Sunday, November 6, 2011

Mischaracterizing the Law of Drones

Adam Entous, Siobhan Gorman, and Julian Barnes’ reporting in the Wall Street Journal indicates that the United States views its covert drone campaign in Pakistan to be an armed conflict, governed by international humanitarian law. As I’ve argued elsewhere, the hostilities between the United States and various organized armed groups operating in Pakistan—and there are many such groups—are sufficiently intense to rise to the level of an armed conflict, triggering international humanitarian law. IHL provides a state with the authority to use force as a first resort against hostile civilians who directly participate in hostilities. The low-level foot soldiers of the various armed groups in Pakistan are such civilians directly participating in hostilities and they are lawful targets for as long as they are directly participating in hostilities.

Thus, Spencer Ackerman’s mischaracterizations aside, the fundamental question of who can be targeted is not one of policy but of law. Limiting drone targeting in Pakistan to high-level leadership was an implicit indication that the United States was invoking a state’s inherit right of self-defense. The expansion in targeting to include low-level fighters indicates a recognition on the part of the United States that it is engaged in one (perhaps several) armed conflicts in Pakistan. It is within the framework of armed conflict that the United States finds the authority to target a broader set of individuals and not just those whose killing is necessary to disrupt an imminent armed attack—the requirements for a state to use force in self-defense. Notably, the refusal to expand the use of drones in Yemen to include low-level fighters may suggest that the United States does not believe it is engaged in an armed conflict in Yemen, a very interesting point unto itself.

Moreover, the criticism that Ackerman levels—“CIA Drones Kill Large Groups Without Knowing Who They Are”—is misplaced and wrongheaded. Under neither self-defense nor the law of armed conflict is it necessary for the CIA to know who it is targeting. Under self-defense it may be useful for a state to know who it is targeting to be assured that it has made out the requirements of self-defense, but it is not required. Under the law of armed conflict, however, this criticism becomes ridiculous. In a non-international armed conflict, one that takes place between a state and a non-state actor, targetability turns on whether the target is directly participating in hostilities. As for the laundryman in Ackerman’s hypothetical, he is collateral damage. Whether his death renders the use of force unlawful depends on whether, from a prospective view, his death (and those like him) is disproportionate to the military advantage gained by killing the target. 

There is plenty to question about the U.S. drone campaign in Pakistan and elsewhere without confusing paradigms or leveling critiques that make no sense. 

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