RETHINKING SECURITY

This post below is from Zachary P. Novetsky. Zach has a legal background and wants to share his take on evolving legal codes and norms about unmanned weapons, non-state actors, and the use of force. Disclaimer: all guest posts do not necessarily reflect my opinion and are offered for commentary, analysis, and education.

The public debate about drones that we apparently are not having reared its ugly head once again with P.W. Singer’s article, “Do Drones Undermine Democracy?”. Joshua Foust and Dan Trombly, among others, addressed most of the article’s shortcomings, but the underlying question Singer poses allows for an opportunity to revisit the legal questions surrounding the use of drones. If drones undermine our sense of democracy, as Singer’s article no doubt suggests, then their use must be extra-legal (and Singer comes close to speaking in legal terms when he says UAVs are “a technology that our founding fathers never could have imagined”). (Our founding fathers did not ‘imagine’ airplanes either, but Singer, I suspect, would not advocate against our flying in them.) With that introduction, I hope that people who frequent Adam’s blog for his unique insight on strategy will stick around for this introduction to the legal debate on the use of drones, if only because it impacts questions of strategy as well.

 The debate about the legality of drone strikes occurs almost exclusively in the context of targeted killings (or ‘assassinations,’ as the human rights community likes to refer to them). For example, Mary Ellen O’Connell, one of the most prominent and vocal critics of our drone campaign, recognizes that drones are lawful battlefield weapons (in Afghanistan, for example). O’Connell, however, considers most of our drone strikes (that is, all those outside of Afghanistan) to be outside the immediate zone of armed conflict. Thus, in her opinion, US drone strikes in Pakistan or Yemen are categorically illegal and, for all intents and purposes, amount to murder. While O’Connell’s position enjoys broad support – near, if not total, consensus – in the international community, it is worth considering when drone strikes are legal. Kenneth Anderson, though not his own position, provides us with four conditions that the international community considers necessary for a lawful drone strike (but, as I will later argue, the fourth condition is questionable)

1.     It [must] take place in an armed conflict; 

2.     The armed conflict is an act of self-defense within the meaning of the UN Charter, and…

3.     It is also an armed conflict within the meaning of IHL [i.e. international humanitarian law]; and finally, 

4.     Even if it is an armed conflict under IHL, the circumstances must not permit application of international human rights law [“IHRL”], which would require an attempt to arrest rather than targeting to kill.

Finally, the fourth condition Anderson mentions, that, pursuant to the rules of IHRL, an attempt to arrest must be made prior to the targeted killing is by no means clear (see the debate between Kevin Jon Heller and Jens David Ohlin in the comments here).

Under the Authorization for Use of Military Force (AUMF) of September 18, 2001, the President of the United States is authorized by Congress to send troops to “use all necessary and appropriate force against those nations, organization, or person he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or person.” With such sweeping language, US law can be and has been read to authorize fighting not only against AQ and the Taliban in Afghanistan but any AQ associated movements (AQAM) wherever they may be found, whether Yemen, Somalia, or even, for that matter, the US.

But US domestic law only goes so far in the internationalized legal world. The conflict must also be recognized as an armed conflict under IHL. Because the US is at war with a NSA (i.e. AQAM), not a State, the conflict may only be characterized as a non-international armed conflict (NIAC). To be in a legally recognizable NIAC, however, requires certain factors and characteristics. As a recent Note by Laurie Blank and Benjamin Farley in the Fordham International Law Journal (on which, I am a staff member) recently pointed out: [T]he response of the state is a critical component, in particular whether it employs its regular armed forces in combating the [NSA] and whether it has recognized the [NSA] as a belligerent.

In addition, “the intensity of the conflict and the organization of the parties to the conflict” have proven particularly important in classifying the situation as a NIAC, in order to distinguish it from ordinary internal disturbances, such as riots, or other isolated and sporadic acts of violence. A NSA may be considered sufficiently organized if, inter alia, it has a “hierarchical structure; territorial control and administration; the ability to recruit and train combatants; [or] the ability to launch operations using military tactics.” But according to Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, the US would have a hard time justifying that it is in a NIAC, “without further explanation of how [AQAM] constitute a ‘party’ [because of the ‘loose links’ between AQAM] … and whether and how any violence by any such group rises to the level necessary for an armed conflict to exist.” Contrary to Alston, however, many commentators (see e.g. here and here) have interpreted the US Supreme Court’s decision in Hamdan to mean that the US war with AQAM is in fact a global NIAC.

Similarly, Blank and Farley conclude:

In light of the seriousness of the attacks the United States has launched and continues to launch against the [Tehrik-e-Taliban Pakistan, or TTP]; the attacks launched by the TTP against NATO forces and US targets;  the distribution of the attacks across broad swaths of Pakistan; the increasing frequency of US drone strikes;  and the armaments employed, the violence between the United States and the TTP exceeds that associated with riots and banditry and likely rises to the level   requisite for a [NIAC].

All of the above hinges on whether the armed conflict, itself, is an act of self-defense as defined by the UN Charter. Accordingly, self-defense can only be triggered by an ‘armed attack’, which the International Court of Justice (in at least five separate opinions) says must be attributable to a State. This restrictive, and almost certainly incorrect reading of the Charter, essentially precludes a State from responding with force to a terrorist attack by a NSA. (Alston: “[I]t will only be in very rare circumstances that a [NSA] whose activities do not engage the responsibility of any State will be able to conduct

The kind of armed attack that would give rise to the right to use extraterritorial force.”) For example, when the ICJ considered the legal basis for the construction of Israel’s security barrier as a means of self-defense against Palestinian terrorism, it disposed of the issue in a single paragraph: “[T]he Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State [Emphasis mine]. However, Israel does not claim that the attacks against it are imputable to a foreign state … Consequently, the Court concludes that [self-defense is not relevant] in this case.” Despite this, Jordan Paust, citing to an impressive number of sources, observes that “the vast majority of writers agree that an armed attack by a [NSA] on a state … can trigger the right of self-defense addressed in the [UN Charter], even if selective responsive force directed against a [NSA] occurs within a foreign country.” Given the scale of 9/11 – a terrorist attack with more casualties than even Pearl Harbor - a state of armed conflict most definitely arose between the US and AQ.

Finally, Anderson’s fourth condition that, pursuant to the rules of IHRL, an attempt to arrest must be made prior to the targeted killing is by no means clear (see the debate between Kevin Jon Heller and Jens David Ohlin in the comments here). The interplay between IHL and IHRL remains contested terrain. (Marko Milanovic, an expert on international law, calls it a “norm conflict” i.e. a possibly unrecognizable tension between these two legal regimes in certain instances.) While the Israeli Supreme Court in Targeted Killings upheld the capture-before-killing norm, it is important to remember the context:

When one adversary possesses overwhelming strategic and tactical superiority; in the context of an occupation, especially a prolonged one; during a limited  insurgency or non-international armed conflict; in situations, in other words, which lend themselves more easily to non-lethal approaches, the imposition of an IHRL necessity requirement becomes more and more attractive.

However, for the US drone campaign, which is taking place in locations where there is no occupation (e.g. Yemen, Pakistan – despite Robert Pape’s assertion to the contrary), and where non-lethal tactics are not easily employed, to say the least, the applicability of IHRL to the US in its drone campaign – specifically, the capture-before-killing norm – should not be so easily conceded. If our targeting complies with IHL which permits that “a combatant or a civilian taking a direct part in hostilities can be attacked at any time while the status persists, so long as the individual is not hors de combat, e.g. surrenders or is incapacitated,” then the hands-tying regime of IHRL should not be triggered in the context of targeted killing. Even Alston concedes this point:

Targeted killing is only lawful when the target is a “combatant” or “fighter” or, in the case of a  civilian, only for such time as the person “directly participates in hostilities.” In addition, the killing must be militarily necessary,   the use of force must be         proportionate so that any anticipated military  advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians.

Finally, it is worth pointing out, as the eminent international law scholar Sean D. Murphy does, that “to the extent that the government of Pakistan has consented to U.S. cross-border military operations from Afghanistan into Pakistan, that consent obviates any question about the legality of those operations under international law.” In other words, the legality of our drone campaign in Pakistan (or elsewhere) can be based on the consent of Pakistan (or the representativegovernment). While not much is known about the specifics of our drone campaign in Yemen, some reports suggest that the government of Yemen is taking at least a share of the responsibility for the killing of al-Awlaki. Hakim al-Masmari, editor-in-chief of the Yemeni Post, told Al Jazeera, “The Yemeni government will face a lot of criticism, especially in the south, for allowing US drones to attack Yemeni civilians [Emphasis Mine].”

While a conclusion on the legality of drone strikes, generally, is difficult and context dependent, many reasonable arguments have been made suggesting that our drone campaign is not inherently violative of the four categories Anderson proposed. I have tried to touch on the fundamental legal issues involving drones and targeted killing. As with all things legal, many more issues exist – e.g. whether the CIA, as a civilian agency, can assume the tasks traditionally reserved for the military or whether our drone campaign satisfies the requirements of necessity and proportionality, to name but two – that I hope to address in a future post.

For those interested, Milanovic summarizes the Israeli Supreme Court’s opinion in Targeted Killings on when such a tactic is lawful:

1. The state must possess well-based, thoroughly verified information regarding the identity and activity of the civilian who is allegedly taking part in the hostilities; the burden of proof on the state is heavy.

2. A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. Thus, if a terrorist taking a direct part in hostilities can be arrested, interrogated, and tried, those are the means which should be employed. In the words of the Court, “Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”

3. If a civilian is indeed attacked, a thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack, and in appropriate cases compensation must be paid for harm done to innocent civilians.

4. Finally, combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage directly anticipated from harming the combatants and terrorists.)