A State intentionally killing a person outside of armed conflict and without due process is an extrajudicial killing under international law. Extrajudicial killing is a form of murder. At stake in the president’s decision to summarily execute alleged cartel members is whether he can murder people he labels criminals or “terrorists” with impunity. Under the administration’s apparent reasoning, there seems to be nothing preventing murders of other alleged criminals – drug traffickers or otherwise – in the United States. If allowed to go unchecked, the incident sets an extraordinary and dangerous precedent, encouraging additional unlawful executions by the United States and other leaders in the region and globally.

International Human Rights Law: The Right to Life and Fair Trial Rights

Under international human rights law, all people – no matter where they live, or what crime they have been suspected of – have fundamental human rights, including the rights to life and fair trial. When States use force outside of an armed conflict to which they are a party, they are bound by strict rules to protect human life.

Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR) recognize the inherent right of every person to life. Under international human rights law, no derogation from this right is permitted, even in times of “public emergency which threatens the life of the nation” (Article 4 of the ICCPR). As such, the use of lethal force is prohibited unless in self–defense when the loss of human life is imminent and less extreme means, such as capture, are insufficient. Regarding the use of lethal strikes outside of war, then-UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, reported to the Human Rights Council in 2010, “outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”

Article 10 of the UDHR and Article 14 of the ICCPR also establish universal rights to due process, or the right to a fair trial for those accused of a crime.

The rights to life and a fair trial are also well-established as a matter of customary international international law. The prohibition on extrajudicial killings is a non-derogable, or jus cogens, norm that binds all States.

U.S. Congress and the U.S. executive branch, on a bipartisan basis, have long championed the importance of the prohibition on extrajudicial killings. Much of human rights law as incorporated in statutes involving U.S. foreign policy centers on “gross violations of human rights,” a category of abuses defined in Section 502B of the Foreign Assistance Act in 1974. The State Department has long interpreted GVHRs to include extrajudicial killings.

Section 502B prohibits arms sales and security assistance to countries where the government engages in a consistent pattern of gross human rights violations. The same section mandates the State Department to produce its annual human rights reports, including “for each country with respect to which the report indicates that extrajudicial killings… have occurred in the country, the extent to which the United States has taken or will take action to encourage an end to such practices in the country.” These reports have also routinely included due process violations, including denial of fair public trial. The Leahy law, borrowing from Section 502B, bans security assistance to any unit of foreign military forces when there is credible information that they have committed a gross violation of human rights.

Other U.S. laws upholding the prohibition on extrajudicial killings include the Global Magnitsky Act, which authorizes sanctions on individuals who have committed a gross violation of human rights or engaged in corruption; U.S. visa sanctions authorized in Section 7031(c) of annual appropriations acts, which invoke the GVHR definition and, by extension, extrajudicial killings; the Torture Victim Protection Act (TVPA), which allows for the filing of civil lawsuits in the United States against individuals who committed extrajudicial killing; and the Immigration and Nationality Act, which classifies non-citizens who have committed or been otherwise involved in extrajudicial killing as ineligible for admission to the United States.

Caribbean Strikes: Murder Without Trial 

The U.S. strikes in the Caribbean sea appear to violate both of these unalienable rights to life and fair trial. The United States is not party to any recognizable armed conflict in Latin America and the Caribbean. As such, international humanitarian law (IHL) does not apply. (And even if the United States was in an armed conflict in the Caribbean, the United States would be bound under IHL to distinguish between civilians and combatants, and the vessel’s occupants would be protected from attack unless and for such time as they take a direct part in hostilities, which all information indicates was not the case.).

Simply put, the accused drug traffickers are civilians, not lawful military objectives, and international human rights law, not the law of armed conflict, governs the administration’s use of force. The victims’ participation in drug smuggling and affiliation with any drug cartel remain disputed, but the facts of their activities or membership is immaterial to their rights to life and due process – under any of the plausible reported facts, there is no basis for concluding they could be deemed combatants or participants in hostilities. That means their alleged violations of law may only be handled through criminal proceedings, with protections of due process, fair trial, and right to counsel – not summary executions. These procedures are what separate our legal system from one that permits wanton killing. While the administration alleges it knows the identities of those killed in the strikes, it has not disclosed them, and members of Congress report that the administration has provided “no positive identification that the boat was Venezuelan, nor that its crew were members of Tren de Aragua or any other cartel.” The Venezuelan government claims that “none were from Tren de Aragua, none were drug traffickers.” Journalists should press further on this point.

By its own admission, the U.S. government did not attempt to interdict the first vessel before destroying it and killing its occupants. “Instead of interdicting it, on the president’s orders, we blew it up. And it’ll happen again. Maybe it’s happening right now,” Secretary of State Rubio told CNN. That means that the U.S. government had the opportunity to use measures short of lethal force to address any threat that the vessel posed to the United States, if any. The standard procedures employed by the U.S. Coast Guard, sometimes with U.S. Navy support, of interdiction and arrest were available options. Indeed, such interdictions are routine in the Caribbean.The Trump administration could have brought the accused to justice in a U.S. court.  In choosing to conduct an airstrike, the president rejected that opportunity, denying the deceased of their rights to life and due process.

War is the Wrong Paradigm

The designation of Tren de Aragua and other drug trafficking organizations as Foreign Terrorist Organizations does not convey authority to use military force against those organizations.

Nevertheless, the administration appears to be invoking self-defense as a justification for its use of military force. Under international law that is binding on the United States, including the Senate-ratified UN Charter, the use of force in self-defense is only justified insofar as it is necessary to respond to an armed attack or an imminent threat of armed attack. The eventual arrival of drugs for sale in the United States is neither an attack nor an imminent threat of attack, and the availability of interdiction means that the use of force was not necessary.

In fact, the New York Times later reported that the vessel targeted on Sept. 2 had altered its course and turned around before the attack started, further rebutting officials’ claims of any imminent threat. Rear Adm. James E. McPherson, former top judge advocate general for the Navy and former general counsel of the Army, told the New York Times:

“I would be interested if they could come up for any legal basis for what they did. If, in fact, you can fashion a legal argument that says these people were getting ready to attack the U.S. through the introduction of cocaine or whatever, if they turned back, then that threat has gone away.”

On Sept. 3, Anna Kelly, White House spokesperson, also justified that strike in part as directed “in the collective self-defense of other nations.” But any lawful invocation of collective self-defense requires that another nation itself be in an armed conflict, or facing an armed attack or imminent threat thereof, and have requested the assistance of the United States in addressing that threat. No such basis is presented here – the defense of unnamed other nations, without even the attempt to establish whether they requested or needed support, is no  justification for the strike. Such reasoning, if accepted, would allow the administration to carry out military strikes wherever they wished, with no basis in international law, approval by Congress, or proper scrutiny. (For a detailed analysis of why the strikes lack any justification under the jus ad bellum and the law of armed conflict, see here).

Foundations in the U.S. Lethal Strikes Program 

The Trump administration’s airstrikes in the Caribbean sea expand on decades of power abuses from the so-called “war on terror.” Since 2002, the United States has conducted lethal strikes to kill alleged terrorists outside of conflicts to which the United States is a party and in gross abuse of congressional authorizations, undermining both domestic and international law. Over 110 organizations, including ours, have demanded an end to this program.

As some of us noted in an earlier Just Security piece, “[u]nder the U.S. lethal strikes program, the process of target selection occurs mostly in secret and typically results in death, with no opportunity for the individual to be informed of charges against them, prepare a defense, and be tried before a competent, independent and impartial court.” These strikes, when outside of armed conflicts to which the United States is a party, are accordingly extrajudicial killings.

However, President Trump’s airstrikes in the Caribbean also break dangerous new ground. Never before has a president claimed the authority to use military force on the basis of self-defense against drug trafficking. Counterterrorism airstrikes typically invoke the 2001 Authorization for Use of Military Force (AUMF), which is limited to the Taliban, Al Qaeda, and, in the executive branch’s view, certain associated forces, and does not apply to designated terrorist groups, cartels, or drug traffickers. While Democratic and Republican administrations have twisted the 2001 AUMF far beyond Congress’s intent in a series of legal leaps, they have at least purported to rely on an authorizing statute, which in turn was enacted based on an actual attack on the United States by an organized armed group.

Congress Must Act 

The Trump administration has demonstrated a disturbing lack of regard for the law, including the  principles described here. The day after the first attack, Pentagon officials were reportedly still searching for a legal rationale to justify the strike. Vice President JD Vance also signalled a lack of concern with legal justifications, responding to legal criticisms on Twitter/X with, “I don’t give a sh*t what you call it.” Not only does this grossly undermine the rule of law and violate the rights of those targeted, but this seemingly careless deployment of U.S. military forces puts service members at legal risk. Congress must step in to defend the rule of law and the foundational principles underpinning these legal constraints, including the universal rights to life and due process. That includes calling these strikes what they are: extrajudicial executions and murders.

Some members of Congress have rightly expressed alarm about the president’s Sept. 2 airstrike on human rights grounds. In a Sept. 9 statement, Rep. Gregory Meeks (D-NY), ranking member of the House Foreign Affairs Committee, demanded, “The administration must… provide Congress the intelligence, including what immediate threat to the United States justified the extrajudicial killing of 11 individuals.” Senator Rand Paul (R-KY) similarly decried the dearth of due process in the killing, stating, “It isn’t our policy just to blow people up […] We arrest people. […] even the worst people in our country, if we accuse somebody of a terrible crime, they still get a trial.”

More members of Congress need to vocally oppose the president’s dangerous claimed authority to murder anyone he labels a threat. Congress should also demand more information about the strike, including:

• The identity and alleged crimes of those killed;
• How the strikes were authorized and by whom, including who signed off on the strikes, and who may have voiced objections;
• The purported legal justification for the strikes under both domestic and international law;
• Whether the strikes are part of a broader program of pre-authorized extrajudicial killing, and if so, what the parameters of that program are.

Congress should also demand – or conduct itself – a thorough and transparent investigation into the strikes and their compliance with U.S. and international law, including what happened in the White House, the Pentagon, The Department of Justice, and down the chain of command that led to the strike. Decision-makers found responsible for extrajudicial executions should be held accountable, including under the Uniform Code of Military Justice and other applicable U.S. law.

Appropriations bills provide a potential avenue for congressional action. Legislators have long used must-pass appropriations bills as vehicles for restrictions on the use of funds for particular purposes. Using its power of the purse, Congress could refuse to fund airstrikes like the ones carried out in the Caribbean.

Congresswoman Ilhan Omar (D-MN) has introduced a War Powers Resolution in the House, and Senators Schiff (D-CA) and Kaine (D-VA) are reportedly preparing one in the Senate. Through a privileged bill under the War Powers Resolution, Congress can make clear that the Trump administration has no domestic authority to use military force against drug cartels.

These efforts are welcome, and they should incorporate not only Trump’s total absence of authority under U.S. law but also his brazen deprivation of the right to life of a reported fourteen unidentified individuals. Lawmakers should emphasize that Congress’s ability to use a War Powers Resolution to prohibit airstrikes like the one in the Caribbean does not mean that any armed conflict exists, that there has been an armed attack or imminent attack on the United States by purported drug traffickers, or that IHL applies to this situation. It does not. Such measures are privileged in both the Senate and the House of Representatives, under the current House rules, providing a fast-track to a floor vote that can ensure the president is not able to order this kind of egregiously unlawful attack again.

The post Murder by Drone: The Legal and Moral Stakes of the Caribbean Strikes appeared first on Just Security.

Last week, the United Nations (UN) Human Rights Committee (HRC) reviewed U.S. compliance with the International Covenant on Civil and Political Rights (ICCPR), the core international human rights treaty that protects civil and political rights, including the right to life. During the review, the Committee raised critical questions about the U.S. government’s ongoing use of lethal force outside of recognized conflict, including through drone and other air strikes. “The use of lethal drone strikes outside of recognized theaters of conflict is presumptively illegal and violates several covenant rights… [including] the right to life as the supreme right from which no derogation is permitted,” noted Canadian member Marcia V. J. Kran.

The Committee is right to be concerned. As a group of civil society organizations, including ours, noted in a submission for its review, the secretive and unaccountable U.S. program of killing those it deems terrorism suspects outside of recognized conflict has caused tremendous harm, in particular to Black, Brown, and Muslim communities around the world. According to independent monitoring groups, the United States has carried out hundreds of lethal counterterrorism strikes outside the context of armed conflict since 2002, including in Libya, Pakistan, Somalia, and Yemen, that have killed thousands of people. These strikes continue under the current administration. According to Airwars, the Biden administration has conducted at least 32 declared strikes in Somalia and at least 6 alleged strikes in Yemen since Jan. 20, 2021.

This program of lethal strikes outside of recognized war zones consistently violates international human rights law, which ​​prohibits summary use of lethal force unless the loss of human life is imminent and less extreme means, such as capture, would be insufficient. All people, no matter where they live or what they are suspected of, have fundamental human rights, including the rights to life and due process. When states use force outside of an armed conflict to which they are a party, they are bound by strict rules to protect human life.

Despite these obligations, President Joe Biden’s new rules for the use of lethal force outside of recognized war zones – enshrined in his administration’s Presidential Policy Memorandum or PPM – further entrench a controversial program that successive presidents have authorized to identify supposed terrorism suspects from afar and kill them from the sky, far from any recognized battlefield and shrouded in secret.

Below we describe several key failings of current U.S. policy that both the Committee and our own organizations have raised with U.S. officials on multiple occasions. These include the failure of the lethal strikes program to protect the right to life and fair trial rights under international human rights law; improper reliance on the laws of war in conducting strikes outside the context of armed conflict; the lack of transparency and accountability for CIA strikes; and the lack of effective remedy for harm caused by U.S. strikes.

US Protection of the Right to Life and Fair Trial Rights

As the Committee has stated, the right to life (Article 6 of the ICCPR) “is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies.” Yet the publicly available version of the PPM makes no reference to the United States’ international human rights obligations, including to protect the right to life. During last week’s review, the Committee made clear that it believes the U.S. lethal strikes program falls short of these obligations. Last week, one Committee member pointedly asked, “What steps will be taken to stop illegal lethal strikes?” It was hardly the first time the United States had heard this warning. UN special rapporteurs on extrajudicial, summary or arbitrary executions, and on countering terrorism, have repeatedly reported concerns about the program to the Human Rights Council. For example, as then-UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, reported to the Human Rights Council in 2010, “outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”

The U.S. approach of using lethal force against those it deems terrorism suspects outside of armed conflict also raises serious due process concerns, implicating the ICCPR’s right to a fair trial for those accused of a crime (Article 14). As some of us noted in an earlier Just Security piece, “U.S. policy choices since 9/11, including the use of drone strikes, have resulted in the widespread understanding that the United States believes that it is legal to summarily execute individuals the government suspects of engaging in terrorism.” Under the U.S. lethal strikes program, the process of target selection occurs mostly in secret and typically results in death, with no opportunity for the individual to be informed of charges against them, prepare a defense, and be tried before a competent, independent and impartial court.

Improper Application of the Laws of War

Part and parcel with the U.S. failure to uphold the rights to life and fair trial under international human rights law is the United States’ insistence that its lethal strikes program need only adhere to international humanitarian law (IHL), also known as the law of war, as the lex specialis with respect to armed conflict and the protection of war victims. Under four successive U.S. administrations, the government has adopted policies on the use of lethal force “outside areas of active hostilities,” signifying tacit acknowledgment that strikes are being conducted outside of an armed conflict to which the United States is a party. Nevertheless, U.S. policy indicates that the United States considers IHL to apply, aligning with U.S. claims that it is engaged in a global, geographically and temporally limitless non-international armed conflict with al-Qaeda and associated groups. The U.S. delegation reiterated this stance at last week’s ICCPR review, stating, “As a matter of international law, the United States is in an armed conflict with al Qaeda and associated forces, in which the United States may use force in accordance with the law of war.”

But this framing, and the way the United States has applied it, has violated or undermined the UN Charter’s purpose of constraining unilateral uses of force, which is permitted only under exceptional and narrow circumstances. Under the Charter’s provisions and customary international law, nations may not use defensive force without UN Security Council authorization, unless in response to an armed attack or an actually imminent armed attack. Yet the United States has promoted expansive interpretations of these limited exceptions, using force in ways that violated or undermined the Charter. Indeed, in a view widely shared by many including our organizations, the International Committee of the Red Cross (ICRC) notes that the concept of a “global war on terror” does not exist under international law, and al-Qaeda and its “associated forces” do not constitute a unitary party. (See our submission and previous Just Security piece for further analysis of the United States’ dubious claims and conflicts with the UN Charter.)

In answering the Committee’s questions regarding the protection of civilians in U.S. lethal strikes, the U.S. delegation also pointed to the Civilian Harm Mitigation and Response Action Plan (CHMR-AP), a Department of Defense plan released last year to improve how the United States prevents and responds to civilian harm. While our groups have welcomed the plan, it is not an answer to our concerns about lethal force outside of recognized war zones. The plan is designed for armed conflict, and as such builds upon obligations and principles from IHL. It does not address the rights to life and due process all persons have under international human rights law in situations outside of armed conflict, regardless of their status or the accusations against them.

Secretive and Unaccountable CIA Strikes

While the Department of Defense sometimes acknowledges and releases information on strikes it carries out, and in a limited number of cases acknowledges civilian harm, the CIA as a matter of policy does not acknowledge its own lethal strikes, much less the harm they cause to civilians. This means that not only is there no public transparency or oversight around the use of force by the CIA, but also that civilians harmed in CIA operations have no way to seek answers, redress, or justice. Furthermore, the CHMR-AP, as a Department of Defense action plan, also does not apply to the CIA, compounding the significant gaps in the public’s understanding of CIA policies to prevent and address civilian harm.

Our organizations have therefore called for an end to the use of lethal force by the CIA, restricting the agency’s role to intelligence and analysis only. (Of note, a new bipartisan bill introduced in September by Representatives Barbara Lee (D-CA) and Michael Burgess (R-TX), the Drone Reform Act, would achieve this.)

During its review, the Committee asked U.S. officials what the CIA has done to investigate unlawful drone strikes or civilian harm. The U.S. delegation did not answer this question.

The Right to an Effective Remedy

Article 2 of the ICCPR requires the United States to provide redress for violations of protected rights. Despite this obligation, there is currently no avenue in U.S. courts to remedy injury caused by U.S. strikes outside of armed conflict that violate international human rights law. For example, in 2017, the DC Circuit Court of Appeal dismissed a suit from a Yemeni citizen requesting a declaration that the U.S. drone strike in Yemen that killed his brother and nephew violated U.S. and international law. The Court ruled that the case raised a “political question” and could not be considered by the judiciary. The U.S. Supreme Court refused to hear the case, leaving virtually no avenue in the U.S. court system to challenge U.S. lethal strikes outside the context of armed conflict.

Across all circumstances, including in the context of armed conflict, the United States has also largely failed to offer compensation and redress proactively, including through the use of condolence payments on an ex gratia basis. While the United States does not acknowledge ex gratia as a form of legal compensation or redress, it does provide a route for victims to receive payments – but one the United States has rarely used in recent years. As the Committee noted this week, the U.S. government made zero ex gratia payments in 2020 and one payment in 2021 – despite a $3 million annual funding allocation from Congress and the high number of eligible victims and proactive requests for amends from civilian victims and their representatives.

The Committee asked what steps the United States is taking to ensure accountability and redress for civilians injured, or the families of those killed, outside of recognized armed conflict. The U.S. delegation did not explicitly address accountability, instead referencing the Department of Defense Action Plan in its answer. Here, too, the Action Plan is inadequate. First and foremost, the plan does not currently provide accountability mechanisms that could address human rights violations. The plan also does not contain a commitment to review and make amends for the many cases of civilian harm that preceded the CHMR-AP, including those in the context of armed conflict. While the plan does not preclude accountability, it certainly does not meet the international obligation to provide it. As our organizations wrote in our submission, the United States should promptly improve its policies and practices for providing amends and redress to individuals harmed in its operations, including in cases that preceded the CHMR-AP, and accede to the First Optional Protocol to the ICCPR allowing individual complaints.

Ending the Lethal Strikes Program

Upon entering office, Biden promised to end the United States’ forever wars and center human rights in U.S. foreign policy. But by entrenching the U.S. approach to lethal force in the PPM, he has done the opposite: chipped away at the edges while leaving largely untouched a harmful lethal strikes program unbounded by geography or the rule of law. The U.S. review at the Human Rights Committee reminds us that the United States has, on an ongoing basis, failed to meet its international human rights law obligations, including core rights from which no derogation is permitted.

Importantly, the administration’s choices are not only harmful at present. The President’s rules on lethal force can be stripped away by any future administration that shows less restraint.

Over 110 diverse organizations, including our own, called on Biden to end this program in June 2021. While the administration may believe it is trustworthy and restrained in using lethal strikes outside of armed conflict, the continuation of ​​the program nevertheless perpetuates a dangerous and unlawful precedent that erodes the rule of law and prohibition on extrajudicial killings. The President can still change course, and set a new, rights respecting example, by ending this program.

IMAGE: Graffiti showing a US drone is depicted on a wall to protest against US drone strikes in Sana’a, Yemen.

The post US Lethal Strikes Program Continues to Violate Int’l Human Rights Law appeared first on Just Security.

Al-Bihani is just one of 20 men held at the Guantánamo Bay detention camp for nearly two decades, never charged with a crime, and cleared by U.S. security agencies for release from the prison. Some have been in limbo for well over a decade. Al-Bihani remains stuck there to this day, despite the Biden administration’s stated intention to close the infamous detention center.

Jan. 11 marks the 21st anniversary of the opening of the detention center at Guantánamo Bay. Created by the administration of President George W. Bush after the 9/11 attacks to evade the requirements of U.S. law, the prison has held nearly 800 Muslim men and boys who were captured overseas or turned over to U.S. authorities, often in exchange for bounties. The vast majority of those men were never charged with any crimes. Although hundreds were released over the years, 35 men remain at Guantánamo today, at the astronomical cost of $540 million per year. That makes Guantánamo the most expensive detention facility in the world.

Contrary to the claim by former Vice President Dick Cheney that the men remaining at Guantánamo were the “worst of the worst,” most are just the unluckiest: they came from countries whose governments were unable or unwilling to lobby for their return. That was the case with al-Bihani, a Yemeni national raised in Saudi Arabia. And because the ongoing indefinite detention of Muslim men at Guantánamo has fallen off the U.S. political radar, he and his fellow detainees have spent decades imprisoned without charge or trial, with little to no apparent effort being made to end this glaring injustice.

Amnesty International, where I work, has joined 158 other organizations to urge the Biden administration to finally put an end to the nightmare of Guantánamo and close the prison. Although Congress has for years refused to allow the Department of Defense to transfer any of the detainees to the United States, the Biden administration can and should transfer them to other countries where their human rights will be respected. (The Bush and Obama administrations both managed to safely transfer hundreds of detainees out of Guantánamo to other countries.)

As we write in our letter to the president, although the Guantánamo prison is now 21 years old, it is not a problem of the past. The prison continues to cause profound and escalating damage to the aging and increasingly ill men still detained indefinitely there, most without charge and none having received a fair trial. It has also devastated their families and communities. The continued existence of a prison created only to hold Muslim men and boys indefinitely and without due process also continues to fuel and justify bigotry, stereotyping, and stigma. Guantánamo entrenches racial divisions and racism and encourages other governments to commit similar rights violations.

That the Guantánamo detention center has existed for 21 years as a site of mass incarceration of men not even accused of crimes is as unconscionable as it is tragic. So is the fact that more than 21 years after the 9/11 attacks, no one has been held accountable. Not one of the five men accused by the dysfunctional Guantánamo military commissions of helping coordinate the attacks has been put on trial or allowed to plead guilty. Their cases have been bogged down in pretrial proceedings, thwarted in large part by government secrecy about the detainees’ treatment, for more than ten years. Meanwhile, the petitions for habeas corpus filed by al-Bihani and ten other detainees have been pending, undecided, in the D.C. District Court for five years.

If this were happening in any other country, the U.S. government – and the American public – would be outraged. But it’s happening in our own country. And our government does not seem to be doing very much about it.

The Biden administration must commit to closing Guantánamo before the end of President Biden’s first term in office. It should also commit to a radically different approach to national and human security, and a meaningful reckoning with the full scope of damage that the post-9/11 approach has caused.

IMAGE: Razor wire lines the fence of the Guantánamo Bay maximum security detention center on October 22, 2016, at the U.S. Naval Station at Guantánamo Bay, Cuba. (Photo by John Moore/Getty Images)

The post Twenty-One Years On, US Detention at Guantánamo Bay Remains Unconscionable appeared first on Just Security.

Many of us commemorating the 20th anniversary of the opening of the United States’ Guantanamo Bay detention facility today could not agree more.

Experts have extensively documented the problems at and proposed solutions to Guantanamo. In 2021 on Just Security alone, writers have documented multiple instances of torture, highlighted the grave due process problems, made the national security case for closing Guantanamo, and identified how the Biden administration could correct the United States’ position on Guantanamo cases. Civil society leaders – including at Amnesty International, where I work – have likewise called for closure of the prison and provided ample recommendations for how that could be done.

Yet the United States seems to have assumed a collective amnesia when it comes to Guantanamo.

The military prison at the U.S. naval base in Guantanamo Bay, Cuba, was opened 20 years ago today for the purpose of detaining individuals suspected of links to the 9/11 attacks and keeping them beyond the reach of U.S. law. The Bush administration even made up a new name for them – “unlawful enemy combatants” – to deny them the protections of the laws of war. Extrajudicial detention at Guantanamo has now been going on for so long that there is an entire generation for whom it has always existed. Some young adults serving in the military today were born after detention at Guantanamo began. Yet the abuses and illegality at Guantanamo have largely been relegated to a background issue of U.S. policy, rarely included in politicians’ lofty pronouncements about the rule of law.

Nearly 800 Muslim men and boys have been detained at Guantanamo over the last 20 years. Almost none of them had anything to do with the 9/11 attacks. Thirty-nine prisoners remain at Guantanamo today. Most have still not been charged with a crime.

The United States brutally interrogated and tortured detainees at Guantanamo. Abuses included sleep deprivation, extended solitary confinement, light and sound manipulation, exposure to extreme temperatures, sexual harassment, threats of rape, threats with dogs, physical beatings, “stress positions,” and religious abuse such as mocking the call to prayer and abuse of the Qur’an. Many detainees had previously also been tortured in secret CIA prisons with techniques including waterboarding. These actions blatantly violated both U.S. and international law, and have left indelible scars, including severe prolonged physical and mental health problems for many of the detainees. Still, U.S. officials who planned and oversaw these actions have never been held accountable.

This might all seem like old history, but for the 39 men still imprisoned at Guantanamo, 27 of whom have never even been charged with a crime, it is an ongoing, daily, flagrant abuse of their human rights.  The U.S. government would surely condemn any other nation that engaged in indefinite detention without charge or trial for two decades.

Guantanamo was created by executive action, and it can be shut down by the president, too.

Biden has said he wants to close the prison. Back in 2009, as vice president, he told an audience at the Munich Security conference, “We will uphold the rights of those who we bring to justice. And we will close the detention facility at Guantanamo Bay.” But since taking office, Biden has barely acknowledged the prison’s ongoing existence and has never committed to any timeline for closing it.

Administration officials have suggested they need cooperation from Congress, but the President knows that’s not the case. National security experts and advocates have submitted detailed recommendations to the president and his advisors detailing the steps they can take to close it down, many of which Just Security writers previously analyzed here. None of them require action by Congress. All of those steps can be taken now.

Instead, the Biden administration is spending millions of dollars expanding Guantanamo’s facilities. Add that to the more than half a billion dollars already spent annually to keep the prison open, and Guantanamo is likely the most expensive prison on earth.

Speaking from the Capitol building on the 100th day of his presidency in April, Biden lauded the “extraordinary courage” summoned to defend it on Jan. 6 and asked: “Can our democracy deliver on its promise that all of us created equal in the image of God have a chance to lead lives of dignity, respect and possibility?”

The continued indefinite detention of Muslims without charge or trial at Guantanamo flies in the face of any promise of “dignity, respect and possibility” the United States might hope to offer. President Biden should summon his own political courage to put an end to it.

Guantanamo has global implications: the United States’ persistent indefinite detention of uncharged men in an offshore prison acts as a standing invitation to other countries to follow in those footsteps.  And Guantanamo provides an easy retort to world leaders criticized by the United States for their own human rights records. We also know it’s also been featured in propaganda by al-Qaeda and other non-state armed groups seeking to recruit new members.

More than a decade ago, former President George W. Bush acknowledged that “the detention facility had become a propaganda tool for our enemies and a distraction for our allies,” and should be closed.  A broad range of national security leaders, both Democrats and Republicans, have for many years agreed.

While Biden, in withdrawing U.S. troops from Afghanistan, has been eager to put the endless “war on terror” behind him, the continued existence of the Guantanamo prison and indefinite detention without charge of 39 Muslim men stands as a glaring impediment: an enduring symbol of discriminatory law enforcement, Islamophobia, and flagrant disregard for international human rights.

The storming of the U.S. Capitol and disinformation about everything from vaccines to the integrity of our elections are no doubt important matters, but the U.S. government’s commitment to truth, rights, and rationality cannot be selective. For U.S. leaders to credibly argue that respect for the rule of law and equal rights are necessary on other issues, they must also respect the same principles when it comes to Guantanamo.

As Biden put it on January 6: “We are in a battle for the soul of America.” There is no sound, rights-respecting, and honest reason to keep the Guantanamo Bay prison open beyond this tragic 20th anniversary. Biden should demonstrate his commitment to the values he professes by closing it now.

IMAGE: Demonstrators dressed in Guantanamo Bay prisoner uniforms march past Capitol Hill in Washington, DC, on January 9, 2020. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

The post Defending the Rule of Law Requires Ending Guantanamo Detention appeared first on Just Security.

Even the five men accused of orchestrating the September 11 attacks have yet to receive a trial, which has denied accountability for the loved ones of those killed and injured that day. Meanwhile, the United States has lost its credibility advocating for respect for human rights elsewhere as long as it fails to acknowledge its own grave violations and until it holds the perpetrators of torture accountable.

As a new president prepares to enter the White House and become the fourth incumbent to preside over the prison, he should quickly commit to closing it.

Speaking at the Munich Security Conference in February 2009, then-Vice President Joe Biden told the audience that “We will uphold the rights of those who we bring to justice. And we will close the detention facility at Guantanamo Bay.” A dozen years later, he will have the opportunity to live up to that promise. He should seize it.

Importantly, Biden need not wait for Congress to change the law to close Guantanamo. As numerous authors and experts have explained at Just Security, Biden already has all of the authority he needs to address the situations of each of the 40 remaining detainees, and to close the detention center once and for all. While some situations may be difficult, and their solutions imperfect, that can no longer be an excuse for the United States to turn its back on this serious problem of its own creation. Biden can and must put an end to Guantanamo and hold perpetrators of human rights abuses accountable.

Amnesty International, where I work, has just released this new report reviewing the history and status of the prison, and insisting that it be closed. Of course, we are hardly alone. Calls for closing Guantanamo have ranged from President Bush to President Barack Obama, the military to medical professionals, international jurists to a wide range of human rights organizations and local activists, to the late Republican Senator John McCain. Among the former government officials who support closure are five secretaries of defense, eight secretaries of state, six national security advisors, five chairmen of the Joint Chiefs of Staff, and dozens of retired generals and admirals.

With a new administration taking office, a new urgency and energy are needed, accompanied by a genuine commitment to truth, accountability, and remedy, and a recognition that this issue must not be allowed to drift any longer.

The post On Guantanamo’s 19th Anniversary, A Renewed Call to Close It appeared first on Just Security.

Conflicts that the U.S. military has taken part in over the past three years have been devastating to civilians, killing and maiming thousands. Although these consequences remain mostly hidden from the U.S. public, Congress has tried to increase transparency by requiring the Department of Defense (DOD) to report on when and where its forces have killed or injured civilians. This year, for the first time, DOD was also required to report payments it has made as condolence or assistance to survivors and family members of victims left behind.

That report, and DOD’s new interim regulations governing those payments, underscore that the U.S. process of making so-called “ex gratia” payments, while a worthwhile effort, lacks coherence or consistency, and fails to recognize the human suffering it was designed to address. Although it offers an opportunity to provide some practical assistance and acknowledgment to victims of U.S. firepower, the military needs to re-think and re-purpose those payments dramatically.

Section 1213 of the 2020 NDAA authorizes “ex gratia” payments (meaning “by favor” or “out of grace”) for:

“damage, personal injury, or death that is incident to the use of force by the United States Armed Forces, a coalition that includes the United States, a military organization supporting the United States, or a military organization supporting the United States or such coalition”

The payments are called “ex gratia” to emphasize that they’re not required, but discretionary payments the military can choose (or decline) to make. As such, they are not reparations, to which victims have a right under international law for serious violations of the laws of war, as set out in the UN Basic Principles. Because the United States rarely acknowledges such violations, despite organizations such as Amnesty International, sometimes presenting evidence of them, ex gratia payments are, as a practical matter, the only form of payment civilian victims of U.S. military force may receive.

In the past, these payments have happened in secret, with no consistent policy guidance or congressional oversight. This changed in June, when DOD published interim regulations governing those payments. And in April, pursuant to congressional mandate, DOD published its first report on the payments made. Both are illuminating.

Significantly, the DOD report highlights that in 2019, the overwhelming majority of what the report calls “ex gratia” payments – 605 out of 611 – were made in Afghanistan, where the United States has long had troops on the ground, although it’s rapidly withdrawing those. The other six were in Iraq.

But these are not the only places where U.S. forces harmed civilians. Amnesty, for example, has documented 21 civilians killed and 11 injured in Somalia since early 2017. To date, none of them have received any payments from the U.S. government.

And in other conflicts Amnesty has documented previously – the bombing of Raqqa in Syria, for example – none of the hundreds of individuals whose cases Amnesty investigated and whom Amnesty researchers interviewed had even been contacted by the U.S. government, let alone received any payments for their losses. That includes the Badrans and other families, for whose death the DOD eventually admitted responsibility after months of denial. The same is true for the military operation in Mosul, Iraq, by the U.S.-led coalition in 2016-2017, which claimed thousands of civilian lives. The U.S. government does not claim to have made payments in either of those conflicts.

Why the disparity?

The United States has had a significant troop presence over the years in Afghanistan, so it likely believed making payments was in its strategic interest. According to the newly-issued DOD regulations, ex gratia payments are designed “to help authorized commanders obtain and maintain friendly relations with and the support of local populations where U.S. forces are operating…” Assisting survivors of civilians killed or those who have been gravely injured does not seem to be a consideration under this guidance. That allows the United States to provide condolence payments to victims where the United States has troops on the ground over time, and to disregard those killed by U.S. air strikes, or from afar with U.S. artillery, despite the obvious humanitarian and strategic reasons to attempt to provide similar payments to all civilian victims of U.S. firepower. Of course, it may also be easier to determine how to dole out such payments fairly and wisely when the United States has more personnel on the ground and a better awareness of the local situation.

That highlights another point about civilian protection, however: when the United States doesn’t have significant numbers of troops on the ground and strong local contacts, it may be less likely to know whom it’s killing, and in some contexts may be taking fewer precautions to protect civilians. This was the case regarding the assault on Raqqa, when the United States, leading a coalition of 77 countries but relying largely on Kurdish armed groups to do the fighting on the ground, used massive airpower and artillery to oust ISIS. Amnesty, working with the U.K.-based non-governmental organization Airwars, documented at least 1600 civilians killed in a four-month period by the U.S.-led coalition. The U.S. government has only acknowledged about 10 percent of those killings, and as far as we know, it’s done nothing to provide survivors and family members of victims any payments in the aftermath, although the area is easily accessible to U.S. personnel.

In Somalia, too, a U.S. war against al-Shabaab fought by remotely-piloted as well as manned aircraft has killed dozens of civilians, according to Amnesty’s investigation of just nine of the more than 150 U.S. lethal strikes there. The Pentagon has still refused to acknowledge most of those civilian deaths and injuries, insisting that all except four killed and three wounded were combatants. AFRICOM only acknowledged the first two of those four civilian deaths — a woman and a young child killed by a U.S. air strike near the town of El Buur in April 2018 — after Amnesty released its first report documenting civilian casualties from U.S. strikes in Somalia. That was a year after the incident occurred. To date, the survivors of the El Buur strike have not been contacted by the U.S. military to offer direct acknowledgement, reparation or assistance, although the family has tried to contact the U.S. mission in Somalia.

The U.S. military often claims its lack of troops on the ground in countries where it is fighting mostly air wars makes it too difficult to interview witnesses or survivors of U.S. strikes to determine who exactly was killed and whether they were civilians (see Sarah Knuckey, Ole Solvang, Jonathan Horowitz and Radhya Almutawakel post on Just Security). Although the U.S. government has not provided any reason for not making ex gratia payments in the contexts described here, officials may claim the lack of troop presence is also a challenge to providing them.

That’s not a good enough answer. Raqqa and Mosul, for example, were both accessible to U.S. personnel after the combat operations that took place there, and there were some U.S. troops on the ground. If the United States truly believed it could not spare U.S. personnel to investigate who was killed by its bombs and to acknowledge civilian victims, then how could the military expect to know what it had accomplished, the harmed it had caused, and whether victims should receive payments? More broadly, the U.S. military will be less likely to take adequate measures to avoid harming civilians in the future if it refuses to competently assess the outcome of its past operations. Nor are U.S. strategic interests served by killing civilians and then denying it, leaving behind bereft and destitute families to attest to what happened. As Rasha Badran, who lost most of her family in Raqqa but has received nothing to date from the U.S. government, told Amnesty International: “I don’t understand why they bombed us. Didn’t the surveillance planes see that we were civilian families?”

The Pentagon report on payments made is also misleading. Although it claims to document 611 “ex gratia payments,” it includes over 200 so-called “hero payments,” which are paid to “the surviving spouse or next of kin of host-nation defense or police personnel who were purposely killed by enemy forces while those personnel were supporting or defending U.S. or coalition forces.” These “hero payments” constitute more than $540,000 out of a total of $1,644,116 reportedly paid. Nearly a third of the total payments reported, then, are not ex gratia payments for damage caused by the U.S. military, but are made to members of the local population assisting U.S. combat operations — not necessarily civilians, and not those harmed by U.S. actions.

While it’s fine to report those payments, including them in a congressionally-mandated report on ex gratia payments to civilians harmed by U.S. lethal force lengthens the list and inflates its total, suggesting that DOD has provided far more assistance to civilian victims of U.S. firepower than it actually has. In fact, the U.S. military made only 71 “condolence payments” for death or injury to civilians in 2019. The vast majority of ex gratia payments – 336 — were for battle damage to property. Meanwhile, 559 Afghans were killed and 227 injured by “international military forces” in 2019, according to the United Nations Mission for Afghanistan. Ninety-six percent were the result of air strikes, which are carried out exclusively by the U.S. military. (The United States dropped more bombs on Afghanistan in 2019 than it had in nearly a decade, according to U.S. Air Forces Central Command.)

To be sure, this first report on ex gratia payments is one step in improving transparency around the U.S. response to the civilian harm its military operations cause. But payments to civilian survivors and their family members should be based on a policy that is consistent and coherent, acknowledging and doing far more to address the needs of all civilian victims of U.S. lethal force, wherever they may be. And the reporting should more accurately reflect its limited reach.

IMAGE: A picture taken on September 5, 2017 shows smoke billowing out following a coalition air strike in the western al-Daraiya neighborhood of the embattled northern Syrian city of Raqa. (Photo credit DELIL SOULEIMAN/AFP via Getty Images)

The post Toward a Consistent and Coherent Ex Gratia Policy for Civilian Casualties appeared first on Just Security.

It’s difficult to know the precise numbers, but in-depth field investigations conducted by Amnesty International researchers into civilian casualties caused by specific battles or air strikes in Syria and Somalia suggest that the U.S. is substantially undercounting the numbers.

We’ve never really had an accurate count from the U.S. government. The 2020 National Defense Authorization Act required the Department of Defense to provide its most recent count, and related details, to Congress by May 1. The Pentagon made its report public last week. (Dan Mahanty and Rita Siemion provided helpful summary and analysis, and Annie Shiel and Archibald Henry outlined what the developing Pentagon policy on civilian casualties prevention and response should include.) While the new report provides more detail about civilians killed and injured by U.S. military operations than previous reports have, the Trump administration’s count of the numbers of civilian deaths and injuries it has caused still falls short.

Take, for example, the report’s assessment of U.S.-led military operations in Raqqa, Syria in 2017. (Although the recent report focuses on 2019, it purports to update its casualty counts from previous years as well.) The Pentagon reports that in 2017, “Operation INHERENT RESOLVE and other military actions related to Iraq and Syria” killed “approximately 864 civilians” and injured “approximately 219 civilians.”

Amnesty International and Airwars, however, have estimated that more than 1,600 civilians were killed by U.S.-led coalition strikes from June to October 2017 in the city of Raqqa alone. Amnesty’s findings were based on four visits to Raqqa that included site investigations at more than 200 strike locations and interviews with more than 400 witnesses and survivors. Amnesty researchers also analyzed more than 2 million satellite image frames to determine when each of the more than 11,000 buildings destroyed in Raqqa was hit. Researchers analyzed and authenticated video footage captured during the battle. And the organization’s military experts established type and provenance of air-delivered bombs and missiles and ground-launched artillery and mortar shells.

According to the U.S. military’s new report, “DoD assessments seek to incorporate all available information, including information provided by [nongovernmental organizations] and [international organizations], as well as additional information and tools that are not available to other organizations – such as operational planning data and intelligence sources.”

Yet DOD assessments in Syria do not incorporate site visits or interviews with witnesses or survivors of any of its strikes who could speak to the occupants of a building at the time the U.S.-led coalition destroyed it. DOD’s “operational planning data” would not provide that information, and it’s not clear that “intelligence sources” would have that information, either, or would have the incentive to report it accurately. This is a crucial piece of the U.S. military investigation that’s missing.

Likewise, in Somalia, the new Pentagon report acknowledges two civilians killed in 2019 by U.S. military operations there, which target the non-state armed group al-Shabaab. It earlier acknowledged the United States caused two civilian casualties in April 2018, although it didn’t admit those until April 2019 and they are not acknowledged in this latest report.

Meanwhile, Amnesty researchers in Somalia determined, based on extensive testimonial evidence and expert analysis of images and video from strike sites, satellite imagery, and weapons identification, that 21 civilians were killed and 11 injured from just nine U.S. air strikes from among the scores dating back to early 2017, when President Trump declared southern Somalia an “area of active hostilities.”

The Pentagon’s explanation for the disparity — that it has access to “operational planning data” and “intelligence sources” that NGOs do not — is the equivalent of saying “trust us” based on secret evidence. Meanwhile, it dismisses researchers’ findings, which are based on extensive and well-documented evidence shared with the U.S. Africa Command (AFRICOM), without providing any basis for disputing its quality or credibility.

The Pentagon can’t expect the public to accept that kind of explanation — neither in the United States nor in the places where it’s bombing. If the United States truly lacks the ability to interview witnesses and survivors and visit strike sites in certain locations, then it should at least explain why it’s dismissing the documentation and testimony provided by independent nongovernmental organizations who demonstrate that they have thoroughly and meticulously done so.

Beyond that, if the United States is going to engage in lethal operations abroad, then it needs to develop a reliable means for investigating and reporting on who has been killed and injured as a result. It’s not enough to make the blanket statement that “[a]ll DoD operations in 2019 were conducted in accordance with law of war requirements, including law of war protections for civilians,” when it appears not to have fully assessed the impact of its actions. If it’s not clear who was killed or injured in a particular military operation, then how can commanders know if all necessary precautions were taken, or if its pre-strike assessments of expected harm were accurate, or even reasonable?

The difficult work of credibly investigating the aftermath of lethal military operations is the responsibility of the governments who engage in them. It cannot be left to nongovernmental organizations like Amnesty International, which lack the resources to investigate anywhere near the hundreds or thousands of military strikes the United States engages in within any given year.

Finally, the report mentions toward the end that DOD has submitted to Congress a report of 611 “ex gratia” payments made as a form of condolence or assistance “in the event of property damage, personal injury, or death” caused by U.S. military actions. The report does not say where or to whom those payments were made, but none of the hundreds of people with whom Amnesty researchers were in contact for their investigations had been contacted at all by the U.S. military, let alone received any assistance. All civilians harmed by U.S. military actions should at the very least receive an acknowledgment of their loss. If laws of war were violated, they are entitled to reparations.

The U.S. military’s reports have the potential to be an important step toward providing accountability for individuals and families around the world who’ve been harmed by U.S. military actions. Thanks to acts of Congress, these reports have provided more information each year. But for these reports to make a meaningful contribution, they must contain concrete information based on thorough investigations, and must acknowledge and assist the survivors.

So far, those things are still not happening.

Image: Two Air Force F-22 Raptors fly over Syria, Feb. 2, 2018, while supporting Operation Inherent Resolve. Air National Guard photo by Staff Sgt. Colton Elliott.

The post The Fatal Flaw in DOD’s Latest Civilian Casualties Report appeared first on Just Security.

While much of the world tries to fight a global pandemic that has already killed thousands, the U.S. military has been secretly stepping up its war in Somalia, killing civilians in the process.

Soon after President Donald Trump took office in 2017, U.S. Africa Command (AFRICOM) began ramping up its air war. Since then, it’s only increased its tempo. In the first few months of 2020, the U.S. has already conducted at least 39 airstrikes in Somalia. To put that in perspective, AFRICOM carried out 63 air strikes during the entirety of 2019.

The U.S. says these airstrikes are to assist the government of Somalia in its war against the non-state armed group al-Shabaab and “increase the security of the Somali people as these terrorists indiscriminately attack and extort innocent civilians.” Yet the increase in strike activity has not fulfilled its purpose on the ground. Al-Shabaab was driven out of the Somali capital, Mogadishu, by a multinational force led by the African Union Mission to Somalia, or AMISOM, in 2011, but still controls vast swaths of the Somali countryside. Even if al-Shabaab was pushed out of this territory, the government of Somalia appears to be incapable of securing and governing those parts of the country. On top of that, al-Shabaab’s lethal attacks on civilians in Somalia have only increased even as the U.S. ramps up its bombing.

In the meantime, the U.S. continues to kill a growing number of civilians with these airstrikes, without acknowledgement or accountability. A year ago, Amnesty International — where I work — reported the deaths of 14 civilians in just five air strikes that it was able to investigate. The U.S., at that point, had acknowledged 131 lethal air strikes in Somalia since early 2017, but claimed that all of those killed were “terrorists.” AFRICOM says it investigates claims of civilian casualties, but it does not contact witnesses, family or community members to determine who the victims were. In the past year, the U.S. has acknowledged civilian deaths occurred in two cases, but even then, it never contacted the family or offered them assistance.

Then in February, it happened again.

According to new research by Amnesty International, on February 2, around 8 p.m. in Somalia, a family of five was having dinner in the city of Jilib, when an air-dropped weapon struck their home. Nurto Kusow Omar Abukar, an 18-year-old woman, was struck in the head and killed instantly. Her two younger sisters, Fatuma and Adey, ages 12 and 7, and their grandmother, Khadija Mohamed Gedow, 70, were all injured.

Then on February 24, a Hellfire missile from another U.S. airstrike hit a farm near the village of Kumbareere, 10 kilometers north of Jilib. It killed 53-year-old Mohamud Salad Mohamud, a banana farmer and office manager for Hormuud Telecom. He left behind a wife and eight children.

A senior Hormuud official expressed shock that his employee had been targeted, since Mohamud had previously worked for international humanitarian organizations and had been arrested several times by al-Shabaab, the armed group the U.S. is fighting in Somalia.

“When I heard the news of his death, I thought he was killed by al-Shabaab,” the official told Amnesty.  “I have never imagined he would be killed by [the] U.S. or by the Somali government. This was very strange. I don’t know how to explain it.”

At a time when the U.S. public is beginning to take a hard look at the operations, impact and costs of federal government functions in all areas, the U.S. military’s strategy for fighting non-state armed groups abroad should be no exception. Since 9/11, the U.S. government has spent or obligated $6.4 trillion dollars on the wars in Afghanistan, Pakistan, and Iraq alone, according to Brown University’s Costs of War project. The costs of the U.S. war in Somalia, both monetary and in terms of civilian  lives, remain largely unknown. But The Costs of War project concludes that “the political costs of US interventions in Somalia post-9/11 include the creation and expansion of Al-Shabaab as an effective organ of terror in the Horn of Africa, with international connections to Al-Qaeda.”

In one sign of progress, following Amnesty’s most recent report, AFRICOM announced it would begin publishing quarterly data on its assessments of civilian casualties allegations. That’s a good first step, but if the data simply reflects shoddy investigations or inaccurate assumptions, it won’t tell us much.

The Department of Defense and Congress have a role to play here. The Department of Defense needs to ensure that AFRICOM is conducting meaningful investigations of all claims of civilian casualties, which should include interviews with witnesses, family and community members of those killed. AFRICOM cannot simply be allowed to claim, based on secret intelligence, that all of its victims were “terrorists,” with no questions asked. Intelligence sources may not be reliable, may have limited information themselves, and may have ulterior motives, particularly in a country like Somalia with many longstanding conflicts and rivalries. The growing evidence that U.S. strikes have killed many more civilians than the U.S. has acknowledged demands a better response.

Congress, for its part, can insist that AFRICOM provide all of the information needed to make an honest assessment of who U.S. forces are killing and injuring. Are they members of armed groups who pose an actual threat to the United States? Or are they civilians struggling to survive in a zone of conflict beyond their control? It makes a huge difference. We all deserve better answers.

Image: An Oregon National Guardsman assigned to the 41st Infantry Brigade Combat Team, provides security for an Air Force C-130J Super Hercules during unloading and loading operations in Somalia, Feb. 6, 2020. Photo: U.S. Air Force

The post US Ramps Up War in Somalia, Killing More Civilians appeared first on Just Security.

This is a time to reconsider the wisdom of fighting an endless war, with an ever-changing enemy, governed by an un-disclosed legal and policy framework that’s killed thousands of civilians worldwide. How else might the U.S. shift focus and resources toward uniting with allies, rivals, and even declared “enemies” to defeat a common foe?

The U.S. government’s war against COVID-19 should also encourage peace in other arenas. COVID-19 has already led to renewed calls for a ceasefire and prisoner releases in Afghanistan, both of which the U.S.-Taliban Agreement tried but wasn’t able to implement.

As the U.S. confronts this new transnational threat, international human rights law provides some guidelines for how the country can constructively and humanely respond.

First, don’t discriminate: This isn’t the “Chinese virus” or the “Wuhan virus.” Calling it those names undermines the international human right of non-discrimination and actually encourages xenophobic attacks against people who had nothing to do with the virus or its spread. We’ve already seen a rise in what appear to be bias-related attacks on people perceived to be of Asian descent in New York and California, for example. As the U.N. Special Rapporteur on racism said, “political responses to the COVID-19 outbreak that stigmatize, exclude, and make certain populations more vulnerable to violence are inexcusable, unconscionable, and inconsistent with States’ international human rights law obligations.”

Rhetoric resonates. It also alienates the government of China, which has significant leverage over global health supplies, at a time when the U.S. desperately needs it to be cooperative. This isn’t the time to claim “America first,” to close borders to refugees, or to attack other countries or their citizens. It is a clarion call for global cooperation. Instead of blaming other countries for the pandemic to deflect attention from one’s own lack of preparedness, the U.S. should view this crisis as an opportunity to forge meaningful constructive partnerships while modeling what a human-rights centered approach would look like.

Second, pay careful attention to those at the highest risk: the elderly, those with underlying health conditions, people who are in nursing homes, long-term care facilities, incarcerated, or otherwise forced to live in confined and crowded conditions. Mahatma Gandhi and Winston Churchill both famously acknowledged that a nation’s greatness can be measured by how it treats its weakest members. Those members’ needs and safety should be paramount in setting U.S. policy. Trump claims the cure shouldn’t be worse than the disease. But a rush to abandon social distancing and other measures that were put in place to prevent the spread of COVID-19 would truly and appallingly be instituting the “death panels” that some Republicans falsely claimed the Affordable Care Act would create.

Third, don’t use COVID-19 as an excuse for government repression or excessive force. Under the International Covenant on Civil and Political Rights (ICCPR), any derogation from a State’s commitment to these rights must be strictly required by the exigencies of the situation; they must be temporary, necessary, proportionate and limited to what is required to counter specific threats justifying the given measure of derogation. The Trump administration has sought emergency powers to allow judges to detain individuals indefinitely without trial during this public health emergency. That is neither a necessary, nor proportionate, response to the COVID-19 crisis.

We saw the U.S. suspend basic civil liberties after 9/11, with disastrous results. The U.S. continues to maintain a prison in Cuba dedicated to indefinite detention. The half a billion dollars spent per year to run an offshore prison for 40 men denied fair charges or trials would surely be better put to use providing truly “essential services” in a time of national crisis. Public health requirements can be enforced without suspending due process, threatening violence or excessively intruding on privacy. Such actions only sow fear and mistrust of government and community members and undermine the sort of cooperation the U.S. now desperately needs. Invoking the Defense Production Act to procure more COVID-19 tests, masks, ventilators, and even hospital beds, is one obvious way the federal government could effectively respond to today’s threat.

Finally, make accurate information available widely, and don’t censor or limit its access. Trump’s claims, for example, that Chloroquine would prove an easy cure has already led to at least one tragic death in the U.S. and additional poisonings abroad. His suggestion that shuttered businesses could possibly re-open in just a few weeks could also further hamper state and federal lawmakers’ ability to craft a realistic and effective public response to the crisis that seeks to prevent its most dire impacts. That response should include support for workers who lose their jobs, or measures to prevent that from happening; a social safety net for independent workers whose income has plummeted due to the crisis; and guaranteed access to health care, safe water, and sanitary living conditions. (The stimulus bill passed in the Senate on Wednesday is a start, but more and longer-term relief will surely be needed.)

This crisis will have tragic results. But it also presents an important opportunity to re-think the role of government, the essential functions of the military and our economy, and the use of taxpayer dollars. We should use this pause in business-as-usual to re-envision our government as one that puts upholding basic human rights at its core, and, in doing so, better protects our national security.

Image: Coronavirus crisis volunteer Rhiannon Navin greets local residents arriving to a food distribution center at the WestCop community center on March 18, 2020 in New Rochelle, New York. Photo by John Moore/Getty Images

The post Human Rights Guidelines for the Fight Against COVID-19 appeared first on Just Security.

Today, the Pentagon released its latest report, and although the increase in transparency is a welcome improvement the Defense Department’s effort still falls short. Unlike previous reporting, this report was on time and included more details than it had in the past, thanks to additional congressional requirements, but it still significantly undercounts the number of civilian casualties actually caused by U.S. military operations.

For example: DoD reports 793 civilians killed and approximately 206 civilians injured as a result of U.S.-led Coalition actions in Syria and Iraq in 2017. This appropriately updates its previous numbers, but it still isn’t nearly as many as facts on the ground suggest. Just last week, Amnesty International, where I work, released the results of extensive reporting it conducted in conjunction with the research group Airwars that determined more than 1,600 civilians were killed by U.S.-led coalition forces between just June and October 2017 in Raqqa, Syria alone. DoD’s numbers don’t reflect anything near that, and while they claim to have available “classified intelligence information” that NGOs do not, they also do not conduct on-the-ground interviews with witnesses, survivors, physicians and others in the communities affected to determine who was actually killed and injured by Coalition air strikes. The discrepancy suggests that the U.S.-led Coalition may be in some cases wrongly counting civilians as “combatants” or as otherwise lawful targets.

We see the same problem in Somalia, albeit on a smaller scale. There, U.S. Africa Command (AFRICOM) has said it carried out 110 strikes over the last two years, killing about 800 “terrorists.” But until last month, it maintained the unbelievable assertion that none of those killed were civilians. From an investigation of just five of those 110 airstrikes, however, Amnesty International found strong evidence that 14 civilians were killed, and eight were injured. AFRICOM has since acknowledged, as DoD does in its new report, that it killed two civilians in 2018. This is the first time AFRICOM has ever acknowledged civilian casualties from any of its operations. But it still doesn’t acknowledge the cases Amnesty documented in detail, and it’s simply not credible that no civilians were killed in the dozens of other airstrikes AFRICOM conducted and Amnesty wasn’t able to investigate.

These past denials are all the more reason to be skeptical of today’s report, although its very existence, and its timeliness, is a step forward. Like other NGOs who investigate civilian casualties and urge the government to improve its protections for civilians, Amnesty will continue to discuss our findings and investigation methods with the Defense Department, in the hopes that it will improve its own investigations and use what it learns to better protect civilians in future military operations. We will also continue to highlight the significant discrepancies in the facts and numbers when we see them.

Image: A picture taken on September 5, 2017 shows smoke billowing out following a coalition air strike in the northern Syrian city of Raqqa. Photo: Delil Souleiman, AFP/Getty Images

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