School of Politics and International Studies

Responsibility to Protect Student Journal

Are armed drones effective for counterterrorism? Are they legal?

Mathias Gjesdal Hammer, University of Cambridge, UK

Mathias is a first year student studying Human, Social and Political Sciences at Cambridge University.

In a political situation in which the idea of committing yet more US troops to the Middle East is increasingly toxic, unmanned aerial vehicles have become the weapon of choice. Government officials often present drones as an ideal weapon and claim that drones can eliminate enemy militants much more efficiently than traditional weapons and without putting American lives at risk. While drones certainly do have a limited use in the battle against terrorism, the lack of transparency and the very nature of drone strikes risk angering large numbers of the civilian population in areas of intensive drone strikes. As such, the effectiveness and relative precision of drone strikes as a tactic must be carefully considered and weighed against other concerns within a larger strategy of counterterrorism. Additionally, US drone strikes are often justified on legally dubious grounds and many types of drones strikes clearly seem to violate international law. In a world in which weaponized drones are becoming increasingly common, it seems crucial for any US counterterrorism strategy to include clear accountability for drone strikes and to limit them to when all other options have truly been exhausted.

How effective are drones for conterterrorism?

According to their proponents, drone strikes have a level of precision that is unmatched by other modes of warfare. Unlike military planes, drones can hover over a target for hours, waiting for the ideal time to strike, maximizing the chance of killing the target and minimizing civilian losses. In addition, the relatively small payload of drones, typically Hellfire missiles, offer a smaller blast radius than bombs delivered from planes and therefore allows for greater accuracy for the strike itself (Mathews, 2013). This is especially advantageous in semi-autonomous and geographically isolated regions such as the Federally Administered Tribal Areas in Northwestern Pakistan, which have little infrastructure and are hard to access. Successful drone strikes also severely limit the abilities of militant groups to gather, organize, and communicate. Both al-Qaeda and Taliban operatives are advised to minimize the use of electronic devices or gathering in large numbers (Mathews, 2013). The fear of drone strikes, then, has the added effect of making training new recruits in large numbers very challenging (ibid).

Despite the impression of accuracy, drone strikes have led to civilian deaths. Until 2013 the United States government denied outright that any civilians at all had been killed by drone strikes. However, In June 2016 it admitted that between 64 and 116 “non-combatants” had been killed in drone strikes in Pakistan, Yemen, Libya and Somalia during the Obama presidency (Serle, 2016). The reported number is still far below even the most conservative non-governmental estimates of civilian deaths. For instance, the Bureau of Investigative Journalism records between 380 and 801 civilian deaths in the same time period (ibid). A major issue is that it is not easy to accurately document casualties, for many of these strikes are in areas with little governmental oversight, where it can be difficult to collect credible data. However, US government policy can partly explain the disparity between the two statistics.

US policy considers an adult male killed in a drone strike to be a militant unless proven otherwise (Living Under Drones, 2013, p.33). In other words, physical proximity to militants alone can decide how casualties are reported. Furthermore, there is evidence to suggest that US agencies show little interest in investigating whether those categorized as militants are civilian casualties (ibid). Both by misidentifying civilians killed by drones as militants and underreporting the number of civilians killed, official statistics are kept artificially low. While drone strikes do seem more discriminating than other forms of long-distance warfare, the US government strongly underreports the number of civilians killed (Bynam, 2013).

Another related issue is that drone strikes, however accurate, are only as precise as the information that directs them. In 2011, a predator drone was used to kill two men believed to be Taliban fighters. However, when the dust cleared, it was discovered that the men were US soldiers (Living Under Drones, 2013, p.127). A high-profile example is the killing of Zabet Amanullah, a candidate for the Pakistani Parliament, along with nine election workers who were mistakenly identified as Taliban soldiers (ibid). It does not seem that sufficient evidence had been gathered in either of this cases, which certainly is concerning.

In any event, we must consider how useful drone strikes have been in efforts to defeat terrorist groups such as al-Qaeda and Taliban forces. Drones have reduced the capabilities of al-Qaeda. Estimates suggest that the number of core al-Qaeda members in the FATA of northwestern Pakistan have been reduced by about 75 percent since 2001 as a result of drone strikes (Cronin, 2013, p.45). Many al-Qaeda leaders have fled this region and their overall capacities have been reduced. In addition, in the areas of the FATA in which drone strikes have been focused, the overall level of militant violence has been reduced (ibid). However, attempts at destroying the leadership structure of al-Qaeda have proven largely unsuccessful. Despite many successful strikes on high-ranking al-Qaeda leaders, the group has been adept at replacing its operatives. As Cronin notes, al-Qaeda does not seem like an organization dependent on the charismatic qualities of a single leader or individual—it is a resilient, well-structured group with a broad base of outposts (Cronin, 2013, p.45). Even if drone strikes can reduce al-Qaeda capabilities, they do not seem sufficient to entirely destroy the organization altogether; merely targeting select individuals is not enough to truly eradicate an organization.

In addition, there is evidence to suggest that groups such as al-Qaeda and the Taliban have made use of the drone strikes for propaganda purposes. As Admiral Mullen concedes, “Each time an errant bomb…kills or hurts civilians, we risk setting our strategy back months… Despite the fact that the Taliban kill and maim far more than we do, civilian casualty incidents such as those we’ve recently seen in Afghanistan will hurt us more in the long run than any tactical success we may achieve against the enemy” (Mullen, 2010). In fact, as a New York Times exposé revealed, in recruitment videos and propaganda, drone strikes have replaced Guantanamo as the main proof of American injustice (Becker, 2012). This is not merely a matter of propaganda, though. There have also been attempted terrorist attacks in the United States in which drone strikes have been used as a justification for the attacks. Faizel Shazad, who attempted to detonate a car bomb in Times Square in 2010 presented his failed strikes as retaliation for US foreign policy, emphasizing the injustice of drone strikes (Living Under Drones, 2012, p.136). Several others, such as the men responsible for a foiled plot to strike the New York subway system and a suicide bombing on a CIA compound in Afghanistan have also mentioned drone strikes as a justification for their actions (ibid). According to a Pew Research center poll, only 17 percent of the Pakistani population supports drone strikes, and among people who profess a certain level of knowledge about drone strikes, 97 percent considered it to be a bad policy (Living Under Drones, 2012, p.132). Many Pakistanis who seem to harbor animosity towards the US due to the policy of drone strikes suggest that if the drone strikes were to stop, their resentment would subside. As one victim of a drone strike on a tribal council (Jirga) in 2011 expresses it, “We don’t have any revenge or anything else to take from America if they stop the drone attacks (Living Under Drones, 2012, p.137). This view seemed representative of many of the Pakistanis interviewed.

Therefore, it seems that the extensive use of drone strikes risks turning even more Pakistanis against the United States, and as such, should be minimised. While the limited use of drone strikes can fit into a larger counter-terrorism strategy, the strategy should put stronger emphasis on discrediting al-Qaeda and its affiliates and attempting to split its supporters (Cronin, 2013: 46). The widespread use of drones allows al-Qaeda to take a leading role in debates around violence, and to present the United States as the primary danger to Muslims all over the world. This is in spite of the fact that 85 percent of al Qaeda’s victims have been Muslims, a statistic far greater than the number of civilian deaths due to drone strikes. As Cronin suggests, “[w]hatever the truth is, the United States is losing the war of perceptions, a key part of any counterterrorism campaign” (Cronin, 2013, p.47).

Drone strikes and international law

In addition to not being particularly helpful in a larger perspective for counter-terrorism, drone strikes are not on solid footing within international law. One of the main questions within the legal debate around drone strikes has been whether US drone strikes violate Pakistan’s sovereignty. For drone attacks to be legal, they must have the consent of Pakistan’s government. There have been reports and leaked documents from Wikileaks that indicate a tacit consent of the Pakistani government in 2008. In 2008, Pakistan’s prime minister reportedly said in a secret meeting with US officials “I don’t care if they [conduct strikes] as long as they get the right people. We’ll protest in the National Assembly and then ignore it” (Living Under Drones, 2012, p.15). Publicly, however, the Pakistan have been vocally opposed to the drone strikes and increasingly so in recent years (Living Under Drones, 2012 p.106-107). As such, and without knowledge that is not publicly available, it is difficult to conclude to what extent Pakistan actually consents to these strikes.

In lieu of Pakistan’s consent, US drone strikes can also be legal as an act of self-defense. This is the argument that Harold Hongju Koh, a legal adviser to the Department of State, takes, suggesting that “United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law” (Koh, 2010). This argument, though has come under a fair amount of questioning. There is much skepticism to the legal validity of justifying drone strikes 10-15 years after the 9/11 attacks as a proportionate response to 9/11 (Living Under Drones, 2012, pp.106-107). Also, for such a justification to be valid, it must be proven that the host state is unable to prevent militant actions. While Pakistan has failed, at times, to target certain militant groups, it has also launched large-scale efforts against al-Qaeda (Living Under Drones, 2012, p.109). Additionally, for strikes against anticipated threats to be considered legal according to the UN charter, the threat of attack must be “instant, overwhelming, and leaving no choice of means, and no moment of deliberation” (Living Under Drones, 2012, p.107). While some strikes might fall under this category, signature strikes—attacks targeting individuals based on their cell phone data linking them to militant locations—and strikes based on “kill lists certainly do not.

In addition to the question of whether or not US drone strikes violate Pakistan’s sovereignty, individual strikes must also comply with International Human Rights Laws (IHRL) or International Humanitarian Laws (IHL). For drone strikes to be legal in this context, there must exist a state of conflict between the United States and militant groups targeted. However, due to the nature of the diffuse networks of non-state actors targeted and the sporadic and isolated nature of their attacks, it is difficult to mount a convincing legal argument proving a state of conflict (Living Under Drones, 2012, p.112). Additionally, even if there is a state of conflict, any attacks by the United States must respect the concepts of distinction, proportionality, humanity, and military necessity as laid out in IHL. In order to perform a military action, one must make a distinction between militants and civilians. In many of the areas in which drone strikes are carried out, though, there are often few distinguishing factors between civilians and militants. Al-Qaeda or Taliban members do not wear uniforms and live and interact with civilian populations (Living Under Drones, 2012, p.112-116). Additionally, the policy of identifying any adult males killed in drone strikes as militants does not indicate proper attention to distinguishing between civilians and militants. Neither do signature strikes, in which individuals are considered militants based on their geographical location and metadata. Even if an individual is a legitimate target, the attacks must also satisfy IHL’s other requirements. Strikes on militants in the presence of large number of civilians, such as strikes on marriages or tribal meetings, do not seem a proportionate response. Recorded strikes on first responders and rescuers after a drone strike do not seem to fit IHL requirements either. These strikes both violate principles of distinction, but also rules related to humanitarian assistance (Living Under Drones, 2012, p.115). There is evidence that these strikes prevent civilians from helping the wounded due to fears of second-strikes. In the absence of military conflict, strikes can be judged under IHRL. These laws similarly emphasise proportionality and immediate threat and, with this in mind, fail to meet the criteria required for them to be classified as legal.

It seems clear, then, that certain types of drone strikes are neither effective within a larger framework of counterterrorism, or, in accordance with international law. Realistically, though, drones will not disappear. An increasing number of states (in addition to non-state actors such as ISIL) are gaining access to weaponised drones and it is more important than ever to lay a foundation for transparent and accountable rules. Given the USA’s primary role in conducting drone strikes, the USA must clarify the policies justifying drone strikes. While limited drone strikes in accord with international law can, in certain contexts, be a useful tactic, drone strikes cannot comprise the entire American counter-terrorism strategy. Current levels of drone strikes risk angering local communities and turning them against the United States, but also further outrage from the international community.

 

Bibliography

Becker, Jo and Shane, Scott. “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.” 2012. New York: New York Times. Last accessed November 6, 2016: http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html.

Bynam, Daniel. 2013. “Why Drones Work: The Case for Washington’s Weapon of Choice.” Foreign Affairs. Last accessed November 5, 2016: https://www.foreignaffairs.com/articles/somalia/2013-06-11/why-drones-work.

Cronin, Audrey Kurth. 2013. “Why Drones Fail: When Tactics Drive Strategy.” Foreign Affairs. Last Accessed November 8, 2016: goo.gl/R4tfkq.

International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law). 2012. “Living Under Drones: Death, Injury, and Trauma to Civilians From US Drone Practices in Pakistan.” Last Accessed November 8, 2016: http://chrgj.org/wp-content/uploads/2012/10/Living-Under-Drones.pdf.

Koh, Harold Hongju. 2010. “The Obama Adminstration and International Law.” US Department of State. Last accessed November 5, 2016: http://www.state.gov/s/l/releases/remarks/139119.htm.

Mathews, Dylan. 2013. “Everything you need to know about the drone debate, in one FAQ.” Washington Post. Last accessed November 8, 2016: https://www.washingtonpost.com/news/wonk/wp/2013/03/08/everything-you-need-to-know-about-the-drone-debate-in-one-faq/.

Mullen, Mike. 2010. “Admiral Mullen’s Speech on Military Strategy, Kansas State University, March 2010.” Council on Foreign Affairs. Last accessed November 6, 2016: http://www.cfr.org/defense-strategy/admiral-mullens-speech-military-strategy-kansas-state-university-march-2010/p21590.

Serle, Jack. 2016. “Obama drone casualty numbers a fraction of those recorded by the Bureau.” The Bureau of Investigative Journalism. Last accessed November 6, 2016: https://www.thebureauinvestigates.com/2016/07/01/obama-drone-casualty-numbers-fraction-recorded-bureau/

 

This entry was posted in Uncategorized and tagged , , , .

© Copyright Leeds 2017