Drone usage by the United States for military purposes has created controversy both domestically and abroad. Civil rights activists question the legality of the practice within the context of the United States’ laws and the international laws of the United Nations. Supporters of drone aircrafts argue that the use of unmanned aerial vehicles is the only way to overcome the threat of terrorism and maintain national security.
When speaking of drone usage and intelligence collection through surveillance in the State of the Union on January 28, 2014, President Barak Obama touched on his work to limit the use of drones, explaining, “I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.”[1]
Nearly two weeks after this speech, the issue of drone usage abroad has reemerged as a controversial point in U.S. foreign policy and constitutional law. Early February 10, reports emerged of consideration by the Pentagon and the White House over the possible targeting of a U.S. citizen Al-Qaeda member[2] in Pakistan.[3] The U.S. Commander-and-Chief, as well as top military officials, must decide whether the citizen is a great enough threat to national security that targeting without a standard trial, is warranted.[4] Either decision will bring high levels of controversy, both domestically and abroad. Four United States citizens have been killed in drone strikes during Obama’s presidency, though only one was the actual target of the drone strike.[5]
This report will look analyze the legality of the United States military forces’ drone targeting within both the national and international realm. As well as possible applications of these laws to the situation of the targeted killing of citizens of the United States.
In May of 2013, the White House announced a clear outline of the circumstances needed to warrant a lethal drone target within international territory. The United States may only use lethal unmanned aerial vehicles when it is not feasible to capture the terrorist suspect.[6] Furthermore, the United States must have a legal basis for lethal force (must be a high-ranking official of a terrorist group or the forces of an active terrorist group intending a terrorist act) and the United States must prove that the terrorist target is a “continuing and imminent threat”[7] to US national security and persons. According to the White House, the conditions which must be satisfied to warrant a US drone lethal targeting include there must be near certainty that a terrorist target is present where the lethal missile strikes, high certainty that a non-combatant will not be injured, and certainty that the national government would not address the issue as a threat to the United States.[8] These conditions, however, will not impede upon the authority of the president to take lethal force in “extraordinary circumstances.”[9]
In terms of lethal force against a United States citizen involved in terrorist activity abroad, , the Department of Justice must conduct an additional legal analysis of the situation to ensure that any action taking will fall within the jurisdiction of the Constitution.
The United States explains that it will not take actions that do not comply with International law or the sovereignty of the country in which the suspected terrorist, however, there are high levels of controversy regarding this statement.
The international reaction to the actions of the United States in using lethal force through unmanned aerial vehicles has gained both support from allies who feel threatened by suspected terrorist and criticism from countries (including allies) who feel the United States infringes on the rights to a fair trial and a due process, granted in the majority of common law systems. The United Nations provides the basis of international law, however, these laws can be analyzed in both situations.
The United Nations Charter Article 2(4) states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations.”[10] Therefore, one could argue that, legally, the United States violates the United Nations Charter when drones are used within the boundaries of Pakistani territory, where they maintain sovereignty. However, in May 2010, the United Nations addressed the issue of targeted killings in the Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, explaining, “[targeted killings] are often justified as a necessary and legitimate response to “terrorism” and “asymmetric warfare,” but have had the very problematic effect of blurring and expanding the boundaries of the applicable legal frameworks.”[11] These frameworks cite two specific situations in which one state may use targeted killings in an international territory. The first situation is when the targeting nations obtains the consent of the nation where the suspected terrorist will be killed. However, the United Nations places restrictions on the consenting nation, stating, “A consenting State may only lawfully authorize a killing by the targeting State to the extent that the killing is carried out in accordance with applicable [International Humanitarian Law] and human rights law.”[12] The second situation is when the target is a highly suspected terrorist or fighter or a civilian which has participated in direct aggression against the targeting country. “In addition,” the United Nations states, “the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity and everything feasible must be done to prevent mistakes and minimize harm to civilians.”[13]
The United Nations has outlined the measured by which targeting killing can take place within international territory, however, the issue which still remains in proving that the targeting country has complied with the standards of the international law and human rights law.
In complying with the international and domestic standards, the United States must prove that the United States citizen facing possible targeted killing abroad is, with near certainty, a terrorist in operation with al-Qaida. Furthermore, the United States will need to prove that they will maintain a high certainty that non-combatant civilians will not be harmed in the attack and that they will not impede upon the sovereignty of the Pakistan, which has faced one of the highest number of American drone strikes.[14]
The United States’ use of unmanned aerial vehicles is a controversial one both for the lack of specificity within the domestic and international laws regarding targeted killings and for the individuality of each case. Proponents and critics both face difficulties in proving whether a killing was justifiable and in compliance with the sovereignty of the country where the targeted suspect is and the human rights values of the international community.
[1] CBS. "Obama's 2014 State of the Union address: Full text."
[2] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan." The New York Times.
[3] Dozier, Kimberly. "US suspect possibly targeted for drone attack." MSNBC.
[4] The White House Washington. "U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities."
[5] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan." The New York Times
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] UN Charter art. 2, para. 4
[11] Special Rapporteur, Study on Targeted Killings, supra note 598
[12] Ibid.
[13] Ibid.
[14] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on American Terrorism Suspect in Pakistan." The New York Times