June 23, 2011
The repositioning of the United States’s military strategy includes a great expansion in the use of armed-drones to attack targets in Pakistan and Yemen. But this development raises profound legal and ethical questions that are now entering the public arena.
The announcement by President Obama on 22 June 2011 of substantial withdrawals of United States troops from Afghanistan by September 2012 marks an important moment in the almost decade-long war in the country. The impact of the decision will be felt on the current diplomatic calculations over the nature of a settlement that will bring the war to an end. It may also impinge on the presidential-election campaign in the US that reaches a climax in November 2012. But whatever the diplomatic or political consequences of the drawdown will be, the Afghanistan war is still far from over - and indeed, in one significant way it has in its tenth year been intensifying rather than winding down (see “Afghanistan: mapping the endgame”, 16 June 2011).
This is the use of pilotless armed drones. These are employed under CIA command - a procedure chosen because the CIA's rules of engagement are less restrictive then those of the military. The continuous drone-attacks across the border in Pakistan have very destructive human effects that often reach beyond the presumed insurgent targets; the agency claims to have killed around 1,400 suspected al-Qaida and Taliban paramilitaries, but Pakistan sources also (amid a scarcity of precise details) estimate that hundreds of civilians have also died in these operations.
These attacks have also greatly contributed to the marked deterioration in relations between Washington and Islamabad - a trend exacerbated by the US’s belief that senior Pakistani officials were involved in protecting Osama bin Laden (see Karen DeYoung & Griff Witte, “Pakistan-U.S. security relationship at lowest point since 2001, officials say”, Washington Post, 16 June 2011)
It is notable that the use of drones has been increasing also to other places where US forces are active, such as Yemen (see Jim Lobe, “US escalates war against al-Qaeda in Yemen”, Asia Times/IPS, 14 June 2011). The key shift here is that the CIA - according to the same logic as in Pakistan - has become involved in mounting drone-attacks against those suspected of backing the movement known as Al-Qaida in the Arabian Peninsula (AQAP). The attacks have even targeted Islamist paramilitaries in areas where the AQAP has little influence, and run the same risk as in Pakistan of alienating local people in a way that makes them more radical and anti-American than they may have been before (see Hakim Almasmari, “US drone attacks in Yemen ignore Al Qaeda for local militants”, The National, 21 June 2011).
There is every sign, however, that the US regards the use of these new weapons of war as being successful in hitting their enemies without putting their own troops (including aircraft crew) in danger. The effects on non-combatants, and the impact on Pakistani or Yemeni opinion, are largely discounted.
The drone explosion
All this makes armed-drones worthy of a closer look, not least as the escalation of the United States’s use of these instruments of war is part of a broader trend that includes the European member-states of Nato, Israel and other states (see “Unmanned future: the next era of European aerospace?”, International Institute of Strategic Studies [IISS], Strategic Comments, 17/24, June 2011). This trend is driven in part by a necessary response to the nature of the wars in the middle east and south Asia in the 2000s; but it also reflects extraordinary scientific and technological advances in remote-sensing, power-plant miniaturisation and sheer computing power.
There are several types of drones: from small hand-launched reconnaissance platforms to the powerful aircraft-sized Reaper, capable of launching several types of missile and bomb. Some drones, such as the Global Hawk, have an intercontinental range; others have more limited range but can loiter at low speed for hours before being used to drop their ordnance.
In 2011 the United States had perhaps fifty drones; now it deploys around 7,000. The great majority of these are intended for observation, reconnaissance or bomb-damage assessment. But there are hundreds of armed-drones available, and the US air-force training more “remote pilots” to operate these than pilots for strike-aircraft and interceptors (see Elisabeth Bumiller & Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs”, New York Times, 18 June 2011).
This development suggests that the use of armed-drones will expand even further as part of the broad campaign (albeit no longer characterised as a “war on terror”) against paramilitary forces seen as threats to western interests (see “America’s military: failures of success”, 12 May 2011). The seductive appeal of drones to military strategists and political leaders is clear. But they raise many ethical and legal questions that so far have been too little aired.
This makes all the more timely a new report - Drones Don't Allow Hit and Run (June 2011) - published by the Oxford Research Group’s programme on Recording Casualties of Armed Conflicts, which in turn developed in close connection with the Iraq Body Count (see John Sloboda, “The human cost of war: name before shame”, 29 July 2009).
The main author of the ORG report, which is launched on 23 June 2011 at the Geneva Centre for Security Policy, is the leading international lawyer Susan Breau, professor of international law at Flinders University in Adelaide, with the additional contribution of Rachel Joyce of King's College, London. Breau and Joyce argue convincingly that a number of conventions, charters and international customary humanitarian law combine to provide an international legal obligation on states using armed-drones to respond to certain major consequences of their actions.
These legal documents include the Geneva conventions, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, various United Nations reports and statements, and case law from European and Inter-American human-rights courts.
The legal bind
The key conclusions of Drones Don't Allow Hit and Run are simple - but their implications are huge:
* “There is a legal requirement to identify all casualties that result from any drone use, under any and all circumstances”
* “The universal human right which specifies that no-one be 'arbitrarily' deprived of his or her life depends on the identity of the deceased being established as to reparations or compensation for possible wrongful killing, injury and other offences.”
The words sound straightforward, but they strike right at the heart of armed-drone operations precisely because these are remote operations in which the exact identities of many of those killed are neither known nor even sought (see “The harvest of war: from pain to gain”, 28 October 2010). They imply that the very unwillingness, and even the inability, of the attackers to identify the people they kill amount to infringements of international law. This judgment, moreover, applies both to a state that carries out drone-attacks and to a state that allows its territory to be used for them.
The report concentrates primarily on Pakistan and Yemen. But drones are also being used by western forces in Afghanistan and now in Libya, as well as extensively by Israel. Many other countries are likely to follow suit, which underlines the relevance and importance of the report.
There is a tendency to view drone-warfare as something close to a military panacea for problems of paramilitary violence. Now, the fundamental questions it raises are being posed. These have the capacity to hold drone-warfare to legal and moral account. This is an unexpected challenge that cannot be evaded.