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Human Rights Watch Responds

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Tuesday, October 26, 2010 at 8:51 PM

Two weeks ago, I posted these ruminations in response to Human Rights Watch’s Executive Director Kenneth Roth’s  proposal to use U.S. military force to bring the leader of the Lord’s Resistance Army (LRA) to justice. Today, I received the following comments from HRW’s Washington Director, Tom Malinowki. I am delighted to have provoked such a thoughtful response and am pleased to post it in its entirety:

Readers of Lawfare are not commonly treated to commentary about Central Africa. So I was intrigued by Ben Wittes’ entry on Human Rights Watch’s proposal that the United States should aid efforts to enforce an international arrest warrant against Joseph Kony, the leader of the “Lord’s Resistance Army” (LRA), which has attacked and abducted civilians – especially children — in the isolated area where Congo, Sudan and the Central African Republic meet. I can’t blame Ben for trying to contrast a human rights group’s eagerness to stop Kony with the questions we’ve raised about aerial drone strikes on al Qaeda leaders. There are some interesting analogies here that are worth discussing and, let’s face it, it’s always tempting to tweak us do-gooders when it looks like we’ve been caught in an inconsistency. But I’m afraid Ben’s post oversimplified our arguments both on the LRA (which is indeed a profoundly serious matter in which the lives of countless people are at stake) and on drone strikes in places like Yemen. Let me offer a fuller explanation of our views on each of these issues in turn.

With respect to Kony and the LRA, we base our conclusions (unlike many of the folks who comment on such things) on extensive research in the field. For several years, our staff have traveled across the areas where the LRA operates, documenting its massacres, getting to know its patterns of behavior, interviewing former combatants who escaped its ranks and military officers with experience pursuing the group. We recognize the challenge the LRA poses and are not proposing that the US wage a “counter-guerilla campaign in the dense jungles of four central and east African states,” to combat it, as Abu Maqawama, the critic Ben quotes, suggests. Nor have we urged anything like the massive US interventions in Bosnia and Kosovo. But we do believe it is possible to address this menace.

Kony operates across a large, isolated jungle area where military operations are difficult to undertake. But he is protected by no more than 200-400 fighters. His group enjoys no popular support; it cannot hide among the sparse local population or recruit new members, except by abduction. In fact, the people who live in the three countries where the LRA currently operates desperately want outside help and their governments would welcome it (which is one reason why Abu Maqawama’s reference to the “Black Hawk Down” incident in Somalia, in which U.S. forces pursued a warlord who was protected by his clansmen in a densely populated urban setting, was particularly ridiculous).

Moreover, there is a significant military operation already underway against the LRA, led by Uganda. While finding Kony is hard in a vast, forested terrain, largely invisible to satellite imagery, we’ve documented five cases in the last 18 months where Ugandan or Congolese troops have tracked the group’s top leaders and were often within one kilometer of them. But these troops lacked the specialized equipment, training, and expertise to reach the leaders before they got away.

We believe that the addition of a small number of capable and experienced specialized forces to this regional effort – possibly provided by France, which has a military base in the Central African Republic and is a member of the International Criminal Court, with logistical and intelligence support from the U.S. – could make a difference the next time Ugandan or Congolese troops encounter the LRA leaders. We see this as a law enforcement operation, in the sense that the primary objective should be to capture Kony and others wanted by the ICC and deliver them to justice. We also recognize that lethal force is sometimes necessary in law enforcement operations when there is an imminent threat to life, and that this is a possible outcome, given the nature of this group and of the terrain where it hides. Meanwhile, we have also urged a broader strategy to protect civilians in communities at risk, rescue abducted children, and encourage defections from the LRA. To this end, we’ve suggested the deployment of more UN peacekeeping troops in the area (over 17,000 are already deployed in the Congo, but fewer than 1,000 are in LRA-affected areas.)

Contrary to Ben’s suggestion, this would not be a greater or more audacious use of force than the much larger US effort already underway against al Qaeda targets in Yemen, which reportedly involves the use of significant US Special Forces and intelligence assets on the ground and cruise missiles launched from submarines. Far from “politically unthinkable,” there is bipartisan support for going after Kony in the US Congress, which recently passed legislation requiring President Obama to come up with a strategy to “eliminate the threat” posed by the LRA. Obama signed the bill and is now considering a range of options.

It’s always easier to propose military action than to undertake it. That’s true whether one is pursuing a war criminal in Africa or a terrorist in Yemen. Indeed, the challenge in Yemen could be even more complicated and dangerous: The United States is aligning itself there with a corrupt, repressive government that has in the past tolerated the local al Qaeda affiliate; this government is waging campaigns against a localized insurgency in the north and a secessionist movement in the south, both unrelated to al Qaeda, in which it would dearly love to entangle the US; meanwhile, America’s al Qaeda targets are hiding in a region where the government has no writ, and enjoy a degree of local protection. I could also ask sarcastically, “What could go wrong?” And point out that much has gone wrong – including strikes that missed their targets but killed civilians, which al Qaeda has deftly exploited.

The difference in Yemen is that there are people there who are trying to kill Americans, so, as Ben notes, the Obama administration doesn’t have the option of not acting. Human Rights Watch has spent a considerable amount of time in Yemen, too, and also warned about the growing threat al Qaeda in the Arabian Peninsula poses there. As with the LRA in Africa, we believe the US should prioritize arresting al Qaeda members in Yemen, but we also recognize the difficulties of doing so in ungoverned areas. In this respect, we have been consistent.

Our position on targeted killing is that its use can be legally justified so long as it is limited to situations involving a combatant on a genuine battlefield or its equivalent beyond the reach of law enforcement, or in a law enforcement situation when the threat to life is imminent and there is no alternative. A case could be made that these conditions have at times been met in Yemen — for example, if there is credible evidence that a targeted individual is planning attacks on the US, the threat is imminent, and he or she is in a place where an arrest operation would be impossible. And if such conditions have been met, a case could also be made that drones are one of the best weapons from the point of view of reducing the likelihood of harm to civilians, since they deliver small warheads with precision, and can hover over their targets to observe if civilians are present. (We are concerned about the overzealous use of drones, particularly in the absence of on-the-ground intelligence to guide them, but they are better than most alternatives).

But the administration has not made this case. It has not laid out a clear legal rationale for drone strikes in Yemen or anywhere else. It has not explained what if any limits exist on the president’s ability to order targeted killings. Who can be targeted? Can strikes be launched anywhere on a global battlefield, or only in ungoverned areas where arrest is impossible? Does the threat have to be imminent and if so how is that defined? How does the United States distinguish between the targeted killings it believes are lawful and those it would consider outrageous (say, if the Russian or Chinese governments declared a political enemy a threat to their national security and on that basis killed that person on the streets of New York or London)? The US is not the only country in the world with the capacity to kill its enemies beyond its borders. It is profoundly unwise to legitimize the tactic without establishing the limits on its use.

The assumption Ben makes about our views on drone strikes reflects, I think, a common misconception about Human Rights Watch – that our sympathies always lie with those who are subject to the coercive power of governments. In fact, we often find ourselves urging governments to use their coercive power more assertively to protect civilians. We want to see Joseph Kony and others responsible for atrocities – whether they are abusive leaders in countries like Sudan, or terrorists who kill civilians, brought to justice. When governments cut deals with rights abusers, we condemn them (as we did when the Musharraf government in Pakistan ceded territory to the Taliban, with the toleration of the Bush administration). At the same time, we subscribe to what was once thought a conservative principle – that governments’ coercive power, especially the awesome power to deprive people of liberty and life, must be exercised within limits defined by law that protect due process and human rights.

Ben and I might not agree on how such limits should be applied in every case. But a reasonable set of rules should not preclude efforts to bring either war criminals in Africa or terrorists in Yemen to justice, or the use of lethal force when it is absolutely necessary. I hope he would agree that that the US government should, at the least, clearly articulate what it believes those rules to be.

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