By Caitlin Barbas
Drone usage by the United
States for military purposes has created controversy both domestically and
abroad. Civil rights activists question the legality of the practice within the
context of the United States’ laws and the international laws of the United
Nations. Supporters of drone aircrafts argue that the use of unmanned aerial
vehicles is the only way to overcome the threat of terrorism and maintain
national security.
When speaking of drone usage
and intelligence collection through surveillance in the State of the Union on
January 28, 2014, President Barak Obama touched on his work to limit the use of
drones, explaining, “I’ve imposed
prudent limits on the use of drones – for we will not be safer if people abroad
believe we strike within their countries without regard for the consequence.”[1]
Nearly
two weeks after this speech, the issue of drone usage abroad has reemerged as a
controversial point in U.S. foreign policy and constitutional law. Early
February 10, reports emerged of consideration by the Pentagon and the White
House over the possible targeting of a U.S. citizen Al-Qaida member[2] in
Pakistan.[3]
The U.S. Commander-and-Chief, as well as top military officials, must decide
whether the citizen is a great enough threat to national security that
targeting without a standard trial, is warranted.[4]
Either decision will bring high levels of controversy, both domestically and
abroad. Four United States citizens have been killed in drone strikes during
Obama’s presidency, though only one was the actual target of the drone strike.[5]
This
report will look analyze the legality of the United States military forces’
drone targeting within both the national and international realm. As well as
possible applications of these laws to the situation of the targeted killing of
citizens of the United States.
In
May of 2013, the White House announced a clear outline of the circumstances
needed to warrant a lethal drone target within international territory. The
United States may only use lethal unmanned aerial vehicles when it is not
feasible to capture the terrorist suspect.[6]
Furthermore, the United States must have a legal basis for lethal force (must
be a high-ranking official of a terrorist group or the forces of an active
terrorist group intending a terrorist act) and the United States must prove
that the terrorist target is a “continuing and imminent threat”[7] to
US national security and persons. According to the White House, the conditions which
must be satisfied to warrant a US drone lethal targeting include there must be
near certainty that a terrorist target is present where the lethal missile
strikes, high certainty that a non-combatant will not be injured, and certainty
that the national government would not address the issue as a threat to the
United States.[8] These conditions, however,
will not impede upon the authority of the president to take lethal force in
“extraordinary circumstances.”[9]
In
terms of lethal force against a United States citizen involved in terrorist
activity abroad, , the Department of Justice must conduct an additional legal
analysis of the situation to ensure that any action taking will fall within the
jurisdiction of the Constitution.
The
United States explains that it will not take actions that do not comply with
International law or the sovereignty of the country in which the suspected
terrorist, however, there are high levels of controversy regarding this
statement.
The
international reaction to the actions of the United States in using lethal
force through unmanned aerial vehicles has gained both support from allies who
feel threatened by suspected terrorist and criticism from countries (including
allies) who feel the United States infringes on the rights to a fair trial and
a due process, granted in the majority of common law systems. The United
Nations provides the basis of international law, however, these laws can be
analyzed in both situations.
The
United Nations Charter Article 2(4) states, “All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purpose of the United Nations.”[10]
Therefore, one could argue that, legally, the United States violates the United
Nations Charter when drones are used within the boundaries of Pakistani
territory, where they maintain sovereignty. However, in May 2010, the United Nations
addressed the issue of targeted killings in the Report of the Special
Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, explaining,
“[targeted killings] are often justified as a necessary and legitimate response
to “terrorism” and “asymmetric warfare,” but have had the very problematic
effect of blurring and expanding the boundaries of the applicable legal
frameworks.”[11] These frameworks cite two
specific situations in which one state may use targeted killings in an
international territory. The first situation is when the targeting nations
obtains the consent of the nation where the suspected terrorist will be killed.
However, the United Nations places restrictions on the consenting nation,
stating, “A consenting State may only lawfully authorize a killing by the
targeting State to the extent that the killing is carried out in accordance
with applicable [International Humanitarian Law] and human rights law.”[12]
The second situation is when the target is a highly suspected terrorist or fighter
or a civilian which has participated in direct aggression against the targeting
country. “In addition,” the United Nations states, “the use of force must be
proportionate so that any anticipated military advantage is considered in light
of the expected harm to civilians in the vicinity and everything feasible must
be done to prevent mistakes and minimize harm to civilians.”[13]
The
United Nations has outlined the measured by which targeting killing can take
place within international territory, however, the issue which still remains in
proving that the targeting country has complied with the standards of the
international law and human rights law.
In
complying with the international and domestic standards, the United States must
prove that the United States citizen facing possible targeted killing abroad
is, with near certainty, a terrorist in operation with al-Qaida. Furthermore,
the United States will need to prove that they will maintain a high certainty
that non-combatant civilians will not be harmed in the attack and that they
will not impede upon the sovereignty of the Pakistan, which has faced one of
the highest number of American drone strikes.[14]
The
United States’ use of unmanned aerial vehicles is a controversial one both for
the lack of specificity within the domestic and international laws regarding
targeted killings and for the individuality of each case. Proponents and
critics both face difficulties in proving whether a killing was justifiable and
in compliance with the sovereignty of the country where the targeted suspect is
and the human rights values of the international community.
[2] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on
American Terrorism Suspect in Pakistan." The New York Times.
[3] Dozier, Kimberly. "US suspect possibly targeted for drone
attack." MSNBC.
[4] The White House Washington. "U.S. Policy Standards and Procedures
for the Use of Force in Counterterrorism Operations Outside the United States
and Areas of Active Hostilities."
[5] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on
American Terrorism Suspect in Pakistan." The New York Times
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] UN Charter art. 2, para. 4
[11] Special Rapporteur, Study on Targeted
Killings, supra note 598
[12] Ibid.
[13] Ibid.
[14] Mezzatti, Mark, and Eric Schmitt. "U.S. Debates Drone Strike on
American Terrorism Suspect in Pakistan." The New York Times
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