War in
Afghanistan Isn’t Over — It’s Taking the Form of Illegal Drone Strikes
A drone flies over the airport in Kabul, Afghanistan, on August 31, 2021.AAMIR QURESHI / AFP VIA GETTY IMAGES
PART OF THE SERIES
Human Rights and Global Wrongs
Three weeks after his administration
launched a drone attack that killed 10 civilians in Kabul, Afghanistan,
President Joe Biden addressed the United Nations General Assembly. He
proudly declared, “I stand here today, for the first
time in 20 years, with the United States not at war.” The day before, his
administration had launched a drone strike in Syria, and
three weeks earlier, the U.S. had conducted an air strike in Somalia. The
commander-in-chief also apparently forgot that U.S. forces are still fighting
in at least six different countries, including Iraq, Yemen, Syria, Libya,
Somalia and Niger. And he promised to continue bombing Afghanistan from afar.
Unfortunately Biden’s withdrawal of U.S.
troops from Afghanistan is substantially less meaningful when analyzed in light
of his administration’s pledge to mount “over-the-horizon” attacks in that country from
afar even though we won’t have troops on the ground.
“Our troops are not coming home. We need to
be honest about that,” Rep. Tom Malinowski (D-New Jersey) said during congressional testimony by
Secretary of State Antony Blinken earlier this month. “They are merely moving
to other bases in the same region to conduct the same counterterrorism
missions, including in Afghanistan.”
As Biden pulled U.S. forces out of
Afghanistan, his administration launched a hellfire missile from a U.S. drone
in Kabul that killed 10 civilians, including seven children, and then lied
about it. Chairman of the Joint Chiefs of Staff Gen. Mark Milley immediately
said it was a “righteous strike” to protect U.S. troops as
they withdrew.
Nearly three weeks later, however, an extensive investigation conducted
by The New York Times revealed that Zemari Ahmadi
was a U.S. aid worker, not an ISIS operative, and the “explosives” in the
Toyota that the drone strike targeted were most likely water bottles. Gen.
Frank McKenzie, commander of the U.S. Central Command, then called the strike “a
tragic mistake.”
This senseless killing of civilians was not
a one-off event, although it received more publicity than most past drone
strikes. Biden is following in the footsteps of his four predecessors, all of
whom also conducted illegal drone strikes that killed myriad civilians.
The Kabul drone strike “calls into question
the reliability of the intelligence that will be used to conduct the
[over-the-horizon] operations,” the Times noted. Indeed, this is nothing new. The “intelligence”
used to conduct drone strikes is notoriously unreliable.
For example, the Drone
Papers disclosed that nearly 90 percent of those killed by
drone strikes during one five-month period during January 2012 to February 2013
were not the intended targets. Daniel Hale, who revealed the documents that
comprise the Drone Papers, is serving 45 months in prison for exposing evidence
of U.S. war crimes.
Drone
Strikes Conducted by Bush, Obama, Trump and Biden Killed Countless Civilians
Drones do not result in fewer civilian
casualties than piloted bombers. A study based on classified military data,
conducted by Larry Lewis from the Center for Naval Analyses and Sarah
Holewinski of the Center for Civilians in Conflict, found that the use of drones in
Afghanistan caused 10 times more civilian deaths than piloted fighter aircraft.
These numbers are probably low because the
U.S. military considers all people killed in those operations presumptive “enemies
killed in action.” George W. Bush, Barack Obama, Donald Trump and Biden all
presided over drone strikes that killed countless civilians.
Bush authorized approximately 50 drone strikes
that killed 296 people alleged to be “terrorists” and 195 civilians in Yemen,
Somalia and Pakistan.
The Obama administration conducted 10 times more drone strikes than his
predecessor. During Obama’s two terms in office, he authorized 563 strikes — largely
with drones — in Somalia, Pakistan and Yemen, killing between 384 and 807
civilians, according to the Bureau of Investigative Journalism.
Trump, who relaxed Obama’s targeting rules, bombed all the countries that
Obama had, according to Micah Zenko, former senior
fellow at the Council on Foreign Relations. During Trump’s first two years in
office, he launched 2,243 drone strikes, compared to 1,878 in
Obama’s two terms in office. Since the Trump administration was less than forthcoming with accurate
civilian casualty figures, it is impossible to know how many civilians were
killed on his watch.
Drones hover above towns for hours,
emitting a buzzing sound that terrorizes communities, especially children.
They know a drone could drop a bomb on them at any moment. The CIA launches a “double
tap,” deploying a drone to kill those trying to rescue the wounded. And in what
should be called a “triple tap,” they often target people at funerals mourning
their loved ones killed in drone attacks. Rather than making us less vulnerable
to terrorism, these killings make people in other countries resent the United
States even more.
Drone
Strikes During the “War on Terror” Are Illegal
Drone attacks mounted during the “war on
terror” are illegal. Although Biden pledged in his General Assembly speech to “apply
and strengthen … the U.N. Charter” and promised “adherence to international
laws and treaties,” his drone strikes, and those of his predecessors, violate
both the Charter and the Geneva Conventions.
The UN Charter forbids the use of military
force against another country except when acting in self-defense under Article
51. On August 29, after the U.S. drone killed 10 civilians in Kabul, the U.S.
Central Command called it “a self-defense unmanned over-the-horizon airstrike.”
The Central Command claimed that the strike was necessary to prevent an
imminent attack on the Kabul Airport by ISIS.
But the International Court of Justice has
held that countries cannot invoke Article 51 against armed attacks by
non-state actors that are not attributable to another country. ISIS is at odds
with the Taliban. Attacks by ISIS cannot therefore be imputed to the Taliban,
which once again controls Afghanistan.
Outside areas of active hostilities, “the
use of drones or other means for targeted killing is almost never likely to be
legal,” Agnès Callamard, UN special rapporteur on extrajudicial, summary or
arbitrary executions, tweeted. She wrote that “intentionally lethal
or potentially lethal force can only be used where strictly necessary to
protect against an imminent threat to life.”
Civilians can never legally be the target
of military strikes. Targeted or political assassinations, also called
extrajudicial executions, violate international law. Willful killing is a grave
breach of the Geneva Conventions which is punishable as a war crime under the
U.S. War Crimes Act. A targeted killing is only lawful if it is deemed
necessary to protect life, and no other means — including capture or nonlethal
incapacitation — is available to protect life.
International humanitarian law requires
that when military force is used, it must comply with both the conditions
of distinction and proportionality. Distinction
mandates that the attack must always distinguish between combatants and
civilians. Proportionality means that the attack can’t be excessive in relation
to the military advantage sought.
Moreover, Philip Alston, former UN special
rapporteur on extrajudicial, summary or arbitrary executions, reported, “The precision, accuracy and
legality of a drone strike depend on the human intelligence upon which the
targeting decision is based.”
The Drone Papers included leaked documents revealing the “kill
chain” the Obama administration used to determine whom to target. Innumerable
civilians were killed using “signals intelligence” — foreign communications,
radar and other electronic systems — in undeclared war zones. Targeting
decisions were made by tracking cell phones that might or might not be carried
by suspected terrorists. Half of the intelligence used to identify potential
targets in Yemen and Somalia was based on signals intelligence.
Obama’s Presidential Policy Guidance (PPG), which
contained targeting rules, outlined procedures for the use of lethal force
outside “areas of active hostilities.” It required that a target pose a “continuing
imminent threat.” But a secret Department of Justice white paper promulgated in 2011 and
leaked in 2013 sanctioned the killing of U.S. citizens even without “clear
evidence that a specific attack on US persons and interests will take place in
the immediate future.” The bar was presumably lower for killing non-U.S.
citizens.
The PPG said there must be “near certainty
that an identified HVT [high-value terrorist] or other lawful terror target” is
present before lethal force could be directed against him. But the Obama
administration launched “signature strikes” that didn’t target individuals, but
rather men of military age present in areas of suspicious activity. The Obama
administration defined combatants (non-civilians) as all men of military age
present in a strike zone, “unless there is explicit intelligence posthumously
proving them innocent.”
“Intelligence” upon which U.S. drone
strikes are based is extremely untrustworthy. The United States has engaged in
repeated violations of the UN Charter and the Geneva Conventions. And the
unlawful U.S. killing with drones violates the right to life enshrined in the
International Covenant on Civil and Political Rights, another treaty the U.S.
has ratified. It says, “Every human being has the inherent
right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.”
Kabul
Drone Strike: “The First Act of the Next Stage of Our War”
“That drone strike in Kabul was not the
last act of our war,” Representative Malinowski said during Blinken’s congressional
testimony. “It was unfortunately the first act of the next stage of our war.”
“There must be accountability,” Sen.
Christopher S. Murphy (D-Connecticut), a member of the Foreign Relations
Committee, wrote in a Twitter post. “If there are no consequences
for a strike this disastrous, it signals to the entire drone program chain of
command that killing kids and civilians will be tolerated.”
In June, 113 organizations dedicated to
human rights, civil rights and civil liberties, racial, social environmental
justice and veterans rights wrote a letter to Biden “to demand an end
to the unlawful program of lethal strikes outside any recognized battlefield,
including through the use of drones.” Olivia Alperstein from the Institute for
Policy Studies tweeted that the United States should “apologize
for all the drone strikes, and put an end to drone warfare once and for all.”
Copyright © Truthout. May not
be reprinted without permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.
Donations can be sent
to Max Obuszewski, Baltimore Nonviolence Center, 431 Notre Dame Lane, Apt. 206,
Baltimore, MD 21212. Ph: 410-323-1607; Email: mobuszewski2001 [at]
comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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