By Sarah Ben-Moussa
As the nature of warfare and military endeavors continues to evolve, one of the most controversial topics continues to be unmanned aerial vehicles (UAVs) and remotely piloted aerial systems (RPAS), more commonly known as drones. They have been mostly used in situations where manned flight is considered to be too dangerous or difficult, in an effort to prevent intrusive military operations. Their use began under the administration of President George W. Bush, and has since increased under President Barack Obama’s administration, becoming a favored military strategy in recent years, despite international and domestic criticism. There is has been a growing and widespread concern for civilian casualties as a result of the use of drones, especially after January of this year, when President Obama faced public backlash over the drone strike that killed Warren Weinstein, a 73-year-old American aid worker, and the Italian hostage, Giovanni Lo Porto, 37.
In a 2013 statement to the National Defense University, President Obama defended the legality of the drone program, stating, “America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.” However, are drone strikes legal under domestic and international law? And what are their human rights implications?
DOMESTIC LAW AND THE AUTHORIZATION FOR THE USE OF MILITARY FORCE
Domestically, the justification for drone strikes has largely come from the Authorization for the Use of Military Force (AUMF), a congressional act passed in 2001, shortly after the Sept. 11 attacks. The original text of the act authorizes the President of United States “to use all necessary and appropriate force” against those they determine to be involved in the terrorist attacks that occurred on September 11, 2001.
The Act, which has not been revised since its passage in 2001, remains the principle justification for military force against Al-Qaeda and its associates, including the use of drone strikes. Only 60 words in length, it does not speak specifically to the use of drones, nor does it address the subsidiary groups and evolutions of Al-Qaeda that have risen in the last fourteen years. But the language “all necessary and appropriate force” has allowed presidential administrations to interpret the authorizations broadly, allowing for continued and growing targeted killing operations in Afghanistan, Yemen, Pakistan and Somalia.
There have been many critics of the continued use of the AUMF, both from Democrats and Republicans, asserting that the original purpose of the statute does not conform with the changing nature of war. As terrorist groups continue to grow and evolve, the AUMF is used as a blank check for the U.S. to engage in a sort of “forever war,” without seeking Congressional reauthorization for involvement in new conflicts. Moreover, legal scholars have argued that the law may not authorize the targeted killings of those who are indirectly or loosely associated with Al-Qaeda. Critics have expressed concern over the United States’ legal ability to use drones on Americans. Some have also said that the current drone program, which targets individuals in Yemen or Somalia without establishing clear ties between them and Al-Qaeda, is based on an overly-broad interpretation of the AUMF.
Many have called for a revision of the law, which continues to allow such broad presidential powers. These revisions are becoming more pertinent as questions arise about if the AUMF can extend in legal scope to justify military force against the Islamic State in Syria (ISIS), which did not exist at the time of the Sept. 11 attacks, and thus, does not fall under the original parameters of the AUMF.
There are currently two proposed amendments to the law that seek to approve military force in Iraq and Syria. The White House proposed a version that would allow the President to use the armed forces as he determines necessary against ISIS and associated groups, subject to a reauthorization of the act every three years. Despite the administration’s insistence that the proposed bill would not authorize long-term, large-scale ground operations, many criticized the text of the statute as too broad, leaving wide discretionary use of power to use the armed forces. A subsequent revised proposal made by members of Congress sought to confine the authorization of military force to only ISIS, and decrease the scope of presidential discretion. Both proposed versions would limit their reauthorization to three years.
Despite their differences, the language of both bills does not address or regulate the use of drones. The nature of warfare is changing in a way that the world has not seen before. Thus, it is imperative that our laws and authorizations to use military force address the changing nature of war, including the use and regulation of drones.
INTERNATIONAL LEGAL CONCERNS
The predominant concern in assessing the legality of drone strikes under international law is the risk to civilian life. In their May 2010 report, the U.N. Human Rights Council (HRC) took up the issue of “targeted killings,” a term not previously defined in international law. While the term has been used in a variety of contexts, including the use of drones, the HRC has interpreted it to encompass times when lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance. The United States has adapted the military tactic of targeted killings in other countries since the attacks on Sept. 11, 2001, causing concern in the international legal community.
The international legal argument on drones involves three principal considerations. Under international humanitarian law, targeted killing is only lawful in times of armed conflict when a target in question is a “combatant” or “fighter.” In the case of a civilian, it is only lawful during the time a person “directly participates in hostilities.” Given the changing landscape of warfare, the exact definition of these terms continues to be the subject of an ongoing legal debate.
Under human rights law, a killing by a state is only legal if it is required to protect life and there are no other means, of preventing that threat to life. In the case of targeted killings across state borders, the HRC clarified that targeted killings conducted outside of the territory of a country’s borders does not violate sovereignty if the other state consents. Furthermore, it is legal if the country conducting the killing is doing so in self-defense under Article 51 of the UN Charter because the other country is unwilling or unable to stop armed attacks launched from its territory. International law permits the use of lethal force in self-defense in response to an “armed attack” as long as that force is necessary and proportionate.
The United States argues that its actions are in compliance with international law because the U.S. is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces. The U.S. further asserts that the targeted killings they conduct fall within the scope of the self-defense as defined under the Article 51 of the UN Charter. Thus, in the case of Syria and ISIS, it is imperative for the U.S. to reauthorize the AUMF in order to meet the definition of “armed conflict.”
However, despite this defense, the HRC pointed to a number of concerns with the U.S. legal justification, including: “the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.” The U.S. may continue to encounter similar international scrutiny in Syria as in the conflicts in Afghanistan, Pakistan, and Somalia.
CONTROVERSIES OF THE DRONE PROGRAM
The U.S. continues to face backlash over its drone program, especially in Pakistan. The Pakistani government has called for the immediate cessation of the drone program. Even so, it doesn’t seem as though future development of the drone program will halt. The administration has defended its reliance on drones as a way to decrease the effectiveness of terrorists groups, such as Al-Qaeda, who operate in remote areas. Obama has also argued that this program achieves its military objectives while avoiding civilian causalities with “near certainty.”
Despite recent controversy, and many doubting the effectiveness of drones in reducing civilian causalities, research has shown that the civilian causality rate under the drone program has actually been dropping since 2008. The number of civilians and unknowns (persons who cannot be identified) reported killed by drones in Pakistan from the beginning of President Obama’s tenure to 2011 represented 11 percent of fatalities, and in 2012 went down to 2 percent (as compared to 33 percent in the previous administration). Additionally, since 2004, the drone campaign has killed at least 49 militant leaders.
It may be the case that the United States’ reliance on drones in conducting warfare is beneficial in the long term. Proponents of the program have strong arguments for its use as opposed to traditional methods of warfare, especially in the light of evolving terrorists’ threats against the U.S. and other states. The legality of the drone program continues to be debatable, depending on whose interpretation you are relying on. But one thing remains certain: there can be no denying the tragic sense of loss faced by those who are affected by civilian causalities. Our analysis cannot be rooted in a simple cost-benefit inquiry, nor an understanding of legal mechanisms, but must instead look at the issue from a humanitarian perspective. It is imperative for the United States to increase its transparency and administrative regulation when it comes to its drone program, while also balancing prevailing national security interests. The U.S. must institute national review mechanisms of the drone program and ensure continued research into increasing technological effectiveness and accountability. Above all, the U.S. must demonstrate the utmost commitment to the sanctity of civilian life.
Sarah Ben-Moussa is a Staff Writer for Rights Wire.
The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.