Drone Strikes Linked to More Civilian Deaths

Despite claims that drone strikes in Pakistan have been effective and efficient, new reports are set to come out later this week that link the drone campaign with high civilian casualty rates, raising questions regarding the United State’s transparency in the ongoing drone war.   Continue reading

Ben Emmerson talks drones with Lawfare

UN Special Rapportuer for Human Rights and Counter-Terrorism Ben Emmerson spoke with Lawfare’s Benjamin Wittes and Ritika Singh about his study of US drone policy, focused primarily on our operations in Pakistan (podcast available from Lawfare: see episode 31). I have expressed some skepticism of his objectivity in past posts (here and here), but also some optimism (here). Having just listened to Emmerson’s 40 minute discussion, I now have a great deal of respect for the man’s commitment to objectivity.

In the discussion Emmerson admits to having initially approached the subject from not only a human rights perspective, but also with the preconception that the US was not at war at all. His views on these issues have become both tempered by his investigation and discussions with officials in Pakistan and the US, and also quite nuanced. Once example of this can be found in his explanation of his comments earlier this year in which he is broadly quoted as saying that Pakistan has not consented to US drones attacks on its soil. His elaboration of how he came to this position is quite interesting, and well worth listening to (it starts at minute 23).

Far from simply accepting the assertions of Pakistan’s civilan officials that they have repeatedly protested against drone strikes, Emmerson starts his analysis from the passage of a law restricting consent to the use of drones by officials of the Pakistani government. Since the US and the international community are interested in promoting democracy and the rule of law, Emmerson argues, such a restriction, passed by the elected representatives of the Pakistani people should set the basis of consent. To allow back-room deals to trump a duly enacted law would be anathema to the promotion of democracy.

Emmerson then preempted the ever-realist Wittes’ rebuttal that the democratic government of Pakistan is not the effective government with regard to matters of national security and foreign affairs by pointing out that while Pakistan is clearly a flawed democracy, it is also by the same token a fragile democracy that should be nurtured rather than subverted in the name of expedience.

Another point made by Emmerson which displays his objectivity and thoughtfulness relates to the perception that drones could unduly high civilian casualties. Emmerson cited  UNAMA statistics kept over the last decade on civilian casualties from various kinds of ordinance. And while that data clearly shows that drone attacks in Afghanistan tend to cause substantially fewer civilian casualties than attacks by fixed-wing air craft, the perception of the the majority of Afghans is the exact opposite: that drones are prone to killing innocents. He therefore wonders (without concluding) whether drone warfare is in the long run more harmful than other means of achieving similar ends.

Other points warrant mention as well, but in all, I am very impressed with Ben Emmersion’s intellectual honesty and objectivity. I now truly look forward to his report, due to be produced in September.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Update on UN Drone Investigator

After a recent secret visit to Pakistan, Ben Emmerson, the U.N. special rapporteur on human rights and counter-terrorism (see my previous posts here and here), released a statement that the Pakistani government “emphasized its consistently-stated position that drone strikes on its territory are counter-productive, contrary to international law, a violation of Pakistan’s sovereignty and territorial integrity, and that they should cease immediately.” 

The US has previously relied on the contention that Pakistan consented to these strikes, and it has a lot of support to back it up. In fact, diplomatic cables released by Wikileaks confirm that Pakistani leaders did not oppose the use of drones on their soil, and even encouraged it. It is true that Pakistani officials have made public statements that the attacks are not welcome and should stop. But as pointed out by Ben Farley in his thoughtful piece on the D.C. Exile blog, it is not always clear from public sources when consent has been given or revoked, as when then-Yemeni President Ali Abdullah Saleh consented to US drone strikes on its territory, but under the pretense that they were the actions of his own air force. No one who witnessed such a strike would therefore know that it was not a breach of Yemeni sovereignty.

Emmerson, however, has apparently adopted a black and white view of the issue after his meetings with Pakistani officials, claiming that “[t]he position of the Government of Pakistan is quite clear. It does not consent to the use of drones by the United States on its territory.” But it is not clear.

Ben Farley’s conclusion is a more thorough and eloquent presentation of my own thoughts on the issue than I could hope to achieve:

Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan ischoosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.

 

Paul Taylor, Senior Research Fellow
Center for Policy & Research

UN Drone Investigator Endorses Brennan for DCI

In a previous post, I suggested that the UN was beginning what was likely a highly biassed investigation of drone strikes by the U.S. and its allies. But I may have spoken too soon.

The British lawyer heading up the investigation, Ben Emmerson now appears to have endorsed John Brennan’s role in the U.S.’s drone program, as well as his nomination for Director of Central Intelligence.

In an interview with Danger Room, Emmerson said that

“By putting Brennan in direct control of the CIA’s policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control. It’s right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program.”

Emmerson is convinced that Brennan has tried to ensure that the program properly balances the interests of the law, counterterrorism, and the agencies implementing it. He also claims that Brennan has upset some CIA hawks by holding them back and enforcing presidential authority over the agency.

Emmerson also believes that Brennan brings consistency and intelligibility to the program’s decision-making:

“Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program,” he explains. “I’m not suggesting that I agree with that analysis. That’s not a matter for me, it’s a matter for states, and there’s a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency’s hawks to treat this program in a manner that is ultimately unaccountable and secret.”

“The decision to put Brennan as director of the CIA is a decision to stamp presidential authority over the agency, and to bring it firmly under control.”

Mr. Emmerson’s focus on the internal processes and institutions related to the drone program is very promising, since it means that his investigation will less likely turn into a litany of mistakes made in individual strikes or dubious statistics on civilian deaths. It may even suggest that Mr. Emmerson’s findings could include useful advice on procedural protections against such dangers as mistaken targeting, bad decisions regarding proportionality, and lack of accountability for abuses.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

UN to Investigate Drone Strikes

The United Nations has appointed a special rapporteur, Ben Emmerson, to investigate drone strikes in Afghanistan, Pakistan, Palestine, Yemen, Somalia, and the Sahel region of Africa.

The investigation was formally launched on Thursday in response to requests from Russia, China and Pakistan, and will look into drone strikes by the US, UK, and Israel.

Emmerson will select a “representative sample” of about 20 or 30 strikes to assess the extent of any civilian casualties, the identity of militants targeted and the legality of strikes. It beggars the imagination, however, that 20-30 strikes by at least 4 government agencies in at least 6 countries could be representative of much of anything, except possibly sample bias.

Emmerson has previously suggested that some drone attacks could possibly constitute war crimes. While this is certainly true, it could be said of any sort of attack. The fact that it is conducted by drone should make little if any difference to the calculus.

Emmerson also told the Guardian: “One of the fundamental questions is whether aerial targeting using drones is an appropriate method of conflict … where the individuals are embedded in a local community.” But again, the particular platform chosen to conduct the attack has little bearing on its legality or morality. It is how the platform is used that matters. The appropriate question is therefore not whether drones should be used, but whether any aerial strikes should be.

It is clearly important that the use of armed force by any state be carefully studied and it’s justifications questioned. This may be especially true when it is the world’s most powerful state that is conducting the operations. However, like many of the activities of the United Nations, it will remain to be seen whether the resulting report is an honest assessment of a difficult question, or is a purely political swipe by rivals.

Paul Taylor, Senior Research Fellow

Center for Policy & Research