By MATTHEW BUCKWALD
“The United States Government is fully committed to complying with its obligations under the law of armed conflict, minimizing, to the greatest extent possible, civilian casualties, and acknowledging responsibility when they unfortunately occur during military operations,” said a spokesperson for National Security Council on the day that President Trump decided to revoke an Obama-era order to publicly disclose the number of civilians killed in airstrikes against terrorist targets “outside areas of active hostilities.”[i] While there is a conversation to be had about the relationship between paramilitary activities and public knowledge, this article will examine what exactly this spokesperson meant by “the law of armed conflict” with respect to drone use.
The most famous of unmanned aerial vehicles (“UAVs”) is undoubtedly the drone. The drone debuted in the Balkans in the 1990s to be used solely for military intelligence in the form of reconnaissance. However, after 9/11 the drone was used by the Bush administration to target specific individuals known to be affiliated with Al-Qaeda (“AQ”) or the Taliban. Such drones are equipped with a number of missiles in order to hit their desired target. The Obama administration, however, moved away from the Bush-era use of targeted strikes to an era of “signature strikes,” in which drones were used to target profiles of people rather than specific people themselves. As it stood during the Obama administration, drone strikes targeted profiles rather than people. The profile included men, aged 18-25, located in geographic areas where there was known terrorist activity. The name “signature” comes from the idea that those targeted by drone strikes fit the “signature” profile of a known militant. While some argue that signature strikes are immoral and an uncouth use of military force that potentially could (and historically has, in relatively small numbers) kill civilians as collateral damage, others argue that the collateral damage with drones pales in comparison to a boots-on-the-ground military attack. This same side would also argue that although you cannot fully know from a profile if a potential target is involved in terrorist activities, anyone who is in a geographic region with a known terrorist camp really could not be there for innocent purposes.[ii]
“Signature strikes have resulted in large numbers of bystander casualties in Pakistan and Yemen,” Jameel Jaffer, a deputy legal director for the American Civil Liberties Union, told Foreign Policy.[iii] One tragic blunder came on Dec. 12, 2013, when a U.S. drone flown by Joint Special Operations Command killed 12 Yemeni civilians in a single signature strike, leading the U.S. government to reportedly make about $1 million in condolence payments.[iv] Amnesty International, which examined 45 drone strikes in Pakistan between January 2012 and August 2013, reported that one signature strike killed 18 laborers and injured 22 others in July 2012.[v] Of course, this begs the question if the law allows for the use of drones.
Since 2011, there have been over 550 strikes in Libya, which amounts to more than the strikes ordered in Somalia, Yemen, or Pakistan.[vi] Libya remains one of the most targeted countries of U.S. drone strike attacks in the history of drone usage. If we were to examine the legal phenomena of drone strikes, Libya is a good place to start.
In analyzing the legality of drone use as a military tactic in Libya, the two jus in bello criteria must be applied. The first criteria to assess the legality of any act during war is discrimination, as codified in Article 52(2) of the 1977 Geneva Additional Protocol I,[vii] meaning that militaries must do their best to distinguish between legitimate and illegitimate targets. In this case, legitimate targets include anything actively engaged in harming, as to avoid the targeting of civilians, schools, religious centers, and hospitals. The second criteria is proportionality, as codified in Article 51(5)b of the 1977 Geneva Additional Protocol I,[viii] meaning that the force that a state uses must be proportional to the harm that they suffered or are expecting to suffer. In relation to the first criteria, drones are absolutely discriminate. They can loiter above their targets for hours to wait for the least amount of civilians. Additionally, the most used weapon utilized in a drone is a Hellfire missile, which has a reported “kill radius” of 50 feet and a “wounding radius” of 65 feet.[ix] The small blast radius of the Hellfire missile ensures more precision than a human attack. In relation to the second criteria, drones are also proportional, as the harm suffered by a terrorist who has yet to be captured or killed would be far worse than the harm caused by a drone strike. As both criteria of jus in bello are met, the drone strikes in Libya are unquestionably legal.
Although drones are legal under the scope of international law, the international community certainly does not cease to harshly criticize the United States for the use of drones bearing the collateral damage of civilians. In an attempt to restore the reputation of the United States, an effective step would be to narrow the scope of signature strikes. Instead of adhering to the Obama-era use of drones to target the profiles of suspects, perhaps this scope of narrowed to a more specific profile. Even more, perhaps the policy of drone strikes should revert back to the Bush-era use of drones to target specific people that are known to be members of AQ or the Taliban, in order to maximize the amount of discrimination that is being pursued, as required by jus in bello.
Although actions taken by the U.S. in the post-9/11 world order may have been strategically, ethically, and politically questionable, there is no doubt that they were legal as demonstrated through relevant international laws. This is not to say, however, that there is not work to be done to restore the stature of the U.S. in the international legal regime. Through reforming the methods in which drones are used, the U.S. can ensure its respectable reputation in international law.
[i] Zachary Cohen and Ryan Browne, “Trump Revokes Obama Order on Reporting Civilians Killed in US Airstrikes,” CABLE NEWS NETWORK, 6 Mar. 2019, www.cnn.com/2019/03/06/politics/trump-executive-order-revocation-terror-strike-civilian-deaths/index.html?utm_content=2019-03-07T00%3A45%3A11&utm_medium=social&utm_term=link&utm_source=fbCNNi&fbclid=IwAR1fWspqiB4lQVybkUj1gGLGv_-SKSEaX9ZLhHqi8Qwn6PWlC_7QLZdSF4g.
[ii] Daniel Byman, “Why Drones Work.” Foreign Affairs, FOREIGN AFFAIRS MAGAZINE, 15 Feb. 2019, www.foreignaffairs.com/articles/somalia/2013-06-11/why-drones-work.
[iii] Dan De Luce and Paul McLeary, “Obama’s Most Dangerous Drone Tactic Is Here to Stay.” Foreign Policy, Foreign Policy, 6 Apr. 2016, https://foreignpolicy.com/2016/04/05/obamas-most-dangerous-drone-tactic-is-here-to-stay/
[iv] Craig, Iona. “What Really Happened When a US Drone Hit a Yemeni Wedding Convoy?” AL JAZEERA AMERICA, 20 Jan. 2018, http://america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2014/1/17/what-really-happenedwhenausdronehitayemeniweddingconvoy.html
[v] Declan Walsh and Ihsanullah Tipu Mehsud, “Civilian Deaths in Drone Strikes Cited in Report,” THE NEW YORK TIMES, 22 Oct. 2013, www.nytimes.com/2013/10/22/world/asia/civilian-deaths-in-drone-strikes-cited-in-report.html.
[vi] Nick Turse, et al, “The U.S. Has Conducted 550 Drone Strikes in Libya Since 2011 – More Than in Somalia, Yemen, or Pakistan.” THE INTERCEPT, 20 June 2018, https://theintercept.com/2018/06/20/libya-us-drone-strikes/
[vii] “Protocols Additional to the Geneva Conventions of 12 August 1949.” INTERNATIONAL COMMITTEE OF THE RED CROSS, 30 Nov. 1993, https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf
[ix] Frédéric Ocqueteau, « Grégoire Chamayou, Théorie du drone », CHAMP PÉNAL, 07 Nov. 2013, http://journals.openedition.org/champpenal/8709