Expert Commentary

Drones: A Challenge to the Law of Armed Conflict

November 22, 2016 | Rachel Stohl
 

Over the last eight years, President Barack Obama’s counterterrorism policy has in large part been defined by drone strikes against a number of terrorist targets around the world. Indeed, the U.S. drone program is a global enterprise, with bases in at least 10 countries, lethal operations in at least seven countries, and coordination of drone operations with numerous partners and allies.

But even as the U.S. drone program has become a cornerstone of counterterrorism policy, its implementation has raised a number of questions, particularly with regard to the use of drones outside active combat zones or in countries not engaged in war with the United States. Central to these questions has been the ongoing secrecy surrounding the U.S. lethal drone program, including limited details on casualty figures, a lack of information on the legal framework supporting the program, little insight into policy guidance, and next to no information on how targeted drone strikes fit in with broader strategic objectives.

One of the main challenges with the U.S. drone program is that it has been relatively difficult to assess the basis for and impact of the program itself. Over the last eight years, the administration has released very few documents relating to the legal justification for the lethal drone program, and those that have been released have been primarily only under court order. It wasn’t until the summer of 2016 that the Obama Administration released the first government-provided data on casualties of U.S. “counterterrorism strikes,” as well as a heavily redacted version of the Presidential Policy Guidance (PPG) that governs the use of force and armed drone strikes outside of Afghanistan, Iraq, and Syria, countries that are considered “areas of active hostilities.”

While these documents shine some much needed light on the human cost of the U.S. drone program and provide some much-sought insight into the legal rationale underpinning the U.S. drone program, they emphasize the decision-making process without significant clarification of the legal standards for the program. Indeed, the only thing that can be definitively said after these two releases is that the U.S. drone program demonstrates the flexible nature in which the administration has applied law, rules, and regulations.

The use of drones by the United States has challenged the application of the law of armed conflict. For over a decade, the United States has seemed to widely interpret its legal right to target and kill those individuals identified as a member of al-Qaida or its associated forces wherever they are located. However, the ways in which individuals are identified is based on undisclosed criteria and evidence. Moreover, it appears that there has been little means for anyone outside the secretive process to identify or remedy mistakes. This ad hoc application of international legal standards and principles undermines support for the international rule of law.

Current U.S. drone policy is also devoid of public understanding of the processes through which targeting decisions are made, and the domestic and international legal justifications for these decisions. Though detailed and revealing in terms of the procedural process for uses of force against terrorist targets outside the domestic context and outside areas of active hostilities, the PPG release in August did not adequately explain the standards for the use of force outside active war zones, and the terms used within the PPG are seen as vague, inconsistent, and at times contradictory. Moreover, the PPG still neglects to explain the specific legal rules and standards that underpin U.S. drone policy and is particularly vague in terms of the application of international human rights law standards that should apply in such contexts.

Although armed drones are but one tool in the United States’ larger counterterrorism toolkit, they appear to have become the most coveted tool, and their reliability and usage is arguably driving U.S. strategy (rather than being a tactic of a larger strategy). And because it is unclear what oversight and accountability mechanisms are being utilized, it is difficult to gauge success. What remains is a lack of clear understanding of the structures in place to ensure that continued use of targeted strikes against “high-value targets” and associated forces is fulfilling and/or contributing to strategic goals and objectives. These challenges are compounded by continued uncertainty regarding how the administration assesses effectiveness, and the metrics and methodologies used to evaluate impact. Indeed, the opacity of the U.S. lethal drone program has made it impossible to identify the systems in place, if any, to responsibly respond to mistakes, pay reparations if necessary, or ensure that operations are not undermining longer-term strategic goals.

In short, the lack of information on the justifications and rationale behind the Obama Administration’s drone program makes it impossible to conduct any objective analysis of whether the program rests on appropriate standards and if it is accomplishing broader national security and foreign policy aims. Rather, the administration has resorted to a reliance on its own internal evaluations and a “trust us” mentality, which is inherently problematic. The lack of public information about the drone program limits discourse on key U.S. engagements and the use of force in countries around the world.

This discourse is vital to ensuring that U.S. drone use and policy is effective in addressing immediate threats as well as attending to broader strategic interests and foreign policy goals. These interests and goals include upholding U.S. commitments to the laws of war, international human rights law, and international humanitarian law, as well as establishing appropriate standards for the use of drone technology. All of these principles are essential to establishing an appropriate precedent for the use of lethal drones, particularly as other countries develop and seek to acquire similar capabilities.

The next president will inherit a U.S. drone policy that seemingly offers other countries a blank check to adopt and conduct drone operations based on questionable legal justifications and largely secret policy guidance. The Obama Administration’s continued reticence to provide substantive information on the breadth of the U.S. drone program, the legal justification behind it, and the costs and benefits of operations, poses risks within the United States and sets a dangerous precedent internationally. The next president will need to take steps to clearly and publicly establish rules for the U.S. drone program that provides the domestic and international legal framework for the U.S. drone program, including interpretations used by the United States with regard to international humanitarian law and international human rights law.

Congress has a role to play as well. It must place a larger priority on the U.S. drone program, provide more rigorous oversight over the program, and ask questions about its overall efficacy. Without clear and transparent rules, prominent oversight, and legal use, the U.S. drone program will undermine U.S. national security interests and foreign policy objectives, no matter how well-intended.

The Author is Rachel Stohl

Rachel Stohl is a senior associate with Stimson's Managing Across Boundaries Initiative. Prior to joining Stimson she was an associate fellow at Chatham House, the Royal Institute of International Affairs, from 2009-2011.  Stohl was the consultant to the UN ATT process from 2010-2013 and was previously the consultant to the UN Group of Governmental Experts (GGE) on the Arms Trade Treaty in 2008 and the UN Register for Conventional Arms in 2009.

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