War By Proxy

Targeted killing and drone attacks have become a major concern, both domestically and internationally. The following research focuses upon the legal and ethical aspects of the use of Unmanned armed aircraft to carry out targeted killings.

War By Proxy James P. Welch

The legal and ethical aspects of the use of unmanned aerial aircraft (UCAVs).

Intelligence 500: Research Methods in Security and Intelligence Studies. Instructor: Dr. Benjamin Freeman PhD.

American Military University

James P. Welch Research Paper A Study on the Use of Uninhabited Combat Aerial Vehicles (UCAVs): Perspectives of Legal Significance and Ethical Impact.

Instructor: Dr. Benjamin Freeman Master Degree Program in Intelligence Studies: Strategic Operations. INTL500 – Research Methods in Security and Intelligence Studies

July 29, 2012

1

Introduction Uninhabited Combat Aerial Vehicles are a relatively new phenomenon. While their intelligence gathering ‘cousins,’ Unmanned Aerial Vehicles, or UAVs, have been around for nearly 50 years, the advent of armed, unmanned platforms is a recent addition to the stable of military hardware. They have seen ever increasing use, particularly during the Obama administration, Shuja Nawaz writes, “According to analysis completed by the New American Foundation for the period 2004 to 2011, some two hundred twenty-two strikes have taken place inside Pakistan, specifically in the Federally Administered Tribal Areas, or FATA, that form a buffer zone between Afghanistan and Pakistan.” 1 . Due to deteriorating relations and escalating tensions between the US and Pakistan, there was a brief moratorium on drone strikes. Roggio notes, “The program has been scaled down from its peak in 2010, when the US conducted 117 strikes, according to data collected by the Long War Journal. In 2011, the US carried out just 64 strikes in Pakistan’s border regions.”2 Obama finally came forth and admitted to the US targeted killing campaign in Pakistan. “In January 2012, President Obama, acknowledging the covert drone attacks (AFP) in Pakistan for the first time, argued they had “not caused a huge number of civilian casualties” and that “this thing is kept on a very tight leash.”3 So much for plausible deniability it would appear. “In April 2012, the Pakistani parliament voted unanimously in demanding an end to U.S. drone strikes on its territory.” 4 Following protracted and ultimately failed negotiations over the reopening of a vital NATO supply route, attacks recommenced. In

1

Nawaz, Shuja. "Drones Inside Pakistan." Georgetown Journal of International Affairs, 2011: 80.

2

Roggio, Bill. "US Drones Strike Again in the Shawai Valley." The Long War Journal, 2012.

3

Masters, Johnathan. "Targeted Killings." Council on Foreign Relations, 2012.

4

Ibid

2

the wake of this period of relative calm; “The US launched its second straight drone strike in a remote valley in Pakistan’s Taliban-controlled tribal agency of North Waziristan recently, [July 1, 2012] killing six “militants… So far this year, four of the 25 drone strikes in Pakistan hit targets in the Shawal Valley.” 5 The FATA is a remote, inhospitable and nearly impenetrable place. They are the nether reaches, lawless lands and a perfect hideout for terrorists on the run. “Ilaq Ghair, or the “foreign land,” is what most Pakistanis call the strip of land between Pakistan proper and Afghanistan.”6 The attacks continue unabated despite growing criticism from both home and abroad. Predators and Reapers have become an important weapon in the struggle against armed resistance in the FATA. As with any new piece of military hardware or technology, there are various considerations, which arise concerning the deployment of such systems. This is particularly the case when the platform is armed and deadly. Some of these important considerations are: strategic, operational and tactical concerns; diplomatic or the political; psychological, legal, moral and ethical aspects, to mention only the major ones. These considerations shall be briefly treated within the major subheadings. The focus of this research is, however, upon the legal and ethical aspects of the deployment of UCAV platforms.

5

Roggio, Bill. "US Drones Strike Again in the Shawai Valley." The Long War Journal, 2012.

6

Nawaz, Shuja. "Drones Inside Pakistan." Georgetown Journal of International Affairs, 2011: 81

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Justification of Use: One Coin Two Sides. Part of the problem is the question of state sovereignty. Some proponents for the use of drones argue that the Northwest Frontier is open territory. Not that it does not have political structures, but that it is outside the rule of law, and that Pakistan cannot or will not apply the rule of law in that region. “It’s open territory. And under international law, ungoverned territories…can be subject to attack,” he says” (Northam citing Cohen, 2009). Countering this argument Shuja Nawaz writes, “First and foremost is the issue of crossing the international boundary that was inherited from the British and agreed upon by Pakistan and Afghanistan. Despite Afghanistan’s objections to the permanence of the Durand line, its actions since 1947 as well as its lack of recourse to any international court to settle the issue of the line, make FATA a foreign territory for both Afghans and for foreign forces using Afghanistan as a base. “7 As pointed out previously, Nawaz reiterates, “A number of commentators capitalized on the concept of ungoverned territory to support invasion of FATA form the air. “ 8 Those in favor of continuing with the strategy feel that the figured concerning civilian casualties are misleading and falsified. There may, in fact, be a basis for such assertions. “Proponents of targeted killings say the civilian death toll is exaggerated for political purposes and claim drone strikes and night raids remain the most effective and discreet tactics in pursuing militant leaders and their networks, especially as the United States begins to seek a smaller military footprint in the region.” 9

7

Nawaz, Shuja. "Drones Inside Pakistan." Georgetown Journal of International Affairs, 2011: 82.

8

Ibid Masters, Johnathan. "Targeted Killings." Council on Foreign Relations, 2012.

9

4

Political, Strategic, Operational and Tactical Considerations. There have always been questions, from the outset of the campaign, as to the strategic operational and tactical aspects of such a campaign. There has also been a fear among critics that such a campaign might drag the United States further into a much deeper conflict. The strategic perspectives of the US and Pakistan are not, and never have been, the same. Nawaz writes, “Pakistan’s strategic objectives in Afghanistan did not coincide with those of the United States. This ambivalence, or as the United States described it, “double game,” became a source of constant tension in the tenuous strategic alliance between the two countries. In effect, Pakistan was saying, “We’ll fight our battle against our enemies, you fight yours.”10 Importantly, Nawaz further points out, “Frustration with this Pakistani approach likely contributed to U.S. willingness to take the battle into Pakistan using drones.”11 One consideration yet not envisaged, but very likely given the rate of technological development, is the future use of fully automated and autonomous systems. If and when this comes to fruition, Kolff asserts, “Whereas military personnel through the norms they have acquired from their parents, their culture and religion, schooling, etc., decide if an attack is ethical, it will be the programmer who is responsible to feed the UCAV with ethical norms.”12 This could possibly enhance efficiency through the removal of human emotional impairment. Tactical adaptation is not an exclusive American trait. The Taliban have been adept in adjusting to the new and menacing climate at several different levels. There is a strict avoidance of the use of electronic devices. On the propaganda side, “The militants had come to realize that the increasingly effective drone strikes made them look weak, 10 11

Ibid Ibid

12

Kolff, Diederik W. "'Missile Strike Carried Out With Yemeni Cooperation'—Using UCAVs to Kill Alleged Terrorists: A Professional Approach to the Normative Bases of Military Ethics." Journal of Military Ethics, 10 11, 2003: 240-244.

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and they began getting rid of the evidence as fast as they could. After every attack they would cordon off the area and remove the bodies of the dead, making it difficult to verify who and how many people had been killed.”13 Support of: Moral and Ethical Aspects It is fair to wonder what the strategic and tactical implications might be. “The Rand Corporation’s Jones [Seth Jones] says the drones may be helpful in a short –term, tactical sense “But in the long run, they need to be supplemented by much broader, longer-term activities to clear hold and build in these areas,” he says” (Northam citing Jones, 2009). Such a response needs to be nuanced, however. There does not appear, at least in the immediate future, an alternative to US strategic, operational or tactical reliance upon unmanned platforms. Despite numerous misgivings, there are several obvious and immediate advantages to the use of armed drones: 

No risk or pilot injury, capture or death: in a war weary nation this is a significant consideration.



The stealthy nature of the aircraft allows a certain measure of plausible deniability. This has, however, been compromised by careless operational neglect. For instance leaving national markings on Hellfire missiles seems an obvious blunder.



The high altitude and long hovering capabilities make these weapon platforms extremely flexible and effective.

13



The enhanced technology assists in reducing civilian casualties.



Reduced costs of production and maintenance.

Shah, Pir Zubair. "My Drone War." Foreign Policy, March/April 2012: 56-62.

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Diederik Kolff of the Norwegian Air Force writes, “Two characteristics make the UCAV a system of choice: low cost and the fact that humans are not put at risk.” 14 Jonathan Masters writing for CFR, also echoes Kolff’s sentiments, “Drone strikes and special operations raids put fewer Americans in harm’s way and provide a low-cost alternative to expensive and cumbersome conventional forces. This alternative is further enhanced given future cuts in the defense budget and a waning public appetite for long expensive wars.” 15 Jean Mackenzie writing for Global post also throw s in with the popular view by referring to drones as, “technologically sophisticated, surgically precise and able to take out the enemy with little or no risk to American troops.”16 Nawaz underscores these sentiments when he writes, “The drone technology was ideal of U.S. purposes. It involved no human beings crossing any lines, and therefore no one could be killed or captured on the wrong side of the border…when combined with good intelligence, they provided plausible deniability against U.S. laws [EO 12333] that forbade assassination in foreign countries.”17 On the political front, there are both advantages and disadvantages. Pakistan has found itself often wedged between a rock and a hard place, at times. Seth Jones, a South Asia expert at the Rand Corporation, says, “while the Pakistan government may publicly protest the attacks, it has given its tacit blessing primarily because it also wants to put down the militancy” 18 As far as the strategic concept of winning hearts and minds is concerned, drone attacks put the

14

Kolff, Diederik W. "'Missile Strike Carried Out With Yemeni Cooperation'—Using UCAVs to Kill Alleged Terrorists: A Professional Approach to the Normative Bases of Military Ethics." Journal of Military Ethics, 10 11, 2003: 240 15


16

Mackenzie, Jean. "Are Our Drone Attacks Legal?" Global Post, October 2011.

17


18

Northam, Jackie. "Drone Attackes in Pakistan Under Review." NPR, 2009.

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ultimate damper on such efforts. Nawaz states, “Moreover, civilian deaths caused by the drones have helped the local Taliban’s recruitment efforts inside FATA. Criticism of Use: Moral, and Ethical Aspects There are, as might be expected, criticisms of the drone campaign, particularly as it pertains to use outside the zone of immediate conflict. “The White House points to these outcomes as victories, but critics continue to condemn the lethal tactic on moral, legal and political grounds.”19 Nawaz, with the Atlantic Council, “says militants have already started moving from the remote border region [FATA] into more built-up areas of Pakistan.”20 The problems faced by such an exodus are quite obvious. Increased movement, to areas of higher civilian population, raises the risk of collateral damage and death to innocents due to fighting in built up areas or FIBUA. Nawaz further points out that: The United States’ unannounced and unacknowledged [at the time of writing] war against Pakistan on the form of drone attacks launched from sites in Afghanistan and Pakistan continues to be a source of political unrest in the region. It has fortified opposition to the United States among the people of Pakistan, especially in the hinterland, where it has become a symbol of what many consider as unequal partnership between the United States and the government of Pakistan.21

Some of the other disadvantages related to the indiscriminate and deadly drone campaign, according to Nawaz include: “issues of collateral damage, the weapons lack of precision, and the uncertain intelligence on which the attacks are based.” Furthermore, “The unreliability of on-the

19


20

Northam, Jackie. "Drone Attackes in Pakistan Under Review." NPR, 2009.

21

Nawaz, Shuja. "Drones Inside Pakistan." Georgetown Journal of International Affairs, 2011: 79-87.

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–ground informants leads to a large proportion of non-combatant civilians being killed.”22 There is, additionally, an aspect which incenses the local populations, isolates them and swells the ranks of the jihadist’s. Two-time Pulitzer author, David Rhode asserts, further postulates that US policy is inherently flawed, “But Obama has granted the CIA far too much leeway in carrying out drone strikes in Pakistan and Yemen. In both countries, the strikes appear to be backfiring.” 23 Rhode points to the possible negative backlash resulting from the increased incidents of drone attacks, “Just as importantly, the administration’s excessive use of drone attacks undercuts one of its most laudable policies; a promising new post-9/11 approach to the use of lethal American force, one of multilateralism, transparency and narrow focus.”24 Thus, while the drone attacks may prove successful at the strategic and tactical levels, they may prove politically and diplomatically, counterproductive. The adhesion to ethical values are imperative and this is emphasized, by Colonel Charles Dunlap, when he writes, “This essay critiques aspects of LOAC as currently practiced, but it is not meant to denigrate its fundamental importance. Americans would not be Americans if they waged war unconstrained by the ethical values LOAC represents.”25

22

Ibid 83

23

Rhode, David. "The Obama Doctrine." Foreign Policy, March/April 2012: 66

24

Rhode, David. "The Obama Doctrine." Foreign Policy, March/April 2012: 66.

25

Dunlap, Charles J. Law and Military Interventions:Preserving Humanitarian Values in 21st Century. Humanitarian Challenges in Military Intervention Conference, Washington DC: Carr Center for Human Rights Policy, 2001. 20

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Domestic and International Law As might be well imagined, the legal opinions concerning the use of drones are divided right down the center, mirroring the views of the critics and proponents recently examined. Much of the legal wrangling has come about under the watch of the Obama administration. This is related to the huge increase in the number of armed attacks, and particularly in three geographical regions outside the recognized zone of armed conflict: Pakistan, Yemen and Somalia. While some critics [O’Connell et al] point to the fact that the United States may be infringing upon the sovereignty of foreign states and even violating the domestic laws of other nations Radsan and Murphy point out that, “Where the President’s constitutional obligation to protect the United States, so requires, the President must violate another nation’s law.” 26 (Indeed a prime example of this is illustrated by the case where Italy has issued arrest warrants against various CIA officials relating to practices of extraordinary rendition within that state). According the interpretation of the Obama administration, in relation to the right to self-defense, violent nonstate actors (e.g., terrorists) may be attacked outside of the zones of conflict, in those states where the law is unwilling or unable to control said persons. There is yet another, vital, aspect to consider when looking at international law and that is as Radsan and Murphy point out, “One should recall that international law binds American officials only if it is also U.S. law. 27 They further go on to point out the most extreme example where the United States may even abnegate the international law obligations, citing Professor Michael Paulsen, “…the President may freely

26

Radsan, Afsheen John, and Richard Murphy. "The Evolution of Law and Policy for CIA Targeted Killing." Journal of National Security Law and Policy 5 (2012): 445 27

Ibid 446

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abandon or suspend the United States’ international law obligations, even many enshrined in domestic law.”28 According to a recent report by the Council on Foreign Relations, “The Bush and Obama administrations have sought to justify targeted killings under both domestic and international law.”29 Pakistan’s North West Tribal Agency areas, have suffered the brunt of the increased attacks. “The majority of those killed are believed to be militants,”30 says Stephen Cohen of the Brookings Institution’s Foreign Policy Studies program. Cohen says, “…with good intelligence, the drones are accurate.”31 What about when the drones are not accurate? This raises the question of just war theory (for engaging to war); or Jus ad Bellum and more particularly the laws regarding the conduct of war, Jus in Bello. There exist two important and fundamental principles enshrined within Jus in Bello and these are: 

Proportionality



Target discrimination:

Proportionality Proportionality weighs in the balance between the military advantage and what is commonly referred to, rather blithely, as “collateral damage. Collateral damage, in fact, includes death, destruction and mayhem. Basically, this is a guiding principle meant to limit the civilian casualties and damage to their property to a “reasonable” or proportionate level. Kolff points

28

Ibid (citing Paulsen (2009) The Constitutional power to interpret International Law 118 Yale L.J 1762, 18001804). 29


30


31

Ibid

11

out, “an act of war may only be executed if the military value of it is in balance with the suffering of the combatants.”32 Target Discrimination and Collateral Damage This principle simply asserts that the targets must be limited to military objectives and civilians and their infrastructure must be spared the rigors of the conflict. According to Kolff, “…only military targets (personnel and installations) can be attacked.”33 Lt. Colonel Kolff clarifies, “The fundamental philosophy of the Just War theory is that war is an evil that can only be used under very specific conditions. One can identify two components within the theory, the right to start a war (jus ad bellum) and the right in war (jus in bello).”34 The author goes on to clarify the apparent mystery surrounding the question of UCAVS and responsibility by pointing out that, “The UCAV is no more than a weapon platform. It is the type of target that is attacked, and for what purpose this target is attacked, and which type of ordnance is employed to achieve the desired effect on the target that really matters.”35 One of the major criticisms has been that there have been an inordinate number of civilian losses due to target discrimination errors. Although the Obama administration has firmly denied that such an excess exists. During an interview in January, of this year, for example Obama stated, “I want to make sure the people understand, actually, drones have not caused a huge number of civilian casualties...For the most part, they have been very precise precision [sic] strikes against al Qaeda and their affiliates. And we are 32

Kolff, Diederik W. "'Missile Strike Carried Out With Yemeni Cooperation'—Using UCAVs to Kill Alleged Terrorists: A Professional Approach to the Normative Bases of Military Ethics." Journal of Military Ethics, 10 11, 2003: 242 33

Ibid

34

Kolff, Diederik W. "'Missile Strike Carried Out With Yemeni Cooperation'—Using UCAVs to Kill Alleged Terrorists: A Professional Approach to the Normative Bases of Military Ethics." Journal of Military Ethics, 10 11, 2003: 240-244. 35

Ibid 242

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very careful in terms of how it’s been applied. It is important for everybody to understand,” he said, “that this thing is kept on a very tight leash” (Rhode, citing Obama; 2012, 66). David Rhode however insists that, “Drones, though, are in no way surgical.”36 Legally: Those in Favor The various members of the Obama staff have come forward, timidly, to support the administration’s position concerning the use of UCAVs, in territories outside the recognized zone of conflict. Their arguments are primarily based upon two pieces of legislation: the now time worn, Armed Use of Military Force, resolution passed by Congress on September 14, 2001 and the right to national self-defense as enshrined in Article 51 of the UN Charter. The most vociferous and rather ludicrous advocate is the Legal advisor for the State Department, Harold Koh. While Koh tore into the Bush administration policies, particularly concerning the use of torture, in many cases he hypocritically and blindly supports the Obama administration, without flinching at his apparent contradictions. 37 Were it not for his reputation, he would have been dismissed long ago. Koh adamantly argues that the Obama administration is adhering to the laws of war and defines four responses to current arguments against U.S. targeting practices: 



First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapons system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict-such as pilotless aircraft or so-called smart bombs-so long as they are employed in conformity with applicable laws of war.

36


37

Shapiro, Ari. "U.S. Drone Strikes Are Justified, Legal Adviser Says." NPR, March 2010.

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



Third, some have argued the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use legal force. Fourth, and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations [Executive order 12333]. But under domestic law, the use of lawful weapons systems-consistent with applicable laws of war-for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”38

Indeed, Nawaz mentions that, “In March 2010, Harold Koh, the State Department’s legal adviser, defended the use of drones for targeted attacks against the countries enemies under the argument that it “may use force” under its “inherent right to self-defense under international law.””39 Still other administration officials have attempted to shore up often questionable strategies. “…White House counterterrorism chief John Brennan, specifically addressed the standards by which the administration authorizes lethal strikes on al-Qaeda outside Afghanistan. Steps in the process include: deciding if the target is a significant threat to U.S. interests; being cognizant of state sovereignty issues; having high confidence in the targets identity and that innocent civilians will not be harmed; and, finally, engaging in additional review if the individual is a U.S. citizen.”40 At the level of domestic law, and the use of the CIA as the operating force, it is important to remember the mandate for presidential authority. Radsan and Murphy trenchantly point out, “In assessing the legality of CIA drone strikes, one should remember that the President is acting with maximum constitutional authority when engaged in armed conflict against those

38

Koh, Harold Hongju. "Annual Meeting of the American Society of International Law." Speech. Washington DC, March 25, 2010. 39


40


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responsible for the 9/11 attacks.”41 Of course herein lays the rub! How long can the United States rely upon 9/11 and the legislation of Authorization for Use of Military Force (AUMF), as an excuse to carry out drone attacks? Another plausible lever for the exercise of force, according to Radsan and Murphy, resides in the rights granted the President under the auspices of Article II, of the US Constitution, in his capacity as Commander-in-Chief. Still it is fair to ask the question, who’s in charge of the actual decision making and target selection process? It would appear that there is no easy response to that challenge. Micah Zenko points out, “Over the past decade, there have been some 300 drone strikes outside the battlefields of Iraq, Afghanistan, and Libya. Of these attacks, 95 percent occurred in Pakistan, with the rest in Yemen and Somalia…who can be targeted and under what authority can only be guessed from a few speeches and statements by anonymous U.S. officials.”42 Deferring, once again, to Radsan and Murphy on this matter, they state. “Still the AUMF is not a blank check for unlimited warmaking. It authorizes force only against persons and entities bearing responsibility for the 9/11 attacks.”43 Surely any clear thinking individual would question the legitimacy of using the AUMF, as a basis for further attacks, given the number of key players already removed from the equation and the passage of 12 years of war. Radsan and Murphy also hint at the fragility of such a position, “Because al Qaeda, the Taliban and associated groups are amorphous in themselves and in their relationships, it may take contestable judgments based on classified information to resolve whether a particular entity (e.g., al Qaeda in the Arabian Peninsula) is part of al Qaeda, a

41

Radsan, Afsheen John, and Richard Murphy. "The Evolution of Law and Policy for CIA Targeted Killing." Journal of National Security Law and Policy 5 (2012): 444. 42

Zenko, Michael. "10 Things You Didn't Know About Drones." Foreign Policy, March/April 2012: 63.

43

Radsan, Afsheen John, and Richard Murphy. "The Evolution of Law and Policy for CIA Targeted Killing." Journal of National Security Law and Policy 5 (2012): 444.

15

close ally of affiliate.”44 Echoing this concern, they point to the efforts of Jack Goldsmith and others to update the AUMF, to include all terrorist groups, which threaten the Security of the United States, regardless of their affiliation with al Qaeda. In sum, Radsan and Murphy consider that the cause of national security outweigh the concern for human rights. This is rather a disappointing stance given the even handed treatment of the subject hitherto. Legally: Those Opposed Koh was, not to have the last word, nor did he convince everyone of the soundness of his convictions. Among his most severe critics, was Mary Ellen O’Connell, professor of Law at the University of Notre Dame. She made her position adamantly clear when she stated, “Drones are not lawful for use outside combat zones. Outside such zones, police are the proper law enforcement agents and police are generally required to warn before using lethal force. Restricting drones to the battlefield is the most important single rule governing their use. Yet the United States is failing to follow it more often than not.”45 One argument brought to the forefront of the debate is the administration’s constant referral to article 51 of the UN Charter, concerning a states right to self-defense. “Article 51 of the United Nations Charter provides countries the right of self-defense against other countries, not against militants or non-state actors. Opponents of drone warfare advance this point, asserting that the use of drones is in contravention of international laws that govern the conduct of armed force. They claim that the United States has not limited its attacks to situations of armed conflict, and note that the UN

44

Ibid 444-445. O'Connell, Mary Ellen. "Lawful Use of Combat Drones." Hearing: Rise of Drones II: Examining the Legality of unmanned Targeting. Washington DC: Congress of the United States: House of Representatives. Subcommittee on National Security and Foreign Affairs, 2010. 1; 45

16

Security Council has not given authorization for the attacks.”46 Kolff cites Amnesty International’s position in the heart of his research writing, “If this was the deliberate killing of suspects [the Yemen incident] in lieu of arrest, in circumstances in which they did not pose an immediate threat, the killings would be extra-judicial executions in violation of international human rights law”47 [IHL]. Further emphasis of this point, concerning the Yemen attack [November 3, 2002], was made by Professor O’Connell when she reiterated, “Apparently, Yemen gave tacit consent for the strike. States cannot, however, give consent they do not have. States may not use military force [proportionality] against individuals on their territory when law enforcement measures are appropriate.”48 Speaking of Law enforcement, what about those shady guys in the gray zone, the CIA? According to one professor of Law, David Glazier of Loyola, “…the pilots operating the drones from afar could-in theory- be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in the legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.” 49 Is there a legal double standard being applied here? It would seem so, according to various legal experts. Glazier for example points out, “But employing CIA personnel to carry out those armed attacks,” he concluded “clearly fall [sic] outside the scope of permissible conduct and ought to be

46

Ibid Kolff, Diederik W. "'Missile Strike Carried Out With Yemeni Cooperation'—Using UCAVs to Kill Alleged Terrorists: A Professional Approach to the Normative Bases of Military Ethics." Journal of Military Ethics, 10 11, 2003: 243 47

48

O'Connell, Mary Ellen. "Lawful Use of Combat Drones." Hearing: Rise of Drones II: Examining the Legality of unmanned Targeting. Washington DC: Congress of the United States: House of Representatives. Subcommittee on National Security and Foreign Affairs, 2010. 1-6. 49

Hodge, Nathan. "Drone Pilots Could Be Tried for 'War Crimes,' Law Prof says." Wired, April 2010.

17

reconsidered, particularly as the United States seeks to prosecute members of its adversaries for generally similar conduct.”50 American University professor of law Kenneth Anderson supported Glazier’s conclusions and went so far as to ask, “Why is this a CIA mission in the first place.[sic] Why should the CIA or any other civilian agency, ever use force (leaving aside conventional law enforcement)?”51 he said. This particular view may, in fact be founded, however this relates to a question of national policy and strategy, rather than a condemnation of the UCAV weapons platform itself. Perhaps one of the most striking criticisms was made by Philip Aston, the former special UN rapporteur for extra-judicial, summary or arbitrary executions when he stated, “If other states were to claim the broad-based authority the United States does—to kill people anywhere, anytime – the result would be chaos.”52 It therefore behooves the United States and the international community at large to define exactly the status of transnational, no-state actors such as terrorists. Are they criminals or are they combatants? The United States, has, until recently, skirted the issue through the use of semantics by labeling them as “illegal combatants. This effectively attributed them with a non-existent status resulting in the loss of all and any rights under international law. The problem with this arbitrary application of the law has resulted in the blurring of the distinction between the law of armed conflict (LOAC) and the rules of engagement (ROE) and those of domestic law. This has resulted in a rather nebulous nether zone known as “lawfare” used to describe asymmetric warfare. Dunlap describes it as an amalgam speaking of “the use of law as a weapon of war.”53

50

Hodge, Nathan. "Drone Pilots Could Be Tried for 'War Crimes,' Law Prof says." Wired, April 2010.

51

Ibid Masters, Johnathan. "Targeted Killings." Council on Foreign Relations, 2012.

52

53

Dunlap, Charles J. Law and Military Interventions:Preserving Humanitarian Values in 21st Century. Humanitarian Challenges in Military Intervention Conference, Washington DC: Carr Center for Human Rights Policy, 200; 2

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Findings The difference between the employment of a specific weapons system and the policy of justified engagement needs to be examined in the light of several factors. Among these are, of course, its utility, and its ability to effectively practice controlled and proportional target discrimination. The basic hypothesis, adopted for this research; the use of UCAVs is ethically justified, has not been conclusively proven. This judgment is based upon the rather basic criteria that, while state are obliged to provide defense to itself and its citizens, even preemptively if need be; it must do so in a selective, balanced and controlled manner. Additionally, despite the fact that it is the duty of the state, to provide maximum safety and protection to the members of its armed forces, it must adhere and respond to the principles of the laws of war, notably proportionality and target discrimination. The findings of this research that while the drone campaign has been effective in saving lives, reducing casualties and collateral damage, over the past, it’s increased and indiscriminant use has resulted in negative consequences and requires much greater oversight and discretionary use. In other words, the use of UCAVs is ethical, but only while employed within constrained and well defined parameters. There are no clearly defined contradictions, within the body of international humanitarian law, the law of war, or domestic legislation, which prohibit the use of such systems as a means of self-defense. International customary law and international humanitarian law are so loosely worded and interpreted, in order to provide maximum flexibility, as to have little or no import upon the conduct of any campaign including the use of drones. Also, as mentioned previously, the necessity of self-defense, takes absolute precedence over any international constraints or strictures, including treaties and executive agreements. Resorting to Article 51 of the UN

19

Charter, as a justification for self-defense is, however, one of the most hotly contested issues in public international law (PIL). As Radsan and Murphy indicate, “…international law leaves ample room for the Obama administration to defend the campaigns legality.” 54 Thus, at a purely legal level the campaigns do, indeed seem to be legally justified. Whether international law applies, or is even respected, is understandably, rather a moot point for certain as Colonel Dunlap points out, “Considering Americans’ willingness to sacrifice their own legal protections, they are unlikely to be overly demanding about the supposed legal rights of foreign belligerents.” 55 There remain, nevertheless, certain significant caveats to the acceptable portions of the hypothesis; notably, a requirement for controlled and regimented deployment, coupled with adequate oversight. This is a necessary humanitarian consideration and a counter balance to any semblance of due process. It is not necessarily just because something is legal, that it is ethically correct. It is in this respect that the current hypothesis may be failing. Not because of the attacks themselves but their indiscriminant and disproportionate use. It is important to recall that the law of war was developed to avoid conflict, not sustain it. Research and development are required to enhance the precision of target discrimination, in order to respect the rules of proportionality and to avoid unnecessary collateral civilian casualties. Additionally, at an ethical level, it is imperative that the administration weigh the benefits of increased use against the possible risk of disenfranchising an entire segment of the population and thus losing democratic credibility.

54

Radsan, Afsheen John, and Richard Murphy. "The Evolution of Law and Policy for CIA Targeted Killing." Journal of National Security Law and Policy 5 (2012): 447. 55

Dunlap, Charles J. Law and Military Interventions:Preserving Humanitarian Values in 21st Century. Humanitarian Challenges in Military Intervention Conference, Washington DC: Carr Center for Human Rights Policy, 2001.18

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Summary There are many sound arguments both for and against the use of UCAVS, in the support of the US military and political agenda. It would appear, that according to the findings of the research conducted, that there is a serious, negative blowback related to the double-pronged increase in attacks, coupled with a lack of precision and oversight. There are no easy solutions and there are many slippery ethical dilemmas involved. The use of CIA operatives in a war zone, as well as in non-conflict areas, is just one aspect. Others include the internationally recognized, rights of state sovereignty, first enunciated under the Treaty of Westphalia in 1648, and recent violations of those principles. There are concerns about disproportionate civilian casualties. There are political concerns about alienating entire populations through dehumanization of warfare and a lower tolerance for conflict. Finally, there is the inherent confusion in a new age of complex interactions, to defining the difference between criminal acts and those of war. There needs to be open, constructive and passionate research, debate and a desire to come to a resolution and find problems, which have no borders. CFR national security expert, John B. Bellinger says, “…the law [AUMF] is in need of a significant update. The 2001 AUMF is ten years old now and getting a little long in the tooth—still tied to the use of force against people who planned, committed, and or aided those involved in 9/11,”56 he says. “The farther we get from [targeting] al-Qaeda [e.g., al-Shabaab in Somalia], the harder it is to squeeze [those operations] into the AUMF.”57 While the conflict in Iraq seems a distant and bitter memory, and Afghanistan shows a light at the end of the tunnel, further expansion of the conflict remains a real and viable menace. “In April the CIA requested broader targeting powers for its drone campaign in Yemen (Washington

56


57

Ibid

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Post), particularly the ability to execute strikes based on suspicions, “signature” patterns of behavior.”58 Traditional laws and ethics are outmoded. They do not properly address the current global situation and the needs of states for providing national security and self-defense. Asymmetric warfare, transnational terrorism and international criminal organizations have altered the previous equation. Bearing this in mind, states have adopted questionable tactics and ethics in an effort to provide their citizens with security- the first obligation of any government. Unless there is a modification of international law and treaties, which deal with these issues, there will continue to be conflicts and questions concerning the appropriate and legitimate use of force, in the search for self-defense. A revision of the current laws, treaties, and customs, should be undertaken by a recognized international body to draft a new and more comprehensive set of legislative guidelines. These would be more in keeping with the current state of affairs. While the findings of this paper underscore the inherent right of national self-defense, there are specific caveats which apply as well. Preemption and targeted killing require specific, tightly controlled oversight and the limits of its use need to be more clearly defined. Finally, it is the conclusion of this research that, while targeted killings and preemptive use of UAVs are both ethical and legal, there remain many points of contention which remain to be addressed. Knowing who is authorized to carry out such missions, where they are permissible and under which specific context, are all concerns which require further and serious, legal and ethical research. The current research on the topic, unsurprisingly, is divided down the center. This is a question of self-interest, with the critics and proponents each “preaching for their own camp.” There is an underlying political trend, which runs along a liberal/conservative axis, as well as an important industrial economic variable involved. There is a humanitarian and political 58


22

aspect that has often been over-looked. There needs to be a balance between waging the war on terrorism and eliminating the root causes. Merely inflicting losses indiscriminately will not make the root problem disappear. The current conflicts, conducted by the United States, have more than at any other period of time, pushed the limits of international customary law, International humanitarian law and the laws of armed conflict to their most challenging limits. The undefined flexibility, contained within these ethical frameworks, has led to miscomprehension, temerity and direct abnegation. The rules need to be more tightly structured or simply dismissed as irrelevant and no longer applicable in the real day to day world of modern conflict. There needs to be a balance between hard and soft power; between the use of limitary force and positive reconstruction. The use of either of these methods, in isolation, will not offer nor achieve optimal results. The true secret of international diplomacy is indeed, “an iron fist in a velvet glove.”

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Annex A. Chart indicating the relative proportion of Drone strikes from 2008 – 2010 (based upon figures supplied by Aamir Latif, Global Post). (David Rhode offers the following comparative figures: 33 in 2008; 53; in 2009 and 118 in 2010).59 200

Progression of US Drone Attacks in the FATA

175 150 125

2008

100

2009

75

132

2010

50 25

38

52

0 YEAR

A comparative analysis by the New America Foundation who state, “Our study shows that the 311 reported drone strikes in northwest Pakistan, including 28 in 2012, from 2004 to the present have killed approximately between 1,879 and 2,887 individuals, of whom around 1,586 to 2,416 were described as militants in reliable press accounts. Thus, the true non-militant fatality rate since 2004 according to our analysis is approximately 16 percent. In 2011, it was more like six percent” (N.A. 2012).

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Illustrations: All images reproduced under title 17 USC fair usage clause for educational purposes. http://www.thebureauinvestigates.com/wp-content/uploads/2011/08/Predator-drone-FLickrTheInsider-Brief-630x400.jpg

Predator drone

http://www.sabinabecker.com/media/stop-drones.jpg Stop Drones image, Pakistan. http://2.bp.blogspot.com/3RlCWWmpe3s/UAv8q2nBBRI/AAAAAAAABhA/TdMoGVtvPsk/s1600/collateralmurder.JPG On Target.

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