The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.


The Drone Reports: Can Members of Armed Groups Be Targeted?

by Jens Iverson

[Jens Iverson is a Researcher for the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies, part of the Law Faculty of the University of Leiden.]

Amnesty International and Human Rights Watch have recently published reports (AI, HRW) regarding drone strikes.  They are admirable.  They further the debate on the legality of drone strikes.  (This debate continues on Opinio Juris and elsewhere by Deborah Pearlstein, Ryan Goodman, and Kevin Jon Heller amongst others.)  Each report provides unique reporting and strong legal arguments on an important issue.  There is at least one subject, however, where they, at a minimum, overstate the clarity of the law—namely, the status of members of organized armed groups who are not directly participating in hostilities in a non-international armed conflict (NIAC).

AI and HRW effectively state that members of an organized armed group (party to the NIAC) who are not presently directly participating in hostilities are protected from direct attack.  Both reports rely strongly on the ICRC’s landmark volume Customary International Humanitarian Law.  This volume does not fully support them on this issue.

AI states:

Speeches by US officials suggest that the Administration believes that it can lawfully target people based merely on their membership in armed groups, rather than on the basis of their conduct or direct participation in hostilities. Membership in an armed group alone is not a sufficient basis to directly target an individual. (pp. 45-46, emphasis added)

HRW states:

US statements and actions indicate that US forces are applying an overly broad definition of “combatant” in targeted attacks, for example by designating persons as lawful targets based on their merely being members, rather than having military operational roles, in the armed group. Individuals who accompany or support an organized armed group, but whose activities are unrelated to military operations, are not lawful military targets under the laws of war. Thus members of an armed group who play a political role or a non-military logistics function cannot be targeted on that basis alone. (p. 86, emphasis added)

In contrast, Customary International Humanitarian Law states in the commentary to Rule 5 (Civilians are persons who are not members of the armed forces. The civilian population comprises all persons who are civilians):  (more…)

Guest Post: Do drones cause fewer civilian casualties than traditional combat?

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University]

Mark Bowden’s cover story in this month’s The Atlantic magazine (available here) is one of the best things I’ve seen written on drones in the past several years. The Black Hawk Down author’s descriptions and takeaways on most aspects of the drone program are consistent with my own experience in military aviation and the information I have gathered from human rights organizations, drone operators, military lawyers, senior military, and CIA personnel who have run the drone programs, as well as from senior military policy advisors who were involved in changing the way drones are used.

Perhaps most importantly, his description of the drone operator’s reaction — one of shock and uncertainty — to performing a specific mission clearly undermines the widely circulated but exceptionally irresponsible criticism that drones have created a “Playstation mentality” among their operators. An additional fact that the article did not include, but that has been understood (although not widely reported) for several years now, is that drone operators suffer from PTSD-like symptoms at rates similar to — and sometimes greater than — those experienced by combat forces on the ground. It turns out that even from 8,000 miles away, taking human life and graphically observing your handiwork is nothing like playing a video game.

Another highlight is his treatment of the question of civilian casualties. (more…)

Guest Post: Obama Got it Right on Drones

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

On drones there was not that much new from President Obama yesterday, but what he emphasized tells us something about where the debate on drones remains.  Echoing statements that have been previously made by a number of his advisers he challenged the continuing claims that drones are inaccurate, counterproductive and continue to cause increasing numbers of civilian casualties.  He also officially provided some new information on oversight and the approval process, although much of this information is found in Klaidman’s “Kill or Capture”.

Although there have been exchanges here at OJ as much as a year ago in which there seemed to be a consensus on all sides that drones were not causing disproportionate or excessive civilian casualties when compared to other tools of warfare, that issue still appears to be the primary criticism of drones.  You have to look no further than yesterday’s New York Times to see an editorial that claims that drones continue to cause increasing civilian casualties.

As a result it was important for Obama to outline the alternatives to the continued use of drones in places where the local government is unable or unwilling to counter a terror threat to the US.  As I pointed out in the LA Times in February the alternatives are special forces, manned aircraft strikes and cruise missiles, invasion or turning over the matter to law enforcement.  It is important to remember that “law enforcement” in these contexts is the Pakistani or the Yemeni Army.  In the past, attempts by the Pakistani Army to regain control of areas of FATA have been humanitarian disasters.  The Swat Valley campaign in 2009 displaced over a million civilians when the Pakistani Army used artillery, armor and airstrikes to go after ~5,000 Taliban/al Qaeda fighters.  Last year rumors of a new Pakistani Army offensive in Waziristan sent thousands of civilians fleeing the area even though no offensive took place.

The other options, night raids by special forces, manned aircraft or cruise missile strikes or a full scale invasion by ground troops, would all cause more displacement and disruption of the local civilian population than drones do.  It is important to emphasize, as Obama did yesterday, that…

Eric Posner Calls Out Harold Koh on the Legality of Drone Strikes Under International Law

by Julian Ku

In his latest Slate article,  Professor Eric Posner highlights (for non-specialist readers) the  questionable international legal foundation of the Obama Administration’s “drone war on terror” in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan’s consent to the strikes due to Pakistan’s refusal to object to CIA faxes is not terribly persuasive.  I am more attracted to the “unwilling or unable” theory of the drone strikes, but I recognize it is far from flawless either.

Posner goes on to question whether international law can ever really regulate the U.S. government’s use of force, and suggests that Harold Koh may now realize it is a weak constraint at best.

But don’t blame government lawyers like Koh for devising this theory. International law lacks the resources for constraining the U.S. government. Koh knows this now if he did not before. Since he built his academic career on the claim that international law can and should be used to control nation-states and harshly criticized the Bush administration for violating international law, this must have been a bitter pill to swallow. (Though he has swallowed so many bitter pills that perhaps he has lost his sense of taste: The man who told the Senate at the end of the Bush administration that the United States must “unambiguously reassert our historic commitments to human rights and the rule of law as a major source of our moral authority” has backed away from his earlier opposition to expansive war powers, targeted killing, military commissions, and military detention.)

Posner’s general take on these questions can be found in his book, The Perils of Global Legalism.  In it, he argues that most international law doesn’t affect state behavior very much (if at all) and actions by government officials based on the assumption that international law does restrain state behavior is both naive and dangerous.

I am not sure if I completely agree with Posner here, although I concede he can certainly marshal lots of evidence in the use-of-force area.  But I think his focus on Koh’s “conversion” or “awakening” to the limits of international law is interesting.  If we get a President Romney (which looks somewhat more likely than it did just a week ago), we can expect to hear his legal advisers citing Koh on a variety of legal questions  (“Even the liberal transnationalist Harold Koh thinks a drone strike/cyberwarfare retaliation/Guantanamo is legal…”).  The interesting question is whether Koh’s endorsement of the legality of such policies will serve as a shield from international law critics like NGOs, academics, etc.  I doubt it, but it is always worth a try.

The Space Bar and the Drone

by Kenneth Anderson

Though I am generally upbeat about the use of drones in military applications, one must recognize design flaws:

The Navy’s latest multi-million pound drone has the unfortunate feature of starting to self-destruct if the pilot accidentally presses the space bar on his keyboard …. The Navy are planning to buy hundreds of drones of the MQ-8B Fire Scout, one of which helicopter almost exploded after the drone’s operator accidentally pressed the space bar with a wire from his headset – which launches the self destruct mechanism on the vehicle.

The Boundaries of the Battlefield

by Michael W. Lewis

A busy week of grading prevented me from addressing Ken’s May 6 post on battlefield geography along with the May 6 news that the US conducted a drone attack in Yemen any sooner, but there should be an important take away on the boundaries of the battlefield from the bin Laden operation.

An often heard complaint about the US conduct of the “war on terror” is that it treats “the whole world as a battlefield.” Many contend that such a conception of the battlefield, particularly in the context of a NIAC, violates international law. Mary Ellen O’Connell is perhaps most readily identified with the position that if the NIAC threshold is not met within the geographical boundaries of a specific state then the use of the tools of armed conflict on that state’s territory is impermissible, even with that state’s permission. However many others have taken similar positions with regard to the Aulaqi case or other possible uses of US force outside of Afghanistan (see e.g. my January debate with Ben Wizner of the ACLU on the Aulaqi case).

In analyzing the bin Laden operation Kevin expressed his belief that there is currently a NIAC between the US and “original” al Qaeda, a group to which bin Laden clearly belonged. Although there is not sufficient violence taking place within Pakistan to say that there is currently a NIAC occurring on Pakistani territory, that fact did not prohibit the use of armed force in Pakistan when a participant in the NIAC between the US and al Qaeda could be found there. Likewise, if bin Laden were in Yemen, the same outcome would have been reached, the tools of armed conflict could be employed against bin Laden in Yemen (under certain circumstances) because he was a participant in the NIAC with the US.

The normative reason for this conclusion is that any other reading of IHL with respect to the boundaries of the battlefield would essentially turn IHL on its head. One of IHL’s principal goals is to spare the civilian population and members of the military that are hors de combat from the ravages of warfare. To this end it insists on proportionality and military necessity for all attacks, it requires the acceptance of surrender, it ties the availability of the combatants’ privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities (DPH) or more permanently for those who continuously perform a combat function (CCF). Members of al Qaeda are targetable when they are engaged in attacks (DPH), and leadership (like bin Laden) that is consistently engaged in the planning and direction of operations is targetable at all times (CCF). IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.

However, if IHL is read to prohibit the use of the tools of armed conflict outside of certain geographically defined areas it would be conferring a tremendous strategic advantage upon these same terrorist organizations that it disfavors. By limiting the use of the tools of armed conflict to territory on which the threshold of violence for a NIAC is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state in which law enforcement is known to be ineffective (like Yemen, Somalia, Sudan and the FATA area of Pakistan). This reading of IHL would thereby cede the initiative in the NIAC between a state actor that abides by IHL and a non-state terrorist organization (which IHL disfavors in every other way because of its conduct during an armed conflict) to the terrorist organization. The disfavored terrorist organization would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography. That cannot be how IHL should be read when considering the boundaries of the battlefield.

This does not mean that IHL does not offer a number of other challenges to strikes in Yemen or elsewhere. Has the NIAC threshold been met just for al Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that may call into question some, most or all of the US’ drone strikes outside of Afghanistan (depending upon how you choose to answer them).

But the question of whether IHL provides a geographically-based immunity for participants in a NIAC should be answered in the negative once and for all.

The bin Laden Aftermath: Why Obama Chose SEALs, Not Drones

by Greg McNeal

For my final guest contribution regarding Bin Laden’s killing, I’m reposting (with permission) a piece that was just published by Foreign Policy magazine entitled The Bin Laden Aftermath: Why Obama Chose SEALs, Not Drones.  I look forward to comments from the OJ community.

Why did the United States choose to launch a raid against al-Qaeda leader Osama bin Laden’s compound in Abbottabad, Pakistan, rather than bombing it?  It wasn’t because of a “law enforcement mindset.”  And it wasn’t compelled by human rights law.  Rather, it was the best option based on the military objectives, available intelligence, and the law of armed conflict.

On the one hand, practical considerations dictated this riskier kind of raid.  The United States needed to have a body to prove, once and for all, that the hard-to-kill Bin Laden was in fact dead.  The recent media fascination with whether the U.S. will release photos of his body lends credence to this concern.

A second issue prompting the raid was that the Obama administration was worried about collateral damage.  This problem is more serious than some may initially suspect.  Abbottabad is a heavily populated city, with nearly 1 million residents.  Moreover, numerous civilian residences and the Pakistani military academy were near bin Laden’s “drone-proof compound.” There’s little doubt that the risks to nearby residents certainly weighed on the minds of senior policymakers and President Obama.  The matter of collateral damage alone, though, may not have been enough to tip the scales away from a bombing operation.

Instead, the issue may have been the uncertainty over whether Bin Laden was even in the compound.  Nation-states are simply not permitted to  drop bombs in the hope they will kill the right person; they need to be reasonably certain they are attacking the right target.  That fact leads us to the legal concerns that may have necessitated a raid rather than a bombing operation.

The Requirement to Positively Identify a Target

Most contemporary discussions of collateral damage skip the threshold legal question likely posed by the Obama administration, namely whether bin Laden or some other lawful military target was actually inside the compound.  Unless that question could be answered to a reasonable degree of certainty, any bombing operation would have been unlawful, even with no or minimal collateral damage to surrounding persons and objects.

This reality flows from the principle of distinction, (or “positive identification” in U.S. military parlance) a fundamental tenet of the law of armed conflict.  Armed forces are required to “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”  Positive identification, according to U.S. policies, requires that commanders know with reasonable certainty that “a functionally and geospatially defined object of attack is a legitimate military target.”  In short, directing attacks against civilians (in this context, non-uniformed personnel) is not permitted, unless they are directly participating in hostilities.



Opposition to Drone Use in Libya

by Michael W. Lewis

Ken’s post and the comments following it display an understanding that drones are particularly well suited to this mission because their longer loiter time makes them more discriminating and therefore more capable of proportional strikes than manned aircraft. As someone who has personal experience with the difficulties of discriminating between combatants and civilians while accurately delivering weapons from manned aircraft in an environment like the one currently prevailing in Libya, I was glad to see this understanding demonstrated.

Unfortunately that understanding may not be shared by a meaningful portion of the population. There are two things working against this acceptance of drones as a positive addition to the battlefield. One is quite simply the Terminator-like creepiness of machines making war against men that many people have commented upon in discussing drones. The other is the perception that drones, because they are remotely controlled, are less accurate than manned aircraft. The opponents of drone use in Pakistan and Yemen, whose legal complaint was mainly about whether the legal threshold of armed conflict had been crossed or whether the boundaries of the battlefield were being improperly expanded, often highlighted the civilian casualties caused by drone strikes to support their opposition. This has left an impression with many that drones are less accurate and discriminating, but are used anyway because they are the easy, low risk answer to military problems (a problem that Ken’s piece on the “efficiency” of drones delves into more deeply). David Ignatius of the Washington Post describes drones as a “weapon that has become for many Muslims a symbol of the arrogance of U.S. power”. The subtext being that the United States does not care if it causes civilian casualties, particularly amongst Muslims, as long as it doesn’t have to put its own pilots at risk.

As Ken posits, employing drones in a humanitarian venture like Libya may help to overcome some of the legal objections that have been raised to their use elsewhere. But broader international acceptance of drone use is unlikely to be achieved until the general public has a better understanding of how drones can actually save civilian lives if employed correctly.