Are US drone strikes in Pakistan a war crime?

[S.A.M.]

A poll conducted by Gallup Pakistan for Al-Jazeera in July last year found that only 9 percent of Pakistanis supported the drone strikes. The poll was based on face-to-face interviews with more than 2,500 Pakistanis throughout the country and had a margin of error of plus or minus 2 to 3 percentage points.

More information about the CIA-run program could help offset opposition in Pakistan and also assuage concerns that the strikes violate international law.

"The U.S. government doesn't even suggest what the proportion of innocent people to legitimate targets is," said Michael Walzer, a renowned American scholar on the ethics of warfare. "It's a moral mistake, but it's a PR mistake as well."

Several groups in the U.S. have attempted to calculate what percentage of the more than 700 people killed in the drone strikes in Pakistan has been civilians. Without input from Washington, the results have been all over the map, ranging from 98 percent to 10 percent.

Residents interviewed by The Associated Press in Pakistan's North Waziristan tribal area, the site of a majority of the strikes since the program began in 2004, said they believe almost all of the victims are innocent civilians - although it is possible their comments are influenced by fear of the Taliban.

"I have yet to know a terrorist killed in these drone attacks," said Safirullah Khan, a 32 year-old teacher in Mir Ali town. "If someone knows of any, they should tell me and let the world know also."

U.S. officials argue privately that civilian deaths are much lower than are often reported in the press - a tactic that critics say does little to counter the Taliban's claims.

The U.S. silence, which supporters say is driven by operational concerns and the politically sensitive nature of the strikes for Pakistan, has raised questions about whether the program conforms with international law principles governing who can be targeted and what level of collateral damage can be justified.

"I think the main concern for those of us looking at it from the outside is we don't know what the criteria are for the individual decision of whether to pull the trigger or not," said Paul Pillar, a former senior counterterrorism official at the CIA. "Each particular decision is essentially rendering a death sentence on someone and usually more than one someone when you get into the collateral damage."

Several different groups, including the U.N. and the American Civil Liberties Union, have pressed the U.S. to reveal who it is killing in the strikes but have so far been rebuffed.

question: if the Pakistani government does not give official sanction to the US [and they cannot, because under current Pakistani law, they would be guilty of murder] are the unofficial drone strikes, war crimes?

Under Pakistani law, even if the Pak government gives permission, both the government and the Americans would be guilty of murder.

What is the position of international law?

http://www.cbsnews.com/stories/2010/01/29/ap/asia/main6154449.shtml?tag=untagged

 

[PieAreSquared]

hmmm any different than ....

both are unmanned

 

[James R]

These strikes may or may not be illegal under international law. Presumably the US would argue that they constitute legitimate self-defence.

War crimes are a different matter. A war crime is defined as a violations of the laws or customs of war. War crimes include "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity".

These strikes do not seem to fit the usual definitions of war crimes.

 

[S.A.M.]

Apparently war crimes also cover extra-judicial executions, which these strikes fall under - at least based on the fact that Sri Lanka is being accused of war crimes for extra judicial killings

US drone strikes against suspected terrorists in Afghanistan and Pakistan could be breaking international laws against summary executions, the UN's top investigator of such crimes said.

"The problem with the United States is that it is making an increased use of drones/Predators (which are) particularly prominently used now in relation to Pakistan and Afghanistan," UN Special Rapporteur on Extrajudicial Executions Philip Alston told a press conference.

"My concern is that drones/Predators are being operated in a framework which may well violate international humanitarian law and international human rights law," he said.

US strikes with remote-controlled aircraft against Al-Qaeda and Taliban targets in Afghanistan and northwestern Pakistan have often resulted in civilian deaths and drawn bitter criticism from local populations.

"The onus is really on the United States government to reveal more about the ways in which it makes sure that arbitrary extrajudicial executions aren't in fact being carried out through the use of these weapons," he added.

Alston said he presented a report on the matter to the UN General Assembly.

http://www.google.com/hostednews/afp/article/ALeqM5iUaMrNjdCeSmf_4__CYrSIe26SBg

 

[Pandaemoni]

For the sake of argument, let's go with the position of "yes." Who is going to arrest anyone? Who would you propose try them? Given your own bias against Americans, do you think they will receive a fair trial?

In any event, in short, war is not murder as far as courts are concerned, unless you can demonstrate that the deaths involved were used by those who affirmatively knew the strike served no legitimate military aim. (Or, in some cases where the person involved has a duty to investigate the legitimacy of the target but fails to do so, where such an investigation would likely have revealed that it was not a legitimate military target.)

Your claim that the Pakistani government cannot authorize a strike because it would be murder is difficult to believe (and if true suggests that their laws are flawed and need to be clarified to be more sensible) and not a correct interpretation of international law, even if it were correct under Pakistani law. Governments can, for example, allow police raids, even if casualties are expected from the raid, and even if its known that some of those casualties will be innocents. Looking at the relevant statutes of the nation involved is the beginning of the legal analysis, not the end. Of course the state will retain the right to use force in situations where it believes overall public safety demands it. Maybe the wrong people are accidentally killed or killed as a by product of a strike against a legitimate military target, and that is a tragedy, but the law will either recognize the "defense of the public" exception, or the law is an ass and should be ignored anyway.

On the international side, no treaty forbids outright incurring civilian casualties. The U.S. to limit civilian bombing casualties in WWII and found "precision bombing" was impossible in the long term, and detrimental to the war effort.

If it's not treaty law in question, then it has to be customary international law we are looking at. The "custom" in war has always been that there will be civilian casualties from bombing campaigns, and no nation has established a contrary custom. Even if they had the U.S. has not accepted that change in customary law, and so is not bound by it. That's just how customary international law works.

The only claim I can think of that might be raised is "waging aggressive war" which has not been applied wince Nuremberg (largely because it has no content, what with all wars being aggressive).

By allowing the killing terrorists, the government believes it makes the world (including Pakistan) safer in the long run. You may think they are wrong and that is perfectly understandable, but your opinion that they are wrong does not negate the good faith belief of those involved, and it's that belief that makes such a"defense of others" claim tenable as a criminal matter.

If you can *prove* that anyone involved thought that there was no such defensive value in the strikes, that would be different, but that is a tough one to show for any one defendant, let alone everyone I suspect you'd like to round up.

Absent such a proof, I don't see that anyone could realistically be convicted of a crime in this case.

 

[S.A.M.]

Thats okay, as long as the UN General Assembly says its a war crime, I will be happy to have that down in history, for the sake of recognition of the victims.

 

[James R]

Apparently war crimes also cover extra-judicial executions, which these strikes fall under...

You own link says differently:

"The onus is really on the United States government to reveal more about the ways in which it makes sure that arbitrary extrajudicial executions aren't in fact being carried out..."

 

[S.A.M.]

I understand that extrajudicial killings such as that which led to the death of 140 civilians quite recently are war crimes. This makes me bigoted, of course since I am incapable of justifying them.

Much as I understand that the extrajudicial killings of LTTE members are war crimes

 

[James R]

Yes, extrajudicial killings that are not part of a "war" can be war crimes.

I'm not sure how your understanding of that makes you a bigot. Never mind.

 

[S.A.M.]

Although this is a thread on drone strikes, I think this operation, carried out by US Special Forces, also constitutes extra judicial killings and should be investigated as a war crime

In Afghanistan, hundreds have taken to the streets of Kabul and elsewhere to protest the US killing of civilians. The incident that has sparked the most outrage took place in eastern Kunar on December 27th, when ten Afghans, eight of them schoolchildren, were killed. According to the Times of London, US-led troops dragged innocent children from their beds and shot them during a nighttime raid. Afghan government investigators said the eight students were aged from eleven to seventeen, all but one of them from the same family.

It seems however that no one in authority is interested in even talking about it

http://www.democracynow.org/2010/1/6/us_led_forces_accused_of_executing

 

[superstring01]

Are US drone strikes in Pakistan a war crime?

No.

~String

 

[Pandaemoni]

Thats okay, as long as the UN General Assembly says its a war crime, I will be happy to have that down in history, for the sake of recognition of the victims.

The UN General Assembly saying something is a war crime is meaningless. The GA is likely as not to vote based on passions and not based on either law or facts (indeed, they almost certainly won't have detail facts, unless the Security Council gets a report and shares it with them, which the SC won't).

It's kind of a shame, from the standpoint of what the U.N. was supposed to be. That the GA is so utterly powerless is almost an international joke. No one would even consider giving them any real power, though, other than the power merely to debate, because nobody trusts them to wield real power well. It would be like giving firecrackers and matches to an 8 year old.

The GA calling something a war crime has about as much force and validity as the GA naming the next American Idol.

 

[S.A.M.]

The UN General Assembly saying something is a war crime is meaningless. The GA is likely as not to vote based on passions and not based on either law or facts (indeed, they almost certainly won't have detail facts, unless the Security Council gets a report and shares it with them, which the SC won't).

It's kind of a shame, from the standpoint of what the U.N. was supposed to be. That the GA is so utterly powerless is almost an international joke. No one would even consider giving them any real power, though, other than the power merely to debate, because nobody trusts them to wield real power well. It would be like giving firecrackers and matches to an 8 year old.

The GA calling something a war crime has about as much force and validity as the GA naming the next American Idol.

Perhaps, perhaps not. But the UNGA voting on it leaves the door open for the ICJ. Yes, I know that the US thumbs a nose at international law, but once again, like the ICJ advisory on the separation wall, it is an official legal document with validity for those who care about these things. The good thing about the UNGA is that the veto is irrelevant, so the majority can have a voice.

The UNGA proposal is also opening up an internal debate [about time]

The Obama administration is ramping up its use of drone unmanned aircraft to execute targeted killings in Afghanistan and Pakistan, and perhaps in other locations - and, in the process, killing civilians along with insurgents, and risking the compromise of US moral imperatives and foreign policy goals.

That's the view of a leading civil rights organization, the American Civil Liberties Union (ACLU), which has filed a request under the Freedom of Information Act (FOIA), calling on the president to lift the curtain of secrecy and level with the American people

...Investigative reporter Jane Mayer of The New Yorker magazine has revealed that the number of US drone strikes in Pakistan has risen dramatically under President Obama. During his first 9.5 months in office, Obama authorized at least 41 CIA missile strikes in Pakistan, a rate of approximately one bombing a week. President Bush sanctioned approximately the same number of attacks in his final three years in office.

The attacks have killed between 326 and 538 people, according to Mayer. She wrote, "there is no longer any doubt that targeted killing has become official US policy."

http://www.truthout.org/obama-administrations-use-drones-responsible-increase-civilian-deaths56370

There is also the possibility of stealth war being expanded into other countries

In a related development, military observers have revealed - and their revelations have been confirmed by the US military - that a new, "stealthy" US drone, nicknamed "The Beast," is operating out of Kandahar, Afghanistan.

But they question what it's doing there. One military web site wrote, "Since the Taliban do not have radar, why deploy an expensive, stealthy drone when conventional models like the Predator and Reaper work so well? And what's the point of having a high-level, strategic craft in that theater?"

It says the speculation is that The Beast may be carrying out missions outside of Afghanistan, with Iran and Pakistan both being possible candidates.

Americans are out of control

 

[pjdude1219]

the only way i could see it being a war crime is if the civilians were the targets and any actual enemies killed were accidental.

 

[spidergoat]

US Code:

(D) Murder.— The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.​

Which seems to be S.A.M.'s definition. But, it is modified by this:

(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.— The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to—
(A) collateral damage; or
(B) death, damage, or injury incident to a lawful attack.​

http://www.law.cornell.edu/uscode/18/usc_sec_18_00002441----000-.html

So, it would seem that the death of non-combatants itself doesn't necessarily constitute a war crime as long as the initial attack was lawful.

 

[S.A.M.]

What does US law say about allowing foreign agents to use weapons of mass destruction against Americans?

 

[spidergoat]

A drone missile isn't a WMD.

 

[superstring01]

What does US law say about allowing foreign agents to use weapons of mass destruction against Americans?

You started the thread, so don't ask other people to dig for information to support your belief system. If you don't know, then don't bother posting.

~String

 

[Tiassa]

Notes Around

You started the thread, so don't ask other people to dig for information to support your belief system. If you don't know, then don't bother posting.

In truth, String, I would ask you to read the statement again—carefully—and sweep for some subtle sarcasm. I would assert that part of S.A.M.'s point is that the answer is pretty obvious.

• • •​

A drone missile isn't a WMD.

And why not? As Bruce Schneier points out, American law would disagree with you.

• • •​

What does US law say about allowing foreign agents to use weapons of mass destruction against Americans?

I think the underlying issue there is who decides what is legal or not.

I cannot envision any circumstance in which our laws or enforcers would decide that a WMD strike against Americans, to borrow a phrase, "was lawful".

Remember that by our modern definitions, the heroes of our American Revolution were terrorists.
____________________

Notes:

Schneier, Bruce. "Definition of 'Weapon of Mass Destruction'". Schneier on Security. April 6, 2009. Schneier.com. February 11, 2010. http://www.schneier.com/blog/archives/2009/04/definition_of_w.html

 

[Pandaemoni]

Perhaps, perhaps not. But the UNGA voting on it leaves the door open for the ICJ. Yes, I know that the US thumbs a nose at international law, but once again, like the ICJ advisory on the separation wall, it is an official legal document with validity for those who care about these things. The good thing about the UNGA is that the veto is irrelevant, so the majority can have a voice.

Yes, and as we all know, the majority is always right, especially when it comes to ruling on matters of law with limited facts available, and no process for anyone to mount any defense. That's *especially* right (as long as it reaches the result you want).