US drones strike out against laws of war

Drone strikes are essentially extrajudicial killings, with no legal basis, accountability or transparency, often carried out outside of warzones, and up to 75 percent of their victims may be civilians

By Barbara Lochbihler  / 

Mon, Nov 12, 2012 - Page 9

“Sometime they’ll give a war and nobody will come,” the US poet Carl Sandburg wrote hopefully in 1936.

His sentiment seems more apt than ever nowadays, but not because humanity has turned pacifistic. Rather, wars are increasingly fought remotely, with drones — or unmanned aerial vehicles (UAVs) — doing the killing.

Under US President Barack Obama, the number of drone strikes carried out by the US has soared, with more than 300 UAV attacks reported in Pakistan alone. In March last year, the US Air Force for the first time trained more pilots for drones than for any other purpose.

This raises serious ethical questions. With no military personnel risking their lives, UAVs make it easier to kill and to justify war operations to the public at home. Moreover, a human being’s reticence to kill is inversely related to the distance between attacker and target. In the case of a pilot flying drones over Yemen by operating a joystick in Nevada, the threshold to pulling the trigger is dangerously low. Killing is just a part of the job, to be followed by bowling, perhaps, or a quiet evening at home.

Meanwhile, the mere sound of drones terrorizes whole populations, indicating to enemies and civilians alike that they are being watched and might be attacked at any moment — which could well play into the hands of terrorist recruiters.

From a legal and human rights point of view, the US drone program is even more alarming. After all, countries such as Pakistan, Yemen and Somalia do not belong to declared war zones. In turn, outside the context of war, state killings are legal only if they prove absolutely necessary to save lives. They must be conducted either in self-defense after an attack, or in anticipatory self-defense against an immediate threat, when taking time to discuss non-lethal alternatives is not feasible.

More than a decade after the Sept. 11, 2001, attacks on the US, the country’s drone program does not fall into the first category of reactive self-defense. Likewise, there is no evidence that any presumed terrorist who was killed outside of official war zones in the past few years represented a threat so immediate to US citizens’ lives that preventive and premeditated killing was the only option. Unless US leaders prove otherwise in every case, UAV attacks in countries like Pakistan or Yemen should be called what they are: extrajudicial killings.

US Department of State legal adviser Harold Koh disagrees, saying that the US is involved in a worldwide “armed conflict with al-Qaeda, as well as the Taliban and associated forces.”

Therefore, drone attacks are part of a global war fought both in declared war zones and non-war countries and are therefore legal, Koh says.

However, even under this adventurous assumption, human rights issues arise. The laws of war condone targeted killings only of “combatants” who “directly participate in hostilities.” The killings must be proportionate, strategically necessary and publicly justified. Avoiding harm to civilians should be the top priority. At the slightest sign of illegality, an investigation must be conducted, offenders prosecuted and victims compensated.

Yet the US drone program’s legal basis is entirely unclear. Given that most information about UAV activity is classified, it is impossible to know whether all drone targets directly participated in hostilities. While the Obama administration’s claim of zero or single-digit civilian fatalities may be true according to the official definition, it rests on the premise that any military-age male killed in a drone strike is a militant, unless intelligence posthumously proves otherwise.

A recent report by the law schools of Stanford University and New York University concludes that, in reality, civilian casualties in Pakistan may have accounted for up to 75 percent of all UAV victims between 2008 and last year. Others estimate a lower, but still alarming, rate of 30 percent. The legal obligation of proportionality is clearly being violated.

Accountability is also being flouted. Drone operations are carried out by the CIA, an organization whose activities are shrouded in secrecy. In addition, unlike military personnel, CIA agents enjoy extensive immunity, which undermines international legal standards.

Without increased transparency, to declare the US’ drone campaign legal is impossible, both in the context of war and outside of armed conflict. As long as the US keeps the rest of the world in the dark, illegal acts — including possible war crimes — may be committed with impunity.

Just as citizens worldwide are demanding increased economic and financial accountability, more pressure must be placed on the US to either prove that its drone activities are necessary and legal, or stop them immediately. Victims of UAV attacks, their families and civil society groups have begun to speak out against the US’ questionable drone campaign and to pursue legal action. Others should feel encouraged to follow suit.

In the meantime, every drone strike will not only undermine human rights and international humanitarian law, but will also further widen a legal loophole that other governments and armed groups will not hesitate to exploit. The US drone program does not make the world a safer place —it creates an environment in which unlawful killings can happen virtually anywhere, at any time, violating the fundamental human right not to be arbitrarily deprived of one’s life.

Barbara Lochbihler is chair of the European Parliament’s Subcommittee on Human Rights.

Copyright: Project Syndicate