10 November 2010

Legality and morality of drone attacks

The use of armed drones in the conflict areas is not exactly new, as are arguments for and against the use of this weapon. Found to be quite effective in getting to the various terrorist chiefs and their lieutenants, drones and their use are questioned for the two chief legal reasons:

Legal Reason One. Is the extra-judicial execution of a person legal, even if there seems to be enough intelligence proving the person's terrorist activities? If you listen to US State Department legal advisor Harold Koh, the drone strikes are legal because of the right to self-defense. If you consider other voices, including these of some left-wing politicos and lawyers, the picture is strikingly different:

US Congressman Dennis Kucinich asserted that the United States was violating international law by carrying out strikes against a country that never attacked the United States.
Whatever you think of Kucinich and his free use of very vague term "international law", the argument sounds plausible: Pakistan as a country didn't attack the United States. And we didn't even mention the targeted person's entitlement to the due process of the law... and a new challenge, that of targeting terrorists who happen to be American citizens:
The Obama administration will on Monday try to persuade a U.S. judge to throw out a lawsuit challenging its program to capture or kill U.S. citizens who have joined militant groups like al Qaeda, including Muslim cleric Anwar al-Awlaki.

Legal Reason Two - "Collateral damage". According to some sources, for every militant killed in drone attacks, at least 10 civilians also die. According to other sources, ten civilians is an optimistic estimate.
Our number was 30. So, for example, Saddam Hussein. If you're gonna kill up to 29 people in a strike against Saddam Hussein, that's not a problem***.
The numbers are quite horrific, and on the face of it, use of drones is a dirty business, no matter how you look at it.

Morality. And, if it were not enough, some people say that Drone attacks may be legal, but are they moral? Of course, people who ask this question, already have a pretty good idea what they think about it. They also quote some "experts" who have their own ideas on what they consider "best practice" in the use of drones:
The UN’s Special Rapporteur thinks it involves specifying very clearly, in advance, whom you are going to target, as well as where, when, and why.
After you collect your jaw and related bits from the floor, please don't bother telling me what you think about the Rapporteur. I know, I know...

But, leaving the Rapporteur alone, one remains with uncomfortable feeling of ongoing deliberate breach of legal and moral norms, at least as established by enlightened Western civilization. On the face of it, the detractors of the drone usage raise legitimate questions, hardly answered by its practitioners and their supporters.

That is, as long as you agree with the picture of simple civilians, innocent until proven guilty in the court of law, peacefully living amongst innocent civilian population of their countries that are not in conflict with any other country for any reason. If you follow this line of thinking, pushed by various Rapporteurs all over the globe, you cannot:
  • Organize a military incursion with sufficient firepower to extract the suspect from the civilian population he is so tightly mixed with. Because the said incursion is a) illegal and b) will cause an uncounted number of victims in the surrounding civilian population.
  • Send in a few intelligence agents to capture and transport the suspect to a place, where the due process of law could be started, because it's surely illegal to do so. 
  • Send in a small team of trained soldiers to kill the suspect, because the due process of the law...
  • Send a warplane to drop a bomb on the suspects' house because the civilians surround....
  • Get a drone with a Hellfire missile, because... oh, we have been there already.
So, the only thing left to you is, apparently,  to send a process server with a letter of summons that will obviously be sufficient for any civic-minded Al Qaeda (or any other) operative to present himself at the designated place and time for the due process of the law. I guess that this process server should specify very clearly in advance, whom he/she is going to serve, as well as where, when, and why. To avoid the risk of possible heart attack or, deity forbid, a bout of indigestion.

OK, but after this display of sarcasm, what is it I really think about this - frankly, unthinkable and absurd -  situation? Clearly the West faces a conundrum, where all its efforts to combat terrorism will be soon hobbled by its own judiciary. As long as a terrorist is considered a civilian in the eyes of the law, any attempt to find a way to render him/her harmless will fail.

I am not a lawyer, but if a terrorist cannot be considered a soldier of an enemy's army, he cannot be considered a civilian as well. Being armed and murderous combatant, terrorist should be defined as a legitimate target for a military (or any other, for that matter) assault, exactly as in a war situation, with all consequences following - including the danger to innocent  bystanders, if the terrorist prefers to seek a shelter among them and receives such shelter.

It is imperative that the relevant legal minds take the finger out and build a necessary (and international recognized) foundation for the fight against terrorism, before legal beagles of ACLU, UN, HRW and other do-gooders close the last wall in their legal bunker of insanity.


(***) Regarding these numbers as they apply to Israel and its use of drones, one should remember that what is allowed to Jupiter is not allowed to the bull. The person quoted above re "Our number was 30", after becoming an expert for the "good guys" (HRW), sings a different tune:
Marc Garlasco, senior military analyst at the emergencies program of HRW, estimates that at least 87 civilians were killed in 42 drone attacks. “Israel’s targeting choices are unacceptable and unlawful,” he declared at a press conference...
So, the Israeli average of 2 bystanders is unacceptable, where 29 was kinda fine before...

Cross-posted on Yourish.com


Pisa said...

What does Kucinich mean by "carrying out strikes against a country that never attacked the United States"? I say that anyone giving shelter to my enemy is attacking me, and as we all know Pakistan is giving shelter to both the taliban and Al-Qaeda.

Regarding Marc omg-SS-is-cool Garlasco's tune, he is kind of right. Israel’s targeting choices are both unacceptable and unlawful - we're targeting smuggling tunnels, for Mohammed's (PBUH) sake! I mean, can you really and lawfully claim that a smuggling tunnel is your enemy?

Dvar Dea said...

<p><span>Good article, it touches on a wide list of issues international law haven’t developed yet:</span>
</p><p><span>How does the right of self defense applies when attacked by a non-state actor?</span>
</p><p><span>What are the legal responsibilities of a state from which aggressive and violent non-state actors operates?</span>
</p><p><span>What should be the position of the international law when countries like Yemen, or Pakistan, are unable to stop such a non-state actor?</span>
</p><p><span>What should be the position of the international law when countries like Yemen, or Pakistan, are unwilling to stop such a non-state actor?</span>
</p><p><span>And the moral challenge to us: suppose we get a set of international resolutions that make it very difficult for terrorists to hide in failed states, or region were the local government is ineffective. And then we get Burma and Iran demanding we should do the same against their rebels?</span>
</p><p><span><span> </span></span>
<span>There are no easy answers, and this is just a sample. The fact that the world worst human rights violators, and their apologists manipulate the current international laws, and the surrounding debate, makes this discussion near critically important. But it also runs the risk of hijacking whatever new concept will be developed and implementing them one-sidedly</span></p>

SnoopyTheGoon said...

I agree with you, Pisa, that the side that gives shelter to terrorists should be (at least) ignored when attacking the terrorists. The point is that the thing called "international law" say differently and there is no recourse in this law and no solution.

Yeah, and re the smuggling tunnels: I didtinctly remember one that looked at me in an unfriendly way :)

SnoopyTheGoon said...

Good questions all, DD - this is why the legal beagles have to work on it urgently.

To stat with: there is good enough definition of terrorism: targeting unarmed and innocent civilians for political reasons. Even this one cannot be agreed upon, so there is a lot of work to do.

Dick Stanley said...

Doesn't the IDF do this---kill Hamas leaders in Gaza---fairly regularly with F-16s? Aren't "innocent" civilians killed in these attacks? What's the legal, moral difference between using a piloted F-16 and a drone that's also piloted but by someone many miles away? Except that drones are vastly cheaper at accomplishing the same end. I must be missing something here.

SnoopyTheGoon said...

Nope, you didn't miss anything. Israel's use of any means, including F-16 and drones, is automatically considered unlawful.

Soon the CIA / Army use of drones will be declared unlawful too, if the current trend of "delegitimization" of drones doesn't stop. That's the main point.

David All said...

International Law is a meaningless expression when it comes to warfare. It may be a good source of propaganda, but not much else.
I doubt if that lawsuit in the Federal Courts about outlawing the killing of American citizens who have joined terrorist group will go much of anyplace. The Courts usually steer clear of ruling on anything that involves military operations.

The main question in using planes or drones to kill terrorists is whether or not such operations create more enemies on the ground primarily due to the civilians* being killed in the strikes then the terrorists who are killed in the same operations. A lot of times, civilian deaths are unavoidable because the terrorists are hiding among them. The responsibilty for civilian deaths in such situations belong solely on the terrorists and other combantants who hide among cvilians. Even so, caution has to be taken in killing as few civilians as possible in order to avoid creating new enemies who take up arms to avenge the deaths of loved ones. The use of planes and drones is a part of modern warfare, but should not be regarded as a cure all. The use of them on the territory of countries that are supposedly friendly like Pakistan and Yemen are extremely delicate, to put it mildly. The key questions for any operation using planes and drones should be: Is the target or targets important enough to justify killing civilians and what are the most civilan deaths that the operation can inflict without the civilian deaths outweighing the value of the destroyed target.

*The term the US military uses for civilians killed during a military operation, "collateral damage" is a horrible bloodless nausating euphamism that is truly Orwellian.       

SnoopyTheGoon said...

Caution has to be taken for sure, David. However, I think we'll easily agree that "specifying very clearly, in advance, whom you are going to target, as well as where, when, and why" is about 100% stupidity and 0% caution.

Pisa said...

David, I think the main issue here should indeed be the "collateral damage" - our "collateral damage". Not striking down terrorists will in no circumstances save civilian lives, it will only endanger and certainly damage more of the "collateral", as this is the terrorist's main goal. But then they will be our civilians. Not to mention that this would obviously be as likely to create enemies as the other option...this way we'll have rage-boy on our streets.

Dick Stanley said...

I agree with David. Declaring is always attention getting but will have little practical effect. Drones are here to stay.