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2015 | Open Society Foundations Report Death by Drone - Civilian Harm Caused by U.S. Targeted Killings in Yemen

This report -jointly produced by the Yemeni non-governmental Mwatana Organization for Human Rights, and the Open Society Justice Initiativedocuments and examines the civilian harm caused by nine U.S. drone airstrikes in Yemen between May 2012 and April 2014. The strikes raise questions about the extent to which the United States is complying with international law. More generally, the report expresses concern about whether the U.S. is using an overly broad definition of who may lawfully be targeted with lethal force, enabling the U.S. to include civilians among lawful targets. This report also addresses the potential unlawful participation of foreign states in U.S. airstrikes by, for example, sharing intelligence.

With the consent of the Yemeni government, the U.S. has been conducting secret targeted killings in Yemen through drone strikes as well as conventional airstrikes since 2002. The U.S. claim that international law allows for this on two grounds: first, it claims it is engaged in an armed conflict with al-Qaeda, the Taliban, and “associated forces.” Second, the U.S. relies on its right to defend itself against terrorists who pose an imminent threat. However, in none of the incidents investigated in this report has either the U.S. or the Yemeni government stated that the individuals targeted and killed had posed a continuing and imminent threat to the U.S.

Against this background, this report outlines the prerequisites for lawful targeted killings set forth by international humanitarian law (IHL) and human rights law and draws the conclusion that targeted killings rarely will be lawful outside an armed conflict situation. In essence, the report underscores that both IHL and human rights law prohibit the arbitrary deprivation of life as is arguably the case in the nine investigated drone attacks.

Another issue is that international law places an obligation on states to investigate violations of the right to life - as is the case in targeted killing situations - and determines that all persons whose rights have been violated are entitled to an effective remedy. Consequently, the U.S. has an obligation to investigate - effectively - credible allegations of unlawful civilian casualties and injuries associated with targeted killings in Yemen, and to make appropriate reparations such as compensation, restitution, rehabilitation, public apologies, and bringing to justice the perpetrators of human rights violations. While concluding that the U.S. and the Yemeni government have neglected to fulfil their obligations, they are urged to do so and to create a formal mechanism to provide prompt and meaningful reparations for civilian harm associated with U.S. airstrikes in Yemen. In the same vein, states participating in targeted killings –for example by sharing intelligence or hosting U.S. airbases- are urged to publicly disclose their policies and practices and the legal basis for such participation, effectively investigate credible allegations of unlawful participation, and provide prompt and meaningful reparations for civilian harm where such participation occurred.