Is the US Drone Policy a War Crime? – Interview with Prof.Mary Ellen O’Connell

No body means no crime?  – For over a month German politicians are still silent about the death of a German citizen killed by a CIA operated drone in the Afghan-Pakistan border region on October 4th. Bünyamin E., a German national of Turkish origin from the Western German city of Wuppertal died alongside Iranian citizen Shahab Dashti from Hamburg, when the US drone fired missiles at a building in North Waziristan tribal area. Both Islamists are suspected of having joined „Islamic Movement of Uzbekistan“, a terror group operating in the Pakistani tribal areas.

The death of Bünyamin E. could turn out as the first case of a German citizen being killed the controversial US drone policy in Pakistan. German government officials have started a investigation into the incident but claim it did not conveyed any result. What the investigators are waiting for, the government says, is an official report by the Pakistani authorities on what happened on October 4th.

At first reports suggested up to eight German Jihadis died in the drone strike. Yet, this news turned out be false when a militant group confirmed two Islamists from German and several Tajik militants had died in the event – even publishing pictures of the dead bodies of Shahab Dashti and Bünyamin E.

Even though these images exist and indeed show the two men, German government still tells the media on request there is no credible information on the death of Bünyamin E. Two German parties, the „Bündnis 90/Grüne“ and the left-wing „Die Linke“ presented a formal request to the government including several questions about how the German political leaders will react to the killing of one of its citizens by the United States. The government´s answers, which I obtained, is a clear effort to buy some time for further investigation and it might even be the attempt to silent those questioning the legitimacy of US drone policy.

I contacted Mary Ellen O’Connell, Research Professor of International Dispute Resolution at University of Notre Dame and Vice President of the American Society of International Law. Prof.O’Connell is regarded as an expert on human rights issues and the question about legitimacy of the drone campaign staged by the United States intelligence agency in the Pakistani tribal region to hunt down terrorists.
Read the interview with Prof.O’Connell here

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1. Is the US drone policy in Pakistan regarded as an illegal military action under international law?

Almost every U.S. drone attack violates in Pakistan has violated some important principle of international law.  The most egregious violations have been attacks aimed at persons who are not engaged in any armed conflict hostilities.  Under international law, such persons are civilians and may not be intentionally killed by military force.  Even where the U.S. has cooperated with the Pakistani military and targeted persons engaged in hostilities, CIA personnel are the ones operating U.S. drones in Pakistan.  Under international law, the CIA has no right to engage in targeted killing.

2.  What is the legal basis under which the drone program is operated? (as far as my knowledge goes, the US congress never voted on going to war with Pakistan)

The Obama administration argues that Congress’s Authorization for the Use of Military Force (AUMF) passed after the 9/11 attacks gives the President authority to attack suspected terrorist anywhere in the world.  The AUMF, however, restricts the President to measures that are “necessary” and “appropriate.”  Because drone attacks are generally unlawful anywhere outside of Afghanistan, they are hardly “appropriate.”  In addition, as President Obama himself has acknowledged, drone attacks cannot be characterized as necessary.  Bob Woodward writes in his new book, Obama’s Wars, that “Despite the CIA’s love affair with unmanned aerial vehicles such as Predators, Obama understood with increasing clarity that the United States would not get a lasting, durable effect with drone attacks.” (p. 284, 2010)

3.  Is there a legal conflict created if US drones kill Western meaning for example European militants in the Afghan-Pakistan border region?

Nationality is not the most important factor.  More important factors are, where is the person and what is she doing?  Persons in Afghanistan directly participating in armed conflict hostilities may be targeted, regardless of nationality.  But state boundaries matter in international law, and there is no right to disregard the Afghanistan-Pakistan border in pursuing even persons engaged in hostilities.  Pakistan has made this abundantly clear with its closing of the border following NATO helicopter gunship incursions in September from Afghanistan into Pakistan.

4.  Is the US allowed to kill EU citizens on Pakistani territory if there is no proof they are engaged in fighting US forces in Afghanistan?

Please see my previous answer.

5.  What if the relatives of a EU citizen killed by a CIA operated drone in Waziristan decide to sue to United States Government for killing their son or daughter – is there a chance this case will be put in front of a court?

Most courts in the world will refuse to take jurisdiction of a case against the United States itself on the grounds of foreign sovereign immunity.  Even in the United States where the governments of Iran, Libya, and Iraq have been held to account for violating international human rights law, a foreign victim of a human rights or humanitarian law violation will have virtually no opportunity to bring a case against the U.S. government.

Germany, Italy, and some other European countries do provide for lawsuits against individual government officials who violate these laws. Italian prosecutors have successfully prosecuted in absentia CIA agents who kidnapped a Muslim cleric on the streets of Milan.  Such prosecutions of CIA agents for the death of an Italian, German or other EU national in Pakistan would be possible.

However, what is urgently required now is for Germany, Italy, France, the United Kingdom, all NATO countries, all of the EU, and all states that care about human rights and humanitarian law to call on the United States to stop its lawless drones attacks and other forms of targeted killing outside of the armed conflict hostilities occurring in Afghanistan.