The Rules - Engaging HVTs & OBL

[jmm99]

The recent speech by Ben Emmerson QC [Queen's Counsel], United Nations Special Rapporteur on Counter-Terrorism and Human Rights, at the Harvard Law School (26 Oct 2012), is attached as a pdf file.

At the outset, it is best to recognize that Mr. Emmerson believes he has a "mandate" (a term used just south of a dozen times in 17 pdf pages). I believe that he believes deeply in every single sentence he's written. I don't.

In terms of the legal jargon, International Human Rights Law is analogized in US Law by Bill of Rights Law (as expanded by the later post-Civil War amendments) - the two sets are overlapping, but not co-extensive. International Humanitarian Law is analogized in US Law by its Laws of War (or Laws of Armed Conflict) - again, the two sets are overlapping, but not co-extensive.

Leaving aside biographies for the moment, we will cover the key points of the Special Rapporteur's speech.

The UN Security Council's Mandate to Members

Initially, there was little mention of human rights in any of the initiatives at UN level. But in 2003 the Security Council passed resolution 1456 which included for the first time a provision requiring States to ensure that any measures taken to combat terrorism must comply with their obligations under international law, and in particular international human rights, humanitarian and refugee law.
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The process of reform at UN level did not begin in earnest until 2006 when the General Assembly adopted the UN Global Counter-Terrorism Strategy. This was intended to be the first comprehensive international statement of obligations resting on States to combat terrorism, and to promote international co-operation within a rule of law framework. Pillar IV of the Strategy sets out specific rule of law guarantees. The requirement for human rights protection underpins the entire Strategy. Whilst the Strategy was under negotiation the UN Human Rights Commission established the mandate of Special Rapporteur on Counter-Terrorism and Human Rights, the mandate which I now hold.
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The positive statements of principle by the General Assembly and the Security Council have to be turned from mere rhetoric into practice.
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Security Council resolution 1963 (2010) finally recognised in terms that terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone, and underlines the need to address the conditions conducive to the spread of terrorism. It recognises that respect for the rule of law, and the protection of human rights and fundamental freedoms, are essential means of offering a viable alternative to those who could otherwise be susceptible to terrorist recruitment and to radicalization.

In other words, the Security Council itself has now come to accept that it is necessary to tackle not only the manifestations of terrorism but also its causes. In the process it has also acknowledged that respect for human rights is essential to an effective strategy of prevention, and that the reverse is equally true.

One wonders how much materiality Mr. Emmerson would give to certain brands of Islam as causes of terrorism.

His Attack on the War Paradigm

The first core challenge is what I will call the global war paradigm. This is the proposition, culled by lawyers and officials of the US State Department under the Bush administration, that since 9/11 the US and its allies have been at war with a stateless enemy and that accordingly its actions are to be judged by the laws of war, rather than the laws applicable in peace-time.
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The idea that international terrorism in all of its modern forms and manifestations is capable of being definitively defeated by military means seems with retrospect extremely nave. We have seen new forms of terrorism, and new alliances forming even over the past few months in Libya, Mali, other parts of North Africa, Syria and elsewhere. No one now seriously believes that terrorism is a phenomenon that is capable of being militarily defeated.

Most all US courts (the DC Circuit being the leading example) have adopted the "war paradigm" - the US Laws of War (LOAC) as the rules of decision. More than 80% of US voters support the Obama drone strikes, except as to US citizens (e.g., al-Awlaki, where the percentage is still higher than 60%).

His War Crime Indictment

A leading academic study by two US universities, released last month, has endorsed the figures of the London-based Bureau of Investigative as amongst the most reliable sources available in relation to the impact of these drone attacks. Those figures suggest that at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. The Bureau has also alleged that since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. My colleague Christof Heyns, the Special Rapporteur on extra-judicial, summary and arbitrary executions has described such attacks, if they prove to have happened, as war crimes. I would endorse that view.

The Bureau of Investigative Journalism (BIJ): to correct the typo in the text. I've discussed that source briefly in a couple of posts (as has David). The "facts" alleged in the foregoing quote will be disputed by the USG.

The Lawsuits vs the United States

There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building. Just last week the High Court in London heard an application for judicial review by the son of a man who was allegedly killed in a US drone strike in North Waziristan in March last year. The strike killed 40 people who – it is claimed – were meeting to discuss a local mining dispute. He is seeking a declaration from the High Court that it is unlawful for the UK's signals intelligence agency GCHQ to share targeting intelligence with the United States, for the purposes of drone attacks. The claim is that GCHQ has been using telephone intercepts to provide the US with locational intelligence on alleged militants in Pakistan and Afghanistan.

In Pakistan itself, there are two separate claims proceeding in the courts. One is aimed at triggering a criminal investigation into the actions of two former CIA officials alleged to be responsible for drone strikes which caused disproportionate civilian casualties. The other is seeking a declaration that the strikes amount to acts of war, in order to pressurise the Pakistani air force into shooting down drones operating in the country's airspace. Whatever the outcome of these cases, the suggestions that have been made to the effect that the Government of Pakistan has given tacit consent to the use of US drones on its territory is under scrutiny.

During the last session of the UN Human Rights Council in Geneva in June many states, including Russia and China, called for an investigation into the use of drone strikes as a means of targeted killing. One of the States that made that call was Pakistan. I was asked by these States to bring forward proposals on this issue, and I have been working closely on the subject of drones with Christof Heyns. The issue is moving rapidly up the international agenda.

Therefore, US and US citizens be forewarned as to what is coming.

- cont. -