Drone War Under Law

Drone warfare presents new challenges to the way the United States wages war. Under President Obama drone attacks have become the characteristic way this country fights terrorism. The United States now routinely employs drone attacks in Afghanistan, Pakistan, Somalia and Yemen. Recent revelations by the reporters David E. Sanger (in The New York Times and Confront and Conceal) and Daniel Klaidman (Kill or Capture) make it possible now to do informed ethical and legal analyses of the president’s use of drones in counter-terrorist attacks on Al Qaeda and its confederates.

Drone strikes are now conducted out of the White House, with the president himself approving targets. The president’s direct role in this process is problematic. The head of a democratic state should have distance from the application of force, both to avoid the risk of international prosecution for wrongful use of force and also to ensure that those professionally responsible for the control of force are accountable to a system of military justice and international humanitarian law. To that end, the Law of Armed Conflict needs to be updated to include issues of counter-terrorist drone warfare, and intelligence services routinely engaged in antiterrorist attacks should be made subject to it.

Another practice requiring closer attention is that of signature strikes, so-called because facts on the ground, particularly the presence of fighting-age men, are taken as a “signature” of terrorist activity and therefore of a legitimate target. Without further on-the-ground intelligence, however, it is hard to know whether such clusters are made up of convinced terrorists or mere bystanders. So the conventions of military ethics that make those who actively threaten the United States legitimate objects of direct attack are stretched in a way that will inevitably result in the deaths of nonthreatening civilians. Clearer restraints on signature attacks are necessary.

The targeting of alleged terrorists also raises questions of extrajudicial killing of suspects without due process. The experience of the selling of the Iraq War in 2003 by means of false and mistaken information should make the public dubious of intelligence as a warrant for execution from the air. Due process must mean more than careful deliberation by officials. The authority and conditions for killing suspected terrorists must be clarified in both U.S. and international law. U.S. antiterrorist law ought to reflect John Adams’s proposition that ours must be a government of laws, not of men.

The ability of drones to penetrate foreign air space has also played havoc with traditional principles of sovereignty and noninterference along with the prohibition in international humanitarian law against military strikes on neutral territory. In the past, these principles deterred attacks on foreign soil. The spread of global terrorism and the availability of smart weaponry, however, have eroded those diplomatic restraints; and President Obama has invoked the right to self-defense in ordering these attacks even when the local governments object.

Sovereignty and noninterference play important roles in reducing the occasions for armed conflict. No one exception harms the rules, but the cumulative effect of repeated violations is deleterious for the international system. As President Obama insists, the United States does have a duty to protect its citizens from attack, arguably even to striking on foreign soil when a second government cannot or will not police the terrorists on its own. But the more the United States invokes the self-defense justification in attacks on foreign soil, the more other countries have an incentive to do the same.

Already world public opinion has come to resent the freedom with which the United States employs drone strikes in its antiterrorist campaign. At the same time, more than 50 countries now possess drones. (In late June, Bolivian police destroyed 240 jungle drug labs detected by Brazilian surveillance drones.) How long will it be before one or more nations begin to employ these weapons for cross-border strikes? How long will it be before terrorists target drones against sites within the United States? The proliferation of drone technologies and the growing risk of their use by rogue regimes and terrorist groups point to the urgent need for an international convention to set standards for the use of drones in cross-border operations.

Absent an international convention, U.S. interest lies in upholding international standards for nonintervention even as diplomats work in the long term to adapt international law to the reality of combat with non-state actors, like Al Qaeda. Given the proliferation of drone technology, American exceptionalism in its application will be short-lived. The United States can better advance its long-term security with a global compact than without one.

This article appears in July 16 2012.