If we accept the argument made by the
Obama administration and the Bush administration before it – that the United States is involved in an armed conflict with al-Qaida and associated forces wherever they are engaged – international humanitarian law is the
lex specialis in Pakistan and Yemen. Yet, even with less rigorous limitations on the use of lethal force under international humanitarian law, there is mounting evidence that the Obama administration's use of drones constitute violations of international law in the form of war crimes.
Human Rights Watch examined six strikes in Yemen.
According to its report:
Two of these attacks were in clear violation of international humanitarian law – the laws of war – because they struck only civilians or used indiscriminate weapons. The other four cases may have violated the laws of war because the individual attacked was not a lawful military target or the attack caused disproportionate civilian harm.
Going beyond the examination of individual strikes, President Obama has utilized tactics that inherently violate the laws of war. These include the use of so-called "signature strikes" and "double taps". According to Amnesty International:
Under international humanitarian law, US drone operators must at all times abide by the principle of distinction; namely distinguish between civilians and combatants … All feasible precautions must be taken in determining whether a person is a civilian … In case of doubt, the person must be presumed to be protected against direct attack.
Signature strikes target individuals for death based not on the confirmed identity or activities of the targets, but rather "behavioral characteristics" identified as those typical of militants. This is a clear violation of the principle of distinction. Further, Amnesty International questions President Obama's assertion that drone strikes are only launched when there is "near certainty" that civilians will not be killed in the strike – a likely reference to President Obama's disputed method of counting "all military-age males" in the vicinity of an alleged target as militants.