Drones and the Future of Armed Conflict

Ethical, Legal, and Strategic Implications

David Cortright, Rachel Fairhurst, Kristen Wall, David Cortright, Rachel Fairhurst, Kristen Wall

• Publisher: University of Chicago Press
• Year: 2015
• ISBN:
  9780226258195
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

During the past decade, armed drones have entered the American military arsenal as a core tactic for countering terrorism. When coupled with access to reliable information, they make it possible to deploy lethal force accurately across borders while keeping one's own soldiers out of harm's way. The potential to direct force with great precision also offers the possibility of reducing harm to civilians. At the same time, because drones eliminate some of the traditional constraints on the use of force—like the need to gain political support for full mobilization—they lower the threshold for launching military strikes. The development of drone use capacity across dozens of countries increases the need for global standards on the use of these weapons to assure that their deployment is strategically wise and ethically and legally sound.Presenting a robust conversation among leading scholars in the areas of international legal standards, counterterrorism strategy, humanitarian law, and the ethics of force, Drones and the Future of Armed Conflict takes account of current American drone campaigns and the developing legal, ethical, and strategic implications of this new way of warfare. Among the contributions to this volume are a thorough examination of the American government's legal justifications for the targeting of enemies using drones, an analysis of American drone campaigns' notable successes and failures, and a discussion of the linked issues of human rights, freedom of information, and government accountability.

Chapter One

Assessing the Debate on Drone Warfare

David Cortright and Rachel Fairhurst

Drone systems represent a significant advance in technology and are generating fundamental changes in the nature of warfare and the use of military force. In addition to the surveillance and real-time intelligence capabilities they provide, drones (also known as remotely piloted vehicles) make it possible to target lethal force precisely and with reduced risk of collateral damage. They are a central element in ongoing efforts to suppress and eliminate the threat from al-Qaeda and associated forces and have been used along with other military aircraft in the fight against the Islamic State in Iraq and Syria (ISIS).1

Drone weapons are more accurate and discriminating than conventional bombing. They can loiter for extended periods over potential targets, with flight times more than three times greater than that of traditional surveillance aircraft.2 They allow operators to gather large amounts of information and provide the ability to launch pinpoint strikes against specific individuals or groups. Drones enable states to engage in military operations over long distances without putting boots on the ground or incurring casualties among their own forces. They permit armed strikes in remote and dangerous locations where conventional bombing or the use of ground forces would entail significant costs. Drones overcome the limitations of human endurance among fighter pilots. At less than one-tenth the cost of an F-16, drones are easier to produce and more expendable than conventional combat aircraft. They provide the option of conducting prolonged counterinsurgency and counterterrorism operations with reduced risks to the forces using them.3

In this opening chapter we offer a brief overview of the evolution of the drone warfare program and the debates surrounding the use of these weapons. We introduce the principal themes examined by the authors and review the ethical, legal, strategic, and human rights concerns they address, situating the author contributions within the context of the latest scholarly debates and policy developments. We offer a holistic analysis that emphasizes the linkages among these various themes, toward the goal of identifying principles for the use of these weapons that are ethically and legally sound and strategically wise.

An Evolving Program

Over the past decade, the United States has significantly increased its commitment to the development and use of weaponized drones. The number of US drone systems multiplied from fifty in 2001 to more than 8,000 in 2013. The US Air Force operates dozens of combat air patrols on a continuous twenty-four-hour-a-day basis, mostly in Afghanistan, Yemen, and North Africa.4 Most of the drone systems currently being used by the United States are for surveillance and reconnaissance, but about 5 percent are capable of launching missile strikes.5 Military drone strikes are conducted by the Joint Military Special Operations Command (JSOC), a subunit of the Pentagon’s Special Operations Command that has grown dramatically in recent years. The Central Intelligence Agency (CIA) also conducts drone strikes in Pakistan and other countries, often coordinated with JSOC operations.6 Drone technology is spreading rapidly, with more than seventy countries and even nonstate actors such as Hezbollah and Hamas now developing or acquiring these systems.7 ISIS also claims to have surveillance drone capability. In August 2014 the militant group released video footage of a Syrian army base with the caption “From the drone of the army of the Islamic State.”8 To date only a handful of countries—including Israel, the United Kingdom, China, and Iran—have operationally deployed armed drones, but others are catching up.9

The first known use of weaponized drones occurred in November 2001 when a US Predator aircraft fired a Hellfire missile to kill Mohammad Atef, a senior al-Qaeda leader in Afghanistan. Since then both the United States and the United Kingdom have extensively employed drones. During the years 2008–2012, US and British forces launched more than 1,200 drone strikes as part of military operations in Afghanistan, Libya, and Iraq, according to figures compiled by the Bureau of Investigative Journalism (TBIJ).10 The first CIA drone strike occurred in November 2002, when a Predator attack in Yemen killed Qaed Senan al Harethi, one of the alleged bombers of the USS Cole.11 Over the following years the CIA launched hundreds of additional covert drone strikes, primarily in Pakistan and Yemen, as well as a handful of strikes in Somalia.

According to TBIJ estimates, the CIA launched a total of 408 drone strikes in Pakistan from 2004 through December 2014. Figures in Yemen are less precise, with between seventy-two and eighty-four confirmed strikes, and perhaps as many as 101 to 120 additional, unconfirmed strikes. From 2004 through 2014, US drone strikes in Pakistan killed an estimated 2,410–3,902 people, of whom an estimated 416–959 were civilians. In Yemen, confirmed drone attacks have killed between 371 and 541 people, of whom sixty-four to eighty-three were civilians.12 The wide variance in these estimates reflects the difficulty of obtaining accurate information in the affected conflict zones, as well as the covert nature of the CIA and JSOC drone programs and the absence of published casualty figures from the US government. Uncertainties also exist in determining who is a civilian or a combatant. Human rights and civil liberties groups have expressed concern that the US government may be employing overly broad definitions of “militant” or “combatant” and thus undercounting civilian casualties.13

The rise of drone warfare has stirred strong passions and sparked a vigorous debate among ethicists, international lawyers, strategic analysts, and human rights specialists. Court challenges, journalistic accounts, and criticisms from domestic and international policy reports have elevated public concerns and generated pressure on the Obama administration to reduce unintended civilian casualties and pay greater attention to ethical and legal principles.14 After initially refusing even to acknowledge the existence of the program, the White House offered partial explanations and justifications for its drone policies, although the limited release of information so far falls short of full disclosure. In May 2013, President Obama gave a major speech promising greater transparency and accountability in the use of drone weapons. He announced new guidelines to ensure that drone strikes are launched only if there is “near certainty” that no civilians will be killed or injured.15 He also proposed shifting drone operations from the CIA to military command, where they would be subject to the legal guidelines of the Uniform Code of Military Justice. To date little or no progress has been achieved in implementing the proposed shift to military control.16

In 2012 the Obama administration began to scale back the number of drone strikes in Pakistan, leading to a general trend toward fewer attacks and fewer civilian casualties. Beginning in late 2013 and into the first months of 2014 the administration suspended strikes in Pakistan altogether, as the government in Islamabad pursued peace talks with the Pakistani Taliban.17 No drone strikes occurred in Pakistan through the first four months of 2014. Table 1.1 below depicts the pattern of drone attacks in Pakistan, where the estimated number of attacks and civilian casualties has declined. According to TBIJ estimates, there were twenty-seven drone strikes in 2013, and another twenty-five in 2014, without a single civilian casualty. This indicates remarkable progress toward the goal of reducing unintended harm to civilians. The administration has not officially disclosed its reasons for scaling back drone warfare in Pakistan. The changes seem in part a response to greater public debate and scrutiny of drone policy and increased criticisms of the program within Pakistan.18 They may also reflect the more discriminating operational practices promised by the administration in 2013 and the scaling back of military operations accompanying the official end of the US combat role in Afghanistan in 2014.19 US drone strikes within Afghanistan have declined as well with the reduction in combat missions.20

Table 1.1. Total CIA drone strikes per year in Pakistan and minimum reported civilian casualties, 2004–2014

Year	Number of CIA strikes	Minimum number of civilian deaths
2004	1	2
2005	3	5
2006	2	90
2007	5	11
2008	38	59
2009	54	100
2010	128	84
2011	75	52
2012	50	13
2013	27	0
2014	25	0

Source: The Bureau of Investigative Journalism. http://www.thebureauinvestigates.com/2014/01/06/a-changing-drone-campaign-us-covert-actions-in-2013/, current as of January 6, 2014.

In Yemen, the number of US drone strikes increased in 2013 and 2014 as the internal armed conflict in that country intensified. The February 2014 report of the Special Rapporteur on the promotion of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, states that “the frequency of reported drone strikes in Yemen . . . increased” in the latter part of 2013, resulting in “a significant number of reported civilian casualties.”21 The Long War Journal reported eleven US drone strikes in Yemen through the first four months of 2014, including attacks in late April described by the New York Times as among the largest carried out by the Obama administration.22

Notwithstanding the general trend toward reduced casualties in US drone strikes, incidents involving potential civilian deaths still occur. On December 12, 2013, four Hellfire missiles fired from a US drone struck a wedding party in Yemen near the town of Rad’a in the central province of al-Baydah. The attack reportedly killed twelve men whom the US government and Yemeni officials said were involved in a plot to attack US embassies in the country.23 Witnesses and survivors of the strikes contradicted official claims about those targeted and expressed anger at attacks against a wedding party.24 According to a special Human Rights Watch investigation into the incident, enraged “relatives and other local residents took the bodies . . . and displayed them in the provincial capital, Rad’a. Armed protesters blocked the main thoroughfare from Rad’a to the Yemeni capital, Sanaa . . . for more than 24 hours.” The Human Rights Watch report described the failure of the United States to acknowledge and investigate civilian casualties in the incident as a potential violation of international legal obligations.25

The Need for Guidelines

In the fall of 2012, the Obama administration reportedly made an attempt to craft explicit drone policy guidelines. This effort was prompted by the imminence of presidential elections and the need for rigorous standards to guide the policies of a potential successor administration.26 According to Mark Mazzetti, the process of trying to codify procedures revealed a largely ad hoc system without clear standards for who can be killed and where and when such killing is permissible.27 What became of this exercise is unknown, but it reflects a realization among US officials of the need to establish clear guidelines for the use of these weapons.

US drone policy is evolving, but the direction of the change is not clear. A curtain of secrecy continues to hide the program and obscure its operational principles. Systems of public accountability are largely absent, especially in the sizable part of the program that is operated by the CIA. Without greater transparency and public disclosure it is impossible to know whether the trends in Pakistan are a temporary aberration or part of an intentional and long-term shift in policy. Nor is it possible to say with certainty whether the administration is complying with just war doctrine and the principles of international law. The lack of clarity regarding ethical and legal standards impedes efforts to develop US and international standards for their use.

Current drone warfare practices are important not only for American policy but for the world. The precedents established by the United States are likely to be followed by other nations, for better or worse. Spurred by the US example, other countries “are likely to threaten or conduct drone strikes in ways that are harmful to US interests, whether by provoking regional adversaries or targeting domestic enemies,” Sarah Kreps and Micah Zenko write.28 As Christof Heyns observes in the preface to this volume, the prospect of multiple states operating secretive drone policies according to their own interpretation of international law is not a desirable outcome from a global security perspective. This concern is echoed in the report of United Nations (UN) Special Rapporteur Emmerson, who warns that ambiguity surrounding international law governing counterterrorism activities “leaves dangerous latitude for differences of practice by States.”29 An anarchic, every-state-on-its-own approach would weaken efforts to develop international standards and constraints on the unilateral use of force. US and global security will benefit if norms and principles can be developed, within the framework of international law, to guide future military uses of drone technology.

This book is intended to advance that purpose. It brings together scholars and experts from diverse perspectives to examine current drone policies in light of accepted ethical standards for the use of force and the principles of international law. The foundational ethical framework is just war doctrine. The legal principles are embodied in international humanitarian law, also known as the laws of armed conflict, and international human rights law, which addresses when force may be used outside the context of war. The book explores the st...