Clashing over Drones (PhÜD)
Daniel R. Brunstetter & Arturo Jimenez-Bacardi: Clashing over drones: the legal and normative gap between the United States and the human rights community, The International Journal of Human Rights, 19:2, 176-198 DOI: 10.1080/13642987.2014.991214
The use of drones to combat Al-Qaeda and its afﬁliates impacts the respect of human rights of perceived enemies and the civilian population in the areas in which they operate and reside. The former have de facto become subject to lethal force outside the traditional battleﬁeld, which marks a major shift – problematic for some – in international humanitarian law (IHL). The latter are, by consequence, forced to live under the ubiquitous threat of drone strikes which, while legally permissible in a state of war (assuming civilians are not directly targeted), places these civilians under signiﬁcant duress that some argue raises serious challenges for respecting human rights under international human rights law (IHRL). While both IHL and IHRL aim at respecting some level of human rights, they form the basis of two very different narratives – that of the US government and that of the human rights community (HRC) – regarding the legitimacy of drone use.
Three frames of legitimation
As an ideal type, the strategic frame is guided by utility-maximisation. An actor rationalises his or her actions based on what is perceived to yield the highest probability of success – i.e. maximising security – regardless of legal or moral considerations. In the international realm, this frame is often associated with the realist paradigm, whereby a state will take whatever actions necessary to ensure its security. States usually have to frame their actions at least in part on strategic grounds because a government needs to signal to its population that it is doing everything in its power to guarantee the security of its citizens and ensure maximum protection of its soldiers.9 The HRC, on the other hand, minimises the salience of the strategic frame because its cardinal preference – maximising human rights for everyone – is undermined if the security concerns of one party are allowed to dominate.
On the ground, however, states sometimes ﬁnd that security concerns conﬂict with their international legal obligations, including respect of human rights. Reliance on a purely strategic frame tends to suppress human rights because if states can do whatever they need to preserve their security, then they can violate the sovereignty of other states and kill the civilians residing there whenever this is deemed necessary. However, in a world where international law imposes some checks on state behaviour (even if ultimately unenforceable), states suffer costs – in reputation and perhaps security – if they openly and frequently transgress international law. As we will explore in depth below, the US has taken a permissive view of self-defence to use drones to kill suspected militants and/or deny safe havens for terrorist groups outside of deﬁned warzones. This has been perceived as a violation of state sovereignty and has led to civilian casualties. In light of this, the US, left with a choice between either abandoning a controversial military tactic, or trying to legitimise its actions using legal and/or normative frames, opted for the latter.
The legalistic frame attempts to legitimise an actor’s preferences and actions based on a supposedly objective assessment of the facts interpreted through the lens of applicable international laws, regardless of strategic or normative concerns. International law is designed to protect the human rights of all people in the world, both in times of peace and in times of war. As with any legal structure, the applicability and interpretation of the law is contestable – especially concerning customary international law – though actors rarely admit this. Instead, when actors justify their preferences in a legalistic frame, they present it as an objective reﬂection of agreed upon norms. Both the US and the HRC turn to international law to justify preferences. Citing international law provides a sense of global legitimacy – either by afﬁrming that state actions are in conformity with recognised behavioural norms (i.e. nonaggressive behaviour) or in exerting pressure on states to conform to such norms.11 Regarding drones, the challenge lies in discerning which paradigm of international law is most appropriate to targeted killings. The US government has claimed, since the ﬁrst drone strike in 2002 outside of the Afghanistan warzone, that it is at war with al-Qaeda, meaning IHL should be the legal regime governing the conﬂict. The key IHL documents in this context include the 1899 and 1907 Hague Conventions; the 1949 Geneva Conventions; and the 1977 Additional Protocols I and II to the Geneva Conventions, which the US has not ratiﬁed, although several of its provisions have become part of customary law. The HRC, on the other hand, emphasises that US targeted killings are taking place outside a declared zone of war, meaning that IHRL should be the governing framework. The key international human rights legal documents here include the 1947 Universal Declaration of Human Rights, where several of its provisions have attained a customary character; the 1966 International Covenant on Civil and Political Rights; the 1966 International Covenant on Economic, Social and Cultural Rights; and the 1989 Convention on the Rights of the Child. Depending on which framework is used, the required level of respect for human rights is different. During war, IHL applies against combatants of the adversary’s forces, while in a state of conﬂict short of war or not reaching a high level of violence, the constraints of law enforcement and IHRL shape the extent to which a state can use lethal force against a suspected criminal. The distinction is important because the level of respect of human rights required in a situation of law enforcement is much greater than what is required in the context of war. By claiming the US is at war, the government can suppress, to a certain extent, the human rights of suspected terrorists and the civilians living around them, in so far as operations that increase the risk of civilian harm become more permissive. This means that the enemy can be killed without being afforded the chance to surrender or being brought to trial. Furthermore, civilian death can, under certain circumstances, be permissible. Contrast this with the law enforcement paradigm where the right to life and trial by jury are paramount, and the justiﬁcation for the use of force is severely curtailed in order to limit civilian casualties, including those who are presumed suspects.
In the normative frame, actors seek to justify their preferences based on their identity as members of a larger community organised under an agreed understanding of what is true, reasonable, natural, just, and good.12 While the law provides strong guidance, often there are legal ambiguities, conﬂicting laws or a genuine lacuna in the legal structure. In addition, actors may disagree with the law or ﬁnd it obsolete given changing conditions in the international arena. To justify a preference or action that is legally disputed, a normative frame can be used that emphasises a larger set of meta-norms with the hope that controversial actions will be perceived as morally right despite legal ambiguities.13 Concerning targeted killings, for example, the US has begun to justify its policy by using principles of just war theory as its normative frame to respond to critics who say drones are wantonly killing civilians.
The turn to just war rhetoric has important human rights implications. On the one hand, incorporating just war principles restricts targeting practices (thus protecting human rights compared to the strategic paradigm). This bows to the criticisms of the HRC, who have vehemently criticised the targeting practices of the US government. On the other hand, just war rhetoric provides moral gloss that portrays drone strikes as being governed by universal principles, implicitly reinforcing the legal paradigm of war as the legitimate framework (thus diminishing human rights compared to the law enforcement paradigm). As we will argue below, appealing to just war principles as part of a rhetorical strategy paints human rights groups into a corner by using the goal of maximising protection of human rights in a time of war as a rhetorical frame to disarm criticism. Taking advantage of the legal ambiguities, the US can claim it is doing everything morally required to assure civilians are not harmed, while afﬁrming the right to use such lethal force to achieve strategic goals.19 The HRC’s response has been to challenge the US understanding of both the jus ad bellum and especially, the jus in bello principles, and focus on the negative impact constant drone use has on the right to life norm.