Are Drone Strikes Legal?



NARRATOR:  The stakes are high when determining the legality of drone strikes.  Mary Ellen O’Connell, a Professor of International Law at Notre Dame Law School, explains.

O’Connell: You can see the attraction of drone attacks to the US because we’re losing our young men and women everyday in Afghanistan and we dont lose any of our own people with drone strikes. [...] I want to save our people, but I also don’t want to be the country that kills when theres no legal or moral right to do so.

NARRATOR: Drones – or unmanned aerial vehicles – are obviously an attractive option for the United States military.  However, there is disagreement as to whether or not drone attacks in Pakistan actually comply with the combination of treaties that define international law.  The Obama administration maintains that its actions are following all rules of war and all international guidelines.  Critics say that drones strikes violate international laws about the use of force – and that there are better ways to pursue terrorists.  The central question remains: is the United States in an armed conflict – or “at war” – with al Qaeda?  State Department Legal Adviser Harold Koh explained the Obama administration’s opinion during a March 25th, 2010 speech to  the American Society of International Law.

KOH: As recent events have shown, al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks.

NARRATOR:  University of Michigan law professor Steve Ratner explains the armed conflict distinction gives the Obama administration far-reaching powers, allowing them to justify “targeted killings” of terrorists using drones.

RATNER: If you’re operating in an armed conflict situation, you’re allowed to kill an enemy combatant without any questions.  You’re allowed to killed them when they’re sleeping, you’re allowed to kill them when they’re in the bathroom, you’re allowed to kill them, you know, as long as the war is going on.   And you don’t really have to try and arrest them at all.

NARRATOR:  O’Connell, however, disagrees.  She believes that the United States is not in an armed conflict with al Qaeda.  Instead, she thinks the United States is involved in an international law enforcement effort in which al Qaeda terrorists are not combatants, but international criminals no different from members of the Mafia or drug cartels.

O’CONNELL: …there are two things you look into: 1) has Pakistan … attacked the United States?  Then we could respond in self-defense.  That hasn’t happened so we’re not responding in self-defense so we have no right to use military force in Pakistan … arguing self-defense.  So the next question is 2) is there armed conflict going on in those countries in which the governments have asked us to come in and help them in solidarity to fight as we’re doing in Afghanistan right now so Hamad Karzai has asked us to come into Afghanistan to help supress the civil war.  Well Pakistan … [hasn’t] asked us to do that either.

NARRATOR:  Because she does not think that there is an ongoing armed conflict, O’Connell believes that drone strikes violate international law.  She counters remarks that Secretary of Defense Leon Panetta made when he was Director of the CIA.  While Panetta said that drone strikes are “the only game in town,” O’Connell claims that old-fashioned police work would be more effective.

O’CONNELL:  Its not the only game in town. [...]  The police could come up to those persons. [...]  We’ve long handled the problem of terrorism through criminal justice methods and that is what counter-terrorism experts and various studies show is the right way to handle the violence of militant or violent organized groups like the ones in Pakistan

NARRATOR:  In this discussion, it is important to note the definition of war or armed conflict – because this is where much of the controversy lies.  Although it may appear clear that the United States is in a so-called “armed conflict,” there are finer nuances at work.  According to Ratner, international law recognizes two kinds of war: interstate war, an armed conflict between two states, and civil war, an armed conflict between a state and a non-state actor such as a rebel group.  Since al Qaeda is a transnational non-state actor not limited to one specific country, some experts, such as O’Connell, believe the United States needs to be involved in more international police-work. Ratner explains that the United States’ fight against al Qaeda does not fit the two normal classifications.

RATNER: What we have here is really not either.  Its not state-to-state and its not a civil war in the sense that its confined to one state, between the government and that state.  [...] the idea of a conflict between the United States and al Qaeda is a new sort of claim in international law. [...] There are some states and some NGOs that simply reject the concept at all that there is such a thing as a conflict between the United States and a transnational actor and therefore the United States should really be limited to trying to arrest people.

NARRATOR: Another important element in this debate is whether or not the Pakistani  government has consented to the drone strikes on its soil.  Peter Spiro, a professor of international law at Temple Law School, notes that this is a highly debated point.

SPIRO:  This is one of the variables.  I think there have been points when Pakis  tan has consented to drone attacks.  It may do so in a non-public fashion and therefore it may not be clear from the public’s perspective whether or not Pakistan has consensus to give these attacks.  That just adds another layer of complication here.

NARRATOR:  Despite the confusion regarding Pakistan’s position, Spiro notes that it may actually be irrelevant.  Some say that the United States could still conduct drone attacks without explicit Pakistani consent.

SPIRO:  To the extent that Pakistan withdraws its consent to these attacks then Pakistan’s sovereignty becomes part of the legal mix – in the same way that it did in respect to the operation that killed Osama bin Laden. [...] There is a test under which such operations can be justified not withstanding the lack of consent from a territorial government.  And that question becomes whether Pakistan is unwilling or unable to take action against these adversary forces within its border.

NARRATOR:  Ratner agrees, noting that even if Pakistan does not consent, there is a theory that drone attacks may still be legal.  This, however, is assuming that the United States is operating in an armed conflict.

RATNER: …the idea would be that, if a state is the victim of an armed attack or is under continued threat of armed attack, from a non-state actor like a transnational terrorist group that it has a right to respond against that transnational terrorist group where ever it is located – subject to the caveat that the government of that state where its located should be given every opportunity to try to suppress that group itself.

NARRATOR: Ratner says that if this does not happen, the so-called “victim state” can take matters into its own hands.

RATNER: So under that theory, you could say that because Pakistan has been unable to suppress the work of al Qaeda in its territory that the United States therefore under its right of self-defense is able to respond.

NARRATOR:  It is clear that that no consensus has been reached for many of the legal questions in the drone issue.  Regardless, Spiro does not believe they will disappear any time soon.

SPIRO: Although there have been questions raised about the legality of these attacks, the strategic advantage of these attacks is so great that it would require an about-face on the part of the world community with respect to their use so I think … that drones are likely to be the weapon of choice of the US military going forward.

NARRATOR:  For now, its not clear how the legal debate will affect strategy.  The Obama administration believes there are great political and strategic benefits to using drones – and there is no sign use will end in the foreseeable future.

For War News Radio, I’m Stuart Russell.

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