Remarks by a US Central Intelligence Agency (CIA) official suggesting the agency is not legally bound by the laws of war underscore the urgent need for the Obama administration to transfer command of all aerial drone strikes to the armed forces, Human Rights Watch said.
The CIA’s general counsel, Stephen Preston, in a speech entitled “CIA and the Rule of Law” at Harvard Law School on April 10, 2012, said the agency would implement its authority to use force “in a mannerconsistent with the … basic principles” of the laws of war. The laws of war are not mere principles but legally binding restrictions on all forces of the parties to an armed conflict, Human Rights Watch said.
“When the CIA general counsel says that the agency need only act in ‘a manner consistent’ with the ‘principles’ of international law, he is saying the laws of war aren’t really law at all,” said James Ross, legal and policy director at Human Rights Watch. “The Obama administration should make it clear that there’s no ‘CIA exception’ for its international legal obligations.”
Preston’s statement coincides with a report in the Washington Post that the CIA is seeking authority to expand its drone campaign in Yemen. In the decade since the September 11, 2001 attacks, the Bush and Obama administrations have engaged in a campaign of “targeted killings” – deliberate, lethal attacks aimed at specific individuals under the color of law. Most of these attacks are reported to have occurred in Pakistan, Afghanistan, Somalia, and Yemen using unmanned aerial vehicles, or drones, armed with missiles and laser-guided bombs.
The CIA is playing an increasing role in drone attacks with no transparency or demonstrated accountability, Human Rights Watch said. Pending transfer of command for drone strikes to the military, the Obama administration should ensure and publicly affirm that the CIA is bound by international law in conducting its drone operations.
While the laws of war do not prohibit intelligence agencies from participating in combat operations, states are obligated to investigate credible allegations of war crimes and provide redress for victims of unlawful attacks. The US government’s refusal to acknowledge the CIA’s international legal obligations or provide information on strikes where there have been credible allegations of laws-of-war violations leaves little basis for determining whether the US is meeting its international legal obligations, Human Rights Watch said.
The lawfulness of a targeted killing hinges in part on the applicable international law, which is determined by the context in which the attack takes place. The laws of war permit attacks during situations of armed conflict only against valid military targets. Attacks causing disproportionate loss of civilian life or property are prohibited.
In situations outside of armed conflict, the use of lethal force is addressed by international human rights law, which permits the use of lethal force only when necessary to save human life. In these law-enforcement situations, individuals cannot be targeted with lethal force merely because of past unlawful behavior, but only for imminent or other grave threats to life when arrest is not reasonably possible.
The US government has downplayed the applicability of international human rights law to drone attacks in situations in which there is no evident armed conflict, Human Rights Watch said.
“The Obama administration seems to have decided that wherever it conducts a targeted killing, it is by definition engaged in armed conflict, even far from any obvious battlefield,” Ross said. “What would the US say if Russia or China took the same approach to attack perceived enemies in the streets of New York or Washington?”