Under monitoring and targeting terrorist and militant groups (Bergen

Under Obama administration the use of drone airstrikes
became an important policy tool as a means of monitoring and targeting
terrorist and militant groups (Bergen & Rothenberg 2015). The unmanned
combat aerial vehicles (UCAVs) or unmanned aerial vehicles (UAVs) are now
becoming an integral aspect of modern conflicts. With the development of targeted
killing program, the concept of warfare has changed dramatically and has raised
questions about the legal, ethical and strategic implications of this
technology. With regard to the increased usage of drone, this paper examines whether the
American policies surrounding drone usage represent a fundamental challenge to
the traditional legal and ethical standards of armed conflict. This essay will
start by providing an overview of what is new with drones. The essay will then identify
and analyse the legal and ethical implications of drone in both international
and non-international armed conflicts. In this regard, articles and provisions
of the UN Charter, the Geneva Conventions and The International Court of
Justice will be outlined.

 

 

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Drones have
become a major policy tool in U.S. counterterrorism policy under the Obama
administration (Bergen and Rothenberg 2014). Since 2009, the U.S. has used
drones in places such as Yemen, Somalia, Iraq, Pakistan and Afghanistan as a
regular form of surveillance and occasionally used them to launch lethal
strikes against suspected terrorists. The first U.S. lethal drone strike took
place in 2002 in Yemen when a US RQ-1 Predator launched hellfire missiles
against a leader of al Qaeda, operation carried out by the CIA (Bergen and
Rothenberg 2014). Two years later, the U.S. started drone strikes in Pakistan,
and since then, the number of aerial drone strikes has increased significantly.
As one U.S. officer claimed after the first strike “in the annals of aviation,
these were milestones” and added “they opened a new era of aerial combat” (Brzezinski
2003). Indeed, UCAVs and UAVs represent a major revolution in the conduct of
military operations in terms of technology, operational and organizational
concept (McKitrick et al. 1998). Through the development of such weapon, the
U.S. can rely on strategic advantages and several important benefits. First, a
drone is an aircraft that do not have human pilot on board, and so it can be
controlled from military bases located thousand miles away from the active
theatre of conflict. Thus, it allows strike anywhere in the world. Second, it
has a longer autonomy; the last drone generation can loiter for up to 40 hours while
manned surveillance flights are limited by human endurance and difficulties
loitering during monitoring surveillance. Last but not least, the most obvious
benefit of drone use limits the risk to an American pilot’s life and thus helps
to combat casualty phobia, also know as the ‘body bag factor’ (Record 2002;
Robinson 2009). As Record points out, the war in Afghanistan had a divesting
impact on public opinion and there was public willingness to stop sending
soldiers into dangerous missions ground (2002). Well, in future fight on
battlefield, it may be possible to see no Americans in uniform. Such view is
shared by Lt. Col. David Branham of the Air Force “in our lifetime we will be
able to run a conflict without ever leaving the United States”(Brzezinski 2003).

 

However, as
many scholars point out, there are also several significant problems to using
such technologies (Brzezinski 2003; Ghosh and Thompson 2009; Schmitt 2010); For
instance, several crashes have been reported during military operations in the
field. Moreover, there has been a growing community of policy experts who have
highlighted the level of inaccuracy from available information after the
attacks have been carried out. The most relevant case is related to Mustafa Abu
al-Yazid, third in command of al Qaeda, who was killed during a missile strike
in 2010 (Schmitt 2010). Yet, this man was previously reported killed by a drone
strike in 2008. As many experts point out, without ground support after the
attacks, it is difficult to confirm the number and the identity of casualties
(Ghosh and Thompson 2009). Another concern with the use of drones is that
factors such as darkness, poor weather, difficult terrain and technologies used
by enemies to blur thermal imaging increase the risk of civilian casualties
(Brzezinski 2003). Despite these weaknesses, UCAV is now becoming an integral
aspect of modern conflicts. The strategic benefits of these technologies
outweigh any negative strategic arguments and have become “an invaluable asset”
to advanced militaries (Brzezinski 2003).

 

While the
U.S. government enjoys all the technological advantages that drones have the
potential to provide, UCAVs have been responsible for thousands of deaths and
an immeasurable amount of damage. A UN spokesperson explained targeted killing
program represents a “clear case of extrajudicial killing” which has been
described as “illegal, immoral and strategically flawed” (Ezzatyar and Kabraji
2010). The increasing use of new weapons technology, such as UCAV, has changed
dramatically the concept of warfare. The use of drone strike has not only
changed the conduct of military operations, it has raised a number of legal and
ethical considerations in armed conflict. Among the most prominent concerns
raised, the use of overwhelming force, the threat of civilian casualties,
adherence to the proportionality and distinction principles in international
humanitarian law.

War is regulated by international law and more particularly by the
Geneva Conventions; specific rules on how to behave during war. Since the use
of new weapons technologies and the changing face of warfare, there is an
intense debate regarding the use of UCAV technology; in particular it has been
questioned if US drone strike policies are complying with all applicable law.
Because of civilian causalities associated with American strikes, it has led to
a rising tide of condemnation by the international community. It has been
argued that the US drone programme has breached several obligations under
international law and International Humanitarian Law (IHL) (United Nations,
2010). The Obama Administration responded to those critics by arguing that its
drone strike campaign “comply with all applicable law, including international
law and the laws of war, in all aspects of these on-going armed conflicts”
(Koh, 2010).

 

The
use of drone strikes and international law

The international law of self-defence face an unprecedented challenge
brought by the consequences of the 9/11 attacks (Klabbers 2016). Indeed, since
the U.S. declared a ‘ global war on terror’, they have always argued that
targeted killing represent legitimate acts of self-defence under Article 51 of
the UN Charter to justify its aggression in Afghanistan. Yet, the U.S. has also
conducted drone strikes outside Afghanistan where no aggressions have reported
and where no state consent has been given. This is a complete violation of the
territorial integrity and political independence of a state (UN Charter art.
2(4)). In addition, targeted killing represents a fundamental challenge to the
traditional legal standards of armed conflict outside recognised conflict
zones. When it comes to illustrating this situation, one must look no further
than Pakistan. While it has been recognized that armed groups cross the
Afghanistan-Pakistan border, this does not give the right to the U.S. to carry
out drone strikes in Pakistan. Even if a state harbour or support terrorist
groups it does not give the right to use force under the claim of self-defence
(Klabbers 2016). According to the ICJ case Congo
v. Uganda, the United States has breached several of its obligation under
international law (Kaczorowska-Ireland 2015).

While the Bush administration adopted the term ‘Global War on Terror’, to
justify the use of force, the Obama administration preferred to call it an
“armed conflict with al Qaeda and other associated forces” (Wan and Finn 2011).
Thus, to avoid public controversy about drone strikes, the Obama administration
justified the strikes against ‘associated forces’ as part of the armed
conflict: the war with al Qaeda and the Taliban. In fact, in 2001 Congress
authorized the use of military force (AUMF) against al Qaeda and President
Obama relied on it for future American military action. By linked associated
force and al Qaeda, the Obama administration has allowed attacks on any group
“operating in the same radical Islamist milieu” (Wan and Finn 2011). In this
manner, the Obama administration can justify its drone attacks by arguing that
the combat against al Qaeda is not confined to geographical locations and
limits of the boundaries. Nevertheless, it has never been clear where those
military actions against al Qaeda or its associated forces have occurred
precisely from Pakistan to Somali. Moreover, the US government refuses to
provide a public list of what it considers a group linked to al Qaeda. In
particular, the Obama administration was vague regarding what exactly linked a
group to a recognized terrorist group. While there is no doubt that material
and financial support to combatants are obvious link under international law,
the linkage is less clear when it consists of ideological and political
support. Yet, the administration has shown it does not trouble itself with this
subtlety. For instance, the Obama administration authorized drone strikes and
covert operations on al-Shabaab militants and structure in Somalia without
making clear what was the material link with combatants in Afghanistan (Sly
2014). There is, of course, another difficulty in assessing the legality of the
U.S. drone strike program: the government categorically refuses to reveal the
criteria on which strikes are based, where drones are present and where the
attacks took place. All in all, it leaves the impression that the lack of
“transparency and accountability” in the US government’s drones policy
reinforces concerns about the vague limits of drone use and increases the risk
of terror around the globe (Boyle 2015).

Indeed, the non- accountability and non-transparency of the Obama
administration’s drones policy have raised concerns regarding U.S. involvement
in the targeted killing of militants in Pakistan and Yemen; the use of
assassination. Under international law, the use of assassination is illegal
outside of armed conflict but not rare. As Gabriella Blum and Philip B. Heymann
highlight, governments and intelligence agencies conduct assassination and in
some cases, such as Israel, make a policy of it (2010). Nonetheless, governments
are generally not enthusiastic to claim that assassination should be
permissible. Indeed, the use of assassination is a complete violation of
customary international law, and even if it occurs in armed conflicts,
assassination is permitted under exceptional circumstances (Klabbers 2016).
Again, to avoid the legal and ethical restriction on assassination, the Obama
administration refers to its broad interpretation of armed conflict to justify
drone strikes on non-state actors outside the conflict zone (Blum and Heymann,
2016). The problem with this interpretation is that the United States conducts
strikes within the borders of a sovereign nation in the absence of valid
permission establishing an act of war. The main danger with the US
interpretation is that it opens the door to “a grey area between war and
assassination” that allows a variety of different forms of informal violence, (Boyle
2015). The US position is not coherent with international law and poses a
number of challenges. There are a number of concerns among scholars and lawyers
with regard to drone strikes in peacetime. As discussed previously, Art. 2(4)
of the UN Charter strictly limits the use of force to war otherwise it is
considered as an act of aggression (UN Charter 1945). David Kretzner sees in
this state practice a danger as it produces new norms of customary
international laws that challenge the use of assassination which can led to a
new range of targets (2015). Echoing some of Michael Boyle’s arguments here, he
argues, “the
US may be gradually normalizing the practice of extrajudicial murder by states,
particularly if other states do not accept that the right of anticipatory self-defense
belongs to the US alone”(2015).

 

 

Proportionality and distinction

Although the U.S. takes the position that drone strikes are part of an
armed conflict with al Qaeda and other associated forces, it does not mean that
all its strikes comply with IHL. For instance, the U.N. Special Rapporteur
Philip Alston worried whether the US had respected the humanitarian principles
of IHL (United Nations 2010). Also, Alson asked in his 2010 report that the US
needs to answer questions about civilians killed during their strikes (United
Nations 2010).

The most controversial element of Barack Obama’s drone war: so-called
‘signature strikes’ – “killing people without knowing who they are” as opposed
to ‘personality strike’ in which the CIA know the precise identity of the
target (Heller 2013). Between 2008 and 2011 there was 500 drone attacks and
reports revealed that only 8% were targets with clear identification (Heller
2013). Critics from human-rights groups, politicians and government officials
have denounced the legality of signature strike and claimed that this practice
caused a greater risk of civilian causalities who have no connection to any
terrorist organisations. Jameel Jaffer, deputy legal director for the American
Civil Liberties Union states “signature strikes have resulted in large numbers
of bystander causalities in Pakistan and Yemen” (De Luce and Mcleary 2016). For
example, the tragic blunder came on 12th of December 2013 in Yemen
where 12 civilians were killed in a single signature strike (De Luce and
Mcleary 2016). Many scholars and lawyers observe that signatures strike
challenge international humanitarian law and particularly the concept of
discrimination. The law of armed conflict requires that the attack on lawful
targets must be certain: combatants or civilians who are directly participating
in hostilities. Some scholars such as Michael J. Boyle argues “drone strikes do
not always achieve that standard and can fall afoul of the principle of
proportionality, depending on the nature of the target and what they appear to
be doing” (2015).

The Geneva Conventions are one of the key foundations of international
humanitarian law. IHL is a body of treaty and custom-based rules that regulates
the conduct of war (jus in bello).
The Conventions are based on key principles such as proportionality, humanity, distinction
(also known as the Principle of discrimination) and necessity (Articles 51, 35
and 57of Additional Protocol I). It should be noted that there is nothing in
the law of armed conflict that prohibit the use of UCAV for lethal strikes.
However, all these operations must be consistent with the norms and regulations
of proportionality, necessity and distinction. The law of war prohibits
attacks, which may cause “superfluous injury” or “unnecessary suffering”
(Geneva Conventions AP I 1977). In addition, as Vogel points out, under those
articles, all parties in both international and non-international armed
conflicts must attempt to distinguish between the civilian population and
combatant (Vogel, 2010). Drone strikes in Pakistan, Yemen and Somalia clearly
take place in the context of non-international armed conflict.

The
principle of proportionality and distinction are designed to protect civilians
in armed conflicts. In armed conflict, IHL’s proportionality requirement limits
the degree of force that a state may use in a particular situation. This
principle helps to reduce the number of incidental civilian causalities which
may occur in the pursuit of legitimate military objectives. Most of the U.S.
drone attacks took place in non-combatant zones, where the risk of civilian
casualties was very high. Even if there had been any terrorists killed in drone
strikes, the number of civilians killed and the use of firepower would violate
humanitarian laws for being highly disproportionate. David Whetham “believes that “drones are not able to pursue military goals because the
legal requirement for proportionality has to be followed” (2013). Many reports
from humanitarian organization reveal that the majority of drone strikes kill
far more civilians than the actual target. According to the Bureau of Investigate Journalism, 32 per cent of those
killed by US drone strikes in Pakistan have been innocent civilians (Whetham
2013). In addition, Koplow highlights, the use of overwhelming force clash with
the Jus in Bello laws of war, in
particular with article 51 and the need to avoid “superfluous injury” and
“unnecessary suffering” (Koplow 2005). Although the principle of
proportionality takes into account collateral damages during a military
operation, imprudent and excessive attacks that result civilians death
constitute war crimes (Vogel 2010).

The laws of war also condemn strikes on deliberate civilians. Thus, it
is paramount during an armed conflict to clearly identify and determine the
status of the target, for example whether that individual is see as a civilian,
a soldier, a combatant or have been participated in hostilities. According to
the International Committee of the Red Cross, two categories of individuals are
targetable: members of organized armed groups and civilians who directly participate
in hostilities (Klabbers 2016). If the targets are non-combatants then they are
not lawful targets according to the principles of distinction. In a ‘classic
war’ it is commonly accepted that a combatant wears a uniform with clear
national identification. In this configuration, states do not need to define
clearly the identity of an individual before targeting them, but they are
required to determine if their actions are materially related to the armed
conflict before attacking. In ‘non-conventional war’, the designation of
combatant status has produced a series of important moral dilemmas. In this new
king of war, irregular fighters do not wear soldier clothes and usually hide in
the middle of the civilian population in order to exploit the fact that
governments are obliged to use force with the principle of distinction,
avoiding civilian casualties as much as possible (Boyle 2015).

The question that arises is how governments can fight non-state actors
while it is paramount to respect the principle of distinction? The Obama
administration has recognized it was a key issue but has insisted that “the
monitoring technology associated with our drones allows operators to abide by
the principle of distinction and carefully distinguish between combatants and
civilians” (Koh 2010). Furthermore, Koh has argues that “the American drone
strike programme easily meets the international humanitarian law requirements
of necessity, distinction and proportionality” (2010). As emphasized
previously, regarding the principle of necessity, the war against al Qaeda and
other associated forces is legally permitted because of the inherent right for
self-defence. On the question of distinction and proportionality, although the
US government has admitted that the risk for civilian casualties is possible
with drone strikes, but limited. In 2012, the New American Foundation (NAF)
reported that the per cent of drone causalities after 2013 have dropped from
15% to 1% (Andrews 2016). Such figures are highly contested. As mentioned
previously, many experts point out that due to the nature of the operation
itself, it is difficult to confirm the number and the identity of casualties.

There is also another concern regarding the deployment of drones over
non-combatant zones where civilian population are constantly monitoring and
sometimes striking. Some critic, such as David Rohde, the persistent presence
of drones and the psychological negative impact that the deployment has on
civilian population – the fear to be targeted at anytime – have produced novel
ethical and legal problem (2012). It can be argued that the deployment of
drones represents a violation of the principle of proportionality. Although the
Obama administration defends its drone campaign, arguing that the principle of
proportionality is not breached because the rate of civilian killed is low,
there are some reasons to rethink this method of calculation. Indeed, as John
Kaag and Sarah Kreps argue “the typical calculation of proportionality is
sometimes skewed”(2014: 97). The principle only focuses on the military
advantage with the strike against the potential loss of life and damage to
civilians and so, the psychological negative impact associated with drones is
more acceptable if the aim is to stop “a greater evil” (Kaag and Kreps, 2014:
97). There is no doubt that such calculation makes the psychological effects of
drones appear less important costs compare the prevention of catastrophic
terrorists attacks. Nonetheless, critics have called into question whether the
military advantages of drone warfare are not disproportionate regarding
strategic gain. Some wonder if terrorists have really been defeated. As Dieter
Fleck highlights “according to the Geneva Conventions, if the incidental harm to the civilian
population exceeds the advantages of removing an operational leader from the
battlefield, a military operation may be deemed disproportionate even if its
intention was not to terrorize the civilian population” (2013: 509). Thus,
under humanitarian international law, the persistent presence of drones could
constitute a violation of proportionality if the degree of fear exceeds “the
advantages of removing an operational leader”(Fleck 2013).

Lastly, Daniel Brunstetter and Arturo Jimenez Bacardi point out that the
degree of fear imposed on civilian population due to persistent presence of
drones may breach as well the principle of distinction (2015). Although this
approach is far more subtle comparing to the violation of proportionality, the
U.S government has, also, the duty to protect non-combatants from the psychological
effect caused by drones, also called “non-combatant immunity” (Brunstetter and
Jimenez Bacardi 2015). This interpretation, compared to the legal and ethical
obligation to protect civilian population against airstrikes, represents a new
interpretation of the principle of distinction. Thus, under international law,
the American deployment of drones may be violating “the spirit of the principle
of distinction” (Boyle 2015).

Conclusion

 

To defend its drone campaign against a range
of critics, the Obama administration has relied on the traditional legal and
ethnical framework during warfare. The law of war, though evolve since the
first Geneva Convention in 1864, contains the most important rules limiting the
barbarity of war. The new aspects of drone technology pose some new legal and
ethical dilemmas. In order to justify its drone strikes, the Obama
administration relied on a broad interpretation of the use of force against al
Qaeda and its associated forces; concept not widely accepted by the
international community. In this new context, where the enemies are non-state
actors and can operate around the world, the United States conducts strikes
within the border of a sovereign nation to monitor and sometimes target enemies
in the absence of valid permission establishing an act of war. In other words,
the U.S. government has created a global battlefield. The main danger with the US interpretation is
that it opens the door to a grey area between war and assassination that allows
a variety of different forms of informal violence such as the use of
assassination. The US practice of drones has created a precedent and the spread
of drone technology can produce new pattern of state behaviour: normalize and
legitimate extrajudicial killings to their own purposes.