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Unsound Criticism of the Legality of Drone Strikes at Foreign Policy

Wednesday, June 8, 2011 at 10:36 AM

Writing at Foreign Policy, Charli Carpenter and Lina Shaikhouni present a series of arguments challenging the legality of the U.S. use of lethal force–whether from drones or special forces–in Pakistan.  First there is this:

Military operations inside Pakistan do pose international legal problems, but it’s not because of the drones. It’s because the United States is technically not at war with Pakistan and because U.S. drone operations in Pakistan are being conducted by the CIA rather than the armed forces. The former violates the U.N. Charter; the latter arguably violates the rules on lawful combat in the Geneva Conventions. These dynamics create legal problems for U.S. military operations in Pakistan whether they are carried out by drones or by SEAL teams on the ground, as in the Abbottabad raid that killed Osama bin Laden.

The UN Charter claim is manifestly wrong with respect to at least some drone strikes, such as the recent attack directed at Ilyas Kashmiri, for the simple reason that Pakistan consents to them.  Beyond that, Carpenter and Shaikhouni fail to mention the argument that all of these operations other than the UBL operation have taken place in a region of Pakistan to which the writ of the Pakistani government does not run.  I think that argument is dispositive, but at a minimum it must be addressed and rebutted before one can breezily assert that the whole thing simply violates the UN Charter. 

As for the claim that CIA control over the drone program arguably violates the Geneva Conventions: let’s assume that what the authors mean to say is that CIA officers involved in drone strikes lack the combatant’s privilege.  As a threshold matter, there is considerable debate as to whether using lethal force without the privilege should be viewed as itself a violation of the laws of war (even if the target of the force otherwise is a legitimate military objective) or if instead it simply means that the person involved would lack this particular defense if chaged with a domestic law violation.  At least in earlier iterations of the military commission system, the US advanced the former view (as with Omar Khadr), and was *much* criticized for doing so.  I wonder if Carpenter and Shaikhouni really mean to endorse that perspective.  In any event, there is then the separate question of whether it is accurate to say that CIA agents necessarily lack the privilege when involved in the use of lethal force.  Let’s assume for the sake of argument that we are dealing with a circumstance in which the privilege would attach to these actions if conducted by, say, the US Air Force.  The question whether CIA agents might claim the privilege as well arguably turns on whether CIA drone operations satisfy the so-called four conditions of lawful belligerency (spellled out, for purposes of POW status determinations, in Article 4 of the Third Geneva Convention but also found in the Hague Regulations).  If that’s right, how do those conditions map on to the CIA drone scenario?  It’s not obvious that the CIA would fail this analysis; indeed, a strong argument can be made that these operations take place subject to a command structure, that they involve the open display of arms (the drones themselves, of course); and that they are conducted in accordance with the laws of war. The interesting question, I suppose, is how to address the requirement of having a fixed insignia recognizable at a distance.  How does one assess that criterion when it comes to a remote-controlled weapons platform, where the drone itself is certainly distinguished while there is literally no chance of anyone actually seeing the remote operator himself (who may, in any event, actually be wearing some type of distinctive sign)?

But set all that aside.  Carpenter and Shaikhouni then suggest that all of this is, ultimately, irrelevant, for in their view all of these operations may be unlawful as “summary execution[s] of suspected criminals”:

[t]he real issue is not drones, but the summary execution of suspected criminals without evidence or trial, in complete secrecy, at perhaps an unacceptable cost to innocent lives. Whether this is happening with or without the consent of the Pakistani or Yemeni government is irrelevant. Whether it is being conducted by the CIA or by the U.S. military is irrelevant. Whether it is occurring with remotely piloted drones, manned aircraft, special operations forces, or death squads is irrelevant. What matters is whether extrajudicial execution is or is not the best way to protect citizens against terrorist attacks.

This view appears to depend on the notion that the use of force by the United States in Pakistan is not linked sufficiently to any armed conflict so as to warrant application of an IHL rubric. It also suggests a categorical rejection of the legality of using lethal force in national self-defense on a more isolated basis, as in the Clinton Administration’s missile strikes againt al Qaeda targets in 1998 after the East African Embassy Bombings.   I don’t agree with either of those implied positions.  [UPDATE: A reader points out that the authors empahsize that the use of "summary execution" ultimately presents a normative question as to whether we ought to employ that method, and thus the question arises whether I am characterizing them accurately in suggesting that their position entails a view on the question of legality.  It's a fair question to raise, and on reflection I think that the authors are not clear on the point.  Certainly they do mean to put the normative question in play, but in doing so they do seem to proceed from the assumption that these uses of force are illegal.  Or at least that's how it seems to me when I see the language "summary execution of suspected criminals without evidence or trial."]

There are in fact many important and difficult legal issues associated with drone strikes and other uses of lethal force away from conventional battlefields, including hard questions about what levels of violence and organization suffice to give rise to armed conflict, what types of relationships suffice to link individuals to organizations in ways that may open the door to the lawful use of lethal force, how to calibrate an unable/unwilling standard for overriding sovereignty objections, and the relevance and nature of necessity and imminence considerations.  These should be the focus of the debate going forward.