Wednesday, April 28, 2010

The Legality of Drone Warfare

Robert Feidler
Director, Defense Education Forum

The recent program sponsored by the American Bar Association Committee on Law and National Security and the Defense Education Forum focused on legal issues related to targeted killings – the use of drones in our current Overseas Contingency Operations formerly known as the War on Terrorism. With the increasing use and success of drones in killing targets associated with terrorists (such as al Qaeda and Taliban leaders) questions have arisen as to whether our action complies with the principles of the laws of armed conflict and international law. Opponents of the use of drones for targeted killings call them “unlawful extrajudicial killings”; defenders cite the principles of armed conflict and self defense. It is estimated that about 500 high value targets have been killed in drone attacks while 20-30 civilians may have also been killed during these attacks.

Defenders of the use of drones (primarily used by the CIA) defend their position by noting the procedures, practices, and identification of targets are extremely robust. The targeting is also generally quite precise given the advanced technologies and deliberative process involved in identifying and finally shooting at targets. They note that being able to actually see and track a target over a period of time is far more likely to ensure success and limit damage to property and innocent civilians than say a low flying attack where a pilot must react quickly without the benefit of extensive consultation. Certainly nothing prohibits the use of advanced weapons systems as long as they are used in conformity with the laws of war.

Two main legal principles apply: distinction and proportionality. The former limits targets to military objectives; civilians cannot be targeted. Proportionality requires a balancing between the military advantage to be achieved by the attack and the potential for civilian deaths and property damage. The fact that these judgments are not as transparent as some would like makes them question if the balancing process is indeed occurring and how the weights are measured. Defenders of the drone attacks indicate that a rigid process is followed in each attack both in the planning and execution.

The question also arises as to whether there are geographical limits on the use of drones – for example, they might be proper in Afghanistan, but are they in Pakistan when used against safe havens of the enemies of the United States? Does use of drones violate our domestic laws against assassination? Are the legal foundations for the use of drones sufficient? Defenders point to the principle of self-defense as well as the initial Congressional authorization following 9/11 – the Authorization for the Use of Force (although its applicability may diminish with time). They deny the notion that “adequate process” must be extended to terrorists before lethal force can be utilized and emphasize that precision targeting, against belligerent leaders, in self-defense or during armed conflict is not unlawful, thus domestic law limitations do not apply.

Some ambiguities remain. Are individuals not engaged in an imminent attack, but integral to the enemy efforts, legitimate targets? Are there any geographical boundaries – could we attack a purported al Qaeda leader in Egypt? Is current international law sufficient to cover the evolution of technology and things such as targeted killing by drone attack or should the law of armed conflict be revisited and perhaps revised?


Stephen said...

The legal principles of distinction and proportionality are appropriate when the actions are performed by the military. But I wonder about the use of non-military personnel for such activities, e.g. the CIA. Is the use of non-military personnel for such killing a violation of the Geneva Convention and perhaps our own prohibition against assassinations? Are the CIA (and other non-military operators of drones, if there are any) not protected by the Geneva Convention in a way that our military would be protected?

airish said...

As I said to MG Dunlap, one of the excellent panel members, I don't think that the platform (UAV) is particulalry relevant. The legal issues (and, I suspect, the ROE)would be precisely the same if the aircraft were an AH-64 or an F-16. Very good panel discussion. Hope for more in the future.

airish said...

Incidently, there was an interesting article in the Post on this topic:

It did discuss, as Bob noted, the issues of distinction/proportionality, as affecting CIA operations specifically. To Stephen's point, using non-uniformed personnel in combatant roles raises some critical legal issues that are worth discussion/debate.