Topic History:
Our second topic is, if possible, even more controversial. We will consider the allegation that the United States of America has committed war crimes and crimes against humanity by conducting air strikes, also known as drone strikes or targeted killings, that have killed civilians in Pakistan, Afghanistan, Yemen, and other Middle Eastern countries.
After the September 11, 2001 terrorist attack on the United States, President George W. Bush declared a "war on terror" using the “full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice.” President Bush further noted that “[w]e will make no distinction between the terrorists who committed these acts and those who harbor them.”
The United States did not know exactly who their enemy was. It was not immediately clear that it was a country, a plot of land, somewhere identifiable on a map. It was a war against an idea, the first of its kind to be waged in American history.
The unprecedented threat, President Bush and his administration argued, required unprecedented solutions. To that end, they began to use drone strikes—ammunition and missiles launched by remotely piloted aircraft. This system was only being developed in September 2001, when the CIA suddenly called into action. The "Predator," or so the prototype drone was called, was met with a tangle of questions and controversies. The CIA had developed the Predator as a spying platform. “Now the rush was on to turn it into an assassination tool,” one expose reported.
The strikes initially were confined to Pakistan in pursuit of top officials in al-Qaeda, the terrorist group that claimed responsibility for the 9/11 attacks. But the reach of the US's covert actions program soon spread to Yemen, Somalia, Afghanistan, Libya, Iraq, and Syria, under the leadership of both President Bush and President Barack Obama. And these attacks do not only kill their targets—sometimes they also kill civilians.
Critics, in addition to arguing drone strikes are carried out without proper precautions, also caution that it amounts to extra-judicial killings and deprivations of due process. One particularly controversial example was the killing of Anwar al-Aulaqi (also spelled al-Awlaki and al-Awlaqi), a U.S. citizen and suspected al-Qaeda sympathizer and operative. The unsealing of a previously secret legal memo in 2014 shows that the Obama administration, in general, did not think drone strikes amounted to human rights abuses: "We do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal action."
But the Obama administration has also outlined ways to make the targeting killing program more transparent:
“1. Implement measures to reduce the risk of civilian casualties (e.g., train personnel and develop more accurate reconnaissance and weapons systems)
2. Acknowledge U.S. responsibility for civilians killed by strikes and provide payments to civilians injured and families of civilians killed
3. Release an annual report from the Director of National Intelligence on the number of strikes in areas outside of active hostilities, the number of combatant and noncombatant casualties, and the reasons for any discrepancies between noncombatant drone casualty estimates by nongovernmental organizations and the U.S. government.”
In this way, Obama has tried to ensure drone strikes comply with international law, which prohibits the killing of civilians. This article gives an overview of President Obama’s attempts to release statistics on drone strikes, and why some believe his doing so has raised more questions than it has answered.
Summary:
❖ The United States began drone strikes in the aftermath of the 9/11 terrorist attacks on the World Trade Center and the Pentagon
❖ Drone strikes have only increased in frequency and in geographical spread since 2001
❖ President Obama has released statistics and issued executive orders to make the use of drone strikes more transparent
❖ Even so, many critics charge that the use of drone strikes amounts to a violation of international law and human rights, because they often cause the death of innocent civilians
Current Situation
In the above picture, "[a] Pakistani tribesman sifts through the rubble of his house after an attack in January 2006."
The current status of drone strikes in the United States is complicated because there have been trends in seemingly opposite directions: expanding drone strikes with recent controversial efforts at transparency, sealed legal memos only recently being released, the rise of non-governmental organizations (NGOs) tracking drone strikes while the United States has begun disclosing its own estimates.
In July 2016, the Obama administration released, for the first time, "official estimates of the death toll in the secretive drone war," according to the liberal-leaning Mother Jones. The administration said that between 64 and 116 civilians had been killed by airstrikes between 2009 and 2015 in Pakistan, Yemen, and Libya, outside of active war zones.
Many human rights organizations immediately said that President Obama significantly underestimated the civilian cost of drone strikes. The Bureau of Investigative Journalism claims that 424-966 civilians have been killed since 2004 in Pakistan alone. In Pakistan, Yemen, Somalia, and Afghanistan, they claim 642-1727 civilians have been killed.
See this website for a visualization of drone strike casualties since 2004. Keep in mind that its numbers have not been confirmed by the American government.
Although there is a wide disparity between official numbers and NGO estimates of the civilian toll of targeted killings, a majority of Americans support continuing strikes, saying that they protect the country against violent extremists, while a minority of Americans are concerned that the strikes may take innocent lives.
And this problem is not going away. President Donald Trump, elected in 2016, promised during his campaign to "bomb the shit out of ISIS" and implied he would authorize killing terrorists' families to undermine ISIS.
Noting all of the above, and believing that the United States acted with gross disregard for civilian life in conducting targeted killings since 2004 in Pakistan, Yemen, Somalia, Afghanistan, and Libya, among other Middle Eastern and African countries, the ICC Prosecutor convinced the Pre-Trial Chamber of the ICC to issue warrants in January 2018, backed by the strength of the Security Council, to subpoena United States intelligence officers involved in drone strike authorization.
In doing so, the ICC wrote that there is probable cause to believe that the United States violated the Rome Statute in carrying out these attacks. The defendants of this suit were George W. Bush, President from 2001-2009, Barack Obama, President from 2009-2017, Directors of the Central Intelligence Agency (CIA) George J. Tenet, 1997-2004, Porter J. Gross, 2004-2006, Michael Hayden, 2006-2009, Leon Panetta, 2009-2011, David Petraeus, 2011-2012, and John O. Brennan, 2013-2017. The CIA, under the President's control, is the intelligence agency responsible for carrying out national security initiatives in the foreign sphere.
The legal framework to assess these allegations is more complicated here than in the first topic. It may surprise you to discover that "[t]he death of civilians…do not always violate international law." But that is the case, according to the Human Rights Watch:
Civilians are immune from attack, except those individuals “directly participating in the hostilities.” While the phrase “directly participating in hostilities” has various interpretations, it is generally accepted to include not only persons currently engaged in fighting, but also individuals actively planning or directing future military operations. For a specific attack on a military objective to be lawful, it must discriminate between combatants and civilians, and the expected loss of civilian life or property cannot be disproportionate to the anticipated military gain of the attack. Therefore, not all attacks that cause civilian deaths violate the laws of war, only those that target civilians, are indiscriminate or cause disproportionate civilian loss.
The Rome Statute defines war crimes to include “[i]ntentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.” Art. 8(2)(b)(i). It is beyond dispute that the American government never directed drone strikes for the sole purpose of killing civilians, although one could perhaps make the argument that President Trump intended to do exactly that.
So, then, did these defendants unquestionably act in accordance with the Rome Statute? No. The Statute forbids “[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians…which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Art. 8(2)(b)(iv).
Therefore, this topic brings a more subjective cost-benefit analysis to the table. You will have to determine what if, in any, military motivations the United States had in ordering an attack, whether officials were aware it would result in civilian loss of life, and whether the loss of life was grossly disproportionate to the military advantage won. This “proportionality” inquiry is difficult. For example, is a strike that killed 50 civilians while also killing the leader of ISIS disproportionate? What about 50 civilians and 5 lower-level ISIS operatives?
Here are the sections of the Rome Statute under which the defendants are being charged: Articles 7(1)(a), 8(2)(b)(i),(ii),(iv),(v), 25(3)(a-c). You should read these sections (they're a sentence or two each), so you can be aware of what to look for during research.
1. Does the ICC have the power or jurisdiction to take this case? Is there precedent for a case about drone strikes being taken to an international court?
2. Are Presidents and CIA Directors responsible for every drone strike? The U.S. government has a complicated chain of command that spans multiple departments, such as the Department of State, Defense, Homeland Security, and the National Security Council. For example, here is an article describing the structure of the Obama administration’s NSC. Should we take that complicated chain of command into account? How?
3. Should President Obama’s efforts to be more transparent in drone strikes and reduce civilians’ deaths influence our decision? Did he make a “good faith effort” that immunizes him from conviction?
4. What allegations are reliable? How do we distinguish between substantiated and unsubstantiated evidence? Did the alleged instances crimes against humanity and/or war crimes actually take place?
5. If they did, was there a legitimate military objective for the strike, and was “the expected loss of civilian life or property…[]proportionate to the anticipated military gain of the attack”?
6. Does finding prominent world leaders guilty of war crimes for targeted killings set a dangerous precedent? Are there any precedents? Does it hurt the fight against terrorism? If it does, should we take that into account when deciding guilt?
7. If found guilty, what should the penalty imposed by the ICC be? See Rome Statute Article 77.
It may be helpful in your research to narrow the focus to a few specific drone strikes; see the “Further Research” section for a suggestion of which incidents to investigate more carefully.
Bloc Positions:
On the one hand, you might suspect that this would be an unfair case: it seems like the breakdown would be every country except the U.S. against the U.S. More specifically, countries that have been the subject of U.S. drone strikes might be more likely to view them as illegal; a Pakistani court, for example, ruled in 2013 that U.S. drone strikes amount to a "blatant violation of basic human rights." On the other hand, not just the United States has weaponized drones, and the other countries with this capability would likely fear the implications of a guilty verdict because it would signal the ICC's willingness to prosecute them.
Here are some of the countries with known or suspected drone capabilities: United States, United Kingdom, Israel, Iran, China, Nigeria, South Africa, Somalia, Pakistan, and Iraq.
There is a contradiction here: countries that have drones also have been attacked by drones by the U.S. (such as Pakistan). They thus might be torn in two different directions: find the U.S. guilty to avenge what they see as US interference in their country, and find the U.S. innocent to avoid a slippery slope where they might be the next defendant in court.
The bloc positions, therefore, for this topic are not as well-defined as for the first. Perhaps the case will unfold as a more typical U.S.-and-allies versus U.S.-opposition-countries (U.S., UK, France, Germany, etc. vs. Russia, China, Iraq, etc.). But there is no reason why that is necessary. It will be up to you to research your country’s history with conducting drone strikes and being subject to drone strikes, and come to a reasoned conclusion regarding their legality.
Further Research:
Start with research on the defendants of the case, including Presidents Bush and Obama, and the CIA directors, especially Brennan and Panetta.
Here are a few links to read that are instructive about the CIA Directors' views:
1. Director Brennan defends the Obama Administration's drone strike policies
2. Director Panetta defends drone strikes
In the last link, Panetta said he ordered a strike even though he knew it would likely the target's wife, a civilian whose only connection to terrorism was her husband. Evaluate this using the framework we established in the "Current Situation" section.
Here is a similar story: Panetta admitted he approved a drone strike despite knowledge it would kill civilians, including children.
Is this a pattern with Panetta? Was the civilian casualty count disproportionate to the military objective at stake in these drone strikes?
To narrow the scope of our deliberations, it might be helpful to look at a few specific drone strikes in the last 15 years. These are the “worst” strikes, in terms of the number of civilians killed or their shock value. Can or should we convict U.S. officials based on the evidence of a handful of botched strikes?
1. An attack on 24 October 2012, in which a 67-year-old was killed when picking okra with her grandchildren. Her son and grandchildren later testified before the United States Congress.
2. At attack in 2011 that killed US citizen Anwar al-Aulaqi, a known terrorist who had incited violence against the West. Other U.S. citizens have been killed as well, mainly, however, by accident. Is it any different when a country kills its own civilians as opposed to when it kills other country’s innocent civilians?
3. An alleged incident in October 2006 in which 69 children were killed while attending school.
Generally, this source–written by the Human Rights Watch–gives good information on international law regarding strikes.
And for more drone strikes that have allegedly killed civilians, go to an website entitled "Out of Mind: A visualization of drone strikes in Pakistan," and mouse over the lines with a lot of red (that is, the strikes that allegedly killed many civilians).
