Amnesty International USA Statement for the Record for February 9th hearing on “‘Targeted Killing’ and the Rule of Law: The Legal and Human Costs of 20 Years of U.S. Drone Strikes”

Senator Dick Durbin, Chair, Senate Judiciary Committee
Senator Chuck Grassley, Ranking Member, Senate Judiciary Committee

Re: Amnesty International USA Statement for the Record for February 9th hearing on “‘Targeted Killing’ and the Rule of Law: The Legal and Human Costs of 20 Years of U.S. Drone Strikes”

On behalf of Amnesty International USA and our members and supporters in the United States, we hereby submit this statement for the record to address our concerns that the United States has at times failed to abide by international humanitarian law and international human rights law in its use of air strikes that have harmed large numbers of civilians over the past 20 years. 

Amnesty International has investigated and reported on civilian casualties caused by U.S. air strikes over the last 20 years of its so-called “Global War on Terror.” In recent years we have investigated civilian harm from U.S. air strikes and U.S.-led Coalition airstrikes in Afghanistan, Iraq, Syria and Somalia, and found that thousands of civilians have been killed or seriously injured by U.S. air strikes (both using drones and manned aircraft), with little accountability. 

We submit this statement to urge the Senate Judiciary Committee to use its oversight authority to ensure that the United States takes more seriously its legal obligations to prevent harm to civilians, to thoroughly investigate claims of civilian harm, and to provide reparations or compensation to survivors. 

International humanitarian law (the laws of war)

International humanitarian law (IHL) sets out legal rules that bind all parties to an armed conflict, whether state armed forces or non-state armed groups. These rules aim to minimize human suffering in armed conflicts, and offer particular protection to civilians and those who are not directly participating in hostilities. 

In situations of armed conflict, not all civilian casualties will be necessarily unlawful. However, deaths and injuries of civilians are often an indication that something has gone wrong. This could be the result of a violation of the rules, even of criminal wrongdoing; or it could be the result of an accident, mistake or malfunction of a weapons system, or the incidental result of a lawful attack. 

Investigation is necessary to make these determinations, ensure accountability and reparation in the case of violations, and learn lessons and take measures to avoid needless harm to civilians and civilian objects. 

The cases Amnesty has investigated and presented in its reports – on the U.S. role in the conflict in Afghanistan, in Syria, in Iraq and in Somalia — in the view of Amnesty International, raise a very strong possibility that civilians were killed and injured (and civilian objects were destroyed or damaged) in violation of international humanitarian law. Amnesty International in each case wrote to the U.S. government seeking additional information about specific means and methods of attack, choice of targets, and precautions taken in planning and execution of attacks. Such information is necessary for a full assessment of the parties’ compliance with international humanitarian law. We were rarely given the information we sought.

The principle of distinction

The principle of distinction is one of the cornerstones of international humanitarian law. This requires parties to a conflict to, at all times, “distinguish between civilians and combatants” and to ensure that “attacks may only be directed against combatants” and “must not be directed against civilians.” Parties to conflict must also distinguish between “civilian objects” and “military objectives”. Anyone who is not a member of the armed forces of a party to the conflict is a civilian, and the civilian population comprises all persons who are not combatants. Civilians are protected against attack unless and for such time as they take a direct part in hostilities. In cases of doubt, individuals should be presumed to be civilians and protected from direct attack. Making the civilian population, or individual civilians not taking a direct part in hostilities, the object of attack (direct attacks on civilians) is a war crime. 

Indiscriminate attacks are prohibited. Indiscriminate attacks may strike military objectives and civilians or civilian objects without distinction, either because the attack is not directed at a specific military objective, or because it employs a method or means of combat that cannot be directed at a specific military objective or has effects that cannot be limited as required by IHL. Launching an indiscriminate attack resulting in death or injury to civilians is a war crime.

Most of the cases examined in Amnesty International’s reports involved attacks that struck homes or other civilian objects, killing and injuring civilians. Such attacks could be either direct attacks on civilians or civilian objects, indiscriminate attacks, or lawful attacks with unintended negative consequences.

Proportionality

International humanitarian law prohibits disproportionate attacks, which are those “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.” Intentionally launching a disproportionate attack (that is, knowing that the attack will cause excessive incidental civilian loss, injury or damage) constitutes a war crime. The Commentary on the Additional Protocols makes clear that the fact that the proportionality calculus requires an anticipated “concrete and direct” military advantage indicates that such advantage must be “substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.” 

International human rights law

The United States has obligations under international human rights law to uphold the right to life for people living in countries where it conducts operations. This includes in countries where the United States was but is no longer engaged in armed conflict. For example, now that the non-international armed conflict in Afghanistan between the Taliban and the United States has ceased, and the former Afghan government no longer exists, the United States is no longer a party to a conflict within the borders of Afghanistan. This means that international humanitarian law no longer guides any potential U.S. military operations within the country. If, in the future, the United States conducts drone strikes against Islamic State Khorasan Province (ISKP), as part of the so-called “Global War on Terror,” it cannot do so under the less demanding protections on civilian life afforded by international humanitarian law, but rather must abide by the stronger protections afforded by international human rights law. In practice, this means that the targeted killings of ISKP operatives are to be considered extrajudicial executions, a crime under international law, and the killing of others caught in such operations also amount to criminal conduct. 

Obligation to investigate

All states are permitted to investigate and, if there is sufficient admissible evidence, prosecute those suspected of criminal responsibility for crimes under international law, including war crimes, and human rights violations and abuses. However, whenever the person suspected of criminal responsibility is found in any territory subject to the jurisdiction of a state, that state is obliged—and not only permitted—to exercise jurisdiction over that person, unless it decides to extradite the person concerned to another state or surrender him or her to an international criminal court. In doing so, all states are required under international law to conduct prompt, thorough, independent, and impartial investigations into allegations of arbitrary deprivation of life and of any war crime.

Needless to say, the obligation to investigate and prosecute such cases also exists for the United States. Individuals who commit or order war crimes bear individual criminal responsibility. Military commanders and civilian superiors may also be responsible for the acts of their subordinates if they knew, or had reason to know, such crimes were about to be committed or were being committed and did not take the necessary measures to prevent them, or to punish those responsible for crimes that had already been committed. The U.S. government must provide full reparation to victims of its violations of international human rights and international humanitarian law.

Failures to address civilian casualties

To explain or justify air strikes that kill civilians, generally U.S. officials do not publicly make proportionality arguments. Meaning, the United States does not claim that the military advantage of conducting the strike outweighed the predicted civilian harm that they believed would be caused. Rather the United States usually claims that it attempted to prevent the civilian casualties and its motives should not be impugned. For example, after the 2015 strike on the Médecins Sans Frontières (MSF) hospital in Kunduz, White House spokesperson Josh Earnest said, “[t]here is no country in the world and no military in the world that goes to greater lengths and places a higher premium on avoiding civilian casualties than the United States Department of Defense.”

Eventually, however, U.S. officials will occasionally admit to individual cases of civilian casualties without admitting to systemic failures of the air strike program overall. In each particular instance, officials identify a specific reason the process broke down in some way, but without impugning the whole program. In the MSF hospital strike, it was a failure to properly identify and communicate a target compound. In the 29 August 2021 Kabul strike, Lt. Gen. Sami Said (the Air Force Inspector General) blamed confirmation bias, when the target was observed with a computer bag, matching expected intelligence. 

But after 20 years of air strikes in Afghanistan, Iraq, Syria, Somalia, and other locations under the rubric of the “Global War on Terror,” there is good reason to question the U.S. government’s stubborn unwillingness to put in place more meaningful protective measures, or to conduct genuine investigations. Even its defenders, such as Lt. Gen Said, recognize that the U.S. does not place sufficient resources in a “red-team” that tests bias and assumptions, or that actively searches for civilians in drone feeds. 

Furthermore, the US government has lately been increasingly unwilling to pay out compensation for civilian casualties, including in cases where they have admitted conducting the strike. According to the annual report to the U.S. Congress, despite admitting to an additional 85 civilian deaths in 2020 the Department of Defense did not pay a single dollar in compensation, even though US $3 million had been budgeted for that purpose.

This is despite the US being willing to pay claims in the past. Amnesty International interviewed eight victims and family members from the 3 October 2015 attack on the MSF hospital in Kunduz, who described a long and frustrating claims process that ultimately led to an acceptable financial outcome. While the family members interviewed remain upset that no sufficient reason has been provided to explain how the strike happened at all, or why no one was charged criminally, the payments (ultimately over 1 million Afghanis, or $12,500, to the family of each person killed, according to interviewees) were completed, in large part due to the diligence of lawyers by MSF and outside advocacy groups. This level of representation is not possible in every case, nor should it be required for any state to fulfil its international obligations.

A similar dynamic is now underway for the family of those killed in the 29 August 2021 strike in Kabul. It remains to be seen whether the United States will fulfil its obligations to the families of those killed in less high-profile cases as well, or if it will continue to deny justice, truth, and reparations to the many civilian victims of the US drone strike program.

Recommendations

Amnesty International calls on Congress to exercise its oversight authority and require the United States to:

• Immediately cease the killing of civilians in air strikes, and comply with the rules of international human rights law in future military operations outside of an armed conflict;
• Conduct prompt, independent, impartial, thorough, and transparent investigations into all credible allegations of civilian casualties of air strikes and other US military operations. Investigations should include proactively seeking to speak with eyewitnesses, survivors and families of victims, despite constraints;
• Where there is sufficient admissible evidence of crimes, bring all those suspected of criminal responsibility to justice in fair trials before ordinary civilian courts and without recourse to the death penalty; 
• Provide victims of violations of international humanitarian law, and their families with access to justice, truth and full reparation, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition;
• Acknowledge civilian casualties caused by U.S. attacks and offer compensation and explanation to survivors and families of civilians killed in U.S. strikes, regardless of whether or not the casualties were caused by a lawful attack;
• Implement an effective mechanism to ensure a safe and accessible means for families and communities to self-report civilian casualties arising from U.S. air strikes and other military operations;
• Fully comply with the rules of international humanitarian law in the planning and execution of all attacks, including by:
  • Reviewing the criteria for selecting targets, including for “signature strikes,” “over the horizon” strikes, and similar practices, to ensure they do not lead to targeting of civilians;
  • Ensuring that individuals are never targeted solely on the basis of their age, gender, geographical location, and proximity to an armed non-state group;
  • Taking all feasible precautions in planning and execution of attacks, including cancelling strikes when there is doubt that the target is a military objective or when they are likely to be disproportionate or indiscriminate; 
  • Reviewing the definitions of “combatants”, “militants”, and “non-combatants” to ensure they comply with customary international humanitarian law and adhere to the presumption of civilian status.

For more information, please contact Daphne Eviatar, Director, Security with Human Rights, Amnesty International USA, [email protected]

Sincerely,
Daphne Eviatar
Director, Security with Human Rights
Amnesty International USA
[email protected]