It’s one thing to employ drones in a long-term campaign of targeted killing overseas. It’s another thing altogether to do so without transparency or citation of the legal authority for the attacks. This was the point that Gabor Rona, International Legal Director of Human Rights First and Lecturer at Columbia Law School, focused on in his remarks at Harvard Law School on April 18.
A little background: under the laws of war, parties to armed conflict must 1) distinguish between military and civilian objects of attack, 2) take precautions to avoid civilian casualties, and 3) refrain from attacking if the likely collateral damage from an attack would exceed the military advantage gained. And if a state seeks to target its attacks on an individual, only members of enemy armed forces and civilians directly participating in hostilities may be targeted.
One major problem with the Obama Administration’s drone policy is that many drone strikes are taking place in countries that are not in armed conflict with the US. Assuming strikes in places like Yemen and Somalia cannot be justified under the shaky assertion that the War on Terror constitutes a global armed conflict, the only legal justification for those attacks is that the targets pose imminent threats to American lives and cannot be ameliorated with less than lethal means.
The volume of attacks taking place outside of areas of armed conflict makes the civilian casualties that ensue all the more troubling. “Outside of armed conflict, the ‘civilian/combatant’ distinction does not exist,” said Rona. “Everyone is a civilian.” The administration’s discussion of its drone attacks often fails to acknowledge this reality. For example, the US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities incorrectly employs the civilian/combatant distinction for attacks outside of armed conflict. This is, at best, a misunderstanding of the law. And it is parroted by news outlets, deepening the spiral of misinformation.
The administration’s view of what constitutes an imminent threat is also increasingly divorced from reality. Imminence is now defined as something ongoing, focused more on the degree of potential harm than the time within which a threat is posed. One need only consult the Merriam-Webster definition of imminent – “happening very soon” – to confirm how baffling this new interpretation is. “The US has taken the position that traditional notions of imminence are passé,” said Rona.
Rona argues that the damage from the US’s fast and loose handling of drone strikes is not limited to civilian casualties, either. “The United States has had to muffle its voice in the face of human rights violations by others for fear of being branded a hypocrite. Our practices are cited as justification for what we used to call torture.” So long as the US continues to use drone strikes in response to problems that likely could be addressed through requests of other countries’ police forces, diplomacy, and other non-lethal means, its ability to lead on human rights issues is severely impaired.
All of these problems are complicated by the secrecy with which the Obama administration shrouds its drone program. “Before we can decide whether existing law is or isn’t correct, we need to have a public debate about it, and before that, we need the administration to tell us what legal claims it’s making,” said Rona. “At a minimum, people living in a democracy deserve to know who they are at war against and who is being killed in their name.”