Drone Attacks and International Law

To drone (as in launching unamanned aerial attacks on suspected terrorists, or, sometimes on areas where suspected terrorists are suspected to be); or not to drone?

That is, so far, NOT the question being asked by the Obama administration, the military or most of the Beltway media mavens.

As Wired News points out, “With a wink and a nod from Pakistan, the US government has been carrying on a clandestine drone war over Pakistan for nearly two years. Now the question is whether those operations may expand to include drone strikes to the southern province of Baluchistan, where the Taliban’s Quetta Shura maintains a leadership base.”

Today, as the administration according to news reports, debates the military and political merits of escalation of drone attacks against suspected Taliban enclaves, what’s also not being asked nearly enough is what the moral and legal implications of conducting a covert war on terror by remote control.

Although the conventional wisdom is that drone strikes are a surgically clean, acceptable tactic of counter-terror with minimal “collateral damage”, the reality is quite other-wise, Max Kantar, a human rights investigator and activist, writes, in an important paper titled International Law: The First Casualty of the Drone War.

“The United States,” Kantar argues, citing ‘relevant and uncontroversial legal precedents established by the International Criminal Court”, is “in violation of international law on several counts in regards to its bombings of Pakistan.” Kantar writes:

For nearly four years, the United States has been using unmanned aerial vehicles, also known as “drones,” to repeatedly bomb targets in Pakistan.[1] The drone strikes, operated primarily by the CIA, are reportedly launched with the intention of killing top al-Qaeda and Taliban leaders and holding the Pakistani government accountable. Since the Obama administration has taken office, the U.S. campaign of drone strikes in Pakistan has markedly intensified, consistent with the trends established in the final eight months President Bush’s second term. Although the bombings of Pakistan fall into a much broader strategic U.S. policy in the region, it is the purpose of this analysis to focus solely on the legal implications and human costs of the drone strikes in Pakistan.

First I will review the existing reports entailing the legal status—combatant or noncombatant—of those killed in U.S. attacks. Secondly, I will provide a brief and basic overview of the laws of war and their immediate applicability regarding the protection of civilians and noncombatants in international armed conflicts in accordance with the Geneva Conventions of 1949, the Additional Protocols of 1977, and customary international law. Third, I will examine several case studies of various U.S. drone attacks in Pakistan in order to determine whether or not international law is being observed by United States. Fourth, I will briefly evaluate the fundamental legal credibility underlying the attacks using both the existing analyses provided by legal scholars and rights groups and well-established principles of law rooted in the Fourth Geneva Convention and the International Covenant on Civil and Political Rights. Fifth, using the available body of documentary evidence compiled by independent journalists, human rights groups, strategic analysts, media reports, and legal experts, as well as taking into consideration the basic tenets of international law in the context of the U.S. attacks, I will juxtapose the substance of U.S. actions with fundamental American legal standards with the purpose of establishing an appropriate technical classification for the United States’ drone policy in Pakistan. Lastly, I will conclude this analysis with a few final remarks addressing unanswered questions while also making some basic recommendations.

Phil Leggiere is a journalist who has published widely in national and trade publications including Wired, Salon, TimeOut NY, Bill of Rights Defense Committee blog and many others.