A question of legality

According to a wide range of international law experts consulted by the Bureau, for the CIA’s drone attacks in Pakistan and Yemen to be legal they would at the very least need to be covered by the Laws of Armed Conflict (LOAC).

Professor Dapo Akande, who heads Oxford University’s Institute for Ethics, Law and Armed Conflict, believes that under LOAC the killing of civilian rescuers is problematic: ‘The question is, can rescuing be regarded as taking part in hostilities, to which for me the answer is clearly “No”. That rescuing is not taking part in hostilities.’

If LOAC does not apply – as some respected lawyers believe is the case – then the far more restrictive international human rights law (IHRL) applies. This explicitly forbids attacks except in the most restricted circumstances, namely when the possibility of being attacked is absolutely imminent.

‘Not to mince words here, if it is not in a situation of armed conflict, unless it falls into this very narrow area of imminent threat then it is an extra-judicial execution. This is absolutely unlawful under IHRL and of course under domestic law in any place in which such an attack might occur. And illegal under US law,’ says Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University.

‘So then we don’t even need to get to the nuance of who’s who, and are people there for rescue or not. Because each death is illegal. Each death is a murder in that case.’

The concept of ‘imminent threat’ may now be in jeopardy. Obama’s chief counter-terrorism adviser, John Brennan, told a recent gathering at Harvard Law School that ‘We are finding increasing recognition in the international community that a more flexible understanding of “imminence” may be appropriate when dealing with terrorist groups.’

Brennan also continues to claim that no civilians have been killed in CIA drone strikes since mid-2010, despite a Bureau investigation which has proved the contrary.

Clive Stafford-Smith believes that Obama, like Bush before him, is seeking to undermine international law in order to achieve US military objectives: ‘They’re trying to say that the Geneva Conventions are quaint and outmoded. What they really mean is they’re inconvenient.’

Yet Islamabad has almost certainly signed secret deals permitting the Americans to attack – deals it so far dare not dismantle.

If US policy assumes that those who live with or assist combatants are also necessarily combatants, what about the wife of the drone pilot who drives him to work in the morning? How is that person any different from the people in the house that the Taleban combatant is living in? - Professor Dapo Akande, Oxford University