By John Noland
The tenuous balance between sovereignty and global
accountability becomes ever shakier as countries push outward with
unprecedented force. Are all countries
answerable to international authority?
Should America, or any other nation, be punished for violence abroad? Is war itself a violation of an international
code based on peace? These are the
nuanced, difficult questions at the heart of the debate over the legality of
American drone strikes.
War is
possibly the link that ties the world to its past better than any other. In the words of Homer, a man who made his
fame in detailing bloodshed, “men grow tired of sleep, love, singing, and
dancing before they grow tired of war.”
Many of history’s most recognizable figures earned repute by leading men
into and out of brutal conflict. As
technological advancements made it possible to kill the enemy without being
able to see him, the moral implications of long-range strikes began to come
into question. When the combatant is a
continent away, one’s missile has to be extremely precise, to avoid civilian
casualties in a way that was previously a nonissue. These are pinpoint battles, fought between
small nuclei of surveillance and weaponry, no longer rows of men marching at
each other in regimented lines. Is
Napoleon right? Does “war justify
everything”?
According
to several human rights organizations, the answer is no. American use of drones in Pakistan violates
international law, they say, as these attacks can be characterized as war
crimes. According to the United Nations,
war crimes comprise “grave breaches of the Geneva Conventions” including
murder, torture, hostage-taking, and, more saliently, “intentionally launching
an attack in the knowledge that such an attack will cause incidental loss of
life or injury to civilians” (Rome 97).
This language appears in the Rome Statute of the International Criminal
Court, the treaty that established this supranational judiciary, tasked with trying
cases of “genocide; crimes against humanity; war crime; the crime of
aggression” (93). Importantly, however,
the United States is not a member of the ICC, as the treaty was signed, but not
ratified. The question of whether
America is subject to international oversight is a valid one, and crucial to
the study of modern American security policy.
In a 2013, Human Rights Watch and
Amnesty International, two of the world’s ethical watchdogs, separately
released reports in opposition to America’s policy of conducting drone strikes
across the Middle East. The Human Rights
Watch examined six events that occurred in the period of 2009 to 2013. According to one of the authors, Letta
Tayler, “Two of the six cases that we examined in my report show that the U.S.
indiscriminately killed civilians. This
is a clear violation of international law.”
The group’s analysis is based around the imprecision of such strikes,
which they believe points to a wanton disregard for civilian safety, so long as
the missile finds its target. They may
have a point, too, as the report shows “at least 57 civilians died because of
the strikes, which killed 82 people” (Fitzpatrick). Whether or not the remainder of the dead were
military targets, this is at the very least a sixety-nine percent inaccuracy rate for the studied
missions, which begs the question of whether these strikes are exact enough to
be a viable means of attack for the armed forces.
It is
important to note that comparisons to more traditional bomb dropping may not be
completely valid. The extremely
controversial atomic bombings of Hiroshima and Nagasaki in 1945 led to hundreds
of thousands of civilian casualties.
However, while the relative merit of such a massive assault is highly
debatable, the fact remains that America was then at war with Japan. The United States is, crucially, not at war
with Pakistan, or Yemen, where many of the strikes have taken place. American drone attacks are aimed at insurgent
groups in the Middle East and Africa, namely al-Qaeda, not against the
political or military structures in the nations where terrorist groups are
active. While strikes on non-military
and military targets in nations at war differ theoretically only differ in
degrees of critical damage done, solitary attacks on groups that are by their
very nature elusive and covert means that not every shot will hit the
mark. As the Human Rights Watch report
describes, in a September 2012 strike, “the target – an alleged al Qaeda
militant, Abd al-Raouf al-Dahab, – was ‘nowhere in sight’ when the United
States hit a passenger van and killed 12 people returning from the market”
(Cornwell and Hosenball). Tayler’s
statement to reporters was evocatively lyrical, as she described how “their loved
ones found their charred bodies in pieces on the roadside, dusted in flour and
sugar that they were bringing home to their families.”
Amnesty International’s report
called for greater transparency in American military actions. As researcher Mustafa Qadri implored, “We are
saying for the U.S. authorities to come clean,” offering that, “in some of the
cases we looked at…they appear to be war crimes, but really the full picture is
for the U.S. authorities to reveal.”
Notably, Amnesty’s study examined the killing of Mamana Bibi, a
Pakistani grandmother, and the death of eighteen workers in a separate
incident. In doing so, the reports
sought to put a face on the dead, to humanize the people which they believed
the United States was disregarding, and lead to the filling of what Amnesty
worker Naureen Shah calls “the black hole of accountability for drone
strikes.” In the eyes of these
organizations, these were breaches of the sacrosanct right to security to which
the worlds’ citizens are privy. Human
Rights Watch corroborated the judgment that Amnesty made, declaring there to be
“at least two cases of “clear violations of international law” and strong
evidence of violations in the four other strikes it investigated”
(Fitzpatrick). These stirring words and
images do not convince everyone, as Jordan Paust shows in his article for Jurist.
Paust, a
expert in international law and professor at the University of Houston Law
Center, disagrees with the assertion that America’s drone strikes in foreign
countries are illegal. He argues that in
regards to “human rights law, such law generally applies at all times and in
all social contexts, including during war” (Paust). This baseline of ethical behavior is
important, because it establishes the firm determination that basic human
rights are inviolable – an idea codified by the UN Charter. He goes on to cite The International Covenant
on Civil and Political Rights, and states that “the general human right to
freedom from “arbitrary” deprivation of life will only be applicable with
respect to those persons who are within the jurisdiction, actual power, or
“effective control” of the state or other entity using a drone…those who are
being targeted…will not be protected under the general human right to life,
because they are not within the actual power or effective control of the
targeting state.” Thus, because the
United States has no power over the citizens of Pakistan or Yemen, for example,
it cannot protect their citizens’ general right to security. Instead, the attacking nation in question
must run through a number of “appropriate considerations,” including the
“identifying of the target,” “importance of the target,” “whether equally
effective alternative methods of targeting or capture exist,” and “foreseeable
consequences with respect to civilian death, injury, or suffering” (Ibid). These attacks must be thought-out, with
relative risk carefully weighted, in order to maintain the legal protection
that Paust feels they are entitled to.
The Amnesty report proclaims that killing “without first attempting to
arrest suspected offenders, without adequate warning, without the suspects
offering armed resistance, and in circumstances in which the suspects posed no
immediate risk to security forces, would be considered extrajudicial
executions.” This is perhaps where Paust
disagrees most clearly, as the report calls for an approach better befitting a
police officer than a soldier. He wrote
that “targeted killing under the law of self-defense is not ‘law
enforcement’…outside of the statement that force must be ‘proportionate in the
prevailing circumstances.’” Military
action cannot be conflated with that of law enforcement. There is a case to be made that more of the
methodological elements of police work should be integrated into military
action, but it would be disingenuous indeed to confuse the two.
Paust seems
to echo the dictum that the Justice Department uses internally to validate such
action. In February, a leaked “white
paper” memo from the department discussed drone strikes as a form of legitimate
military action, “declaring that capture can be deemed infeasible if the
country where the suspect is located won’t consent to a capture operation or if
a capture operation ‘could not be physically effectuated during the relevant
window of opportunity’” (Gerstein). This
is essentially the rationale used with Osama bin Laden, whose capture was
detailed in the Kathryn Bigelow’s blockbuster film, Zero Dark Thirty. Though
Paust offers strong reasoning for the legality of drone strikes, there are
still murky areas in the operation that do not lend themselves to easy
certainty. Since, for example, his
defense depends on the careful consideration of collateral damage, if such
imprecision is present, as evidence suggests it might be, then perhaps the
legal justification may not be as strong.
President Obama, target of much of the criticism for drones since their
occurrence has “increased dramatically” during his administration, stated that
“before drone strikes were taken, there must be near-certainty that no civilians
would be killed or wounded” (Cornwell and Hosenball). If the president’s message signify a shift
toward a more measured, cautious policy that sets civilian casualty
minimization at the forefront, then there is a more reasonable case to be made
that these strikes are legal. However,
as with many assessments of such issues are, there is no clear answer to be had
here, and ideology plays as big a role as legality in this case.
Bibliography
Cornwell, Susan,
and Mark Hosenball. "U.S. Broke International Law by Killing Civilians
with Drones: Rights Groups." Reuters.
Thomson Reuters, 22 Mar. 2013. Web. 31 Oct. 2013.
Fitzpatrick,
Meagan. "U.S. Drone Strikes May Amount to War Crimes, Report Finds." CBCnews. CBC/Radio Canada, 22 Oct. 2013.
Web. 31 Oct. 2013.
Gerstein, Josh.
"Official Memo Justifying Drone Strikes Leaks." POLITICO. POLITICO LLC, 4 Feb. 2013. Web. 01 Nov. 2013.
Paust, Jordan.
"Drone Attacks Can Be Justified Under International Law." JURIST - Forum. N.p., 23 Oct. 2013. Web.
31 Oct. 2013.
“Rome Statute of
the International Criminal Court.” United
Nations – Treaty. 17 July 1998. http://treaties.un.org/doc/Treaties/1998/07/19980717%2006-33%20PM/Ch_XVIII_10p.pdf
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