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Shakir Rahim POL470: Contemporary Issues in Foreign Policy Ambassador David Wright UAVs and Unmanned Weapons: Changing Law and Morality in War This paper will argue that unarmed aerial vehicle (UAV) attacks, as currently conducted by the United States and the United Kingdom (US/UK), ought not to be conducted because they are illegal under international law, are an ineffective use of force, and raise moral concerns about the conduct of warfare that have not been appropriately addressed. The paper will commence with a brief overview of UAVs and then argue that UAV attacks are: (i) prima facie legal under international humanitarian law (IHL) in Afghanistan, Iraq, and northwest Pakistan, but not under current US/UK operational implementation; (ii) illegal outside of the aforementioned countries, contrary to US claims of their global legality; (iii) militarily ineffective because they radicalize domestic populations and prevent effective intelligence collection; and, (iv) morally concerning because they dissociate operators toward the battlefield and the public in general toward warfare. Unmanned aerial vehicles (UAVs) are employed by several states for surveillance purposes, however their use as weapons is a relatively recent development spearheaded by the United States and the United Kingdom (US/UK). They are are also possessed by Italy and Israel, while other states are rapidly developing armed UAVs.1 UAVs attacked are conducted in different programs by military and civilian agencies, such as the US Central Intelligence Agency (CIA), to kill small groups of people or individuals in acts of targeted killing.2 3 There are two key questions about whether UAV attacks are permissible under international law. First, what category of international law governs their use? If UAV attacks are being employed against a non-state armed group in an armed conflict, they fall under the

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purview of the international humanitarian law (IHL). IHL permits operations whose sole intent is to kill an individual as a military objective, as UAV attacks do, however there are strict requirements on the use of force. The position of the United States is that it is engaged in a armed conflict with Al-Qaeda, Taliban, and associated forces and so its use of drones falls under IHL.4 Key criteria for an entity to be considered a none-state armed group include: (i) capability of the group to apply the Geneva Conventions, i.e. adequate command structure, and separation of military and political command; (ii) engagement of group in collective, armed, anti-government-action; and (iii) protracted armed violence that is beyond the level of intensity of internal disturbances.5 A strong argument can be made that the US/UK conflict with Al-Qaeda and Taliban in Afghanistan, and the US conflict with the similar groups in Iraq northwest Pakistan, fulfill the aforementioned criteria. Both groups are conducting a campaign against their respective governments and US/UK forces that is organized across the country, feature developed command and control structures, and daily acts of violence. 6 Accordingly, UAV strikes are permissible provided other requirements for the use of force under IHL are satisfied. As the paper will shortly argue, these requirements, such as the prevention of harm to civilians, are not being met based on the available evidence. The prima facie legality of UAV strikes in Afghanistan and Iraq does not imply they are permissible globally, which is the legal interpretation that the US, though not the UK, has put forward and acts upon.7 These other actors do not meet criteria as military targets under IHL, whereas Al-Qaeda and the Taliban in Afghanistan and Iraq do. Alleged terrorists are dealt with as domestic criminals in these countries, such as Yemen, in a similar fashion to how the US

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addresses the anti-militia movement in the US.8 They do not achieve the level organizational sophistication, threat level to the state, and military capability that would classify them as armed groups in the sense that IHL prescribes.9 Accordingly, the US does not have a legal justification to target individuals in these countries with UAV attacks. They could seek to arrest and prosecute them in accordance with established human rights law, affording them the protections given to other belligerent transnational networks like drug cartels.10 The second question of international law concerning UAV attacks is whether the US/UK satisfy the legal requirements that govern their use in countries where they are prima facie legal. Three major requirements under IHL are: the target must be a combatant, the use of force must be proportional to the objective, and harm to civilians must be minimized. 11 In its current UAV program, the US/UK violates each of these requirements. The US/UK may not be wilfully violating these provisions in every case, however the degree of secrecy that surrounds the drone program entails there is no way to know if they are fulfilling their international legal obligations. In fact, the US refuses to confirm or deny it even conducts UAV attacks in a court of law.12 Prior to commenting on US/UK failures under IHL, the issue of whether UAV strikes violate state sovereignty and the implications for their use by the CIA, a civilian rather than military agency, merits discussion. On the sovereignty issue, US/UK UAV attacks in Afghanistan, northwest Pakistan, Iraq, and Yemen have been approved by those respective governments, therefore sidestepping this issue for the purpose of this analysis. However, legal reasoning on hypothetical UAV attacks where sovereign authorization does not exist is available.13

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The involvement of a civilian agency in war such as the CIA in war is not illegal per se, however in this case and historically the CIA has not shown itself to be a reliable adherent of international law. In addition, the Director of the CIA has skirted around the question of whether the Agency must follow the law to the letter or merely accord with its basic principles when it comes to UAV strikes. In contrast, the US military has more robust mechanisms for the kind of reporting and oversight that is necessary for UAV strikes.14 The first requirement under IHL the US/UK violates is a reliable process to determine who is a combatant. The US/UK refuses to comment on its process whatsoever and what is known through independent research suggests the US often uses inaccurate human intelligence (HUMNIT) and targets individuals who are not directly participating in hostilities, in violation of the Geneva Conventions.15 16 For example, Anwar al-Awlaki, an American citizen, was killed by a UAV attack in Yemen, however his participation in hostilities has been disputed by experts in Yemeni affairs and the US refused to discuss, even in secret to a federal judge, the rationale for his killing.17 18 The inaccuracy of US/UK HUMINT has been thoroughly exposed; two major problems include the cash for intelligence model, which has led to local Afghans turning in innocent civilians for monetary rewards that far exceed the income standard there, 19 and the use of intelligence sourced by torture, which is often inaccurate. 20 The second requirement under IHL that the US violates it that the use of force is proportional to military objectives and harm to civilians is minimized. Independent investigations have established that the US downplays how many are killed by UAV strikes. For example, the US claimed that from May 2009 to June 2010 not a single civilian was killed by UAV strikes. This was contradicted by an independent investigation of the Bureau of

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Investigative Journalism, which found a minimum of 45 civilians killed in that timeframe, 21 and the Campaign for Innocent Victims in Conflict.22 In addition, there is evidence to suggest the US is attacking targets such as funerals, which at a minimum raise questions about whether the nonselective force of a UAV attack is appropriate in these situations.23 Civilian casualties are a recognized and legal part of combat under IHL, however when an actor makes blatantly untrue claims about their incidence and refuses to discuss how to investigates them, it is not satisfying its legal mandate.24 The first moral concern with UAV attacks, aside from those concurrent with legal considerations such as civilian deaths, is their dissociative effect on the solider conducting the strike. The operators of UAVs are located in the US using devices that resemble video-game controls against targets around the world.25 The concerns raised by this unique operational relationship include the psychological effect on the UAV operator and whether such physical distance from the battlefield affects their judgement process.26 These issues have been raised around the use of aerial warfare in general, most notably during the Kosovo intervention as expounded on by Michael Ignatieff in his work Virtual War. The second moral concern is the dissociative effect UAV attacks have on the experience of warfare by the body politic. Warfare has evolved in the late 20th and 21st century, at least in the West, from an effort that requires totalizing societal commitment, such as in World War II, to an effort conducted against the normal backdrop of day-to-day life by a volunteer army. The use of UAVs takes this evolution to the next level by removing one of the last visceral manifestations of war, the deaths of soldiers. In doing so, the threshold required for a country to wage war and the expectations of the public about its conduct are substantially reduced as it receives less

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attention. The language of surgical killing and precise warfare used by the US establishment echoes the notion of a war that seems to be without cost to those waging it.27 In addition the legal and moral drawbacks of UAV attacks, they are ineffective from a long-term strategic perspective. A key shift in US military strategy in Iraq, and later Afghanistan, was the adoption of the counter-insurgency warfare model (COIN).28 One of its main lessons is the importance of maintaing supportive public opinion in the operating theatre to prevent insurgency recruitment and support.29 However, the high rate of civilian causalities and lack of accountability surrounding UAV attacks has sharply inflamed public opinion in countries where they occur such as Pakistan, a sentiment expressed by one of the top strategists of COIN.30 This has led to reprisal attacks, the radicalization of residents in these countries, and a decline in political cooperation.31 Second, UAV attacks prevent an opportunity to interrogate militants and extract intelligence that can be highly useful in dismantling terrorist networks.32 While UAV attacks minimize US casualties, and allow the US to extract itself from exacting legal questions about how to treat captured individuals, they also preclude interrogations that provide information on how to systemically undermine Al-Qaeda and the Taliban. The US is capable of conducting specialized raids, as seen in the operation against Osama Bin Laden, however it has has chosen to engage in few of these operations. The effectiveness of this strategy has been strongly challenged by comparative studies of operations against terrorist actors.33 A key conclusion is that UAV strikes and similar operations do not address the societal factors that generate the ideological support that prove to be the most sustaining force for terrorist groups, a central lesson of the COIN model.

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The current program of UAV attacks by the US/UK fails to satisfy the legal regime that governs their use; raises questions about soldier disassociation from the battlefield and the publics disassociation from war at large; and are of questionable military effectiveness. However, as even their strong critics acknowledge, this does not preclude their use in warfare akin to weapons like land mines, which are illegal under international law because of their inherent nature. In order for UAV attacks to be used as a legal tool of war, the United States, the United Kingdom, and other countries must peel back the curtain of secrecy that surrounds them. They must acknowledge their role in strikes; release the guidelines that govern their use and investigations of alleged contraventions under IHL; and cooperate with actors like the United Nations and major NGOs in investigating strikes gone awry. In addition, they ought to engage in a more critical discussion domestically about whether these strikes pass practical and moral muster.

1 2

Flight of The Drones, The Economist, October 18, 2011, http://www.economist.com/node/21531433.

Philip Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Study on Targeted Killings (United Nations, 2010), http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC. 14.24.Add6.pdf, 3.
3 4 5 6

Ibid., 7. Ibid., 10. Ibid., 17.

Susan Breau et al., Drone Attacks, International Law, and the Recording of Civilian Casualties of Armed Conflict (London: Oxford Research Group, 2011), http://reliefweb.int/sites/reliefweb.int/files/resources/F_R_176.pdf, 11-12.
7

A Question of Legality, Chris Woods, The Bureau of Investigative Journalism, last modified February 4, 2012, http://www.thebureauinvestigates.com/2012/02/04/a-question-of-legality/.
8 Alston, 9

Targeted Killings, 18.

Breau et al., Drone Attacks, 12. Targeted Killings, 18-19.

10 Alston, 11

Ibid., 10.

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12

Jane Meyer, The Predator War, The New Yorker, October 28, 2009, http://www.newyorker.com/reporting/ 2009/10/26/091026fa_fact_mayer. The UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions analyzes the legality of drone strikes without sovereign authorization, see: Alston, Targeted Killings, 13-15.
13

End CIA Drone Attacks, Human Rights Watch, last modified December 19, 2011, http://www.hrw.org/news/ 2011/12/19/us-end-cia-drone-attacks.
14 15

Ibid. Targeted Killings, 10.

16 Alston, 17

Johnsen, Gregory, A False Target in Yemen, The New York Times, November 19, 2010, http:// www.nytimes.com/2010/11/20/opinion/20johnsen.html.
18

Targeted Killing Drone Strikes: Secret or Not? The Government Wants it Both Ways, Nathan Freed Wessler, American Civil Liberties Union, last modified February 28, 2011, http://www.aclu.org/blog/national-security/ targeted-killing-drone-strikes-secret-or-not-government-wants-it-both-ways.
19 20

Meyer, The Predator War.

Ian Cobain, Further Evidence that Pakistan Tortured Suspects for Britain, The Guardian, July 9, 2009, http:// www.guardian.co.uk/world/2009/jul/09/british-torture-terror-suspects. US Claims of No Civilian Deaths Are Untrue, Chris Woods, The Bureau of Investigative Journalism, last modified July 18, 2011, http://www.thebureauinvestigates.com/2011/07/18/washingtons-untrue-claims-no-civiliandeaths-in-pakistan-drone-strikes/.
21

Woods, Christopher, Civilian Harm and Conflict in Northwest Pakistan (Washington, DC: Campaign for Innocent Victims in Conflict, 2010), http://www.civicworldwide.org/storage/civicdev/documents/civic%20pakistan %202010%20final.pdf.
22 23

Woods, A Question of Legality. Targeted Killings, 27-28.

24 Alston, 25 26

Meyer, The Predator War.

A Day in the Life of a Drone Operator, P.W. Singer, Big Think, last modified February 20, 2009, http:// bigthink.com/ideas/13177.
27

Peter W. Singer, Do Drones Undermine Democracy, The New York Times, January 21, 2012, http:// www.nytimes.com/2012/01/22/opinion/sunday/do-drones-undermine-democracy.html?pagewanted=all.
28

David H. Petraeus, Learning Counterinsurgency: Observations from Soldiering in Iraq, Military Review 86:1 (2006), 2-12.
29 30

Ibid.

Doyle McManus, US Drone Attacks in Pakistan Backfiring, Congress Told, The Los Angeles Times, May 3, 2009, http://articles.latimes.com/2009/may/03/opinion/oe-mcmanus3.
31

Leila Hudson et al., Drone Warfare: Blowback from the New American Way of War, Middle East Policy XVIII: 3 (2011): 122-132.
32 33

Meyer, The Predator War.

Jenna Jordon, When Leaders Die, Terror Still Thrives, The New York Times, October 4, 2011, http:// www.nytimes.com/2011/10/05/opinion/awlakis-death-wont-destroy-al-qaeda.html.

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Works Cited Flight of the Drones. The Economist, October 11, 2011. Alston, Philip. Report of the Special Rapporteur on Extrajudicial, Summary Or Arbitrary Executions, Study on Targeted Killings: United Nations, 2010. Breau, Susan, Marie Aronsson, and Rachel Joyce. Drone Attacks, International Law, and the Recording of Civilian Causalties of Armed Conflict. London: Oxford Research Group, 2011. Cobain, Ian. Further Evidence that Pakistan Tortured Suspects for Britain. The Guardian, July 9, 2009. Hudson, Leila, Colin S. Owens, and Matt Flannes. Drone Warfare: Blowback from the New American Way of War. Middle East Policy XVII, no. 3 (2011): 122-132. Human Rights Watch. End CIA Drone Attacks. http://www.hrw.org/news/2011/12/19/us-endcia-drone-attacks. Johnsen, Gregory. A False Target in Yemen. The New York Times, November 19, 2010. Jordan, Jenna. When Leaders Die, Terror Still Thrives. The New York Times, October 4, 2. McManus, Doyle. US Drone Attacks in Pakistan 'Backfiring', US Congress Told. The Los Angeles Times, May 3, 2009. Meyer, Jane. The Predator War. The New Yorker, October 28, 2009. Rogers, Christopher. Civilian Harm and Conflict in Northwest Pakistan. Washington DC: Campaign for Innocent Victims in Conflict, 2010. Singer, Peter W. Do Drones Undermine Democracy? The New York Times, January 21, 2011. Wessler, Nathan. Targeted Killing Drone Strikes: Secret Or Not? The Government Wants it both Ways. American Civil Liberties Union. http://www.aclu.org/blog/national-security/ targeted-killing-drone-strikes-secret-or-not-government-wants-it-both-ways. Woods, Chris. A Question of Legality. The Bureau of Investigative Journalism. http:// www.thebureauinvestigates.com/2012/02/04/a-question-of-legality/. Woods, Chris. US Claims of 'no Civilian Deaths' are Untrue. The Bureau of Investigative Journalism. http://www.thebureauinvestigates.com/2011/07/18/washingtons-untrueclaims-no-civilian-deaths-in-pakistan-drone-strikes/.