by Tyler Cullis
Earlier this week the European Parliament passed a resolution condemning the US drone program and expressing its concern over the desire of some European states to build a program of their own. Here in the US few have paid attention. But if the resolution signals a more serious commitment on the part of Europe to publicly disclaim the legal and policy architecture of the US’s “targeted killing” program, then the White House’s legal footing, which is already on thin ice, could become untenable in the face of near-unanimous global opposition.
The resolution, which is non-binding as a matter of European law, “expresses…grave concern over the use of armed drones outside the international legal framework,” which goes against US pretensions of acting within the bounds of law in conducting its “targeted killing” program. In doing so the European Parliament rejects the novel legal doctrines that the US has used to support its activities in the “global war on terror,” arguing that traditional jus ad bellum and jus in bello rules do not need to be revised in light of the threat posed by transnational terror groups (as the US has long alleged). This is a striking challenge to the United States and its claims to compliance with international norms, and is a sharp reminder of the twin reports from UN Special Rapporteurs last year (whose work is cited in the resolution itself).
This also comes on the heels of a New York Times report that the US is considering adding a US citizen, Abdullah al-Shami, to the White House’s “kill list”. Besides the significant constitutional issues at stake in a unilateral presidential decision to kill a US citizen without due process, international human rights law is implicated as well. The focus on human rights law as the appropriate legal frame, which is evident throughout the Parliament’s resolution, thus takes on added significance in the wake of this report.
More importantly, the resolution signals to other EU bodies that now is the time for unified European action to publicly oppose the US’s “targeted killing” program; to limit the use of drones both globally and in a distinctly European context; and to hold criminally responsible those that assist what the Parliament regards a potentially criminal action on the part of the United States. In fact, as part of its “action program” the Parliament’s resolution “urges the [European] Council to adopt an EU common position on the use of armed drones,” which would be binding on all EU member-states. Such a legislative gambit could include provisions providing for “judicial review of drone strikes…and effective access to remedies [for victims].” Both have thus far largely been barred in European courts.
Such would spell serious trouble for the United States and its continued ability to conduct drone warfare across international borders. It is one thing for official criticism to be done in private and for US and European legal scholars to haggle over applicable laws in the US’s conflict with al-Qaeda. It is entirely another thing for the US’s closest allies to so publicly rebuke the White House (especially one that professes to care as much about toeing the line of the law as this one does) and to threaten to open its court system to the victims of what it regards as “unlawful drone strikes.” While legislative action from the European Council and Commission remains unlikely, the vote count on the Parliament’s resolution (534-49) suggests that sentiment against “targeted killings” has begun to overcome Europe’s squeamishness about upsetting its powerful ally.
This week also saw the respected British human rights organization, Reprieve, submit a communication to the International Criminal Court to start an investigation of NATO personnel complicit in the CIA drone program. Of course, none of this bodes well for the United States. Whereas the Bush administration expressed contempt towards international law and thus was treated in kind from its practitioners, the Obama administration has at least demonstrated concern for international norms and struggled to describe its drone policies as compliant with the law. But as US allies and human rights NGOs close in on the White House, the Obama administration will be forced to either proclaim its adherence to international law and end its “targeted killing” policies, or abandon any pretension to international law-compliance altogether. The sooner the better, too, because the growing outcry against the US’ drone policies shows no signs of losing steam.