Editor’s note: This is one of two Just Security articles on the U.S. ICCPR periodic review by authors from the Human Rights & Security Coalition. An article on Guantanamo is available here.

Last week, the United Nations (UN) Human Rights Committee (HRC) reviewed U.S. compliance with the International Covenant on Civil and Political Rights (ICCPR), the core international human rights treaty that protects civil and political rights, including the right to life. During the review, the Committee raised critical questions about the U.S. government’s ongoing use of lethal force outside of recognized conflict, including through drone and other air strikes. “The use of lethal drone strikes outside of recognized theaters of conflict is presumptively illegal and violates several covenant rights… [including] the right to life as the supreme right from which no derogation is permitted,” noted Canadian member Marcia V. J. Kran.

The Committee is right to be concerned. As a group of civil society organizations, including ours, noted in a submission for its review, the secretive and unaccountable U.S. program of killing those it deems terrorism suspects outside of recognized conflict has caused tremendous harm, in particular to Black, Brown, and Muslim communities around the world. According to independent monitoring groups, the United States has carried out hundreds of lethal counterterrorism strikes outside the context of armed conflict since 2002, including in Libya, Pakistan, Somalia, and Yemen, that have killed thousands of people. These strikes continue under the current administration. According to Airwars, the Biden administration has conducted at least 32 declared strikes in Somalia and at least 6 alleged strikes in Yemen since Jan. 20, 2021.

This program of lethal strikes outside of recognized war zones consistently violates international human rights law, which ​​prohibits summary use of lethal force unless the loss of human life is imminent and less extreme means, such as capture, would be insufficient. All people, no matter where they live or what they are suspected of, have fundamental human rights, including the rights to life and due process. When states use force outside of an armed conflict to which they are a party, they are bound by strict rules to protect human life.

Despite these obligations, President Joe Biden’s new rules for the use of lethal force outside of recognized war zones – enshrined in his administration’s Presidential Policy Memorandum or PPM – further entrench a controversial program that successive presidents have authorized to identify supposed terrorism suspects from afar and kill them from the sky, far from any recognized battlefield and shrouded in secret.

Below we describe several key failings of current U.S. policy that both the Committee and our own organizations have raised with U.S. officials on multiple occasions. These include the failure of the lethal strikes program to protect the right to life and fair trial rights under international human rights law; improper reliance on the laws of war in conducting strikes outside the context of armed conflict; the lack of transparency and accountability for CIA strikes; and the lack of effective remedy for harm caused by U.S. strikes.

US Protection of the Right to Life and Fair Trial Rights

As the Committee has stated, the right to life (Article 6 of the ICCPR) “is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies.” Yet the publicly available version of the PPM makes no reference to the United States’ international human rights obligations, including to protect the right to life. During last week’s review, the Committee made clear that it believes the U.S. lethal strikes program falls short of these obligations. Last week, one Committee member pointedly asked, “What steps will be taken to stop illegal lethal strikes?” It was hardly the first time the United States had heard this warning. UN special rapporteurs on extrajudicial, summary or arbitrary executions, and on countering terrorism, have repeatedly reported concerns about the program to the Human Rights Council. For example, as then-UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, reported to the Human Rights Council in 2010, “outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”

The U.S. approach of using lethal force against those it deems terrorism suspects outside of armed conflict also raises serious due process concerns, implicating the ICCPR’s right to a fair trial for those accused of a crime (Article 14). As some of us noted in an earlier Just Security piece, “U.S. policy choices since 9/11, including the use of drone strikes, have resulted in the widespread understanding that the United States believes that it is legal to summarily execute individuals the government suspects of engaging in terrorism.” Under the U.S. lethal strikes program, the process of target selection occurs mostly in secret and typically results in death, with no opportunity for the individual to be informed of charges against them, prepare a defense, and be tried before a competent, independent and impartial court.

Improper Application of the Laws of War

Part and parcel with the U.S. failure to uphold the rights to life and fair trial under international human rights law is the United States’ insistence that its lethal strikes program need only adhere to international humanitarian law (IHL), also known as the law of war, as the lex specialis with respect to armed conflict and the protection of war victims. Under four successive U.S. administrations, the government has adopted policies on the use of lethal force “outside areas of active hostilities,” signifying tacit acknowledgment that strikes are being conducted outside of an armed conflict to which the United States is a party. Nevertheless, U.S. policy indicates that the United States considers IHL to apply, aligning with U.S. claims that it is engaged in a global, geographically and temporally limitless non-international armed conflict with al-Qaeda and associated groups. The U.S. delegation reiterated this stance at last week’s ICCPR review, stating, “As a matter of international law, the United States is in an armed conflict with al Qaeda and associated forces, in which the United States may use force in accordance with the law of war.”

But this framing, and the way the United States has applied it, has violated or undermined the UN Charter’s purpose of constraining unilateral uses of force, which is permitted only under exceptional and narrow circumstances. Under the Charter’s provisions and customary international law, nations may not use defensive force without UN Security Council authorization, unless in response to an armed attack or an actually imminent armed attack. Yet the United States has promoted expansive interpretations of these limited exceptions, using force in ways that violated or undermined the Charter. Indeed, in a view widely shared by many including our organizations, the International Committee of the Red Cross (ICRC) notes that the concept of a “global war on terror” does not exist under international law, and al-Qaeda and its “associated forces” do not constitute a unitary party. (See our submission and previous Just Security piece for further analysis of the United States’ dubious claims and conflicts with the UN Charter.)

In answering the Committee’s questions regarding the protection of civilians in U.S. lethal strikes, the U.S. delegation also pointed to the Civilian Harm Mitigation and Response Action Plan (CHMR-AP), a Department of Defense plan released last year to improve how the United States prevents and responds to civilian harm. While our groups have welcomed the plan, it is not an answer to our concerns about lethal force outside of recognized war zones. The plan is designed for armed conflict, and as such builds upon obligations and principles from IHL. It does not address the rights to life and due process all persons have under international human rights law in situations outside of armed conflict, regardless of their status or the accusations against them.

Secretive and Unaccountable CIA Strikes

While the Department of Defense sometimes acknowledges and releases information on strikes it carries out, and in a limited number of cases acknowledges civilian harm, the CIA as a matter of policy does not acknowledge its own lethal strikes, much less the harm they cause to civilians. This means that not only is there no public transparency or oversight around the use of force by the CIA, but also that civilians harmed in CIA operations have no way to seek answers, redress, or justice. Furthermore, the CHMR-AP, as a Department of Defense action plan, also does not apply to the CIA, compounding the significant gaps in the public’s understanding of CIA policies to prevent and address civilian harm.

Our organizations have therefore called for an end to the use of lethal force by the CIA, restricting the agency’s role to intelligence and analysis only. (Of note, a new bipartisan bill introduced in September by Representatives Barbara Lee (D-CA) and Michael Burgess (R-TX), the Drone Reform Act, would achieve this.)

During its review, the Committee asked U.S. officials what the CIA has done to investigate unlawful drone strikes or civilian harm. The U.S. delegation did not answer this question.

The Right to an Effective Remedy

Article 2 of the ICCPR requires the United States to provide redress for violations of protected rights. Despite this obligation, there is currently no avenue in U.S. courts to remedy injury caused by U.S. strikes outside of armed conflict that violate international human rights law. For example, in 2017, the DC Circuit Court of Appeal dismissed a suit from a Yemeni citizen requesting a declaration that the U.S. drone strike in Yemen that killed his brother and nephew violated U.S. and international law. The Court ruled that the case raised a “political question” and could not be considered by the judiciary. The U.S. Supreme Court refused to hear the case, leaving virtually no avenue in the U.S. court system to challenge U.S. lethal strikes outside the context of armed conflict.

Across all circumstances, including in the context of armed conflict, the United States has also largely failed to offer compensation and redress proactively, including through the use of condolence payments on an ex gratia basis. While the United States does not acknowledge ex gratia as a form of legal compensation or redress, it does provide a route for victims to receive payments – but one the United States has rarely used in recent years. As the Committee noted this week, the U.S. government made zero ex gratia payments in 2020 and one payment in 2021 – despite a $3 million annual funding allocation from Congress and the high number of eligible victims and proactive requests for amends from civilian victims and their representatives.

The Committee asked what steps the United States is taking to ensure accountability and redress for civilians injured, or the families of those killed, outside of recognized armed conflict. The U.S. delegation did not explicitly address accountability, instead referencing the Department of Defense Action Plan in its answer. Here, too, the Action Plan is inadequate. First and foremost, the plan does not currently provide accountability mechanisms that could address human rights violations. The plan also does not contain a commitment to review and make amends for the many cases of civilian harm that preceded the CHMR-AP, including those in the context of armed conflict. While the plan does not preclude accountability, it certainly does not meet the international obligation to provide it. As our organizations wrote in our submission, the United States should promptly improve its policies and practices for providing amends and redress to individuals harmed in its operations, including in cases that preceded the CHMR-AP, and accede to the First Optional Protocol to the ICCPR allowing individual complaints.

Ending the Lethal Strikes Program

Upon entering office, Biden promised to end the United States’ forever wars and center human rights in U.S. foreign policy. But by entrenching the U.S. approach to lethal force in the PPM, he has done the opposite: chipped away at the edges while leaving largely untouched a harmful lethal strikes program unbounded by geography or the rule of law. The U.S. review at the Human Rights Committee reminds us that the United States has, on an ongoing basis, failed to meet its international human rights law obligations, including core rights from which no derogation is permitted.

Importantly, the administration’s choices are not only harmful at present. The President’s rules on lethal force can be stripped away by any future administration that shows less restraint.

Over 110 diverse organizations, including our own, called on Biden to end this program in June 2021. While the administration may believe it is trustworthy and restrained in using lethal strikes outside of armed conflict, the continuation of ​​the program nevertheless perpetuates a dangerous and unlawful precedent that erodes the rule of law and prohibition on extrajudicial killings. The President can still change course, and set a new, rights respecting example, by ending this program.

IMAGE: Graffiti showing a US drone is depicted on a wall to protest against US drone strikes in Sana’a, Yemen.