Drone Attacks: Why New Wars Need New Rules

Commentary

Obama’s increased use of drone attacks has left many people on both sides of the Atlantic unsure how to react. A new approach, based on human rights principles, is needed to assess their permissibility.

The US campaign of drone attacks against suspected militants in Pakistan now numbers European citizens among its victims.  It has emerged that a British citizen and several German nationals were among those killed in a series of strikes by unmanned aircraft in the Waziristan region of Pakistan earlier this autumn.  According to American intelligence sources, the strikes were designed to disrupt a planned “Mumbai-style” attack against European cities.  The news is likely to evoke mixed feelings in Europe.  Alongside possible relief at the CIA’s apparent success in setting back a planned atrocity, many people may be troubled by the way the Obama administration has enshrined targeted killing as the primary weapon in its counter-terrorist arsenal.

President Obama, who came into office promising to restore the United States’ reputation as a country that respects international law, has surprised many people by the enthusiasm with which he and his team have embraced targeted killing.  Research by the New America Foundation in Washington shows that Obama’s administration has authorized at least 122 drone strikes since taking office in January 2009 – more than twice as many as President Bush gave permission for during his entire term in the White House, according to the researchers.  Meanwhile European officials seem uncertain how to react to the increasing use of unarmed aerial vehicles to kill alleged militants away from any conventional battlefield.  Off the record, they tend to say that they could not use such methods themselves, but generally stop short of describing the strikes are clearly illegal.  The late Swedish Foreign Minister Anna Lindh, who famously described an American targeted killing in Yemen in 2003 as a “summary execution”, was an exception.

Outside government ministries, there is a lively debate about whether drone attacks are lawful, but it tends to go round in rather predictable circles.  On the one hand, supporters of targeted killing say that the US is engaged in an armed conflict with al-Qaeda, and has the right to kill enemy fighters anywhere they’re found.  Against this, opponents reject the idea of a global armed conflict, and say that terrorist suspects who aren’t fighting on a battlefield should be treated as criminal suspects rather than killed without benefit of trial.  With no agreement about how the idea of armed conflict applies to the new phenomenon of transnational armed groups like al-Qaeda, the argument often ends in an unproductive stalemate. 

It’s time to look for a more constructive approach.  This might start by challenging the assumption – which both opponents and supporters of drone attacks oddly seem to take for granted – that it is always permissible under the laws of war to kill enemy fighters in an armed conflict.  Certainly that has historically been accepted as the right of belligerents in a traditional war between the regular armed forces of nation states.  But the written law is much less clear and detailed in the case of conflicts between states and non-state groups like al-Qaeda and the Taliban.  And there are good reasons for thinking that different standards are appropriate for such conflicts.

Wars between states take place between equal sovereign powers; neither side asserts a legal superiority that enables it to impose its laws on members of the opposing forces.  But in the new so-called “transnational armed conflicts” that pit a state against an armed group outside its territory, the state absolutely claims the right to punish individual members of the opposing side who commit acts of violence against it.  In that sense, such conflicts remain in their essence law enforcement operations that have taken on a military character.  The adversary is not an entity that has a recognized status under international law (i.e. a state) but simply a collection of individual criminals.  And it is characteristic of these conflicts that military operations often consist not of chaotic and intense pitched battles but rather of actions in which the state retains a high degree of discretion and control.  Targeted killing is controversial precisely because it represents a premeditated action against a designated individual who does not pose an imminent threat.  Long-term detention as at Guantanamo is similarly controversial in part because it is so far removed from the disorder and violence of the battlefield.

Since terrorist or insurgent fighters don’t benefit from any group entitlement to fight, it is wrong to claim an automatic entitlement to kill or detain them, even when an armed conflict is taking place.  Moreover, the circumstances of military campaigns against irregular fighters make such sweeping powers unnecessary.  As terrorists remain individual criminals, the use of force against them must be justified on an individual basis – and that requires a calculation based on the principles of human rights.  Any deliberate killing of a designated individual must be strictly necessary to prevent a serious threat to the life of the state – a threshold that some, but probably not all, drone attacks might reach.

A new approach to evaluating the permissibility of drone attacks, then, would start with the radical step of dismissing the technical question of whether there is an armed conflict with al-Qaeda as irrelevant.  Instead the premeditated taking of life would in all cases have to be justified on an exceptional and individual basis, depending on the gravity of the threat posed by that individual and the possibility of meeting it in other ways.  In effect, the same kind of human rights judgements would have to be made whether or not an armed conflict was involved.  There may be uncertainty about how particular human rights treaties apply to military operations overseas – but the principles of human rights are the right ones to assess whether targeted killing is justified. 

It is sometimes overlooked that human rights principles do allow the state to kill under some circumstances, even when the person targeted is not immediately threatening another life.  For instance, the European Convention on Human Rights allows the use of lethal force to put down a riot or insurrection.  But the threshold is a high one – and there should be an independent review in each case to ensure that the proper standards were met.  This is not an impractical requirement: the former assistant general counsel of the CIA recently also called for reviews after each drone attack.

Above all, the United States should remember that every time it sets out to kill a particular individual who is not immediately threatening another person, it has an impact on the international understanding of the rule of law.  It may be justified in some cases, but it always sends a signal that shrinks the reach of due process.  Targeted killing is both an act of violence and a statement about the limits of legal process.  Among its consequences is that fact that other countries around the world will not hesitate to claim borrowed legitimacy for their own acts of violence, which the United States and its allies will then find harder to condemn.

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The European Council on Foreign Relations does not take collective positions. This commentary, like all publications of the European Council on Foreign Relations, represents only the views of its authors.

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