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Dr. Mary Ellen OConnell Speaks About Drone Attacks International Law with English subtitles  

thank you very much for your interest in

this important topic drone attacks in

international law this is an issue of

great concern I know two Americans but

really two people around the world as we

watch the United States try to persuade

Russia to get into compliance with the

international law and the use of force

with respect to Ukraine I know many of

us are asking wouldn't the US case be so

much stronger if the u.s. itself were in

compliance with the international law on

the use of force and I believe that is

true that the US would be more

persuasive with respect to Russia and

Ukraine but so many other important

issues to all of us today the United

States is insignificant non-compliance

with its obligations under international

law with respect to the use of force

when it comes to drone attacks beyond

armed conflict zones I want to explain

to you why this is the case through

looking at three different aspects of

this question first I'm going to explain

to you what a drone is the kinds of

munitions that it uses but more

importantly the history of US drone use

using drones to attack beyond armed

conflict zones and then I want to talk

to you about the international law at

stake the law that should apply to areas

where the US has been carrying out these

drone attacks and the law that the

president has contended applies and will

show that there are shortcomings in both

areas and then finally I want to turn to

questions of morality and also to

counterterrorism information perhaps the

law is out of date or doesn't content

conform with our most important moral

principles or our strategic ideas about

counterterrorism I think after I present

evidence to you in part three you'll

agree that the current international law

and the use of force is the best law for

this problem of terrorism it's the law

the US should comply with and once

having complied with it the US will read

a position of legitimacy and of

authority when it comes to talking to

other nations about their compliance

under international law first to the

drone and its history of youth by the

United States here is a picture of a

Predator drone the drone its its

predecessors of the predator were

developed in World War two they were

first used for reconnaissance with a

camera attached and they have been used

in all US military engagements since the

Second World War so in Vietnam we use

drones extensively with cameras attached

to surveil to gather information we use

drones in that way in the Vietnam War as

I just said in the wars in the Balkans

in the Iraq war of 2003 in the Gulf War

of 1990 91 but in the year 2000 the

United States equipped the predator

drone with two missiles to Hellfire

missiles these are missiles that were

first invented or developed for killing

tanks they are weapons of war they are

very serious munitions today in addition

to the predator the US has many Reaper

drones in its arsenal the Reaper is a

much faster drone than the predator it

carries for Hellfire missiles and it can

carry two very heavy weight bombs so

we've moved ahead we've moved to a much

more lethal form of drone in recent

years and we're moving yet again to

another generation of drones called the

Avenger what people know drones for

these days are the fact that they can be

remotely piloted you can have

individuals thousands of miles away for

example at Creech Air Force Base in

Nevada or in Djibouti on the east coast

of Africa operating drones that are in

jamin or in Pakistan and in fact the

large number of our drones operating in

Pakistan are operated by the CIA out of

there Langley headquarters in Northern

Virginia so that's the most famous thing

or the best-known thing about drones

that they can be remotely piloted that

there is no human being inside the drone

who could be shot down or taken prisoner

or killed we have drone bases much

closer to the action where drones are

being carried out for these purposes but

those drone bases don't have to have the

operators of the drones at them those

the individuals are actually tracking

suspects and carrying out the killings

are often thousands of miles away the

history of the drone is really around

these three countries the the history

that we want to talk about today three

countries where the United States has

not been involved in armed conflict and

yet has carried out thousands of attacks

Yemen Pakistan and Somalia as I

mentioned we first the United States

first put the Hellfire missile on a

drone in the year 2000 it carried out

the first killing operation with a

Hellfire missile in november 2001 in

afghanistan during the course of the

armed conflict that was ongoing there at

that time and the US has continued to

use drones in afghanistan as part of the

war on behalf of President Karzai

against the Taliban but in 2002 in

November the CIA operated a drone over

Yemen that killed six individuals

driving along in a vehicle on a remote

Road in Yemen that was the operators

were in Djibouti the killings occurred

in Yemen six individuals were killed the

US then used drones for killing

operations in the war in Iraq but in

2004

are carried out the first drone strike

in Pakistan another country where the

United States was not at war in 2006

drone operations were carried out in

Somalia another country in which the

United States was not at war in 2011 the

US carried out extensive drone attacks

in Libya so the US has carried out and

used its lethal drones in three armed

conflict situations Afghanistan Iraq and

Libya but also three countries where the

United States has not been engaged in

armed conflict Yemen Pakistan and

Somalia the non conflict conflict

situation is very important but today we

know as a result of Edward Snowden's

leaks on the NSA and our increasing

understanding of how the national

security agency operates and its

collection of metadata that there has

been a problem with respect to all US

drone operations and that problem is

this that the United States has been

using metadata for targeting purposes

targeting cell phones not particular

individuals and apparently this has been

the case in Afghanistan as well as the

non armed conflict zones of Yemen

Pakistan and Somalia this is highly

problematic under any understanding of

the law of armed conflict despite the

illegality which we'll talk about in

more detail in a moment the USA's

current plan is to expand its drone

bases around the world even as we're

drawing down from Afghanistan we heard

from Secretary of Defense Panetta in

2012 that the US was thinking about

putting drone bases in Nigeria in Mali

to carry out further drone attacks in

Libya even though the armed conflict

there ended in 2011 and perhaps even

more worrying the Obama administration

is thinking about carrying out drone

strikes or building new permanent drone

bases in Central Asia

places where human rights are not

observed but the United States wants to

make a deal for a permanent drone bases

so that we can continue attacks

presumably in Afghanistan itself and in

Pakistan even as our troops leave so

this is the story of the US history with

drones past present and apparently

future what does international law have

to say about that history well the place

to start with any discussion of this

kind about the use of lethal force is

with the most important rule that we

have an international law let's face it

the right to life it underlies all

aspects of law all reasons to have law

we fundamentally want to protect human

life we want people to flourish in their

lives and in their communities so we

have to start with saying the law

protects life article 6 of the

International Civil and Political Rights

Covenant is the article to which the

United States is a party and the vast

majority of countries around the world

it is part of fundamental international

law that lives be respected now article

6 does say that a life should not be

arbitrarily taken and that arbitrary

word is really referring to different

situations to different situations that

confront our governments and other

authorities around the world either

they're trying to keep order and protect

life in regular day-to-day peacetime

situations or their forces are operating

on a battlefield in which there is

greater danger for those engaged in the

conflict and therefore greater right to

take human life by legitimate forces or

legitimate authorities so we have to

make a distinction when we're thinking

about protecting the right to life is

this an exercise of lethal force by a

government in peacetime outside or a

peaceful situation outside a zone of

armed

or is it on a battlefield some say how

can we tell this is a new world order

and it's very hard to tell or to

distinguish between battlefields and non

battlefields well okay we might some

people may be persuaded by that sort of

rhetoric but in fact a committee that I

chaired for over five years of the

International Law Association looked at

a variety of treaties a variety of

statements by governments and by the UN

we looked at extensive evidence of over

a hundred situations of conflict and

violence 70 situations characterizes

armed conflict and we were able to

determine that within international law

there must be at least two two sets of

criteria for what is an armed conflict

and what is not an armed conflict here

they are the existence of organized

armed groups engaged in fighting of some

intensity if you're not looking at a

situation with those two characteristics

then you look to the peacetime rules the

normal rules governing a government's

right to use lethal force and we're

really talking about the police right to

use lethal force so let's talk a more

detail about the normal situation that

prevails around the world and prevails

for the United States everywhere today

except Afghanistan where our troops are

drawing down and ending their combat

mission in peacetime in normal

situations the police are allowed to use

some military force they are allowed to

use some lethal force for example if

they see that a person's life is about

to be taken by a criminal suspect then

the police may save that potential

victim by using force first and we're

really talking about shooting using hand

weapons or a rifle to shoot that person

this decision of the european court of

human rights in the case of McCann and

the united kingdom ruled that in

peacetime governments may resort to

force if absolutely

cessary to save a human life immediately

we all understand this from our

day-to-day existence that if the police

come across a hostage-taker or a very

dangerous felon who has broken out of

jail and as fleeing and will not stop so

that he can be arrested and brought back

to jail they will use lethal force in

those situations but they will not ever

risk killing a bystander the United

States is not a party to the European

Convention on Human Rights and that's

the convention that this court looks at

but it the court statement in McCann is

mirrored in these principles set out by

the United Nations on how police should

conduct themselves with regard to lethal

force and these are principles that the

United States does adhere to and really

is the standard police forces around the

world adhere to and this basically in

longer form repeats what the McCann

decision says there must be a threat to

human life immediately a fleeing felon a

kidnapped situation a hostage situation

before the police will resort to lethal

force and even then if there are

bystanders for example if the hostage

taker has a weapon pointed at their

kidnap victim but there are young

children in the way of taking the shot

to to liberate that person to kill the

kidnapper the police will not take that

shot we do not permit in the saving of

one life the risk to other innocent

lives other bystanders around that

criminal suspect it's a very different

situation on the battlefield obviously

but this whole idea of civilians and not

killing civilians this applies only on

the battlefield not to peacetime

policing and that is why Ozma jahan gear

the award-winning human rights lawyer

from Pakistan who was the UN Special

Rapporteur on extrajudicial killing at

time of that 2002 Yemen attack she

concluded in her detailed report in 2003

that that attack was an extrajudicial

killing it occurred in peacetime it was

the use of a missile not a rifle to stop

a fleeing felon one of the individuals

in the car was a criminal suspect but

the other five the u.s. knew virtually

nothing about them the killing of all

those individuals in a non armed

conflict setting with a missile clearly

violated article 6 of the International

Civil and Political Rights covenant

respect on protection of human life and

that is what ms Jahan gear said in 2003

Sweden's Foreign Minister on a Lind

supported mr. hungar statement she also

said it was a summary execution and that

is what it was president obama has tried

to defend using drones on other

arguments besides the argument that the

US isn't some kind of worldwide armed

conflict he seems to understand that

without these India these criteria of

armed conflict organized fighting of

some intensity in a particular location

using military force is simply unlawful

so he has made a number of other

arguments two in particular he's argued

that the United States is carrying out

these drone attacks and places like

Yemen and Somalia in self defense of the

United States or he's tried to argue

that we have an invitation or the

consent of local governments in Pakistan

Yemen or Somalia allowing us to carry

out these attacks let me to discuss both

of those possible alternative grounds

for defending this and suggest to you

argue to you that these are just as weak

as the idea that we can use missiles in

peacetime non armed conflict situations

first let's turn to self-defense and for

self-defense we have to start with the

most important rule of the United

Nations

charter and that is article 2 paragraph

for this article of the UN Charter to

which the United States and every other

sovereign state in the world is a party

says that states will not use military

force to carry out their policies they

all must refrain from the threat or use

of military force it is this article

that the United States is saying Russia

has violated in its actions toward

Ukraine there are of course some

exceptions to article 24 the one that

the president has pointed to is article

51 article 51 sets out in the UN Charter

when a state may as an exception to

article 24 s prohibition on the use of

force as an exception when it may carry

out force and self-defense but look at

this highlighted text yes a state may

carry out force and self-defense if an

armed attack occurs the three countries

we're talking about Yemen Somalia and

Pakistan have not attacked the United

States they are not in the process of

attacking the United States there is no

armed attack of a significant kind that

article 51 is talking about to allow a

right of self-defense well what if there

was an armed attack what if there was a

significant armed attack commensurate

with similar to what happened on 911

occurring from one of these countries

this is strictly hypothetical this is

not the basis on which the US has

carried out these attacks in the past

well it's not enough that there'd be an

attack occurring to counter-attack with

an Hellfire missile on the territory of

a country that country itself that

sovereign state must be responsible for

the armed attack yeaman must be

responsible not a criminal suspect in

Yemen plotting in some small house or a

workshop that has nothing to do with the

government in sanaa the government

itself because when you carry out a

missile attack on a tear

ettore you are attacking that state not

an individual or a small group so there

must be a connection and that again

first there's been no armed attack from

these countries second none of the

attacks that we can expect the kind of

criminal terrorist operations that the

president has talked about ink

cartridges on a cargo plane that have

been replaced with a bomb these sort of

suspicions and these sort of

possibilities are not being connected to

the government's so that we would have a

right of armed attack on those

territories but even if there was a

connection even if the government's were

responsible for significant attacks of

the 911 type as we have said that the

Taliban were responsible in the case of

the 911 attacks and we felt we had a

right to attribute those attacks to

Afghanistan as a nation you still have

to meet a third condition before

carrying out military force and

self-defense and that is that you can

actually accomplish a defensive purpose

an anti-terrorist purpose through a

missile attack and the persons that you

kill if you do kill by standards because

now you're in the right of self-defense

so you you could potentially have

permission to take the lives of

bystanders at risk you have to not cause

disproportionate harm on that country as

weighed against the purpose of your

military attack so if your military

objective is counterterrorism you have

to do a weighing that that you will not

disproportionately kill many bystanders

in addition to those individuals you are

specifically targeting so three

conditions for self-defense none of

which have been present in the case of

Yemen Pakistan and Somalia what about

invitation well first let me tell you

that invitation is a problematic basis

for using military

force on the territory of any country we

could do so as we did for example in the

case of Libya if the Security Council

authorizes it that's what we did in 2011

but in the case of Yemen Pakistan

Somalia we've had no Security Council

authorization and in addition to not

having that basis what kind of

invitation could allow the right of

another country to use military force on

a nation's territory that will not

interfere with the peacetime right of

people to be free of lethal force except

to save a human life immediately only if

that country itself is engulfed in an

armed conflict is a scene of the Civil

War for example there's a civil war in

Syria right now the government and armed

rebels are fighting each other armed

organized with intensity and the

government does have the right to

suppress a civil war if the United

States were invited into that civil war

by the government of Syria it would have

the legal right to join Syria of course

it doesn't want to do this because Syria

has used terrible means and excessive

force at times and the US wants nothing

to do with supporting that government

but that scenario is simply not

duplicated in the cases of Yemen

Pakistan and Somalia yes there's been a

civil war in Somalia but the US has

drone attacks our first not at the

invitation of any sovereign government

in Somalia it's barely had a government

and second it us strikes have not been

part of trying to bring peace and settle

the civil war in Somalia that would be

the same for various moments of conflict

and fighting in Yemen and Pakistan the

u.s. is invitation if it has had

anything that's worthy of the name

invitation from the elected leaders of

those countries it has not been part of

suppressing violence and armed conflict

of a civil war nature within Pakistan or

Yemen so the u.s. simply does not have a

basis for all of these drone

one strikes that has been carrying out

over these last 12 years in three

countries

well perhaps the law is obsolete

outmoded we've heard from some

supporters of the administration's drone

campaign that international law is out

of date or it's immoral if we can't

carry out these drone attacks its

limiting US operations in these three

countries we're talking about today so

I've gone through various writings and

teachings by some of our most prominent

moral philosophers and ethicists as well

as an extensive study of the

counterterrorism literature to

understand whether international law

should perhaps change maybe it is no

longer in step with moral teaching or

with what we really need to do to stop

this terrible problem of terrorism and

in fact I think the answer is the

opposite some of the greatest moral

philosophers and ethicists want us to

preserve our rules on right to life and

they fear that these arguments in favor

of drone strikes and in favor of

bringing more and more lethal technology

into our everyday life and everyday

experience is undermining our respect

for the right to life and our

restrictions on taking life unlawfully

which is a coarse murder Jeremy Waldron

truly one of the most prominent and

respected moral philosophers in the

world today teaching at both Oxford

University and New York University has

raised serious concern about these

arguments to extrapolate from armed

conflict situations or police situations

to the situation of a terror suspect

being in a remote part of a country or

in hiding in a country and trying to say

that this represents a situation of

armed conflict where we can kill this

individual as if he or she were on the

battlefield or we can predict that the

imminent threat posed by that person is

much more immediate than in fact the

facts allow so professor Waldron has

said that if we go forward with

this kind of exaggeration this kind of

extrapolation or stretch of the facts to

fit our right to kill within him within

them we are risking unraveling our norms

against murder he is not alone in this

view the American Catholic Bishops wrote

to a number of high-ranking members of

the Obama administration a few months

ago in May of 2013 soon after soon

before President Obama gave a major

speech trying to defend drone strikes as

self-defense or to respond to imminent

threats and the bishop said the United

States really needs to comply with basic

human rights law comply with the rule of

law the rule of international law in

carrying out its responsibility to

respond to terrorism and to suppress

terrorism if we do not respect current

law we are not acting consistently with

the consensus view of what morality

requires and in fact that was the very

firm view of the United States with

regard to targeted killing as recently

as July 2001 when our ambassador to

Israel said on Israeli television that

the United States doesn't support

targeted assassination that killing

people intentionally who are not on a

battlefield is not commensurate with us

values and with US policy we did not

support that perhaps these moral

thinkers perhaps US policy was just

hopelessly out of date when it came to

what it takes to stop terrorism today

that's the other argument I regularly

hear when talking about these subjects

and I suggest to you that both the law

and the morality of using lethal force

are consistent with what it takes to

suppress terrorism this is a terrible

problem that we're unlikely ever to rid

ourselves of but we have a better chance

if we commit to compliance with the law

which reflects our fundamental moral

values than if we just ignore them or if

we try to put forward a case that what

we're doing is lawful and moral when in

fact the facts do not fit the law so I

would suggest to you further engagement

with recent testimony of some of our top

ranking intelligence officials general

clapper for example has said when he was

asked the straight-up question is

al-qaeda on the path to defeat through

4100 deaths by drones and the answer

from general clapper no and his

successor Lieutenant General Flynn

agreed they are they are not on the run

they are not coming to an end members of

al-qaeda are spreading the membership is

growing we have caused a bigger problem

through drone strikes and through our

other policies toward counterterrorism

then I would contend we would have today

if we had followed the law and that's in

fact what was predicted by the RAND

Corporation a defense intelligence

analysis corporation that's been around

since the Vietnam War and they said that

the way to respond to the problem of

terrorism is to follow the law is to get

young people in organizations involved

in the political process to support the

economy so that people have jobs and

they are not lured into these kinds of

charismatic organizations but most of

all their study says clearly that

military force the kind represented by

the Hellfire missile or the drone have

not led to suppression of terrorist

organizations over time and in fact I

think most of you listening to this talk

today understand that the United States

has engendered terrible hatred in the

countries where we are using drone

strikes in Pakistan the United States is

the number one most hated country and

that is a country that

suffered terribly from terrorism where

we should be in cooperation with the

authorities supporting a criminal

justice system that can handle the

problem of terrorism and terrorist

organizations where we are supporting

the economy so there are jobs and there

is prosperity and there are alternatives

to a life with a militant group instead

of doing those things we have used our

precious funds to attack an attack and

attack and the result has been as you

see in these various pictures very

familiar i think i'm sure to many of you

that the u.s. is seen as the lawbreaker

as the country that the Pakistanis want

out of their own nation not present not

even for criminal justice cooperation so

in the view of myself and a many our

drone attacks have been

counterproductive to building those

cooperative relationships we need to

finally end the problem of terrorism we

hear regularly about the fear of people

throughout the three countries I've just

named and sadly I fear in countries in

the future where people wait and terror

for the next drone strike the report by

Amnesty International represented here

in this picture is all too real this is

not an exaggeration of how people in

these countries feel they feel that they

are being unfairly inappropriately

unjustly threatened with drone strikes

with drones flying overhead constantly

this is going to be a growing problem

around the world for many of us not for

people in places that Americans may

think our remote because every military

in the world is interested in getting

drone technology if they don't already

have it there are conversations going on

now in military departments around the

world that we want to use our drones

same way the Americans are using theirs

we want to use our drones to target the

people that we think are our enemies

regardless of what international law

says regardless of what a court would

say if there was a trial this individual

use Hellfire missiles blast them out of

existence that is the terrifying future

world that we could be looking at or we

can look at a world in which

international law prevails in which the

clear distinction between using military

force only unrecognized battlefield

where organized armed groups are engaged

in intense fighting and leave to the

police and police and law enforcement

measures responding to the problem of

terrorism outside armed conflict zones

that's how the United States does it

within our own borders why don't we

extend that same courtesy that same

respect to other countries and again

become a leader in international law a

leader with respect to persuading others

to comply with the international law on

the use of force use force only one

truly necessary and permissible under

the rules of the UN Charter I hope all

of you listening to this talk today will

contact your elected officials will

contact the leaders of your faith will

contact your neighbors we'll have this

discussion and we'll ask that the rules

be complied with that the United States

regain its stature as a country in which

the rule of law prevails and not the

rule of might thank you so much for your

attention and best wishes

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