Drone Attacks, International Law, and the Recording of Civilian Casualties of Armed Conflict

photo oxfordresearchgroup.org.uk

June 28, 2011 By Professor Susan Breau, Marie Aronsson, Rachel Joyce, Oxford Research Group  - defpro.com

The Oxford Research Group’s Recording of Casualties of Armed Conflict Project in their first discussion paper identified all of the elements of the international legal responsibility to identify, bury and record civilian casualties of armed conflict in the same way as military casualties are treated. The project team in the second phase of the project has conducted research which involves applying this international legal obligation to record civilian casualties of armed conflict to the drone attacks that are currently being conducted by the United States Central Intelligence Agency in Pakistan and Yemen. The standards identified in the previous discussion paper are repeated and applied to this current conflict situation.

The project team determined that this situation represents an egregious example of the violation of the various components of the obligation to record civilian casualties. It is complicated by the fact that there are various participants involved in these attacks, all who share the legal obligation. These include the United States government, the Pakistani authorities, the Yemeni government and the non-state actors involved in acts of terrorism being perpetrated in both Pakistan and Yemen.

The report has determined the following:

1. A Non-International Armed Conflict exists in Pakistan which is part and parcel of the Non-International Armed Conflict in Afghanistan.

2. Those drone attacks that occur in the Northwest Frontier Province (officially Khyber-Pakhtunkhwa Province), and Federally Administered Tribal Areas are governed by the law applicable to Non-International Armed Conflict.

3. There is an evolving armed conflict in Yemen though it is not part of the CIA drone campaign.

4. Drone attacks that take place in Yemen and in the areas of Pakistan not part of the Non-International Armed Conflict in Afghanistan are governed generally by domestic law enforcement law and international Human Rights Law. The intended targets of drone attacks are by and large classified as civilians save and except for those who are at the time of attack directly participating in a Non-International Armed Conflict.

5. The United States, Pakistan, Yemen, and organised non-state actors all fall within the international legal obligation associated with civilian casualties.

6. The legal obligations binding

a. to search for all missing civilians as a result of hostilities, occupation or detention;

b. to collect all of the casualties of armed conflict from the area of hostilities as soon as circumstances permit;

c. if at all possible the remains of those killed is to be returned to their relatives;

d. the remains of the dead are not to be despoiled;

e. any property found with the bodies of the dead is to be returned to the relatives of the deceased;

f. the dead are to be buried with dignity and in accordance with their religious or cultural beliefs;

g. the dead are to be buried individually and not in mass graves;

h. the graves are to be maintained and protected;

i. exhumation of dead bodies is only to be permitted in circumstances of public necessity which will include identifying cause of death;

j. the location of the place of burial is to be recorded by the party to the conflict in control of that territory;

k. there should be established in the case of civilian casualties an official graves registration service.

7. Those attacks that take place outside of the geographical area of armed conflict are extra-judicial killings contrary to international Human Rights Law and domestic criminal law unless the persons involved were killed while trying to evade lawful capture.

8. Those authorities responsible for the territory in which these extra judicial killing occur are responsible to investigate every incident of casualty and fulfil the same obligations as set out above in armed conflict.

(To download the full report, please visit: http://goo.gl/r7NDz (PDF 645KB, 31 pages)