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International Law: The First Casualty of the Drone War
A comprehensive legal analysis of U.S. drone strikes in Pakistan

December 14, 2009 - 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...


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International Law: The First Casualty of the Drone War
A comprehensive legal analysis of U.S. drone strikes in Pakistan

By Max Kantar

December 14, 2009

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[4] just weeks later, Kilcullen co-authored an editorial with Andrew Exum—a Fellow at the Center for a New American Security and a former Army officer who served in both Iraq and Afghanistan—in which they cited the casualty ratio and figures from The News' April 2009 report as evidence of the lack of precision in the drone policy.[5]
The Brookings Institution published an analysis of the U.S. drone policy in Pakistan last July.[6] The analysis, written by Senior Fellow, Daniel Byman, concluded that despite the difficulty in determining exact numbers of civilian casualties, it was likely that "more than 600 civilians" have been killed by U.S. attacks at the time of writing. "That number suggests," the report continued, "that for every militant killed, 10 or so civilians also died." This assessment is highly significant for multiple reasons. The centrist Brookings Institution is arguably the most powerful and influential think tank in the United States, as noted by the authoritative Think Tank Index magazine. Brookings also routinely garners by far the most media citations annually.[7] To say the least, it is quite noteworthy that the most mainstream and establishment think tank in the United States has gone on record saying that 90% of those killed in U.S. drone attacks in Pakistan have been innocent civilians.
Two of America's leading counterterrorism experts, Peter Bergen and Katherine Tiedemann, are the authors of the most recent analysis of casualties resulting from U.S. drone strikes.[8] In their analysis, Bergen and Tiedemann attempt to calculate the numbers of people killed by U.S. drone strikes from January 2006 to October 19, 2009. For documentation, the authors rely on "accounts from reliable media organizations with substantial reporting capabilities in Pakistan."[9] Bergen and Tiedemann ultimately conclude that between 757-1,012 people have been killed by U.S. drone attacks in Pakistan, of which 252-316 (33-31%) are thought to have been civilians. The Bergen-Tiedemann analysis, while ambitious and certainly of some limited value, does in fact contain multiple, glaring errors. The report cites two drone strikes (January and October) for the year 2006 and concludes that no known civilians were killed in either attack. For the January attack, the authors claim that 18 al-Qaeda/Taliban militants were killed by the drone strike and cite a CNN report to justify their conclusions.[10] However, the CNN report cited by the authors is dated July 29, 2008 and explicitly states that the respective al-Qaeda operative—whom the article is about—was not killed in 2006 (despite inaccurate reports at the time) but rather is thought to have been killed over two years later in 2008.[11] While the July 2008 CNN report cited by Bergen and Tiedemann in fact makes no mention of civilian deaths nor does it provide a casualty total for the January 2006 attack, it has long since been conceded that each of the 18 killed in the January 2006 strike have been identified as civilians and no al-Qaeda operatives were among the dead.[12]
In regards to the October 2006 strike in Bajaur province, the only citation provided by the authors is either inaccessible or nonexistent; however, it's irrelevant because the Pakistani newspaper, DAWN, covered the strike in detail at the time and it subsequently contradicts the authors' assertions that the 80+ people killed were militants.[13] When the Bergen-Tiedemann findings are adjusted to correct their mistakes for casualties in 2006, the civilian death toll becomes 352-416 or 46-41% (respectively) of the total body count.
Furthermore, there appear to be significant gaps in the authors' calculations of the range of civilians likely to have been killed in drone strikes launched in the year 2009. For example, in appendix 1, each drone strike documented details the number of people killed for each of the following groups: Al Qaeda/Taliban leaders, Al-Qaeda/Taliban (lower-level militants), and "others" which includes civilians and often times, the total number killed in the particular attack. In the list of strikes and casualties for the year of 2009, the total number of "others" exceeds considerably the range of civilian deaths cited by the authors for the same time period (see appendix 2) even when the total of the "others" is derived after subtracting the corresponding tallies of militants and militant leaders (when the distinction is made). This suggests that the authors are willing to, at times, assume that unconfirmed, or rather, unidentified victims[14] may be included in the possible range of militants killed but not in the corresponding civilian totality. These assumptions undermine the validity of Bergen and Tiedemann's calculations for the year 2009 (of militant-civilian ratios) and subsequently suggest that the number of civilian casualties in 2009 may be significantly higher than conveyed by the numbers produced by Bergen and Tiedemann. This problem is compounded by the fact that of the 43 drone strikes launched in 2009 (up to October 19) in 12 cases, the number of people killed, as well as the legal status of the victims, was "unknown"—due to no fault of the authors—and therefore could not be factored into the ratio calculations at all.
For the years 2007 and 2008, the authors' findings, classifications, and citations appear to be consistent with the available documentary record. The rate of "unknown" casualties is also much lower for these periods. It is worth noting that for 2008, according to the Bergen-Tiedemann analysis, nearly 60% of the casualties were found to have likely been civilians.
 Overall, the Bergen-Tiedemann analysis—especially when adjusted for its demonstrable factual errors for drone strikes in 2006—reveals that a very large number of those killed by U.S. drone strikes are in fact civilian noncombatants (between 41-46%). Moreover, when one considers the aforementioned gaps in the Bergen-Tiedemann findings as well as the ambiguity and obscurity entailed in a considerable number of media reports regarding the legal status of the victims, it seems reasonable to conclude that the civilian death toll may indeed be considerably higher, as suggested by the other analyses cited here. Either way, it is apparent that civilians are being killed a rate close to that of suspected low-level militants, if not significantly higher.
In addition, it is important to note that many Pakistanis have since been killed by drone strikes in the months following the publication of both the Brookings analysis and the Bergen-Tiedemann casualty report. Many more have been killed—likely well over two hundred—in the seven months that have passed since the Mir report was published in The News.
Due to both the covert nature of the U.S. attacks as well as the difficulty of verifying testimonies, events, and reports from Pakistan's often tumultuous tribal regions, it is virtually impossible to confirm or establish exact casualty numbers of militants and civilians. Many of the media reports cited in the Bergen-Tiedemann analysis, for example, are problematic due to the fact that reported casualty numbers and legal statuses of the victims are quite often derived solely from the statements of government officials who, as Bergen and Tiedemann openly concede, are more than likely to make sweeping claims that only militants, and no civilians, were killed in any given strike.[15] Yet in spite of these difficulties, observers have every reason to suspect and reasonably conclude that, as all of the aforementioned reports suggest, civilians are being killed a rate close to that of suspected low-level militants, if not at a rate that greatly exceeds the numbers of suspected militants and leaders killed. Furthermore, it is a matter of zero controversy that the intended targets—high-level leaders of al-Qaeda/Taliban—are rarely killed; of the roughly 1,000 people killed by U.S. drone strikes in Pakistan, only about twenty were leaders of militant organizations.
The U.S. government essentially has a policy of not speaking publicly about the drone attacks in Pakistan, except of course, when on extremely rare occasions, they hit their "high value" targets. Officials do routinely claim though, that the attacks are "very precise and [are] very limited in terms of collateral damage."[16] However when asked for evidence to back up their claims—perhaps just a list of civilian casualties to prove their assertions—officials always refuse. One of the leading investigative journalists in the U.S., Gareth Porter, writes that the government's "refusal to share...even the most basic data on the bombing attacks...suggests that managers of the drone attacks programs have been using the total secrecy surrounding the program to hide abuses and high civilian casualties."[17] Indeed, if the attacks are in fact minimizing civilian casualties, why wouldn't the government produce evidence to set the record straight? Surely releasing such information is not a matter of security; the government regularly brags about the fifteen or so al-Qaeda leaders they have killed. The truth is, of course, that by all informed and independent accounts, the drone attacks are killing a very significant number of innocent and defenseless civilians. Until the government—or anyone else for that matter—provides evidence to contradict the existing documentary record, interested parties will have to reject unqualified, unsubstantiated, and self-serving claims that the U.S. attacks are minimizing civilian killings.
International Law
In the aftermath of the Second World War, the international community considerably expanded on the system of international humanitarian law specifically applicable to states, largely—though not exclusively—with the purpose of officially criminalizing the wartime actions and practices of the Nazis. The primary achievement of these efforts has been the establishment of the Geneva Conventions of 1949, which serve as the bedrock of international humanitarian law. In the decades following the war, the international community continued to expand on and codify the laws of war and the basic inalienable rights of all peoples. In 1977 two amendment protocols were added to the Geneva Conventions of 1949, known as Additional Protocol I and II, respectively.[18] Just over a decade prior to these amendments, the International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly and was enshrined into the system of international law in March of 1976.[19]
The Additional Protocol I to the 1949 Geneva Conventions relates specifically to the "Protection of Victims of International Armed Conflicts" and is widely understood to represent customary international law. It has been a key document—perhaps the key document—in the International Criminal Tribunal prosecutions of war criminals in regards to conflicts in Sierra Leone, the Former Yugoslavia, and The Democratic Republic of Congo.
It should be noted that while the United States is a signatory to the Additional Protocols of 1977 it has not yet acted to ratify them. With a handful of exceptions aside, virtually the entire world—168 states—has ratified the Protocols, including every European state. Despite having actively been involved in drafting the Protocols along with every other major world power, the U.S. refused, and presumably continues to refuse ratification on the basis that, Protocol I in particular, "legitimize[s] groups involved in wars of national liberation,"[20] a claim that, even if it were true—the Protocols were designed strictly to protect all civilian populations—it is not morally clear why that would be undesirable, especially given the revolutionary history of the Americans.[21]
Furthermore, it is generally accepted—even by the United States—that the principles and provisions outlined in the Additional Protocols fundamentally reflect customary international law, applicable to all states regardless of circumstance.[22] The applicability of customary law has been reaffirmed by the Statute of the International Court of Justice which states that The Court in its rulings and deliberations "shall apply [among other sources] international custom, as evidence of a general practice accepted as law."[23] Likewise, in an official declaration and appeal on the 20th anniversary of the establishment of the Additional Protocols, the International Committee of the Red Cross clearly stated that the 1977 amendments largely "already form a set of rules of customary law valid for every State, whether or not it is party to the Protocols" (emphasis added).[24]This principle of universal customary international law—specifically as it applies to the Protocols—was also reaffirmed yet again as recently as ten years ago by the highest criminal court in the world when the ICC ruled on the principle of discrimination—a core provision and theme in Protocol I—and its universal and longstanding applicability "in all armed conflicts."[25]
It is also of considerable significance that the Additional Protocols of the Geneva Conventions have been absolutely vital in their role in helping to bring war criminals to justice in international prosecutions that were indeed supported by the United States, most notably in the case of the Former Yugoslavia.[26] Even momentarily putting aside the universal principle of customary international law, certainly all would agree that if it is proper to convict some war criminals on the basis of the provisions in the Protocols, then it is appropriate that the respective principles should apply to all parties in all armed conflicts. It is for these reasons that I will argue that the basic provisions and principles in the Additional Protocols in actuality do apply to the United States and its drone policy specifically. Likewise, I will also argue that the major breaches of international law—those cited and reviewed in this analysis—committed by the U.S. in its drone attacks indeed constitute violations of universal customary international humanitarian law in accordance with the opinion of the International Committee for the Red Cross.[27]
In the forthcoming case studies of U.S. drone strikes in Pakistan, I will focus attention primarily on the following Articles of Additional Protocol I: Article 17 (Role of the civilian population and of aid societies), Article 51 (Protection of the civilian population), Article 52 (General Protection of civilian objects), Article 53 (Protection of cultural objects and places of worship), and Article 57 (Precautions in attack).[28] These Articles and the fundamental provisions and principles which they largely—if not entirely—represent, reflect the well-established and generally uncontroversial rules of customary international humanitarian law.[29] In these instances for the sake of concision and clarity, I will cite the aforementioned Articles from Protocol I. It stems from these presumptions then that in the following case studies it is to be assumed that invocations of the most basic principles in Protocol I constitute customary international humanitarian law.
As a matter of clarification, the case studies reviewed here have been selected not for their uniqueness, but precisely for their relative, practical equivalence in relation to other U.S. attacks on Pakistani targets. While it is true that some cases have been specifically chosen to illustrate certain violations, on the whole the selected cases are, more or less, typical of U.S. drone strikes in Pakistan.
After evaluating the impending case studies in the context of these Articles, I will briefly introduce Article 6 of Additional Protocol II and Article 6 of the International Covenant on Civil and Political Rights with the purpose of establishing a slightly different though highly relevant framework for evaluating the principle presupposition underlying the legal rationale for the U.S. attacks.
Case Study #1
The first case study selected is the September 8, 2008 missile attack on a North Waziristan village. The drones fired at least five missiles at a religious school founded by Jalaluddin Haqqani—a Taliban leader (who was formerly financed by the CIA) and the official target of the U.S. attack. At least 17 people were killed with some estimates reaching as high as 23.[30] Of those killed, at least eight were children. Haqqani's wife, sister, and sister-in-law were all killed as well. Roughly twenty were wounded, most of which were women and children according to doctors on the scene. Haqqani was not present at the time of the bombing.[31]
This attack clearly constitutes a violation of Article 51(2) which states that "the civilian population...shall not be the object of attack." Even if we accept the claim that the target of the attack was legitimate, the strike was launched directly at a school—by definition, probably containing children—which is obviously a civilian center. Under Article 52(3) the law clearly states that "in case of doubt whether an object which is normally dedicated to civilian purposes such as...a school, is being used to make an effective contribution to military action, it shall be presumed NOT to be so used."
Firing several powerful missiles into one building is definitively indiscriminate in terms of distinguishing between military and civilian targets. Article 51(4) clearly prohibits attacks which fail to discriminate between military and civilian objects and targets. It states that "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" is prohibited.
It also seems evident that the U.S. planners of the bombings did not take the necessary precautions required by Article 57 to make certain that civilians would not be the object of attack. Section 2 of Article 57 states that "those who plan or decide upon an attack" must take "all feasible precautions in the choice of means and methods of the attack with a view to avoiding...[or] minimizing, incidental loss of civilian life...." Planners of the military action must "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects...." No evidence was or has since been produced that would suggest any such precautions were taken in earnest. It should be further noted that the documentary record of U.S. drone attacks in Pakistan reveals a disturbing trend of inadequate and insufficient efforts to comply with this aspect of international law. In the next case study I will take a closer look at these trends in particular.
Case Study #2
In one of the earliest drone attacks in Pakistan, the U.S. fired several missiles—as many as ten—into the village of Damadola, located in the Bajaur tribal area on January 13, 2006. According to The Washington Post, "the target was a dinner celebrating the Muslim holiday of Eid al-Adha." The individual whom the U.S. was hoping to kill was Ayman al-Zawahiri, an al-Qaeda deputy. The CIA had reportedly received some evidence—possibly derived from an interrogation of another al-Qaeda operative—that al-Zawahiri was going to be attending the holiday dinner.[32] This case study will deal with two major aspects of apparent legal violations, namely those of indiscriminate attacks and the failure to take the required precautions in carrying out the attack. 
Initially, U.S. and Pakistani officials declared that up to four members of al-Qaeda were killed in the bombings. ABC News could hardly contain its euphoria over the killings and declared the Muslim holiday gathering to be a "terror summit."[33] When the dust settled after the blasts, at least three houses were totally destroyed and at least 18 people were killed, with some reports putting the death toll as high as 22.[34] By all accounts, five children and five women were among the dead while 14 of the dead were likely from the same family.[35] Furthermore, it has since been confirmed that the "terror summit" was nothing of the sort, with U.S. and Pakistani officials later admitting that "none of those al-Qaeda leaders" previously alleged to have "perished in the strike" were in fact killed, noting that "only local villagers were killed."[36]
This attack constitutes a flagrant violation of several Articles of Protocol I and customary law in general. A home hosting a religious holiday dinner is not of military character and could not qualify as a military objective unless it was clear that the home itself was "by [its] nature, location, purpose, or use [making] an effective contribution to military action" in accordance with Article 52(2). If it is true that U.S. planners of the attack struck the home with the intent of killing Ayman al-Zawahiri, this would also constitute a major breach of the principle of discrimination. According to Article 51(5) an attack is considered indiscriminate when "bombardment by any methods or means...treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area containing a similar concentration of civilians and civilian objects." Also indiscriminate is "an attack which may be expected to cause incidental loss of civilian life...which would be excessive in relation to the...direct military advantage."
It appears that the U.S. attack, by the first definition of an indiscriminate attack hardly even rises to the level of indiscrimination; while militants likely may have been known to frequent the area, there was no reported distinct military objective in the immediate area which was attacked. Undoubtedly, CIA operatives were certainly aware of the fact that bombing a civilian object which might or might not contain a "high value target" would absolutely be expected to cause "incidental loss of civilian life," though one could hardly call such killings "incidental" in light of the predictable and well-understood consequences of such an undertaking. In a public statement summarizing its letter of concern to then-President Bush, Amnesty International arrived at similar conclusions:
"...the fact that air surveillance, witnessed by local people, took place for several days before the attack indicates that those ordering the attack on the basis of this information were very likely to have been aware of the presence of women and children and others unconnected with political violence in the area of the attack."[37]
The attack seems to fall unambiguously into the category of Article 51(2) which states that "the civilian population as such, as well as individual civilians, shall not be the object of attack" under any circumstance. Given the apparent level of practical information likely to have been possessed by the planners of the attack prior to the actual strike, the bombing appears to constitute a willful and direct attack on civilians. The next case study will review this particular principle more closely. For the moment though, I will continue forward on to the second major aspect of legal accountability in the current case study. 
From the reports cited above it appears that the "evidence" possessed by the CIA regarding the supposed presence of Ayman al-Zawahiri at the dinner party stemmed from "from the interrogation of another al-Qaeda leader, Abu Faraj al-Libi, who had been captured eight months earlier." It is almost certain that al-Libi was tortured into providing such information,[38] which according to Pakistani intelligence, turned out to be totally false rather than just "slightly off."[39] In this context it appears quite likely that U.S. planners did not even begin to approach their minimal obligations required by all forms of law to, as it is stated in Article 57(4) "take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects." Section 2 makes clear that planners of the attack must "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects." Commanders are required under the same section to "refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life...." A small bit of information provided from one man (likely under considerable duress) clearly does not constitute "doing everything feasible to verify" the information, and more importantly, to verify that civilians would not be in the line of fire. If this could not be verified or guaranteed to a reasonable degree, the strike should not have been permitted. The obvious fact, as noted above, is that bombing entire houses to ostensibly kill one or more individuals inside, simply cannot be a lawful discriminatory attack unless it is absolutely clear that only lawful military targets are inside and that the physical object of attack is being used for military objectives.
In all of the casualty reports cited in this paper, the primary explanation provided for the overwhelming civilian death toll in comparison with alleged actual targets is the use of poor and unreliable evidence by the attackers. When reviewing the numerous media reports of individual drone attacks, the issue of unsubstantiated and sloppy evidence is a constantly reoccurring theme. Several mainstream press reports have surfaced over the past several months which suggest that the CIA is essentially playing Russian roulette with the lives of Pakistani people living in the tribal areas. In their June analysis of U.S. drone policy, TIME magazine wrote that "tribesmen have told TIME of agents who drop microchips near targets; the drones can lock onto these to guide their missiles or bombs with pinpoint precision."[40] The Guardian has reported similar findings, citing local testimony as well as a Taliban video capturing a young man confessing to dropping microchips at random houses in exchange for payment from the CIA.[41] While some officials have written off the confession as "extremist propaganda" journalist Gareth Porter cites a "knowledgeable" internal Washington source who says that "the Guardian article is consistent with past CIA intelligence-gathering methods" in the region. The source told Porter, "We buy everything. Everything is paid for."[42] 
The Guardian was also told by "a former CIA officer who served Waziristan [a tribal area in Pakistan] in 2006" that "the CIA recruits a network of paid, and sometimes unwitting, informers" mostly comprised of "poor local men."[43] TIME describes similar findings through its own "reports from Waziristan."
TIME goes on to report that the "thermal cameras" on which drone operators rely to verify their targets, "are notoriously imperfect. Even under ideal conditions, images can be blurry." In perhaps the most chilling revelation, TIME writes that "in one of several stills from drone video seen by TIME, it's hard to tell if a group of men is kneeling in prayer or [if] the men are militants in battle formation." As one top security official told TIME, "the basic problem with all aerial reconnaissance is that it's subject to error."[44] 
These findings suggest systematic and egregious violations of Article 57 of Protocol I regarding "Precautions in attack." Taking all feasible precautions prior to carrying out military actions in order to ensure the protection of civilians and noncombatants is universally recognized as a fundamental principle of customary international law as well.[45] Regrettably, such reports also coincide well with the documentary record of the bombings which reveal functionally methodological patterns of a total lack of precaution being taken over and over again in the U.S. campaign of drone strikes. Purchasing data seems inherently unreliable in itself, especially when those being paid and solicited are some of the most poor and desperate people in the world. The use of microchips is also inherently unreliable and insufficient as a means of taking precautions and verifying targets to ensure the protection of civilians and civilian objects, as is unequivocally obligatory by all interpretations of international humanitarian law. Coupled with the reportedly poor visibility of the drones' thermal cameras, these practices are a virtual recipe for indiscriminate attacks and attacks on individual civilians and civilian populations, quite possibly constituting serious war crimes or crimes against humanity. Based upon available reports and evidence, as well as the tangible results of numerous U.S. attacks over an extended period of time it appears quite apparent that even minimal precautions—let alone "all reasonable precautions" which is required by law—are not being undertaken by U.S. planners. This suggests a callous disregard not only for well-established international law, but for innocent civilian life—including children—in Pakistan on the part of the United States government. There is no doubt that U.S. officials are certainly aware of the predictable consequences of their actions and the risks to civilian life that are being taken by those planning and carrying out the drone attacks.
Case Study #3
Case Study #3 will first address the principle of discrimination using a May 2008 bombing which successfully killed an alleged al-Qaeda target. Next, using as examples, two additional attacks, (October 2006 & October 2009) as well as the aforementioned May 2008 strike, I will briefly look at the role the U.S. attacks are playing in disrupting the then-Pakistani peace process.
On May 14, 2008 two hellfire missiles were fired into the Damadola area killing 12-15 people—possibly more—and injuring an untold number of others. The presumed target of the strike, Abu Suleiman al-Jazairi, "a highly experienced Algerian militant," was killed in the attack.[46] The buildings attacked by the drone included a two-story compound where "militants" were thought to be having dinner and the home of a local "militant commander." Pakistani security officials "presume[d] that all those present there [had] been killed." By all accounts, women and children were among the dead although the exact number is unknown.
This attack is unlike the previous case studies only in that it actually succeeded in hitting its target. The same principles apply in terms of the failure of the U.S. attackers to distinguish between military and civilian objects and targets. Like the previous case studies, the May 14, 2008 strike (henceforth "the May 2008 strike") represents a clear violation of sections 4 and 5 of Article 51 which prohibits attacks that treat military and civilian objects as one in the same. Article 50(3) states that "the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character." The May 2008 strike has since proven to have killed perhaps over a dozen people—including women and children who under the law enjoy the highest protections against attack—in the process of assassinating one man.
In 1999, the International Criminal Tribunal for the Former Yugoslavia rejected the defendant, Stanislav Galic's claims that the presence of military targets within a civilian center essentially justifies an indiscriminate attack. The Court ruled authoritatively that it is unlawful to "target" military objectives within a civilian area when the attacker could reasonably "expect excessive civilian causalities to result from the attack." Citing a specific example, The Court ruled that
"Although the number of soldiers present at the game was significant, an attack on a crowd of approximately 200 people, including numerous children would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated."
Likewise, it could easily be said for the May 2008 strike, as well as many other U.S. drone strikes, that
"Although the number of militants present in the [immediate] area was significant, an attack on buildings with at least fifteen people, including numerous women and children inside would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated."
According to the same ruling, a strike can only be carried out if the "military character of a target has been ascertained." It is not clear that U.S. planners were able to ascertain that the target of the May 2008 strike was of military character. Although it is unlikely, assuming that planners did in fact (incorrectly) ascertain the military character of the target, the strike is prohibited from being carried out if it is "expected to cause incidental loss of life, injury to civilians" and so forth. Also applicable to the earlier case studies, the International Criminal Court officially has taken the position civilian deaths of this kind can hardly be considered "incidental." The ruling of the Trial Chamber deserves full quotation:
"...indiscriminate attacks, that is to say, attacks which strike civilians or civilian objects and military objectives without distinction, may qualify as direct attacks against civilians. It notes that indiscriminate attacks are expressly prohibited by Additional Protocol I. This prohibition reflects a well-established rule of customary law applicable in all armed conflicts (emphasis added)."
Thus, according to the Additional Protocols of the Geneva Conventions, well-established customary international law, and the ruling of the highest court in the world, indiscriminate attacks—the defining characteristic of U.S. drone strikes—which kill or injure civilians are not to be considered "accidental" or "unintentional" but rather "direct attacks against civilians." Under the law, such attacks fall into the same category as a suicide bombing in the sense that it is by definition, nondiscriminatory and thereby considered to be plainly an attack on civilians. This reflects the principle of proportionality as it applies to discrimination.[47]
          The second aspect of the May 2008 strike that needs to be addressed is the timing of the attack. According to a report issued in the prominent Pakistani newspaper, DAWN, which consistently provides reliable coverage from the tribal areas, "significantly, the missile strike came while a prisoner exchange was taking place between the government and militant commander, Baitullah Mehsud in South Waziristan." The article goes on to quote a "militant spokesman, Maulvi Muhammad Omar" who observed that "the missile strike was an attempt by the United States to derail the peace process between militants and the government."[48] In itself, the timing may or may not have been incidental and the assertion that the U.S. was attempting to "derail" potential peace agreements could be equally subject to suspicion. However, the specific timing of such an attack turned out not to be an isolated incident. In at least two other known cases U.S. drones attacked tribal area people and infrastructure in what appears to have been an attempt to sabotage ceasefire/neutrality agreements with area militants and the government of Pakistan.
In late October of 2006 the U.S. attacked a religious seminary in the same area of Bajaur province in Damadola on precisely "the day the government was expected to sign a peace agreement with militants in Bajaur replicating the September 5 truce reached with militants in North Waziristan." The attack predictably destroyed the possibility of the truce. DAWN reported that had the peace agreement been signed, it "would have resulted in the grant of a pardon to the two most wanted militants, Maulana Faqir Mohammad and Maulvi Liaqat. Both had been charged with harboring and providing shelter to Al Qaeda operatives." 
Lending more credibility to the notion that the U.S. attacks were aimed at squashing a potential truce between the Pakistani government and the tribal area militants is the fact that there was no ostensible, declared, or even suspected "high value target" present at the scene of the October bombing. In fact, the strike was arguably the most blatant attack—and the most deadly—on a civilian population that the U.S. has carried out in Pakistan thus far. It has been confirmed that 82 people were killed in the strike on the religious school. While most of the victims were young male students in their early twenties "12 of them were said to be children in their early teens."

:: Article nr. 61083 sent on 15-dec-2009 03:02 ECT


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