2017 | Columbia Law School Human Rights Clinic & Sana’a Center for Strategic Studies Report Out Of the Shadows Report
For over a decade, the US has carried out drone strikes in Pakistan, Somalia and Yemen, far from traditional battlefields and in significant secrecy. This report finds that the U.S. government’s failure to be transparent on its lethal force abroad undermines the rule of law, harms democratic accountability in the United States and –of particular interest in the light of right to a remedy for drone victims- disregards their rights under international human rights law and international humanitarian law. Transparency and accountability are key and thus the US government is called upon to be open about:
- The applicable legal and policy frameworks, and its interpretation and application thereof;
- Actual strike practices: who was killed, what happened and where.
- The government decision-making processes: how are decisions made to target someone?
- Accountability processes and measures; lessons learned, justice, condolence payments and compensation for victims of drone strikes.
Of particular relevance for victims of drone attacks are the report’s sections addressing how (enhanced) transparency can support realizing their human right to an accessible and effective remedy including access to a judicial remedy. Where victims have sought to challenge the legality of US drone bombings in U.S. courts, the U.S. government in its defence relied, amongst others, on the state secrets doctrine that prevents the government from disclosing evidence in a lawsuit for reasons of national security. Although U.S. courts so far have dismissed the victim’s claims on other grounds, in one instance a court held that it would have accepted the invoked state secrets doctrine if the case had required it. This demonstrates that the state secrets doctrine indeed can stand in the way of judicial review of allegations of serious violations of international human rights and humanitarian law, denying individuals their rights to access to a remedy.
Another component of the right to a remedy is the right to truth, which includes the right to have verification of the facts and requires states to be transparent through “full and public disclosure of the truth”, as well as a public apology, including acknowledgement of the facts and acceptance of responsibility.
The work also addresses the need for enhanced transparency about drone strikes conducted in armed conflict situations, where international humanitarian law applies alongside human rights law. Whenever there are grounds to believe that States incorrectly designated a person as targetable or caused disproportionate civilian harm through drone bombings in times of war, they have a duty to promptly, independently and effectively investigate what happened, and determine and disclose civilian casualties. In case of unlawful drone strikes, perpetrators should be held to account and victims’ harm must be remedied.
The work concludes that although the U.S. government has made transparency advances between 2010 and 2016, transparency reforms require further strengthening for today, quite a few legal and policy rules remain vague and poorly explained, the CIA’s decision-making processes remain highly secretive and there is no clear and accessible mechanism for drone victims to bring forward allegations or to claim and receive compensation or condolence payments. Unsurprisingly, the U.S. government is therefore, among others, recommended to acknowledge civilian casualties and ensure robust oversight and accountability mechanisms in various ways: through releasing information on the number of cases in which compensation or condolence payments were paid to drone victims, through disseminating how these victims or their representatives may make allegations and seek condolence or compensation payments and through ensuring judicial review by not invoking the state secrets doctrine whenever that would impede the alleged victims their right to a remedy. In parallel, the U.S. judiciary is recommended to ensure adequate post-strike judicial review and ensure the right to a remedy for victims of U.S. strikes by not a priori accepting the state secrets doctrine. Judges are also called upon to give due consideration to the public interest when deciding whether or not the government must disclose information about its policies, practices and legal interpretations relating to its use of lethal force.