The government of Yemen quickly replied by acknowledging the strike, naming the six people killed, and claiming that "the Government on several occasions had, unsuccessfully, sought to apprehend these six individuals." In April 2003, five months later, the United States responded:
The Government of the United States has no comment on the specific allegations and findings concerning a November 2002 incident in Yemen, or the accuracy thereof...The United States also disagrees with the premise of the letter and the conclusions contained in the report that military operations against enemy combatants could be regarded as "extrajudicial executions by consent of Governments."
The U.S. response concluded by noting what body of international law should apply, and why targeted killings were outside the purview of the special rapporteur:
International humanitarian law is the applicable law in armed con?ict and governs the use of force against legitimate military targets. Accordingly, the law to be applied in the context of an armed con?ict to determine whether an individual was arbitrarily deprived of his or her life is the law and customs of war. Under that body of law, enemy combatants may be attacked unless they have surrendered or are otherwise rendered hors de combat. Al Qaida terrorists who continue to plot attacks against the United States may be lawful subjects of armed attack in appropriate circumstances. For the foregoing reasons, the Commission and Special Rapporteur lack competence to address issues of this nature arising under the law of armed conflict.
Second, in August 2005, Phillip Alston (who replaced Jahangir) wrote to the U.S. and Pakistani governments requesting information about a CIA drone strike that killed Haitham al-Yemeni in North Waziristan, Pakistan, three months earlier. At the time, this was only the second U.S. drone strike in Pakistan (the first occurred on June 19, 2004). Pakistan's reply is reminiscent of the early days of the CIA's drone war, when false cover stories were floated in an ultimately futile effort to deny that Islamabad permitted a foreign government to bomb its sovereign territory:
On 8 May 2005, a car blew up with an explosion near Mirali, North Waziristan Agency, resulting in the killing of a local and an unidentified foreigner. The remains of the foreigner were buried at an unknown place. After a few days it was propagated on media that Haitham Al Yemeni had been killed in a missile attack in North Waziristan Agency. There is no evidence to suggest that the deceased foreigner was Hatham Al-Yemeni.
Alston asked the United States to answer four specific questions about the strike: what body of international law applied, what procedural safeguards were in place, why he was killed and not captured, and whether Pakistan consented. The U.S. reply -- submitted in May 2006 -- does not deviate from the position offered three years prior:
The United States has no comment on the specific allegations regarding the May 2005 incident concerning Mr. al-Yemeni. The United States recalls its response of April 14, 2003 to a similar request for observations regarding an alleged aerial drone incident. The United States respectfully submits that inquiries related to allegations stemming from military operations conducted during the course of an armed conflict with Al Qaida do not fall within the mandate of the Special Rapporteur.
SUBJECTS:
