The Legal Mess That Is Drone Warfare

Are U.S. drone strikes in Pakistan legal? This is a straightforward question that is far more likely to leave you with a headache than an answer. Nonetheless, the question stands, eliciting myriad legal arguments, for and against, that only experienced legal-scholars and practitioners may fully comprehend.

During a speech in 2010, State Department legal adviser Harold Koh defended U.S drone policy stressing that an armed conflict against al-Qaeda, the Taliban, and associated forces is being waged. He cites the U.S.’s inherent right to self-defense following the 9/11 attacks as the legal underpinning for justifying hostilities.

He further argues that the principles of distinction and proportionality, implementing operations solely against enemy combatants and prohibiting attacks that produce excessive collateral damage in relation to their strategic objective i.e. civilian casualties, guide targeting procedures.  

So which of Koh’s assertions fuel the legal debate? Pretty much all of them.

Koh’s logic assumes that operations in Pakistan are occurring within the context of an armed conflict, a highly contestable point.

Former U.N. Special Rapporteur Philip Alston differentiates between international and non-international armed conflict both of which theoretically allow drone warfare under particular circumstances. An international armed conflict is defined as hostilities between two states and is clearly governed by International Humanitarian Law (IHL) principles. IHL also governs non-international armed conflict but adequately justifying the presence of one depends on a litmus test that includes the existence of an identifiable non-state "party," threshold criteria for intensity and duration of hostilities, etc.

As Alston asserts, the U.S. would be hard-pressed to legally substantiate their actions under the framework governing a non-international armed conflict.

If it were decided that U.S. operations in Pakistan were implemented outside the context of an armed conflict, international or otherwise, the standards established under human rights law apply, drastically limiting the ability of the U.S to use lethal force and certainly prohibiting targeted killings.

The U.S. may utilize extraterritorial force in Pakistan by obtaining consent or by invoking their right to self-defense as a result of Pakistan’s inability to combat the sub-national groups operating in the tribal areas. The U.S. would need to demonstrate that their actions are in response to armed attacks in Afghanistan. These attacks must be of a certain intensity to validate a necessary use of force extraterritorially and U.S. retaliation would need to be proportionate. Simple enough on paper, yet its application, particularly since non-state actors are involved, is controversial.

CIA control of the drone program is another concern. Civilians are permitted to operate within a war, yet the distinction lies in the prosecutorial repercussions that may befall them. Since CIA civilian employees and those contracted by them are directly engaging in hostilities, they become legitimate targets for the other side. They, however, lack the immunity conferred, for the most part, upon members of the armed forces to domestic prosecution.

The real controversy surrounding C.I.A. involvement is the secrecy in which it conducts operations. Alston’s main point of contention regards the issues of transparency and accountability. Refusal by the C.I.A. to divulge information on the criteria utilized for determining legitimate targets and post-op evaluations, which speak to the principles of distinction and proportionality respectively, deems it near impossible to assess whether the program adheres to IHL laws governing conduct of hostilities.

This is especially significant due to the asymmetric nature of these non-state groups. They are distinct from one another and are not easily identifiable, further complicating intelligence gathering and verification procedures.

Koh explicitly acknowledges the principles of distinction and proportionality as major considerations, yet does not offer any insight into the specific guidelines employed or the process for prosecuting violators. This is certainly understandable from a strategic standpoint but frustrating from a legal one.

Strategically, as PolicyMic Contributing Writer Laura Hughes argues, drone technology may be the most effective weapon the U.S. has for tackling the obstacles posed by Pakistan and the sub-national groups operating in its tribal region.

Within this limited analysis, various questions emerge. Does international law adequately address the contemporary realities of the threat posed by non-state actors or should a new framework be formulated?  Why should the U.S. care about all this when they are clearly able to do as they please with impunity? For now, it seems, the debate persists.

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