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. The HRC (i.e. the Human Rights Community), 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.
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. 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. 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.
Drones and the US government's strategic-legal frame
The exchange between Amnesty International and the Bush administration captures the legal contest over the ambiguity that came to characterise the drone debate: human rights groups argued that targeted killings violate IHRL, including the most important human right of all, the right to life, while US ofﬁcials argued that such killings were legitimate under IHL, and thus not a violation of human rights because killing combatants in war is permitted. In each legal frame, human rights has a place, but with very different repercussions for those being targeted and the civilians around them. While the HRC position placed a premium on the right to life (even of suspected militants), and a fair trial, the US government’s position was driven by a strong strategic element.
The strategic frame was expressed by deed, as rhetorical rationales were not articulated. Following the 2002 strike, the US began operating under the cloak of plausible deniability by refraining from publicly acknowledging suspected drone operations so that Washington, and potentially its allies, could deny US involvement. This stance persisted through the rest of the Bush administration’s tenure in the White House and through most of Obama’s ﬁrst term. Because the US did not acknowledge alleged strikes, it therefore did not need to publically offer legal or normative justiﬁcations. This allowed the administration to pursue strategic directives, such as targeting terrorist threats and denying safe havens, and ignore the concerns and critiques of the HRC.
The choice of legal frames – that of IHL – conformed to the strategic concerns of the US. The problem, however, was that in pursuing the use of force under the more permissive rules of IHL (compared to IHRL), the US expanded the drone programme in such a way that made the strategic-legal frame unsustainable. Between 2002 and 2007, drones were a small part of the ‘global war on terror’, never exceeding more than four lethal strikes per year outside of Iraq and Afghanistan. However, beginning in 2008, their use skyrocketed. According to the New America Foundation, there were 36 strikes in Pakistan in 2008, 54 strikes in 2009 and 122 strikes in 2010. Had drones remained a very limited tool with only a few strikes per year, the human rights impact would have been much smaller. But with more frequent strikes, the stance of plausible deniability became untenable because reports of signiﬁcant civilian casualties mobilised the HRC to put pressure on the US.
Given that the US was silent on drones, the HRC was able to control the discourse. Through its campaign criticising US lethal drone strikes and its emphasis on the need to take IHRL seriously, the HRC backed the US into a rhetorical corner, as it were, and began to delegitimise its actions. This, in turn, forced the US to begin a public campaign to counter the HRC narrative on drones.
There are signiﬁcant human rights implications that emerge as a consequence of accepting preventive self-defence as a strategic and legal norm for both those deemed combatants as well as non-combatants. In claiming the legal right to wage preventive war against terrorists groups, the US assumes a wider latitude to use lethal force compared to criminal law enforcement. And while the laws of war specify minimum human rights, these are, as David Luban notes, ‘far less robust than rights in peacetime’. Luban goes on to argue that such a view ‘depresses human rights from their peacetime standard to the war-time standard’.
Regarding perceived combatants, applying IHL allows for a very wide target list, one that might include top leaders, low-level militants, and perhaps civilians aiding combatants in various ways. The initial use of drones focused on key leaders to decapitate the chain of command; as the ﬁght progressed, the strategy evolved to deny safe havens, which increased the target list to include potentially anyone associated with or inspired by alQaeda. At the peak of the strategic-legal phase of the drone campaign in Pakistan in 2010, there was a drone strike every three days on average, pursuing a wide range of targets. Even within the IHL paradigm, this vision of the global battleﬁeld posed multiple human rights concerns.
A major concern, of course, is that of identifying who is an actual member of al-Qaeda. Killing people whose identity is uncertain can be a violation even under IHL. Several reputable news agencies published stories on the convoluted ‘Kill List’ protocol employed by the Obama administration, and the way it identiﬁed non-combatants as any man of military age. Regarding non-combatants, an increased number of strikes and a wider range of targets augments the probability of greater civilian deaths due to error or over-aggressive targeting.
But more generally, the application of IHL places civilian populations where terrorists reside under the legal regimes governing war. The protection of human rights in such a context permits more collateral damage compared to a zone of peace where law-enforcement is used, thus subjecting civilians’ human rights to the strategic calculations of the US. This shift has led to what some scholars have called ‘risk transfer’, or relying on technology to decrease the risk to US soldiers and transferring that risk to non-combatants during conﬂict. By prioritising the lives of its soldiers, the US effectively increased the potential harm to non-combatants who might be in the vicinity of drone strikes (although sending in a team to capture a suspected individual may also pose risks).
Drones and the US government's legal-normative frame
The speech that set the tone for the legal-normative frame was given by John Brennan, who was deputy National Security Adviser and Obama’s primary counsellor on counterterrorism, on April 2012 at the Wilson Center. The context for the speech was a discussion of the Obama administration’s counter-terrorism strategy, and in particular, its ‘ethics and efﬁcacy’ which had been the subject of both domestic and international concern given the everincreasing controversy surrounding drone use. Brennan’s speech sought to deﬁne drone use as legal (the IHL frame), ethical (the just war frame) and wise (the strategic frame). While the legal and strategic frames remained the same, the major novelty in his speech was the incorporation of just war language into the government’s rhetoric.
Departing from the strategiclegal view that the US does not have to try to capture terrorists because they can simply be targeted as enemy combatants in a war, Brennan argues that ‘our unqualiﬁed preference is to only undertake lethal force when we believe that capturing the individual is not feasible... It is our preference to capture suspected terrorists whenever and wherever feasible’. This claim sought to counter accusations that the US was killing anyone at will by suggesting drone strikes must adhere to the jus ad bellum principle of last resort. This means every reasonable alternative must be explored before resorting to a lethal strike. Following such a view preserves, in theory, two principles key to upholding human rights, the right to life and to a fair and public trial.
Adhering to last resort would thus mark a more restrained view of the use of lethal force compared to the strategic-legal framing discussed above. Yet, Brennan admitted that opportunities for capture are rare, and that at times, drone strikes become a military necessity in the war against al-Qaeda. As he explains in the question and answer session: ‘But if it’s not feasible, either because it’s too risky from the standpoint of forces or the government doesn’t have the will or the ability to do it, then we make a determination whether or not the signiﬁcance of the threat that the person poses requires us to take action, so that we’re able to mitigate the threat that they pose’. In such instances, Brennan claimed that the US is adhering to the jus in bello principles, which are incorporated into IHL, to protect the human rights of civilians. Brennan makes explicit reference to the jus in bello
- principle of necessity, the requirement that the target have deﬁnite military value … the principle of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted … [and] the principle of proportionality, the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage.
In essence, Brennan explained that the US was taking core IHL principles and imbuing them with greater moral restraint somehow implicit in just war theory. The new rhetoric marked a stark shift from a strategic-legal to a legal-normative frame to legitimise drone strikes. Under the former, the administration was able to strike widely, without having to publically take responsibility. The legal constraints contained in IHL – such as distinction and proportionality – were interpreted in such a way to ensure mission success, leaving respect for human rights prey to the strategic necessities of the war on terror. Thus, one could err on the side of uncertainty when pursuing suspected militants by targeting them even if there was doubt about their identity or whether civilians might be unduly harmed.
Drones and the human rights community
First, the HRC rejects the IHL-centric framework guiding US drone strikes. The HRC emphasises that context (whether the strike is carried out within an armed conﬂict, or outside of an armed conﬂict) is key for assessing which legal structure (IHL or IHRL) applies. As Philip Alston explains in a 2010 report commissioned by the Ofﬁce of the United Nations High Commission for Human Rights: ‘In the legitimate struggle against terrorism, too many criminal acts have been re-characterized so as to justify addressing them within the framework of the law of armed conﬂict’. According to the HRC, the US has failed to provide enough evidence to clearly indicate that, outside of the warzones in Iraq and Afghanistan, drone strikes against al-Qaeda, the Taliban, and ‘afﬁliated forces’ such as Yemen’s al-Qaeda in the Arabian Peninsula, and Somalia’s al-Shabab, should be governed by IHL. A 2013 Amnesty International report describes this challenge when reporting the death of an elderly woman in Pakistan:
- If the drone attack took place as part of an armed conﬂict, then international humanitarian law would apply alongside international human rights law. Under international humanitarian law, not all civilian deaths that occur as a result of armed attacks are unlawful … If the attack took place outside an actual situation of armed conﬂict, then only international human rights law would apply to this case, rather than the more permissive rules of international humanitarian
law. The law enforcement standards that uphold the right to life prohibit the use of intentional lethal force except when strictly unavoidable to protect life.
Ultimately however, for the HRC, the default legal paradigm is that of IHRL:
- The most immediate protection for the right to life is provided by the international human rights law framework. This is the default legal regime from which deviations are permissible only when, and for as long as, those who justify the more permissive use of force under international humanitarian law can show that the requisite conditions have been fulﬁlled.
The main problem with the US position is that it has failed to show that al-Qaeda, the Taliban and ‘afﬁliated forces’ constitute a centralised and organised ‘party’ under the laws of war, or that their violent acts reach the quantity and severity thresholds to be declared an armed conﬂict.
jus ad bellum?
Rather, the HRC falls back on the level of force permitted in IHRL, purporting the view that ‘outside of actual armed conﬂict, lethal force may only be used when strictly unavoidable to protect against an imminent threat to life’. In terms of the principles of distinction and military necessity, the HRC defers to the position outlined in the ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, adopted by the International Committee of the Red Cross (ICRC). Claiming the US is in a conﬂict with organised non-state armed groups, the HRC asserts that the laws of a non-international armed conﬂict should apply.
Under such a legal framework, there are no ‘combatants’, only civilians who ‘directly participate in hostilities’ . Drone strikes are thus legal when carried out against these individuals, but who these legitimate targets are is contested. This position contrasts directly with the IHL-centric legal paradigm espoused by the US in that it challenges what constitutes ‘membership’ in an organised armed group, what establishes ‘direct participation’ in hostilities, and how long direct participation – i.e. continuing threat – lasts. In contrast to the broad targeting principles that could be justiﬁed under IHL, the HRC offers a more restrictive rendering of who constitutes a legitimate target by claimingthat individuals who indirectly assist a non-state armed group’s war effort through ﬁnancing, recruitment, training, propaganda, political advocacy, capacity building (including the production of weapons), or by providing food and shelter, are not legitimate targets for attack. Targeting these individuals cannot be considered an act of military necessity. Rather, in a zone outside the traditional battleﬁeld, for a civilian to be considered as directly participating in hostilities he or she needs to be either carrying out an attack, directly helping in the planning of an imminent attack, loading a weapon, or spotting for artillery.
right to life
Third, by emplacing psychological trauma into the discourse, the HRC employs a legal-normative frame that highlights human rights concerns that are currently not protected by IHL, and possibly not even IHRL. The criticisms emanating from the HRC point to where legal and normative conventions fall short and where existing treaties do not cover certain conceptions of human rights, particularly the right to life. While the US government has arguably been able to exploit such lacunae in the law through its legal-normative just war justiﬁcations, the HRC has countered with its own legal-normative discourse emphasising the meta-norm of the ‘right to life’. Several qualitative studies that illustrate the impact of drones on individual lives attempt to raise awareness of the deeper impact drones have beyond ambiguous legal precedents and jus in bello ideals. The implication is that sustained drone presence, even if a particular strike might be justiﬁed under the rare conditions of IHRL, nevertheless has a vast and negative human rights impact on civilians. The stories communicate a vision of the right to life that includes not only freedom from arbitrary killing by drones, but also a life without the psychological duress that civilians face when living constantly under drones. Ben Emmerson’s recent report to the UN made the following conclusion:
- If used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conﬂict by signiﬁcantly improving the situational awareness of military commanders.
However, given the trauma that comes from the constant threat of a strike ‘out of the blue’ made possible by drones’ constant presence in the skies, the question becomes whether drones can ever adequately satisfy human rights requirements outside a warzone.