Mary Ellen O'Connell
U.S. combat drones operate outside international law.
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On Dec. 30, 2009, a trusted Central Intelligence Agency informant walked into a base in Khost, Afghanistan, which borders Pakistan, and blew up himself and seven others working for the agency. In the weeks that followed, the United States, possibly for revenge, dramatically increased the number of attacks into Western Pakistan using unmanned aerial combat vehicles, better known as drones.

The attacks in response to the Khost bombing are rekindling the controversy surrounding this new technology of war. The C.I.A., which runs the drone operations in Pakistan, has called them “lawful, aggressive, precise and effective” (New York Times, 1/23), and its director, Leon Panetta, has said that when it comes to disrupting Al Qaeda, drones are “the only game in town.” The C.I.A. began using drones in Pakistan in 2004, even though the United States was not engaged in a war with that country. Under President Obama the use of drones in Pakistan has escalated dramatically. Following the attacks in Khost, the C.I.A. increased the attacks to every other day, up from about once a week.

Drones are indeed “aggressive,” but whether they are precise and effective is open to dispute. The C.I.A. uses drones to target enemy leaders on its “watch list,” but the attacks inevitably kill many people who are not on the list, including innocent women and children. According to David Kilcullen and Andrew McDonald Exum (New York Times, 5/19/09), the United States kills 50 unintended targets for each intended target of a drone attack. As one intelligence source told The Nation: “If there’s one person they’re going after and there’s thirty-four people in the building, thirty-five people are going to die. That’s the mentality.… They’re not accountable to anybody and they know that.”

Even killing the few on the C.I.A. list, however, raises concerns under international law. Neither the Bush administration nor the Obama administration has been persuasive about its legal right to launch attacks in Pakistan. Even with the legal right to use military force, drone attacks must also conform to the traditional principles governing the rules of warfare, including those of distinction, necessity, proportionality and humanity.

The Rise of the Drones

Drones were invented not long after the Second World War. The United States began using drones equipped with cameras to gather intelligence during the Vietnam War. By 2001, the U.S. military had modified them to fire missiles and drop bombs. Today drones have the ability to remain in the air for long periods, record data and respond immediately with lethal force when a target is detected. The U.S. Air Force first deployed weaponized drones in Afghanistan in November 2001. Drones were used by the Air Force in 2003 during the invasion of Iraq; they have been used in Pakistan since 2004; and since 2006 the United States has used drones in Somalia.

Killing with drones is made easy for operators, who often work at great distances from the scene of attack. An Air Force “pilot” may be in Nevada, while C.I.A. operatives are in Langley, Va., and others, including private contractors, are in Florida, Pakistan or Afghanistan. An operator may launch an attack from a trailer in Nevada viewing a computer monitor and using a joystick. The operators never see the persons they have killed. The pilot of a fighter jet flies over the place where the attack will occur and risks being shot down; a drone pilot never experiences the place where the attack occurs and knows he or she is in no personal danger. The operator can go home at the end of the shift [see sidebar].

In his 1996 book, On Killing, Lt. Col. Dave Grossman describes factors that can overcome the average individual’s resistance to killing, such as “the distance from the victim.” For Grossman, this includes many kinds of distance, like social distance, perceiving someone to be of a different social class; cultural difference, identifying racial and ethnic differences that permit “dehumanizing” the victim; and mechanical distance, engaging in combat through the intervention of “a TV screen, a thermal sight, a sniper sight, or some other kind of mechanical buffer.” All of these features characterize killing by drone in Pakistan. They help explain why so many are dying in the U.S. government’s attempt to kill a few.

As to the right to kill by drone in Pakistan: Under the United Nations Charter, resort to military force on the territory of another state is permitted when the attacking state is 1) acting in self-defense to an armed attack, 2) acts with U.N. Security Council authorization or 3) is invited to aid another state in the lawful use of force.

The only recent attack on the United States that could give rise to the right of self-defense occurred on Sept. 11, 2001. The Security Council stated in Resolution 1368 that those attacks permitted force in self-defense, but it did not determine who was responsible for the attacks or whether a response in self-defense would meet the other limits in general international law on the resort to force—in particular, the principles of necessity and proportionality. Pakistan did not attack the United States and is not responsible for those who did. The United States has no basis, therefore, for attacking in self-defense on Pakistani territory.

Fighting Al Qaeda

Some argue that the United States is engaged in armed conflict with Al Qaeda and other militant groups outside the combat zone of Afghanistan. The United States is not, however, fighting with Al Qaeda anywhere but in Afghanistan. An armed conflict, as defined by international law, requires the presence of organized armed groups engaged in intense fighting. Once or twice in 2009, the United States aided Pakistan in its attempt to use armed force against militant groups in that country. Otherwise, the United States has not engaged in intense fighting with Al Qaeda in Pakistan. Al Qaeda remains a violent terrorist group, but it should be treated as a criminal organization to which law enforcement rules apply. To do otherwise is to violate fundamental human rights principles. Outside of war, the full body of human rights applies, including the prohibition on killing without warning.

Another attempt to justify drone attacks is based on “hot pursuit.” In Afghanistan militants are killing U.S. soldiers, then retreating to Pakistan. There is, however, no right of hot pursuit on land. Hot pursuit at sea requires law enforcement agents to have jurisdiction and to remain in visual contact with the suspect until the arrest.

The only basis for the United States to lawfully use force in Pakistan is with the consent of that country’s political leaders. Attacks into Afghanistan by Pakistani militants, even if they target U.S. soldiers, are still attacks on Afghanistan. Afghanistan, not the United States, has a right to respond, but it has no right to use major force for low-level cross-border incursions. The International Court of Justice has ruled in several cases that measures short of military force must be used.

In May 2009, the United States pressed Pakistan to begin a military campaign against various Taliban groups in the western provinces. With an invitation from the Pakistan government to aid in its campaign, the United States would have the right to resort to drones. Yet it remains unclear whether our government has a valid invitation. What is clear is that many of the ongoing drone attacks by the United States are not part of Pakistan’s campaign. Pakistan’s president has told U.S. leaders not to attack certain groups that have cooperated with Islamabad. The United States has done so anyway, insisting that Pakistan use more military force and threatening to carry out attacks itself if the government refuses. None of this can be squared with international law.

The elected government of Pakistan is, to be sure, weak; the military and intelligence services sometimes pursue their own agendas separate from elected officials. Yet these agencies cannot give the United States permission to use military force. The United States has a major interest in a stable, democratic Pakistan, a goal it undermines by sending drones over the government’s protests. The United States needs to respect the government and defer to its authority in Pakistan.

Conduct of Force

Under the international rules regulating the use of force (jus in bello), four fundamental principles must guide the use of lethal action: distinction, necessity, proportionality and humanity. The most important is distinction. Under international law, civilians may never be intentionally targeted. The International Committee of the Red Cross puts distinction first in its study of the customary law of war, and the Geneva Conventions, in Additional Protocol I of 1977, also strongly emphasize the need to distinguish between combatants and civilians.

Persons with a right to take direct part in hostilities are lawful combatants; those without a right to do so are unlawful combatants. Lawful combatants may not be charged with a crime for using force. Incidentally, C.I.A. operatives, like the militants challenging authority in Pakistan, have no right to participate in hostilities and are unlawful combatants. C.I.A. operatives do not wear uniforms, are not subject to the military chain of command and may be charged with a crime for killing with drones.

Attacks even on lawful targets must respect the principles of necessity and proportionality. Necessity refers to military necessity: Force is to be used only if necessary to accomplish a reasonable military objective. Proportionality prohibits that “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to concrete and direct military advantage anticipated.” These limitations on permissible force extend to both the quantity of force used and the geographic scope of its use. At a ratio of 50 to 1, the disproportionate impact of drone attacks in Pakistan represents a serious violation of the traditional rules of war. (Since Kilcullen and Exum reported their findings, U.S. authorities have issued a series of responses disputing their calculations. Yet the authorities have little information about who is being killed, other than that many victims are not on the C.I.A. lists.)

The situation in Pakistan is not like the invasion of Iraq, where U.S. forces met large, organized units of the Iraqi Army on the road to Baghdad. Before the United States reached Baghdad, its use of drones to launch missile attacks might have protected civilians from bombs dropped from airplanes. (Recall the hundreds killed in high-altitude bombing during the Kosovo conflict.) But can drones ever be precise enough to comply with the rules of distinction and proportionality?

The case of western Pakistan presents particular challenges. There suspected militant leaders wear civilian clothes, and even the sophisticated cameras of a drone cannot reveal with certainty that a suspect is a militant. In such a situation international humanitarian law gives a presumption to civilian status (see the Red Cross’s “Interpretive Guidance on the Notion of Direct Participation in Hostilities”). Even when a drone operator is reasonably certain that his or her target is a militant, the United States is obligated to do all it can to minimize injury to civilians. Little information is available as to whether the United States takes such precautions. In close cases, the dictates of humanitarian law support decisions in favor of sparing life and avoiding destruction.

The use of drones is also difficult to justify under the terms of military necessity, which holds that force should only be used when there is a reasonable prospect of success. In Congressional testimony in March 2009, David Kilcullen said drone attacks give “rise to a feeling of anger that coalesces the population around the extremists and leads to spikes of extremism well outside the parts of the country where we are mounting those attacks.”

Officials in Washington state again and again that the use of drones in Pakistan is imperative. Kilcullen is one of many independent observers who argue that drones are, in fact, exacerbating the problems of terrorism, violence and instability in Pakistan. The United States has other options besides launching missiles. The alternatives, generally law enforcement, do take more time and patience. And law enforcement is working with increasing arrests of high-ranking Taliban leaders in Pakistan. Law enforcement is not as fast-acting as drones, but it is lawful, ethical and effective—a real place to put our faith.

Mary Ellen O’Connell holds the Robert and Marion Short Chair in Law and is Research Professor of International Dispute Resolution at the Kroc Institute, University of Notre Dame. This article draws on research for a forthcomi

Comments

C Walter Mattingly | 3/14/2010 - 6:35pm

The difference between remote control bombing and say Franklin Roosevelt authorizing the incendiary bombing of Dresden and Japanese cities is that the former targets very narrowly a specific area occupied by an enemy with minimizing civilian casualties a high priority, whereas Roosevelt, incinerating a city, targeted a civilian population.  Likewise the high-altitude bombing of targets around Kosovo by US and NATO forces produced far greater civilian casualties than the drone attacks referred to here.


Bottom line: if "remote control" drone attacks, which President Obama has greatly accelerated, with relatively precise targeting of terrorist murderers and those assisting them to avoid as far as possible civilian casualties, is "war without a conscience," where does incendiary bombing of whole population centers figure on the scale? Is Roosevelt therefore something worse than Lucifer himself, with Clinton his junior sidekick? Illogical exaggerations serve no purpose. On health care and campaign finance reform our current president may lack integrity, but not on the drone issues.

ROBERT OCONNELL | 3/7/2010 - 7:19pm
Thank you for a thoughtful article. Could you elaborate on how "law enforcement" would be carried out?
Milton McMullen | 3/5/2010 - 7:36pm

It is most unfortunate that the rules of war so often referred to in this article are not being observed by any of the parties involved.  This is nothing new and to use the word "law" and "war" in the same sentence and apply one to the other is non-sensical.  There are no longer any rules of engagement, given the nature of the attack of 9/11 with the added negative ingrediant of a declared "Holy War" ( another oxy-moron).  The adversary of the United (States or Nation) has made it so.  Rarely do we hear of or see an acceptable, by the authors definition, pitched battle between uniformed, organized entities.  It is a deadly, inhumane business, perhaps both ways, but to call for law enforcement, not military reprisal(?) is also non-sensical.

Mike Evans | 3/5/2010 - 4:56pm

Use of drones themselves is likely to be uncontrollable. First it was high altitude bombing. Then so-called smart bombs and bunker busters. Now video games with no personal connection to the target itself. I ask, would you be willing to unleash a series of rocket attacks against a civilian compound on the say-so of someone who thinks there may be hostiles present? Remote control war is war without a conscience.

James Curry | 3/5/2010 - 4:51pm

So much of your commentary depends on your assumption that the Pakistani government has not requested us to take these actions.  Relying too much on what governments (especially - but not only - in this part of the world) say is a dangerous proposition.