As the use of armed, unmanned drone strikes by the United States has expanded in the mountainous tribal region of Pakistan, the intensity of the criticism has increased as well.
This month, Philip Alston, the United Nations’ rapporteur for extra-judicial killings, issued a critical report to the U.N. Human Rights Council in which he warns that targeting of individuals not directly involved in hostilities and the use of these strikes outside of active combat zones, such as in Pakistan and Yemen, could give rise to allegations of war crimes.
Alston said that the international community is in the dark on what criteria and safeguards the U.S. uses in the selection of its targets, and what kind of investigation follows its attacks. He questions the legal justifications for attacks that result in civilian casualties.
Months back, in March, Harold Koh, former dean of the Yale Law School and now legal adviser for the State Department, provided such justification:
• The U.S. is engaged in armed conflict with al-Qaeda and hence selecting and killing these targets is permissible under the law of war; and
• The U.S., as every other nation, has an inherent right to self defense under international law and the U.N. Charter.
The U.N. report questions this logic: How is targeting drug lords in Afghanistan who are suspected of financing the Taliban justified, it asks?
President Obama’s administration relies more on unmanned aircraft to kill militants than his predecessor, George W. Bush, and British forces have been following the U.S. practice since June 2008. Launched from a base in Kandahar, the British drones are controlled remotely by their operators, who sit in front of computer screens thousands of miles away, at Creech Air Force Base in Nevada.
Drone attacks have indeed been very effective in targeting and killing high-ranking terrorists, senior members of both al-Qaeda and the Taliban. Since January 2009, the number of those killed is reportedly more than 500, but perhaps 20 percent of them were civilians. Most recently, Mustafa Abu al-Yazid — al-Qaeda’s No. 3 leader, one of Osama bin Laden’s top lieutenants in Afghanistan — was killed in Pakistan.
Notwithstanding their success in killing “high-value targets,” armed drones cause civilian casualties and destruction of infrastructure, which further alienates the population and stirs up deep hatred and hostilities.
Under the laws of war, it has never been legal to kill persons not involved in hostilities or to attack targets in non-combat zones. Has the “war on terror” — with the rise of non-state actors in waging war, and the advent of new technologies, such as remote-controlled killing — changed the landscape?
The U.N. report appropriately calls for states to publicly disclose the criteria and safeguards they employ. In it, Alston recommends that instead of the CIA, the regular armed services should handle these strikes, to ensure accountability over the attacks. CIA spokespersons rejected the charge that the agency lacks accountability.
The laws of war, which were traditionally aimed at regulating state conduct, are undoubtedly murky, given the rise of unconventional warfare by non-state actors such as al-Qaeda. And new technologies have further compounded the problem.
That states must comply with international human rights law and international humanitarian law — the laws of war — is beyond question. But the law of self-defense is subject to varying interpretations. Nor is there consensus as to what is necessary and proportional in the use of force. So it is appropriate that several U.S. commanders are calling for restraints on the use of drones. And it is imperative now that the more than 40 nations with drone capability agree on a system of laws to strictly regulate them.
Ved P. Nanda (vnanda@law.du.edu) is Evans University Professor and director of International Legal Studies at the University of Denver. .
