It is well established that the United States (US) conducts armed activities in the context of counterterrorism, including drone bombings, that elude transparency and avoid accountability. This Executive Order, issued by former President of the United States, Barak Obama, was an attempt to increase both. It aims at imposing heightened policy standards to better protect civilians in areas where the United States (US) conducts counterterrorism and counterinsurgency operations. It also recognises that the protection of civilians and the minimizing of civilian casualties enhance the willingness of foreign states and their populations to support these strikes. As a matter of policy, the President orders that all incidents involving civilian casualties be reviewed and investigated. Considering that under international law the US has an obligation to ensure review and prompt, effective, independent and transparent investigations into cases in which civilians are reported to have been killed or injured, this statement merely repeats an already existing legal obligation. Nonetheless, articulating this obligation and translating it into policy may help to improve outcomes for victims of US armed drone strikes seeking a remedy for their losses. In this Order, the President goes on to state that the US “will acknowledge responsibility for civilian casualties and offer condolences, including ex gratia payments, to injured civilians or their families”. To date however, the US has virtually never accepted responsibility for the civilian harm caused by drone attacks. Moreover, and of particular relevance from the Nuhanovic Foundation’s perspective, ex gratia payments do not indicate full acceptance of a legalobligation, since they are by definition voluntary and do not create or affirm legally binding precedent.
The Order also establishes a ‘think tank’ of agencies from various backgrounds to consult on civilian casualty trends, consider potential improvements to US government civilian casualty mitigation efforts. However, this platform is not allowed to look into specific incidents, a factor that potentially weakens the impact that the ‘think tank’ may have.
Responding to this Order, a cluster of NGO’s signed a letter in October 2016 in which they qualify the Order as a positive step towards more transparent and accountable US policy and practice on the use of force. The letter calls on the Administration, as part of its implementation of the Executive Order, to acknowledge U.S. government responsibility for ten past drone strikes, to start investigations into these strikes as well as other strikes where there are credible allegations of harm to civilians.
On March 6, 2019, President Trump downturned the policy standards on the protection of civilians in US military operations against alleged terrorists by revoking section 3 of Obama’s Executive Order 13732.
This means a setback in transparency for Trump’s principal intelligence advisor no longer needs to annually publicly release information about the number of civilian deaths resulting from US (drone) strikes against terrorist targets. It also puts a stop to the openness about the explanations for discrepancies between US post-strike counts of civilian deaths on the one hand, and NGO’s reporting on the other.
Since Executive Order’s section 2 is upheld, relevant US departments and agencies involved in counter terrorism operations, including drone strikes, continue to be required to investigate incidents involving civilian casualties, taking into account relevant information from all available sources, including NGO’s, and take measures to mitigate the likelihood of future incidents of civilian casualties.