below are under a duty to release the substance of all investigation reports in a level of detail comparable to that adopted in the specific case identified”.

Self-defence

This level of transparency is rare. The US has argued that its strikes are legal on two grounds: they are legitimate acts of self-defense against an imminent threat, and they are part of an armed conflict against an enemy, al Qaeda, and its ‘associated forces’.

What action the UNHRC intend taking on account of such incidents caused by the United States ‘drone’ program is something the handlers of external affairs of Sri Lanka need to raise as it is this South Asian nation that has faced the brunt of US/UN combined actions in the current session of the UNHRC in Geneva.

But the most interesting observation by UN Rapporteur Ben Emmerson has made in his February 27 report to the UNHRC is Achieving a consensus on the applicable legal principles.

What's most revealing in Emmerson's report is that he notes that(the drone) operations that kill civilians are not necessarily illegal under international law, but states have a duty of transparency where there are credible allegations of non-combatants being harmed.

The following sections from the Emmerson report is for Sri Lanka, which is facing the UNHRC this month, to digest:

(Quote) 70. The Special Rapporteur's interim report to the General Assembly identified a number of legal issues on which there is currently no clear international consensus, or where current practices and interpretations appear to challenge established legal norms. Legal uncertainty in relation to the interpretation and application of the core principles of international law governing the use of deadly force in counter-terrorism operations leaves dangerous latitude for differences of practice by States. This runs counter to the obligation identified in General Assembly resolution A/RES/68/178, paragraph 6(s); fails to provide adequate protection for the right to life; poses a threat to the international legal order; and runs the risk of undermining international peace and security.

71. There is thus an urgent and imperative need to reach a consensus between States on, inter alia, the following issues:

(a) Does the international law principle of self-defense entitle a State to engage in non-consensual lethal counter-terrorism operations on the territory of another State against a non-State armed group that poses a direct and immediate threat of attack even when the armed group concerned has no operational connection to its host State? If so, under what conditions does such a right of self-defence arise? Does such a right arise where the territorial State is judged to be unable or unwilling to prevent the threat from materialising? If so, what are the criteria for determining “unwillingness” or “inability” to act?

(b) Is the international law principle of self-defence confined to situations in which an armed attack has already taken place, or does it entitle a State to carry out preemptive military operations against a non-State armed group on the territory of another State, without the territorial State's consent, where it judges that there is an imminent risk of attack to its own interests? If so, how is imminence to be defined?

(c) Does the international humanitarian law test of intensity of hostilities (which is one of the criteria determining whether a non-international armed conflict exists) require an assessment of the severity and frequency of armed attacks occurring within defined geographical boundaries? In applying the intensity test to a non-State armed group operating transnationally, is it legitimate to aggregate armed attacks occurring in geographically diverse locations in order to determine whether, taken as a whole, they cross the intensity threshold so as to amount to a non-international armed conflict? If it is possible for a State to be engaged in a non-international armed conflict with a non-State armed group operating transnationally, does this imply that a non-international armed conflict can exist which has no finite territorial boundaries?

(d) Does international humanitarian law permit the targeting of persons directly participating in hostilities who are located in a non-belligerent State, and if so, in what circumstances?

(e) Does the pattern and frequency of the armed attacks currently being perpetrated by Al Qaida, and the various affiliate organizations in different parts of the world that claim allegiance to Al Qaida, satisfy (or continue to satisfy) the criteria of organization and intensity required under international humanitarian law to qualify as a state of armed conflict?

(f) Assuming that a non-international armed conflict exists, does the test of “continuous combat function”, as elaborated by the International Committee of the Red Cross (“ICRC”) for determining whether a person is a “member” of an armed group (such that they may be targeted with lethal force at any time) reflect customary international law? If not, what is the correct test?

(g) Does the guidance promulgated by the ICRC for “direct participation in hostilities” reflect customary international law? In particular, does an individual who has participated in hostilities cease to be targetable during a pause in his or her active involvement? Does providing accommodation, food, financing, recruitment or logistical support amount to “direct participation in hostilities” for targeting purposes?

(h) In the context of non-international armed conflict, when (and under what circumstances) does international humanitarian law impose an obligation to capture rather than kill a legitimate military target where this is feasible? (End Quote)

The report identifies 30 attacks between 2006 and 2013 that show sufficient indications of civilian deaths to demand a ‘public explanation of the circumstances and the justification for the use of deadly force’ under international law.

Emmerson analyzed 37 strikes carried out by the US, UK and Israel in Afghanistan, Pakistan, Yemen, Somalia and Gaza, to arrive at a ‘sample’ of strikes that he believes those nations have a legal duty to explain.

Casualties

This report expands on an argument for the legal obligation for states to investigate and account for credible claims of civilian casualties, which Emmerson first laid out in his previous report, presented to the UN General Assembly in October.

The UN High Commissioner for Human Rights Navi Pillay seems to have failed to use the yard stick she uses in the Sri Lankan civilian casualty issue on the United States and UK.

The most recent incident featured in Emmerson’s report is a December 2013 attack that hit a wedding procession near Rada’a in Yemen, killing at least 12. Multiple sources have identified numerous civilian casualties among the dead, including a Human Rights Watch investigation published late February.

Human Rights Watch examined six “unacknowledged” U.S. targeted-killing operations that occurred from December 2009 to April 2013. They included one incident in which cluster munitions released by U.S. Navy cruise missiles killed at least 41 civilians, the group said.

“Two of these attacks were in clear violation of international law – the laws of war – because they struck only civilians or used indiscriminate weapons,” the Human Rights Watch report said. “The other four cases may have violated the laws of war because the individual attacked was not a lawful military target or the attack caused disproportionate civilian harm.”

“In several of these cases, the U.S. also did not take all feasible precautions to minimize harm to civilians, as the laws of war require,” the report said.

The Amnesty International report reviewed 45 reported CIA drone strikes that occurred from January 2012 to August 2013 in Pakistan’s tribal area of North Waziristan, a stronghold of al Qaida and Pakistani and Afghan extremist groups where Pakistani law doesn't apply. The group conducted field research into nine of the strikes, interviewing more than 60 survivors, witnesses, residents and officials.

Some U.S. drone strikes “violated the right to life” – which is protected under international human rights law – of Pakistani civilians “and may constitute extra judicial executions or war crimes,” Amnesty International said.

“The U.S. appears to be exploiting the lawlessness and remote nature of the local region to evade accountability for violations of the right to life,” the group said.

Courtesy: Asian Tribune