The recent drone strikes carried out in various locations in the Middle East by the United States have sparked public outrage with leaked reports of innocent civilian casualties along with immense collateral damage to the countries in which the drone strikes were executed. According to the Bureau of Investigative Journalism (BIJ), John Brennan, President Obama’s top counter-terrorism advisor, publicly stated in June of 2011 that, for nearly one calendar year, no civilian had perished during drone strikes occurring in Pakistan. Recently leaked intelligence documents have shown this statement to be blatantly false. Less than two months before Brennan’s statement, leaked CIA documents admit to a civilian casualty that occurred on April 22, 2011. The drone strike in question took place on April 22 and destroyed a home just before dawn. There were at least 25 casualties, including five civilians who were identified as women and children (BIJ).
These preventable civilian deaths and the lack of transparency of the Obama Administration’s actions and policies, in turn, has created a controversy in which the legality of drone strikes has been questioned by a variety of international organizations, including the United Nations. Though drones can be utilized for a variety of purposes, the controversy focuses on the recent practice of “targeted killings” in which the aim is not to “neutralize, contain, or incarcerate” certain individuals but to “eliminat[e] them completely” (Buckley, 440).
What is striking about the recent controversy over the legality and use of combat drones is that it represents a classic example of the quintessential differences between a realist and liberal perspectives on international law. Representing the realist perspective is the Obama Administration et al. This synecdoche consists of President Obama, his national security advisers, and other political and social figures who openly endorse the use of drone strikes as being compatible with international law. In contrast, the liberal perspective is provided by various academic scholars and leaders of international organizations such as Pakistani Foreign Minister Hina Rabbani Khar, U.N. Special Rapporteur Christof Heyns, and scholar Mark Freeman among others.
In this context, there are certain aspects of each theoretical approach to international relations that are extremely pertinent to the discussion of drone attacks as a case study. Viewing realism and liberalism as antitheses, the former focuses its attention on the state as the primary actor in international relations, values security over freedom in the international system, and prefers power to interdependence in relationships to other countries. Meanwhile the latter places an emphasis on the individual (whether alone or as part of a larger governmental or non-governmental organization), is typically against unilateral action, and stresses interdependence through cooperation for solving collective international problems.
According to classical realism, there is an emphasis on a state’s security through the acquisition, maintenance, and use of power. Though power comes in two forms, hard and soft, classical realists prefer hard power in the form of conventional weapons and military capabilities such as missiles, tanks, and, in this case, combat drones (Pease, 43). The utilization of drones in armed conflict, in theory, provides for a greater likelihood of maintaining national security from external threats such as terrorist groups. If, in the process, human rights are violated or civilians are injured or killed, so long as the costs and benefits are either neutral or more beneficial, then it is a justified risk for a state to take. Hence, security trumps freedom as a priority (Pease, 44-45). In addition, realists view alliances and, by extension, interdependence as problematic. The presence of an alliance or international agreement is by no means a guarantee of survival or security. An alliance is only as strong as its weakest member and that potential weakness encourages unilateral action in many instances. As a result, the condition of being a state that is too interdependent on one country or one group of countries is abhorred (Pease, 45-46).
According to classical liberalism, there is a concentration on the individual and individual rights. These most often include the rights to life, liberty, and the pursuit of private property and are based on the values of autonomy, equality, and participatory government (Pease, 60). These rights are understood to be universal to persons solely on the basis of their humanity (Pease, 62). As a result, the quest for power via violent means by any actor on the international stage is strictly discouraged for fear of violating those fundamental rights. Instead, liberals focus on international interdependence and cooperation to solve international problems, especially those relating to security such as drone strikes. They seek to create a global system in which economic and political ties are strongly shared among countries so as to encourage diplomacy and interdependence rather than violence and isolation (Pease, 65).
This paper will (I) provide some background information into the history and development of drone strikes, (II) explore the key arguments given for and against the legality of combat drones against Al-Qaeda in the War on Terror, and (III) will provide evidence and argumentation towards the conclusion that the use of drone strikes can be legal within an international law framework but that the United States must modify the practices of drone strikes beforehand. The geographical focus of this paper will be mainly Pakistan with certain parts pertaining to drone operations as a whole.
Drones were originally intended to serve as tools of surveillance. There were first used for aerial reconnaissance during the ethnic conflicts in Bosnia and Kosovo in the 1990s. However, in the aftermath of the 9/11 terrorist attacks, drones became equipped with extremely advanced weapons systems and were authorized by President Bush for use in instances of anticipatory self-defense against terrorist organizations under the supervision and guidance of the Central Intelligence Agency (CIA). Though President Bush carried out several drone assaults, the total number of these attacks greatly increased after President Obama took office (Brunstetter and Braun, 340-341).
According to a publication by the International Committee of the Red Cross (ICRC), though both International Humanitarian Law (IHL) and International Human Rights Law (IHRL) aim to protect citizens of the world, there are important distinctions to be made between the two. The key distinction for the legality of drone attacks is whether they fall under the jurisdiction of International Humanitarian Law (IHL) which provides rules and regulations for states during times of war and armed conflict or whether they fall under the jurisdiction of International Human Rights Law (IHRL) which is more stringent in its defense of universal human rights (Blank, 724-727).
IHRL focuses on defining and defending the rights of individuals that can be expected or claimed from governments. IHRL is derived from treaty sources that include the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966) and the Conventions on Genocide (1948) Racial Discrimination (1965), Discrimination Against Women (1979) (ICRC).
With a significant amount of content overlapping with IHRL, IHL focuses on providing a framework for acceptable solutions to humanitarian issues that arise from international and non-international armed conflicts. IHL derives its legal status from treaty sources such as the four Geneva Conventions of 1949 as well as the Additional Protocol I of 1977 (ICRC).
The conflict around these two international law paradigms focuses on the language provided by certain international treaties. The Obama Administration has claimed that the War on Terror with Al-Qaeda being the target counts as an armed conflict even though the battles are taking place in Pakistan, there is ambiguity concerning whether or not terrorists are combatants or civilians engaging in casualties or even a third category that has yet to be developed, and, similarly, which sets of rights the terrorists can claim under international law. There are also concerns for drone use within the Just War tradition (Ohlin, 29-36).
Many liberals approach the drone controversy from an IHRL approach. Because IHRL seeks to more stringently uphold human rights (particularly the right to life), this approach can be extremely limiting for military operations, only allowing for very narrowly defined and executed courses of action. Under International Human Rights Law (IHRL), the use of drones for targeted killings is unlikely to ever be justified. Drawing upon Article 6 of the International Covenant on Civil and Political Rights (ICCPR), IHRL stipulates that no person is to be arbitrarily deprived nor can lethal force be utilizing unless there are lawful reasons for doing so (Wuschka, 897). Not only do they violate individuals’ right to life, but they also violate a state’s sovereignty, result in unnecessary collateral damage, and undermine much of international law (Freeman).
Proponents of an IHRL based approach to the legality, or lack thereof, of drone strikes appeal to Common Article 3, found in all four of the Geneva Conventions (ICRC). Common Article 3, paragraph 1 states that persons who are not actively engaged in hostile activities (persons including members of armed forces who have stopped engaging in hostile activities for any reason) must always, regardless of condition or time, be treated indiscriminately concerning “race, colour, religion or faith, sex, birth or wealth, or any other similar criteria” (ICRC). In addition, sections (a), (c), and (d), of that same paragraph explicitly list actions which may not be conducted by either armed force in a non-international armed conflict.
Liberals would point out that these drone strikes clearly violate sections (a) in that the drone strikes are used to purposefully kill another human being, and (d), in the sense that the drone strikes do not allow for the proper use of judicial systems, of paragraph 1 and arguably violate section (c), since targeted killings seem to imply a kind of inferiority aspect, as well.
Yet realists approach the drone strikes from an IHL approach. They argue that in the context of an armed conflict, it is necessary to derogate from certain human rights in order to address emergency situations that could threaten the continued existence of a nation. The Obama Administration is on record as having stated that the use of combat drones has been justified upon the foundation of self-defense. As a result of the terrorist attacks on American soil on September 11, 2001, the United States found itself at war with the Al-Qaeda terrorist network and has taken military action in what is known as the “War on Terror” (Ohlin, 30).
For one, critics claim that there is not enough transparency and accountability regarding protocols. This has become extremely problematic as of late due to the fact that there have been numerous civilian deaths that have occurred because of combat drone strikes. One source puts the civilian death toll between 411 and 884 with 168-197 of those consisting of children (BIJ). Yet these numbers are not authoritative since there have been conflicting accounts and numbers.
In addition, cryptic remarks made by various CIA officials have raised concern in the international community. The CIA’s general counsel, Stephen Preston, in an address to the Harvard Law School in April of 2012, stated that the agency would use force “in a manner consistent with the…basic principles” of the laws of war (Human Rights Watch). This remark concerned James Ross, the legal and policy director of the group Human Rights Watch who states that this could signify a serious disrespect towards firmly established international laws which could result in abuses of powers and legal transgressions (Human Rights Watch).
Another argument advanced on a liberal perspective is that the drone strikes constitute a violation of a state’s sovereignty. One proponent of this view is Pakistan’s Foreign Minister Hina Rabbani Khar. During an event hosted at the Asia Society she openly declared that “The use of unilateral strikes on Pakistani territory is illegal” (Huffington Post). Article 2(4) of the United Nations Charter forbids the threat and use of force by one member state against any other. The only possible exceptions to this rule are in the cases of consent from the host state, when the use of force pertains to self-defense or when the host state is unwilling or unable to take necessary action (Living Under Drones).
Yet liberals argue that Pakistan clearly does not give consent if they are condemning the drone strikes. In addition, liberals question whether or not the Obama Administration can legitimately claim to be acting in self-defense if the terrorist attacks against America took place over a decade ago. Finally, liberals point out that the police and military forces in Pakistan have worked with the United States in trying to combat terrorism in the region showing that they are willing (Living Under Drones).
Finally, scholars note that drone attacks do not seem to be in accordance with the Principles of Just War. To provide some brief background, the Principle of Distinction holds that there are two main groups present within armed conflicts, combatants and civilians. The latter are not legitimate military targets and should be treated with the utmost respect concerning international legal rights. Meanwhile the Principle of Proportionality states that the means of military force must be measured against the objectives that must be met. Excessive force, either in quantity or quality, is forbidden (Brunstetter and Braun, 347).
Liberals argue that these principles have been violated in drone strikes which have resulted in the loss of life of innocent civilians. Critics state that a single casualty of this nature shows that drone strikes cannot properly adhere to the Principle of Distinction. Furthermore, the use of drone strikes brings with it opportunities for great abuse of power such as utilizing drone strikes in inappropriate contexts and for inappropriate uses (Ohlin 28-29).
One argument advanced from a realist perspective asserts that drones positively enhance the Just War tradition under international law, rather than violating it, by providing technological means that can better adhere to the Principles of Distinction and Principles of Proportionality. Put another way, drones bring with them numerous advantages compared to more traditional weapons and military forces that justify their use.
First, drones, in comparison to fighter jets and other military aircraft, are able of navigating more difficult terrain, such as the mountainous regions of Middle Eastern countries, in order to find a specific target or groups of targets. Rather than having to use high powered bombs and other explosives that may result in unnecessary collateral damage, in addition to not being very effective, drones are able to more selectively focus on combatants thereby upholding the Principle of Distinction (Wuschka, 896).
Next, the use of drone makes the need for infantry troops and other larger military operations superfluous. Drones are able, in theory, to complete the jobs of multiple soldiers, weapons, and tools at one time. Drones can be utilized for surveillance, for target killings, and much more. They can often alternate between these divergent roles within the same context as well. As a result, drones can ensure that no excessive means are being utilized when applying force to achieve military objectives (Brunstetter and Braun, 343).
The Obama Administration also counters claims that it is violating the sovereignty and territorial integrity of Pakistan by noting that in 2008 Pakistan’s governmental leaders asked for assistance from the United States in the form of increased drone strikes (Living Under Drones). In addition, realists would argue that Pakistan suffers from an inability to combat the terrorists when left to their own means. Pakistan’s government does not have the material or human resources necessary to dismantle Al-Qaeda strongholds in the country. As a result, these two factors provide enough justification for the United States’ drone strikes in Pakistan on a realist interpretation.
The author of this paper argues that the use of drone strikes can be completely legal so long as certain conditions are met. That being said, some of these conditions have yet to be met. As a result, the author proposes a series of changes in order to ensure that drone strikes are legal under international law.
For one, there needs to be more transparency concerning the targets of drone strikes, the number of drone strikes carried out per year per location, the number of civilian and combatant and soldier casualties, and more information of the like. This information must be made available to the general public so that if grave offenses to domestic or international laws, or the principles upon which those laws are founded, are committed, the general public can engage in the proper response to rectify those mistakes through respective governmental processes and institutions. The justification for this measure comes from the fact that the loss of innocent civilian life from these strikes has been excessive. In order to accomplish this, the author suggests that control over subsequent drone strikes be placed in the hands of an appropriate military command.
Next, there needs to be modification to current international law. Clearly IHRL cannot be applied properly to this situation. Terrorists, members of Al-Qaeda, fall between the cracks of contemporary categories of parties involved in violent conflicts (Ohlin 33-36). Terrorists are neither clearly combatants because they do not always carry weapons or engage in subversive activities. Yet they are also not as innocent as civilians who only engage in hostilities for a short amount of time, likely as an emotional response to a specific incident. Yet the designation “unlawful combatant” in which all internationally recognized human rights are denied is morally repugnant and violates international norms (Buckley, 449).
In addition, the concept of self-defense as a pretense for just war must be examined. While the original terrorist attacks of 9/11 provided more than enough justification for the United States’ claim of self-defense, the fact that this is still the justification being used over a decade later and is being more or less accepted by the international community is impermissible (Living Under Drones). There needs to be some kind of temporal or geographical criteria added to the concept of self-defense to prevent any further instances of self-defense pretenses being abused.
Finally, there should be more human soldiers present on the front line than there have been. Wuschka notes that drones do not have to eliminate a targeted individual upon first encounter. Rather, the drones can observe and collect information about the target’s activity and the surrounding environment (Wuschka, 896). This kind of monitoring would allow the CIA to gather necessary information in order to coordinate a non-lethal arrest. In addition, considering the weapons capabilities, why can drones not be equipped with non-lethal yet effective systems used to stun and capture a target? Even a strong, giant net could be used to swoop in, grab the target, and extradite him to another place to await trial for various war crimes or crimes against humanity.