File photo of a Ground Control Station for the Remotely Piloted Air System (RPAS) Reaper at RAF Waddington, Lincolnshire, U.K. (Rui Vieira/PA Wire/Associated Press)

Who’s Next To Borrow from America’s Drone Strike “Playbook”?

August 11, 2016
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by Priyanka Boghani Digital Reporter

Fifteen years ago, the United States was the only country to have ever carried out a drone strike.

Today, that’s no longer the case. Great Britain, Iran, IraqIsraelNigeria and Pakistan have used drones in combat. In all, 19 countries either have armed drones or are trying to acquire them, according to research by the New America Foundation.

Non-state actors are getting in on the game too. Hamas and Hezbollah already possess armed drones. ISIS has also been working to secure some.

The growing number of nations and groups acquiring armed drones lends new urgency to the question: Who decides what justifies the legal use of a technology that’s been blamed for hundreds of civilian deaths? Until now, the U.S. has established its own case for what is and is not considered a legal drone strike. But as the weapons proliferate, it’s unclear what if anything would prevent other nations, or even future U.S. administrations, from developing their own — perhaps more liberal — interpretation.

“The accessibility of drone technology is obviously increasing at a swift pace,” says Alyssa Sims, a research assistant at the New America Foundation’s International Security Program. “And the countries that haven’t used armed drones, it’s only a matter of time before they do.”

The American “Playbook”

The U.S. quite literally wrote the rules on drone strikes. Last week, after years of secrecy, the Obama administration finally declassified what has often been referred to as the drone strike “playbook.”

The newly released 18-page document lays out when and how the U.S. can target individuals to be captured or killed outside of war zones as part of its counterterrorism efforts. The guidelines say lethal force should only be used when there is no option to capture “a terrorist suspect,” and only when the suspect poses a “continuing, imminent threat” to the U.S. Before a drone strike is launched, the U.S. must determine with “near certainty” that the target is present, that non-combatants won’t be injured or killed, and that the government of the sovereign country is unable or unwilling to address the threat. The full document reveals that the president’s approval is needed when U.S. intelligence and military agencies disagree on a strike or when the target is an American citizen.

The document was released in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union. The ACLU’s deputy legal director, Jameel Jaffer, told The New York Times that while the document might reassure people that drone strikes are considered and authorized by senior members of government, it also “drives home how bureaucratized, and therefore normalized, this practice of killing people away from conventional battlefields has become.” He also said that it was a reminder of the powers that the next president would inherit.

America’s first successful use of an armed drone came in Afghanistan in the fall of 2001. Under the Obama administration, drone strikes targeting members of Al Qaeda, the Taliban, ISIS and their affiliates have skyrocketed. To date, there have been 10 times as many drone strikes under Obama as there were under President George W. Bush.

Last month, the administration released the cumulative death toll from counterterrorism strikes carried out mostly by drones outside of war zones under President Obama — primarily in countries like Pakistan, Yemen, Somalia and Libya. The official numbers say between 64 and 116 civilians were killed, along with around 2,500 members of terrorist groups. Figures compiled by the Bureau of Investigative Journalism put the civilian death toll from drone strikes at 380 — a difference the administration attributed to different methodologies, sources or what it called deliberate misinformation spread in local media.

How the U.S. Justifies Drone Strikes

There is no international law that governs drone strikes specifically, but most international law experts point to the United Nations Charter, which defines international parameters for the use of force, as a starting point to understanding how drones can be used in combat.

In its interpretation of those parameters, the Obama administration has maintained that it “is committed by word and deed to conducting ourselves in accordance with all applicable law.”

In making its case, the Obama administration has argued that in a post 9/11 world, counterterrorism drone strikes carried out outside of war zones are legal because of its right to self-defense and because the U.S. is in combat with Al Qaeda, the Taliban and “associated forces” — which has now stretched to include ISIS (once an affiliate of Al Qaeda).

“The idea is that the person you have in your sights is about to engage in an armed attack against you, and that triggers your right of national self-defense under the U.N. charter,” says Ashley Deeks, a former assistant legal adviser for political-military affairs at the State Department. “The other scenario would be to say we’ve been in armed conflict with Al Qaeda since September 11 — they attacked us, we responded, and we’ve been in this ongoing conflict with this non-state actor,” she says, offering a second legal theory for targeting individuals with drone strikes outside war zones.

President Obama has also argued that drones lead to less conflict and put fewer lives put in danger. “Conventional airpower or missiles are far less precise than drones, and are likely to cause more civilian casualties and more local outrage,” he said in May 2013. “… By narrowly targeting our action against those who want to kill us and not the people they hide among, we are choosing the course of action least likely to result in the loss of innocent life.”

In recent months, the Obama administration has relented in releasing information about its controversial drone program, and has said it will continue publishing information about the number of strikes and casualties, both combatants and civilians. But many have pointed out that the next president is not bound by these precedents or orders, and would be free to set their own policy for drone strikes.

The International Law Critique of America’s Case

The administration’s legal rationale hasn’t been sufficient for some experts, who say that strikes conducted outside of active war zones go well beyond what international law allows.

“The [U.N.] charter says that states may not use military force against each other except in very narrow circumstances of self-defense, or with Security Council authorization,” says Mary Ellen O’Connell, a professor of law and international dispute resolution at the University of Notre Dame.

She points to America’s use of drone strikes for counterterrorism purposes in Yemen, Pakistan, Somalia, Libya and Syria. “In all those places, the United States is not at war. We have not engaged in military force and self-defense, we are making lethal attacks when we have no legal basis in the U.N. charter for doing so.”

James Gatthi, a professor of international law at Loyola University, echoed that argument, calling U.S. policy a “huge over-extension” of use-of-force guidelines.

“The extent to which the United States has made extremely broad, open-ended claims about the legality of its striking anywhere in the world at any point to target its enemies — that is certainly, in my view, not consistent with any known rule of international law that I’m aware of,” says Gatthi. The Obama administration’s interpretation, Gatthi says, seems to extend use of force to a situation where there’s no active armed conflict, and non-state actors are identified through secret surveillance, without any scrutiny from third parties.

Others argue that the evolving nature of the threat posed by non-state actors like ISIS requires a new framework. Writing recently in the Case Western Reserve Journal of International Law, Michael Scharf, a former attorney-advisor for U.N. affairs at the State Department, called ISIS’s emergence in Syria a turning point in the interpretation of self-defense. The ISIS threat, wrote Scharf, means “any State can now lawfully use force against non-state actors” when they’re present in a country that is unable or unwilling to address the threat.

Where the U.S. Goes, Will Others Follow?

The debate around drones is not the first time world leaders have been forced to grapple with the legal ramifications of a new weapon of war. O’Connell points to how governments justified the use of airplanes in combat, beginning in the First World War, despite planes not being able to discriminate between civilians and combatants. “We’re seeing a very similar trend with the drone,” she says.

The question now is, with more countries acquiring armed drones, who will follow the U.S. example?

In August 2015, British Prime Minister David Cameron acknowledged that his government used an unmanned aerial vehicle — a drone — to kill Britons fighting for ISIS in Syria. Taking a page from the U.S. playbook, Cameron invoked the United Kingdom’s “inherent right to self-protection,” saying it was the first time a British military asset had been used in a country where the U.K. wasn’t at war. An inquiry by the British parliament’s Joint Committee on Human Rights called on the government to clarify its interpretation of international law, including what constitutes an “armed attack” and “imminent” threat. The inquiry cautioned that too flexible an interpretation could lead to something resembling a targeted killing policy, and clarified that unlike the U.S., the U.K. doesn’t believe it’s in a “global war” against ISIS.

“That is an extraordinary change,” O’Connell says, “because the British have been more consistently in support of international law.”

Deeks, who now works as an associate professor of law at the University of Virginia, says the U.S. was “very attuned to precedential concerns” in the use of drone strikes, and so has been careful about laying out the legal case for them. “The government should be quite clear about the parameters of its legal justification so that it makes it slightly harder for other states to abuse that in translating it into their own actions, but I don’t think it’s a failsafe,” she says.

Still, she says, there’s not much to prevent a country like Russia, which according to the New America database is working to acquire armed drones, from using them against targets in a sovereign country. Offering a hypothetical scenario, Deek says: “If Russia has armed drones or armed aircraft, and thinks that there are a group of Chechen rebels about to attack a Russian embassy in Moldova, it could use force against that group if the attack on the embassy were deemed an armed attack, and Moldova either consents or Russia determines that Moldova is unable or unwilling to suppress the people heading toward its embassy.”

“I believe that states will decide that there’s a lower threshold for violence with drone warfare,” says Sims, the New America Foundation researcher. “And we’ll see more nations and militant groups carrying out unilateral foreign policy objectives around the world. There’s no need to build any kind of coalition with the international community if you can strike with impunity in any nation that you feel.”

Noting parallels to how nations have used aircrafts or developed nuclear weapons, O’Connell says, “It’s so much harder when the proliferation has occurred, when legal norms have been softened in order to make way for those who have the hubris to think they’re going to keep control of this technology forever. They’re just not.”

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