International Law: The First Casualty of the Drone War

ABSTRACT. This report utilizes well-established principles of both treaty and customary international law as a measuring stick for attempting to determine the legal and moral legitimacy of the covert U.S. policy of using drones to attack targets in Pakistan. This analysis is unique in that it uses both broad assessments as well as pertinent individual case studies with the purpose of chronicling the details of several drone attacks over a period of 45 months in the interest of legal evaluation. Drawing from a vast collection of reliable press reports, independent human rights testimonies, and the most prominent, mainstream studies, this report is quite possibly the most comprehensive analysis on the topic to date and likely the first of its kind to appear in the wake of the US-Pakistan drone controversy.
For nearly four years, the United States has been using unmanned aerial vehicles, also known as “drones,” to repeatedly bomb targets in Pakistan.[1] The drone strikes, operated primarily by the CIA, are reportedly launched with the intention of killing top al-Qaeda and Taliban leaders and holding the Pakistani government accountable. Since the Obama administration has taken office, the U.S. campaign of drone strikes in Pakistan has markedly intensified, consistent with the trends established in the final eight months President Bush’s second term. Although the bombings of Pakistan fall into a much broader strategic U.S. policy in the region, it is the purpose of this analysis to focus solely on the legal implications and human costs of the drone strikes in Pakistan.
First I will review the existing reports entailing the legal status—combatant or noncombatant—of those killed in U.S. attacks. Secondly, I will provide a brief and basic overview of the laws of war and their immediate applicability regarding the protection of civilians and noncombatants in international armed conflicts in accordance with the Geneva Conventions of 1949, the Additional Protocols of 1977, and customary international law. Third, I will examine several case studies of various U.S. drone attacks in Pakistan in order to determine whether or not international law is being observed by United States. Fourth, I will briefly evaluate the fundamental legal credibility underlying the attacks using both the existing analyses provided by legal scholars and rights groups and well-established principles of law rooted in the Fourth Geneva Convention and the International Covenant on Civil and Political Rights. Fifth, using the available body of documentary evidence compiled by independent journalists, human rights groups, strategic analysts, media reports, and legal experts, as well as taking into consideration the basic tenets of international law in the context of the U.S. attacks, I will juxtapose the substance of U.S. actions with fundamental American legal standards with the purpose of establishing an appropriate technical classification for the United States’ drone policy in Pakistan. Lastly, I will conclude this analysis with a few final remarks addressing unanswered questions while also making some basic recommendations.
I am going to argue the position that the United States is in violation of international law on several counts in regards to its bombings of Pakistan. Drawing on highly relevant and uncontroversial legal precedents established by the International Criminal Court, I will argue that strict adherence to even the most elementary standards of international law would require criminal prosecution of several high-level Bush and Obama administration officials ranging from the state department to the CIA.
Casualty Reports and Assessments
The most cited and controversial report to date on the casualty results of U.S. drone strikes is the April 2009 report published by Pakistan’s leading English daily, The News.[2] The report was authored by Amir Mir who is known by leading American strategic analysts as “a well-regarded Pakistani terrorism expert.”[3] The report, relying on internal Pakistani government sources, alleges that from January 14, 2006 to April 8, 2009, U.S. drone bombings killed 687 civilians and 14 al-Qaeda operatives, amounting to a ratio of nearly 50 civilians killed for every al-Qaeda operative killed, or a 94% civilian death rate. Out of 60 total strikes, only 10 hit any al-Qaeda targets. The sources attributed the failed drone attacks to “faulty intelligence information” which resulted in the “killing [of] hundreds of innocent civilians, including women and children.” It goes on to detail the numbers of deaths, the statuses of the victims, and the dates of specific attacks, all within annual and monthly time frames.
This report has since been cited and endorsed by several relevant and mainstream commentators, despite the fact that it has been largely ignored, or at best, marginalized and down-played, by the mainstream media in the United States. Most notably, in a meeting with Congress this past May, former senior counterinsurgency advisor to the U.S. Army, David Kilcullen, told the U.S. government to “call off the drones” noting that “since 2006, we’ve killed 14 senior Al Qaeda leaders using drone strikes; in the same time period, we’ve killed 700 Pakistani civilians in the same area.” In a New York Times article

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