Drones, My Lai, and Prosecuting the Powerful

John Glaser, October 31, 2012

In April of this year, President Obama approved the CIA’s request to begin launching targeted assassinations in Yemen through drone strikes even when the identities of those being targeted is not known. The US government calls these “signature strikes,” and they are being deployed constantly in both Yemen and Pakistan. Drone operators thousands of miles away view people on the ground through a grainy video feed and identify “suspicious behavior.” And on that basis, the people are bombed.

But a new academic paper describes signature strikes as “legally suspect.” Kevin Jon Heller, professor at Melbourne Law School, writes in a forthcoming piece for the Journal of International Criminal Justice that the Obama administration appears to be engaging in the unlawful use of force in many of its signature strikes.

The drone war has been receiving renewed focus among academics skeptical of its legality and adherence to human rights. A study last month from the Stanford and NYU schools of law found that the drone program is “terrorizing” the civilian population of Pakistan and that it is having a “counterproductive” impact, effectively creating more enemies than it eliminates. Another study this month from Columbia Law School’s Human Rights Institute found the number of Pakistani civilians killed in drone strikes are “significantly and consistently underestimated” by tracking organizations which are trying to take the place of government estimates on casualties, which the Obama administration won’t comment on because the drone war is technically secret.

Heller deals primarily with the question of legality under international law. Broadly speaking, signature strikes are suspect because international humanitarian law obligates “[t]hose who plan or decide upon an attack” to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” Article 50(1) of the Additional Protols demands that “if there is still ‘doubt’ that an individual is a legitimate target after taking all feasible precautions, ‘that person shall be considered to be a civilian.’

The many anecdotal instances of massive civilian casualties in any number of drone strikes throughout the Obama presidency suggest that these legally mandated precautions were not adhered to; if no ‘doubt’ remained, we would not see so many incidents like this. But Heller tackles specific categories of signature strikes and shows that the criteria for bombing people in these drone strikes violates the law.

Citing a recent New York Times report, among others, that described the administration’s method of counting “all military-age males in a strike zone as combatants…unless there is explicit intelligence posthumously proving them innocent,” Heller writes:

That status, however, cannot simply be inferred from the fact that an individual is of military age and is present in an area that the CIA chooses to attack. As the ICRC has pointed out, membership in an organized armed group requires actual and continuous participation in hostilities; it ‘cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse.

The ‘military-age male’ signature, it is worth noting, is an unfortunate remnant of the Vietnam war, during which the US government routinely presumed that any military-age male in a combat zone was a Viet Cong fighter. Colin Powell openly acknowledged that practice in his autobiography:

“I recall a phrase we used in the field, MAM, for military-age male. If a helo [helicopter] spotted a peasant in black pajamas who looked remotely suspicious, a possible MAM, the pilot would circle and fire in front of him. If he moved, his movement was judged evidence of hostile intent, and the next burst was not in front but at him. Brutal? Maybe so.”

Powell’s description is echoed – more colorfully – by Lt. William Calley, the archietct of the infamous  1968 massacre at My Lai:

“[I]f those people weren’t all VC then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander… his star said its a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t yougn enough or old enough to do anything but sympathize.”

The ‘military-age male’ signature is not simply brutal, as Powell acknowledges. It is also unlawful.

Comparing the Obama administration’s criteria for signature drone strikes to one of the most notorious war crimes in modern memory is an extraordinary statement that the media and the political class are simply ignoring.

Another criteria Heller focuses on is “consorting with known militants.” The US has been targeting and killing people they determine through their drone cameras are “consorting” with “militants,” and going on to stand by these killings as morally and legally legitimate. Heller says this doesn’t meet the requirements for participating in hostilities and therefore targeting on this basis is criminal.

At most, then, consorting with known militants can be considered sympathizing or collaborating with and organized armed group. Neither activity however makes an individual a lawful target. With regard to sympathizing, the UN Sub-Commission on Human Rights adopted a resolution in 1985 that specifically condemned the US-backed El Salvadoran government’s practice of killing peasants it believed were sympathetic to the FMLN. According to the Sub-Commission, “as long as the so-called ‘masses’ do not participate directly in combat, although they may sympathize, accompany, supply food and live in zones under the control of the insurgents, they preserve their civilian character, and therefore they must not be subjected to military attacks.” With regard to collaboration, the Special Court for Sierra Leone specifically held in Fofana and Kondewa that “persons accused of ‘collaborating’ with the government or armed forces would only become legitimate military targets if they were taking direct part in the hostilities. Indirectly supporting or failing to resist an attacking force is insufficient to constitute such participation.

At the very least, the Obama administration deserves to be investigated for their conduct in the drone war. Heller doesn’t say all drone strikes are illegal, and he concludes that even the unlawful strikes “would be difficult to prosecute as war crimes,” because it’s difficult to prove intent to kill civilians on the part of the Obama administration. Several high-level officials at the United Nations, however, have speculated that war crimes have been committed in instances where the Obama administration targeted rescuers in follow-up strikes or funeral attendees – both of which have been alleged.

But even putting war crimes prosecution aside, crimes have clearly been committed. The Obama administration, however, is the most powerful cabinet in the world. And the powerful don’t typically submit to the law. Aggressive prosecutions and harsh jail sentences need to be reserved for pot-smokers and convenient store thieves. The powerful can’t be bothered with thousands of dead civilians and international laws governing the use of force.




72 Responses to “Drones, My Lai, and Prosecuting the Powerful”

  1. What about atomic bomb and firebombing of Japanese civilians in World War II. Was that a war crime?

  2. Yes, but customary international law to which Heller refers to was not established. That came after, and prosecution of such crimes was selective, of course, because the victors had the say so.

  3. Today in the post-nation-state 21st century world, the drone has become what the Maxim gun was for the British Empire.

    Drones are for the Disguised Global Empire (DGE), the global corporate/financial/militarist Empire, what the Maxim gun was for the 19th century British Empire —- namely an unmatchable technological means of engendering 'raw fear' and unquestioned discipline in the territories of the Empire.

  4. You only have to worry about being thrown into prison for a really long time if you do something really heinous, like smoking a joint. Mass murder of little brown children doesn't count.

  5. Really, I cannot understand why Mr Obama still maintains this way to kill people? Are there no other ways to prevent miss-bombing? This is why so many people in the world have bad feeling to US government.

  6. How much longer will it be until little White children start getting mass-murdered by drones?

  7. Slice it, dice it, obfuscate and minimize it. War crimes are war crimes and that is that. Prosecute the war criminals. Every last one of them. Maybe start with Henry the K.

  8. Good Point

  9. Here is what gets in my craw constantly… the feeble use of "legal" as the go-to excuse for all manner of evil. Who the hell cares about "legal" when the ones doing it clearly don't? They know it's a sham and so act accordingly. And when the ones doing the violence are also the ones giving themselves "legal" cover then you know it's all a lie.

  10. Not very long, I fear.

  11. I think it speaks volumes about the perversion of language that the term "legal" is as overused and corrupt as it is. In this case, the term "legal" is never defined or qualified. Is it being used to describe the "natural" law, or the positive law (this is, of course, a rhetorical question)? As long as this question is never answered, the term can remain a convenient "weasel word" to be molded by the Ruling Class as it sees fit.

  12. That's all well and good for other, lesser nations but we all know none of it will ever apply to the great ruler of the world, the United States government.

  13. I am a Christian woman who always votes Republican. I wont vote for Romney for the following
    reasons.

    1. He is a member of a cult religion Mormonism that once condoned multiple wives
    2. He STILL supports Murdoch even after the Rape comment.
    3. He does not believe in equal pay for women.

  14. Yep, "legal" is anything the government says it is.

  15. [...] network and that few civilians have been killed in the attacks.  There is no way to verify these claims, and it is very difficult to get hard information in both Pakistan and Afghanistan.  Pakistan, in [...]

  16. Richard Nixon and Barack Obama cheerfully claim, "If the President does it, it's not illegal."

    Lyndon Johnson and the Bush gang say, "Amen."

  17. Nothing there about Romney's commitment to continue the Bush/Obamya policy of mass murder via drones?

  18. General Curtis LeMay himself stated that if the United States were to lose the war HE General Curtis Le May as the instigator of fire bombing Tokyo and other japanese Cities would face a War Crimes Tribunal.

    When you have the man responsible for the crime say that it actually is and was a crime there is a 100% chance that he is right!

  19. A very interesting read and a great post alltogether. thanks for sharing this information.

  20. That's wun reezon whi I hav aulwaes held a "garded" admiraeshon for Jeneral Curtis LeMae: He at leest had th curej to admit that he wuz a wor criminal. Now, wuudn't it be wunderful if Jorj Buush and prezident Baraak Oebaama wuud admit th saem? Doen't hoeld yuur breth, at leest not until hel freezes oever;-)!!!

    (For mor informashon on th moderniezd orthografy that I am uezing in this poest, pleez see http://www.americanliteracy.com/ On th hoem paej, luuk under "SoundSpel".
    Discloezher: I am on th bord of direktors of th organiezaeshon.)

  21. No dout U ar familyar with this parrody of Rudyard Kipling's poe'em, th "Whiet Man's Burden":

    The Brown Man's Burden
    by Henry Labouchère

    Pile on the brown man's burden
    To gratify your greed;
    Go, clear away the "niggers"
    Who progress would impede;
    Be very stern, for truly
    'Tis useless to be mild
    With new-caught, sullen peoples,
    Half devil and half child.

    Pile on the brown man's burden;
    And, if ye rouse his hate,
    Meet his old-fashioned reasons
    With Maxims up to date.
    With shells and dumdum bullets
    A hundred times made plain
    The brown man's loss must ever
    Imply the white man's gain.

    Pile on the brown man's burden,
    compel him to be free;
    Let all your manifestoes
    Reek with philanthropy.
    And if with heathen folly
    He dares your will dispute,
    Then, in the name of freedom,
    Don't hesitate to shoot.

    Pile on the brown man's burden,
    And if his cry be sore,
    That surely need not irk you–
    Ye've driven slaves before.
    Seize on his ports and pastures,
    The fields his people tread;
    Go make from them your living,
    And mark them with his dead.

    Pile on the brown man's burden,
    Nor do not deem it hard
    If you should earn the rancor
    Of those ye yearn to guard.
    The screaming of your Eagle
    Will drown the victim's sob–
    Go on through fire and slaughter.
    There's dollars in the job.

    Pile on the brown man's burden,
    And through the world proclaim
    That ye are Freedom's agent–
    There's no more paying game!
    And, should your own past history
    Straight in your teeth be thrown,
    Retort that independence
    Is good for whites alone.

    Pile on the brown man's burden,
    With equity have done;
    Weak, antiquated scruples
    Their squeamish course have run,
    And, though 'tis freedom's banner
    You're waving in the van,
    Reserve for home consumption
    The sacred "rights of man"!

    And if by chance ye falter,
    Or lag along the course,
    If, as the blood flows freely,
    Ye feel some slight remorse,
    Hie ye to Rudyard Kipling,
    Imperialism's prop,
    And bid him, for your comfort,
    Turn on his jingo stop.

    The Brown Man's Burden was first published in the London magazine, Truth, and republished in Literary Digest (Feb. 1899).

    (For mor informashon on th moderniezd orthografy that I am uezing in this poest, pleez see http://www.americanliteracy.com/ On th hoem paej, luuk under "SoundSpel".
    Discloezher: I am on th bord of direktors of th organiezaeshon.)

  22. Dude, I understand you get off on stupid spelling, but after the first thicket of gobbledy-gook I just didn't bother. Just sayin'.

  23. You seem to think it's unintentional.

  24. Nah, too deep.

  25. I despise soldiers. Fucking neanderthal welfare assassin scumbags. There's no excuse for their behavior, they're just savages who belong in a cage or dead.

  26. To be clear, the United States of America is unworthy of the service of any human being in any capacity because the fbi/cia/dod, etc., have violently overthrown the government here by a silent coup (involving covert torture, forced suicide,murder) and this corrupt nation in its efforts to defend is also seen globally as a murderous fraud and a macabre 'agent of evil' on the world.

    COLLAPSE OF CONSTITUTIONAL GOVERNMENT OF THE UNITED STATES OF AMERICA

    http://lissakr11humanelife.wordpress.com/2012/09/

    FBI/CIA ARE TERRORISTS

    http://lissakr11humanelife.wordpress.com/2012/11/

  27. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only [...]

  28. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  29. [...] “Drone Wars” are illegal under domestic and international law, yet we hear very little about these atrocities and especially not from Christian leaders. Instead, [...]

  30. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  31. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  32. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  33. [...] omicidi ‘mirati’ violano sia la legge statunitense  che il diritto internazionale. Come dimostrato da uno studio ad opera di un gruppo di ricercatori delle prestigiose Stanford [...]

  34. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  35. [...] prowadzona z u?yciem bezza?ogowych samolotów narusza zarówno prawo krajowe, jak i mi?dzynarodowe, i jedynie g??boka pogarda administracji Obamy dla przejrzysto?ci w rz?dzie stoi na [...]

  36. [...] drone war violates both domestic andinternational law, and the Obama administration’s vehement disdain for transparencyArticle source: [...]

  37. [...] these drone attacks break not only domestic law but also international law, as reported by [...]

  38. [...] drone war violates both domestic and international law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  39. [...] drone war violates both domestic andinternational law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  40. [...] drone war violates both domestic andinternational law, and the Obama administration’s vehement disdain for transparency in government is the only thing [...]

  41. [...] In order for a President to use force without Congressional approval, the threat he is supposedly extinguishing must be imminent, that is, an overwhelming threat that allows “no moment for deliberation,” according to a legal memo from the Congressional Research Service. Yet here in the Times it is admitted, once again, that this is a requirement routinely ignored by the Obama administration. It therefore runs counter to both domestic and international law. [...]

  42. [...] In order for a President to use force without Congressional approval, the threat he is supposedly extinguishing must be imminent, that is, an overwhelming threat that allows “no moment for deliberation,” according to a legal memo from the Congressional Research Service. Yet here in the Times it is admitted, once again, that this is a requirement routinely ignored by the Obama administration. It therefore runs counter to both domestic and international law. [...]

  43. [...] In order for a President to use force without Congressional approval, the threat he is supposedly extinguishing must be imminent, that is, an overwhelming threat that allows “no moment for deliberation,” according to a legal memo from the Congressional Research Service. Yet here in the Times it is admitted, once again, that this is a requirement routinely ignored by the Obama administration. It therefore runs counter to both domestic and international law. [...]

  44. [...] This undermines the Obama administration’s entire legal case for the drone war. If the use of force is not in self-defense and not addressing an imminent threat to the US, but is instead a murderous policing technology for the benefit of our puppet dictatorships, then it is in violation of both domestic and international law. [...]

  45. [...] This undermines the Obama administration’s entire legal case for the drone war. If the use of force is not in self-defense and not addressing an imminent threat to the US, but is instead a murderous policing technology for the benefit of our puppet dictatorships, then it is in violation of both domestic and international law. [...]

  46. This is all our fault.

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  68. The US government calls these “signature strikes,” and they are being deployed constantly in both Yemen and Pakistan.

  69. At the very least, the Obama administration deserves to be investigated for their conduct in the drone war.

  70. The Obama administration will not comment on the drone war because the secret techniques.

  71. Aggressive prosecutions and harsh jail sentences need to be reserved for pot-smokers and convenient store thieves.

  72. The drone war has been receiving renewed focus among academics skeptical of its legality and adherence to human rights.