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The Legality of Drone Warfare

by JOANNE MARINER

Congress is holding hearings this week on the legality of the US government’s drone warfare program. Conducted by the National Security and Foreign Affairs Subcommittee of the House Committee on Oversight and Government Reform, the hearings will examine the CIA’s use of unmanned aerial vehicles – commonly known as drones – to fire missiles at suspected militants in Pakistan and elsewhere.

While the Bush administration had an active drone warfare program, US reliance on drones increased greatly after President Obama took office. According to Peter Bergen and Katherine Tiedemann of the New America Foundation, who have carried out a study of the drone program, the Bush administration carried out a total of 45 drone strikes in eight years, whereas the Obama administration carried out 53 strikes in 2009 alone. The pace of such attacks quickened even further in 2010.

CIA drone strikes are now common in the tribal areas of Pakistan that border Afghanistan, an area over which the Pakistani government has little effective control. In Yemen, additionally, the US military’s secretive Joint Special Operations Command is believed to have carried out a couple of drone strikes late last year.

The use of drones to target suspected militants raises a plethora of complex legal and policy questions. Notably, the United Nations special rapporteur on extrajudicial executions, Philip Alston, has voiced concern over the US use of unmanned drones, warning that the attacks may fall afoul of international human rights and humanitarian law.

The Legal Justification for US Drone Strikes

During the Bush years, the US government made little effort to justify or explain its drone warfare program. Indeed, US officials did not even publicly acknowledge the existence of the program. This reticence has begun to give way recently, although much about the highly-classified program remains secret.

In a speech to the American Society of International Law last month, State Department Legal Advisor Harold Koh began to sketch out the legal underpinning of the drone program. While he made clear that his remarks were not a detailed legal justification for the strikes, he had said in an earlier talk that a detailed US position would be forthcoming in the future.

Koh asserted that as a matter of international law, US drone strikes against suspected al-Qaeda and Taliban militants were justified under the country’s inherent right of self-defense, which was triggered by the terrorist attacks of September 11, 2001. As a matter of US domestic law, he further explained, the strikes were authorized by the 2001 Authorization for the Use of Military Force (AUMF).

This justification, which mirrors the legal rationale behind the US policy of detaining suspected terrorists at Guantanamo and Bagram, does not appear to depart in any dramatic way from the legal rationale asserted by the Bush administration in defense of its counterterrorist efforts.

There was, however, one hint of a new or revised approach, when Koh spoke of a state (i.e., the United States) using lethal force when it is “engaged in an armed conflict or in legitimate self-defense.” (Emphasis added.) While it is not clear that he meant this to be a meaningful dichotomy, the comment opened up the possibility that the US might kill suspected militants in an exercise of “legitimate self-defense” outside of the context of armed conflict.

This raises a host of questions, including whether, in the absence of an armed conflict, normal human rights constraints apply to such killings. (A few sentences earlier, however, Koh had spoken of the “ongoing armed conflict” against al-Qaeda and the Taliban, so perhaps he simply meant that the killings are part of an armed conflict that the United States is fighting in its own self-defense.)

Koh also asserted that in targeting suspected militants via drone strikes the United States was adhering to basic international humanitarian law rules regarding distinction and proportionality. These rules, meant to protect civilians from harm, do not protect civilians absolutely.

Questions That Remain

Koh’s remarks were a useful introduction to the legal issues implicated by the US drone warfare program, but they raised as many questions as they answered. In the hearings tomorrow, representatives might want to delve into some of the following issues:

* How many people are estimated to have been killed in US drone strikes since 2001? How many of these people are believed to have been civilians? How does the US make factual assessments regarding whether civilians have been killed in any given strike?

* Does the US government claim the power to target suspected al-Qaeda and Taliban militants via drone strikes outside of the context of an armed conflict? Or is it the US position that the United States is engaged in a global war with al-Qaeda, the Taliban and associated forces, such that killings of suspected members of any of these groups anywhere in the world should be judged under the rules of armed conflict (in other words, by international humanitarian law)?

* Did the Obama administration revise CIA and/or Defense Department rules on the lethal targeting of suspected militants via drone strikes, or are Bush-era targeting rules still being applied?

* Do the CIA and Defense Department apply the same standards in making targeting decisions? If not, in what way do they differ?

* In making targeting decisions in the drone program, is the Obama administration applying standards consistent with the guidelines outlined in the International Committee of the Red Cross’s 2009 report on Direct Participation in Hostilities? If the US standards are broader (or otherwise different), in what way do they differ?

* Are the standards applied when targeting US citizens for drone strikes the same as the standards used when targeting foreign nationals? (US citizen Anwar al-Awlaki, who’s taken refuge in Yemen, is reportedly on a US target list.) If not, what are the differences?

* Does the US apply the same targeting rules for drone strikes in Yemen as it does for those in Pakistan?

* Are US drone strikes in Pakistan and Yemen contingent on getting the local authorities’ approval for these strikes, or is it the US position that such approval is unnecessary, given the inherent US right of self-defense against al-Qaeda, the Taliban and associated groups?

* Is the US currently considering – or has it ever previously considered – conducting drone strikes in countries other than Pakistan, Afghanistan, Iraq and Yemen? (Suspected al-Qaeda operatives can be found in dozens of countries.) If not, are the limits on drone use based on political concerns or legal constraints?

* State Department Legal Advisor Harold Koh cited “the imminence of the threat” as one of the key factors relevant to the administration’s targeting decisions. What exactly does this mean? In particular, how imminent does the threat have to be? For example, does the administration require any showing that the target of a drone strike is planning an imminent terrorist attack, or is a likely participant in such an attack?

* What kind of after-action review is carried out in the wake of a drone strike? (The Israeli Supreme Court, in an important 2006 ruling on targeted killings, told Israeli forces to carry out a thorough and independent investigation in the wake of every such killing.) Does the State Department’s Bureau of Democracy, Human Rights, and Labor participate in these reviews?

JOANNE MARINER is a human rights lawyer living in New York City.

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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