The Bush administration provided similarly oblique responses (or did not respond at all) to Alston's similar questions in 2007 and 2008. (This is not unusual, as fewer than half of states reply to questions issued by U.N. special procedures.) Interestingly, during this time the Bush administration acknowledged targeted killings in Somalia, but to a different U.N. entity. In June 2007, U.S. Ambassador to the United Nations Zalmay Khalilzad responded to a query from the Security Council monitoring group for Somalia: "The United States has conducted several strikes in self-defense against al-Qaida terrorist targets in Somalia in response to on-going threats to the United States."
In May 2010, Alston produced the "Study on Targeted Killings" summarizing the issues he had raised with the United States over six years as special rapporteur, as well as short sections on alleged Russian and Israeli targeted killings. The reaction of Obama administration officials to the Alston report was unsurprisingly negative. One anonymous official proclaimed: "The United States has an inherent right to protect itself and will not refrain from doing so based on someone else's exceptionally narrow -- if not faulty -- definition of self-defense. "Without discussing or confirming any specific action or program," CIA spokesperson George Little asserted, "the accountability's real, and it would be wrong for anyone to suggest otherwise." On a personal note, many military officials and drone operators that I have spoken with could never get past Alston's warning that "because operators are based thousands of miles away...there is a risk of developing a ‘PlayStation' mentality to killing."
Finally, in November 2010 the United States was subjected to the Universal Periodic Review process, which evaluates each member states' fulfillment of human rights obligations and commitments through an interactive dialogue whereby any other state can question, comment, or recommend changes to the state under review. In other words, any state -- Iran, China, Pakistan, and Cuba -- could have asked the U.S. delegation for greater clarity into its targeted killings. Who stepped up to the plate? Only the Netherlands, who asked in the advance questions: "Could the U.S. Government provide an update on the status of the recommendations made by [Alston]?"
The official U.S. response is worth quoting at length, since it demonstrates the inherent contradiction about which body of international law should apply to targeted killings:
United States targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law. To the extent that human rights law may apply in armed conflict or national actions taken in self-defense, in all cases, the United States works to ensure that its actions are lawful. The delegation noted first, that international human rights law and international humanitarian law are complementary, reinforcing, and animated by humanitarian principles designed to protect innocent life. Second, while the United States complied with human rights law wherever applicable, the applicable rules for the protection of individuals and the conduct of hostilities in armed conflict outside a nation's territory are typically found in international humanitarian law, which apply to government and non-government actors. Third, determining which international law rules apply to any particular government action during an armed conflict is highly fact-specific. (Bold added)
It would be commendable if the United States responded to questions from this latest U.N. investigation by Ben Emmerson beyond the existing and oft-repeated talking points. However, it is unlikely that the Obama administration will provide greater clarity over the scope of the conflict, which international bodies of law apply to the strikes, what procedures exist to prevent civilian harm, or whether targeted killings should even be reviewed by the United Nations. Furthermore, it is inconceivable that the United States will hand over the "before and after" video, which Emerson said he will request, of the 25 strikes. Such video footage -- for CIA strikes, at least -- is only viewed by a tight circle of members and a few senior staffers in the Senate and House Intelligence Committees. The Pentagon might provide some information about operations in Afghanistan, as journalists received -- through freedom of information act requests -- transcripts of conversations of drone crews, an AC-130 gunship crew, and U.S. soldiers on the ground from a February 2010 Predator strike that accidentally resulted in 23 civilian casualties.
The Obama administration deserves credit for strongly endorsing an extension of the mandate of the U.N. special rapporteur of extrajudicial, summary, or arbitrary executions, and for repeatedly fighting to include language in General Assembly resolutions that specifically condemn extrajudicial killings of members of the lesbian, gay, bisexual, and transgender community. Obama administration officials have also been willing to discuss targeted killings with the special rapporteurs, albeit in general terms. However, as the current mandate-holder, Christopher Heyns, observed after a two-day "interactive dialogue" with U.S. officials in June: "I don't think we have the full answer to the legal framework, we certainly don't have the answer to the accountability issues. My concern is that we are dealing here with a situation that creates precedents around the world." This is exactly what his predecessors observed and warned about over the past ten years. The official U.S. positions on targeted killings are by now both well-established and insufficient for U.N. investigators to determine if such operations are lawful. This latest investigation could provide invaluable new factual evidence of those drone strikes under review, but let's not hold our breath.
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