The tenuous balance between sovereignty and global accountability becomes ever shakier as countries push outward with unprecedented force. Are all countries answerable to international authority? Should America, or any other nation, be punished for violence abroad? Is war itself a violation of an international code based on peace? These are the nuanced, difficult questions at the heart of the debate over the legality of American drone strikes.
War is possibly the link that ties the world to its past better than any other. In the words of Homer, a man who made his fame in detailing bloodshed, “men grow tired of sleep, love, singing, and dancing before they grow tired of war.” Many of history’s most recognizable figures earned repute by leading men into and out of brutal conflict. As technological advancements made it possible to kill the enemy without being able to see him, the moral implications of long-range strikes began to come into question. When the combatant is a continent away, one’s missile has to be extremely precise, to avoid civilian casualties in a way that was previously a nonissue. These are pinpoint battles, fought between small nuclei of surveillance and weaponry, no longer rows of men marching at each other in regimented lines. Is Napoleon right? Does “war justify everything”?
According to several human rights organizations, the answer is no. American use of drones in Pakistan violates international law, they say, as these attacks can be characterized as war crimes. According to the United Nations, war crimes comprise “grave breaches of the Geneva Conventions” including murder, torture, hostage-taking, and, more saliently, “intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians” (Rome 97). This language appears in the Rome Statute of the International Criminal Court, the treaty that established this supranational judiciary, tasked with trying cases of “genocide; crimes against humanity; war crime; the crime of aggression” (93). Importantly, however, the United States is not a member of the ICC, as the treaty was signed, but not ratified. The question of whether America is subject to international oversight is a valid one, and crucial to the study of modern American security policy.
In a 2013, Human Rights Watch and Amnesty International, two of the world’s ethical watchdogs, separately released reports in opposition to America’s policy of conducting drone strikes across the Middle East. The Human Rights Watch examined six events that occurred in the period of 2009 to 2013. According to one of the authors, Letta Tayler, “Two of the six cases that we examined in my report show that the U.S. indiscriminately killed civilians. This is a clear violation of international law.” The group’s analysis is based around the imprecision of such strikes, which they believe points to a wanton disregard for civilian safety, so long as the missile finds its target. They may have a point, too, as the report shows “at least 57 civilians died because of the strikes, which killed 82 people” (Fitzpatrick). Whether or not the remainder of the dead were military targets, this is at the very least a sixety-nine percent inaccuracy rate for the studied missions, which begs the question of whether these strikes are exact enough to be a viable means of attack for the armed forces.
It is important to note that comparisons to more traditional bomb dropping may not be completely valid. The extremely controversial atomic bombings of Hiroshima and Nagasaki in 1945 led to hundreds of thousands of civilian casualties. However, while the relative merit of such a massive assault is highly debatable, the fact remains that America was then at war with Japan. The United States is, crucially, not at war with Pakistan, or Yemen, where many of the strikes have taken place. American drone attacks are aimed at insurgent groups in the Middle East and Africa, namely al-Qaeda, not against the political or military structures in the nations where terrorist groups are active. While strikes on non-military and military targets in nations at war differ theoretically only differ in degrees of critical damage done, solitary attacks on groups that are by their very nature elusive and covert means that not every shot will hit the mark. As the Human Rights Watch report describes, in a September 2012 strike, “the target – an alleged al Qaeda militant, Abd al-Raouf al-Dahab, – was ‘nowhere in sight’ when the United States hit a passenger van and killed 12 people returning from the market” (Cornwell and Hosenball). Tayler’s statement to reporters was evocatively lyrical, as she described how “their loved ones found their charred bodies in pieces on the roadside, dusted in flour and sugar that they were bringing home to their families.”
Amnesty International’s report called for greater transparency in American military actions. As researcher Mustafa Qadri implored, “We are saying for the U.S. authorities to come clean,” offering that, “in some of the cases we looked at…they appear to be war crimes, but really the full picture is for the U.S. authorities to reveal.” Notably, Amnesty’s study examined the killing of Mamana Bibi, a Pakistani grandmother, and the death of eighteen workers in a separate incident. In doing so, the reports sought to put a face on the dead, to humanize the people which they believed the United States was disregarding, and lead to the filling of what Amnesty worker Naureen Shah calls “the black hole of accountability for drone strikes.” In the eyes of these organizations, these were breaches of the sacrosanct right to security to which the worlds’ citizens are privy. Human Rights Watch corroborated the judgment that Amnesty made, declaring there to be “at least two cases of “clear violations of international law” and strong evidence of violations in the four other strikes it investigated” (Fitzpatrick). These stirring words and images do not convince everyone, as Jordan Paust shows in his article for Jurist.
Paust, a expert in international law and professor at the University of Houston Law Center, disagrees with the assertion that America’s drone strikes in foreign countries are illegal. He argues that in regards to “human rights law, such law generally applies at all times and in all social contexts, including during war” (Paust). This baseline of ethical behavior is important, because it establishes the firm determination that basic human rights are inviolable – an idea codified by the UN Charter. He goes on to cite The International Covenant on Civil and Political Rights, and states that “the general human right to freedom from “arbitrary” deprivation of life will only be applicable with respect to those persons who are within the jurisdiction, actual power, or “effective control” of the state or other entity using a drone…those who are being targeted…will not be protected under the general human right to life, because they are not within the actual power or effective control of the targeting state.” Thus, because the United States has no power over the citizens of Pakistan or Yemen, for example, it cannot protect their citizens’ general right to security. Instead, the attacking nation in question must run through a number of “appropriate considerations,” including the “identifying of the target,” “importance of the target,” “whether equally effective alternative methods of targeting or capture exist,” and “foreseeable consequences with respect to civilian death, injury, or suffering” (Ibid). These attacks must be thought-out, with relative risk carefully weighted, in order to maintain the legal protection that Paust feels they are entitled to. The Amnesty report proclaims that killing “without first attempting to arrest suspected offenders, without adequate warning, without the suspects offering armed resistance, and in circumstances in which the suspects posed no immediate risk to security forces, would be considered extrajudicial executions.” This is perhaps where Paust disagrees most clearly, as the report calls for an approach better befitting a police officer than a soldier. He wrote that “targeted killing under the law of self-defense is not ‘law enforcement’…outside of the statement that force must be ‘proportionate in the prevailing circumstances.’” Military action cannot be conflated with that of law enforcement. There is a case to be made that more of the methodological elements of police work should be integrated into military action, but it would be disingenuous indeed to confuse the two.
Paust seems to echo the dictum that the Justice Department uses internally to validate such action. In February, a leaked “white paper” memo from the department discussed drone strikes as a form of legitimate military action, “declaring that capture can be deemed infeasible if the country where the suspect is located won’t consent to a capture operation or if a capture operation ‘could not be physically effectuated during the relevant window of opportunity’” (Gerstein). This is essentially the rationale used with Osama bin Laden, whose capture was detailed in the Kathryn Bigelow’s blockbuster film, Zero Dark Thirty. Though Paust offers strong reasoning for the legality of drone strikes, there are still murky areas in the operation that do not lend themselves to easy certainty. Since, for example, his defense depends on the careful consideration of collateral damage, if such imprecision is present, as evidence suggests it might be, then perhaps the legal justification may not be as strong. President Obama, target of much of the criticism for drones since their occurrence has “increased dramatically” during his administration, stated that “before drone strikes were taken, there must be near-certainty that no civilians would be killed or wounded” (Cornwell and Hosenball). If the president’s message signify a shift toward a more measured, cautious policy that sets civilian casualty minimization at the forefront, then there is a more reasonable case to be made that these strikes are legal. However, as with many assessments of such issues are, there is no clear answer to be had here, and ideology plays as big a role as legality in this case.
References:
Cornwell, Susan, and Mark Hosenball. "U.S. Broke International Law by Killing Civilians with Drones: Rights Groups."Reuters. Thomson Reuters, 22 Mar. 2013. Web. 31 Oct. 2013.
Fitzpatrick, Meagan. "U.S. Drone Strikes May Amount to War Crimes, Report Finds." CBCnews. CBC/Radio Canada, 22 Oct. 2013. Web. 31 Oct. 2013.
Gerstein, Josh. "Official Memo Justifying Drone Strikes Leaks." POLITICO. POLITICO LLC, 4 Feb. 2013. Web. 01 Nov. 2013.
Paust, Jordan. "Drone Attacks Can Be Justified Under International Law." JURIST - Forum. N.p., 23 Oct. 2013. Web. 31 Oct. 2013.
“Rome Statute of the International Criminal Court.” United Nations – Treaty. 17 July 1998. http://treaties.un.org/doc/Treaties/1998/07/19980717%2006-33%20PM/Ch_XVIII_10p.pdf