UN Rapporteur questions legality of targetted killings

The UN Special Rapporteur on on extrajudicial, summary or arbitrary executions, Philip Alston, has produced a detailed study of the implications of the increasingly common policy of extrajudicial 'targetted' killings, particularly in relation to drone attacks in Pakistan.
Alston's last major report was on the US failure to protect human rights in Afghanistan and Iraq - or even, for that matter, in US gaols. You can read my summary of that June 2009 report here.
Defined as "the intentional, pre-meditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator", the US has used drones for targetted killings on an increasingly wide scale in recent years, while other countries have used less spectacular, but equally lethal methods.
The result, says Alston, has been "a highly problematic blurring and expansion of the boundaries of the applicable legal frameworks – human rights law, the laws of war, and the law applicable to the use of inter-state force. Even where the laws of war are clearly applicable, there has been a tendency to expand who may permissibly be targeted and under what conditions."
He adds that the states concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations.
In addition, says Alston, and most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral consequences. "The result has been the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum."
Alston is not solely concerned with US drone attacks. He gives other examples, including the killing of rebel Chechen warlord Omar ibn al Khattab in April 2002 by Russian armed forces, the November 2002 killed of Ali Qaed Senyan al-Harithi and five others in Yemen in a CIA Predator strike, killings in Sri Lanka between 2005-2008 by both the Tamil Tigers and government forces and the January 2010 operation to kill Hamas leader Mahmoud al-Mahbouh in Dubai, allegedly by Mossad agents.
The report notes, for example, that Israel has developed specific legal arguments to justify its targetted killing of Palestinians. One human rights group has revealed that between 2002-2008 at least 387 Palestinians were killed as a result of targetted killings by Israeli forces. Of these, 234 were the targets, while the remainder were 'collateral' casualties. It is hardly surprising that Israeli leaders should consider it 'reasonable' to send armed commandos against the Gaza flotilla and to allow them to open fire, when its rules governing such actions are so lax.
Alston concludes that states should publicly identify the laws they use to justify targetted killings and also why killing is better than capture. They should make public the number of civilians killed in targetted killing operations and adhere to a range of measures aimed at ensuring mistakes are investigated and that all measures to prevent them are in place.

UN special rapporteur on military crimes

Last week the Human Rights Council of the United Nations published a report by Philip Alston, its special rapporteur on extrajudicial, summary or arbitrary executions. Alston’s subject was a mission he undertook to the United States earlier this year.

As with the Amnesty International report mentioned below, the report makes harrowing reading. Leaving aside Alston’s comments on the judicial system within the United States and at Guantanamo Bay, he takes the military and judicial authorities in America to task for their failures to protect human rights in Afghanistan or Iraq.

“It is noteworthy,” says Alston, “that ‘command responsibility,’ a basis for criminal liability recognized since the trials after World War II, is absent both from the Uniform Code of Military Justice (UCMJ) and the War Crimes Act. It appears that no U.S. officer above the rank of major has ever been prosecuted for the wrongful actions of the personnel under his or her command. Instead, in some instances, commanders have exercised their discretion to lessen the punishment of subordinates for wrongful conduct that resulted in a custodial death.”

Alston says there has been a “zone of de facto impunity” for private contractors and civilian intelligence agents operating in Iraq and Afghanistan, not through a lack of law, but through an unwillingness of prosecutors to prosecute. He adds: “Prosecutors have also failed, even years after alleged wrongful deaths, to disclose the status of their investigations or the bases for decisions not to prosecute. One well-informed source succinctly described the situation: “The DOJ has been AWOL in response to these incidents.” “

He gives as an example the August 2002 shooting to death of Afghan national Mohammad Sayari. The army investigation into Sayari’s death recommended charges including conspiracy and murder against four members of a Special Forces unit. In fact, the commanding officer dropped all charges and issued only a written reprimand of a captain who had ordered his subordinates to destroy evidence.

The best way to end these abuses, says Alston, is to create a commission of inquiry tasked with carrying out independent, systematic and sustained investigation of policies and practices that lead to deaths and other abuses. He also recommends the appointment of a ‘Director of Military Prosecutions’ who would be independent of the chain of command.

The final section of Alston’s report deals with the legal basis for ‘targeted killings’ – in particular the use of missiles fired from drones that often kill innocent civilians.

Alston says he has asked on several occasions for details of the legal basis for these attacks. He says the US government has been evasive in its answer, telling him the answer lies outside his remit. The best he can ascertain is the fact that in September 2001 President Bush signed a ‘presidential finding’ pursuant to the authority of which the CIA developed the concept of “high-value targets” for whom “kill, capture or detain” orders could be issued in consultation with lawyers in DOJ, CIA, and the administration.

However, that leaves many questions, not least on whether or not it is legal to carry out such attacks in a country such as Pakistan with which the USA is not at war.

Alston’s report makes depressing reading. It shows that for all the talk about freedom and democracy, the US pays little heed to these values in the way it deals with the crimes and errors of an admitted tiny minority.