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On the Legality of Obama’s Drone Policy: A Conversation with Prof. Mary Ellen O’Connell

An American professor of international law and conflict resolution believes that the civilian deaths resulting from the U.S.-authorized drone attacks against such countries as Pakistan, Afghanistan, Somalia and Yemen are illegal. According to Prof. Mary Ellen O’Connell, it’s only the United States’ veto power in the Security Council which prevents the international body from investigating this unlawful conduct.

Prof. Mary Ellen O’Connell is the Robert and Marion Short chair in law and research professor of international dispute resolution at the University of Notre Dame’s Kroc Institute for international peace studies. She has extensively written on President Obama’s use of unmanned drones during the Afghanistan war and in other countries. She has also written articles on the U.S. foreign policy in the Middle East, which have appeared on The Guardian, Politico, Los Angeles Times and other publications.

In an interview with International Policy Digest, Prof. O’Connell expanded on her viewpoints regarding the use of aerial drones by the American government and the ensuing civilian casualties, torture and prisoner abuse in the U.S. jails especially the Guantanamo bay detention facility, the U.S. sanctions regime against Iran and Cuba and the possibility of holding war crimes tribunal for the former U.S. President George W. Bush.

What follows is the text of the interview.

In one of your articles, you investigated the illegality of “targeted killing,” a practice that has been employed by the Obama administration through the use of combat drones. If it’s illegal to use drones against the civilian population, then why don’t the responsible international organizations such as the UN Security Council or the International Court of Justice take action to prevent such killings?

Two U.S. presidents have authorized the use of drones to carry out attacks beyond armed conflict zones in Yemen, Pakistan and Somalia. The deaths of all persons from missile strikes is unlawful. The situation in Afghanistan is more complicated because it is the scene of a civil war.

Because [ex-]President Karzai has demanded a zero civilian death rate and his policies are the only legitimate ones in the civil war, then civilian deaths are unlawful there, too. As for why international institutions have not done more, the U.S. has a veto that prevents the Security Council from taking up the matter.

The International Court of Justice could provide an advisory opinion on the legality of drone attacks if the UN General Assembly were to request it.

The fact that one American national, Anwar al-Awlaki, was killed in a drone strike in Yemen in September 2011 has outraged many Americans. However, as reported by the Bureau of Investigative Journalism, more than 3,000 civilians, including around 200 children, have been killed in the drone strikes carried out by the United States in the recent decade. Why have the American officials, media and scholars turned a blind eye to these killings? Is it that an American life is worth more than those of the Afghans, Pakistanis or Iraqis?

In fact as many as four Americans have been killed by drone attacks; Awlaki was the only one intentionally targeted. Many, many Americans share the view expressed in your question that every human life is precious regardless of nationality. On the other hand, more Americans understand the constitutional protections of due process and the right to life than to understand the international human rights providing the same protections. This differential knowledge may explain why the outcry after the Awlaki killing was greater than following the deaths of thousands of others.

During George W. Bush’s years in office, there have been several reports of the severe torturing of the inmates in the Guantanamo bay detention facility in Cuba. You once wrote that such tortures are prohibited and illegal. Is it possible to prosecute George W. Bush for violating the Eighth Amendment to the United States Constitution and the international laws pertaining to the prohibition of excessive and unusual punishments and torture?

All states party to the Convention against Torture and the Geneva Conventions have an obligation to prosecute anyone in authority responsible for torture or cruel, inhuman and degrading treatment.

Some legal experts have argued the U.S. sanctions regime against such countries as Cuba and Iran violate the terms of the Geneva Conventions and constitute war crimes and crimes against humanity. For instance, the fact that thousands of Iranian patients suffering from different types of cancer cannot find the vital medicine they need for treatment because of the sanctions attest that these prohibitions are not fair and justifiable. What’s your take on that?

Sanctions have become more sophisticated, focusing on governments to pressure them into complying with their international law obligations. If populations are not getting medicine it is because of priorities for using resources by those governments. Coming into compliance with legal obligations will end the sanctions.

The United States has issued several war threats against Iran in the recent years, warning that it may soon or late launch a military strike against Iran over its nuclear energy program. This is while Iran has never posed a direct threat to the security and territorial integrity of the United States. Resorting to threats or use of force in international relations is prohibited by virtue of the UN Charter’s Article 2(4). Do you agree that Washington’s war threats against Iran have been unlawful?

The actual use of force by the U.S. against Iran in the current situation would be unlawful. However, the threat of force is done so often by so many that it is difficult to argue any longer that words alone are unlawful to utter.

Many critics of the U.S. foreign policy believe that following the 9/11 attacks, the rights of the minorities, especially the Muslims of the United States began to be trampled and violated systematically. Muslims were stigmatized and demonized as being all terrorists and dangerous people. They became subject to arbitrary detention, unwarranted searches and seizures and different types of offensive and abusive treatments by the police and government. What do you think about that?

I am not an expert on the situation of minorities in the U.S. I can say that my Muslim students, friends and colleagues are able to work through the American legal system to ensure fair treatment; they would not choose to live anywhere else in the world. Many came to the U.S. seeking asylum from repressive regimes and received it.

A final question; what’s your viewpoint regarding the possibility of holding the U.S. government accountable over those of its actions that are seen as illegal under the international law? Is there any way to bring the U.S. officials to justice for the violations of internationally-recognized conventions and agreements on armed conflict, the rights of the prisoners and detainees, excessive torture, economic sanctions regime, etc.?

The UN General Assembly could request an advisory opinion of the International Court of Justice on many of these questions. The UN Human Rights Council has investigated many of the problems to which you point. In my view the more important point is future compliance–if all countries around the world worked harder to comply with international law and brought diplomatic pressure to bear on governments violating the law, human beings everywhere would enjoy greater peace, respect for their dignity; prosperity, and the benefits of a healthy natural environment.