Roger writing the LAWmag

Military Drones: US' Silent Soldier in Court

The large, buzzing, light gray drones, remotely piloted small airplanes the United States has been using in anti-terrorist operations in Afghanistan, Pakistan, Somalia and Yemen have been, if nothing else, effective. Individual terrorists have been wiped out without any risk to life or limb of anti-terrorist military personnel safely ensconced inside a bunker hundreds of miles away, guiding the drone as if it were a computer game on computer screen.

Surgical Assassination

The drones, which do not have big, bright USA license plates on them, or any form of traffic lights, really are the perfect military weapon. They may be, one hopes, the exclusive purview of soldiers as against other soldiers at this time but it would appear to be only a matter of time before criminal organizations figure out just how useful these devices might be. You swoop in, you shoot, you take off and even get to re-use the killing machine. No fingerprints, ocular witnesses are rare and even if they did come forward, their story might sound like something out of a science fiction movie.

US military droneAt the same time, having a military drone capable of such a surgical assassination might have been very helpful had it been available in Berlin circa 1939, at the beginning of the second world war, and may have saved millions of lives if the target had been a loud, short little self-important Austrian/German man with a funny mustache.

Terrorists in Pakistan

But of course, every time there are significant developments in the technology of war, someone yells unfair. Fact: Pakistan has been unable to contain radical Muslim terrorism. When Osama bin Laden needed a safe house, he chose Pakistan. Even now, American drones are killing known Taliban or al Qaeda terrorists deep in Pakistan territory.

What are they doing there? The parliament of Pakistan passed a resolution in March of 2013 that called for an immediate end to American drone strikes and yet the resolution continued, straight-faced, by re-affirming Pakistan's commitment to hunt down terrorists and extremists.1

Pakistan says that the number of drone strikes is now over 300, with over 2,000 casualties, a quarter of which, they claim, have been innocent Pakistani civilians. The USA says that there may be civilian deaths, but that the collateral damage casualty numbers are nowhere near that high.

The US, naturally, is not that enthusiastic about releasing any details of military operations especially since both the Taliban or al Qaeda would readily manipulate such transparency to propaganda and military assets.

U.S.A. Called to Account

One law professor at the University of Illinois, Francis Boyle recently suggested publicly that the state of Pakistan bring charges against the United States before the International Court of Justice and/or the International Criminal Court for war crimes or crimes against humanity because of the collateral damage these drones are allegedly causing in the death of innocent Pakistani citizens. Boyle had also been critical of the Israelis in their management of Palestinians, even calling it "genocide against the Palestinian people".

US military drone in flight His voice can be joined with that of law students of Stanford Law School who have started and maintain a website critical of the American government known as www.livingunderdrones.org.

If there even is such a thing, and as a proposal to Sharia law students in areas of Pakistan controlled by al Quaeda or the Taliban, try starting a website critical of Taliban or al Qaeda anti-American terrorism. And to really test relative freedom in tribal Pakistan, let the website be edited by an all-women group.

Boyle is not just some white-haired law professor with an unpopular cause (in the USA). He parrots what Pakistan has already warned: that they consider the drone attacks on their territory as a violation of their airspace.

On December 18, 2013, the United Nations General Assembly raised its sleepy voice on the issue and resolved that any state that use drones to execute military targets, do so within the confines of international law.

It is always humorous were it not so deadly an oxymoron when, the UN included, the words law and war are used in the same sentence as in "the law of war". Furthermore, it might make for a very interesting law journal article were some law professor or some law students to undertake to argue how al Qaeda attacks on the United States, especially New York City, on September 11, 2001 were made in compliance with international law and the Charter of the United Nations. Was there a secret army base in the World Exchange Center?

The USA's Case

The United States of America are not sending drones randomly or without cognizance of the seriousness of the risk of collateral violation of the airspace of another. At the same time, given their druthers, the ultimate target of Al Qaeda terrorism if left unchecked, would not be Pakistan. It would be the the United States of America without regard, as has been shown in the past, to whether the victims are soldiers or civilians.

The yet-to-be-internationally-challenged legal position of the the United States was first raised in April of 2012 by John Brennan, then-Assistant to the President for Homeland Security and Counter-Terrorism,

"There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.... Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value.  In this armed conflict, individuals who are part of al-Qaeda or its associated forces are legitimate military targets.... targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering."

Legal Opinion

Even as the United States, at their expense, remain vigilant against terrorism initiated by Muslim extremists, they  do so exposed to court challenge and that is merely the sign of the vibrant freedoms they seek to protect. That court challenge will take time, a long time to be exact, wherever it is brought but it may, if nothing else, result in a candid debate and hopefully some solid legal guidance on the perplexing dilemma facing the United States as terrorists, with blood on their hands, operate with proposed impunity just over a fence while the victims of said terrorists are unable to use efficient defensive weapons, as some would suggest, because of international law.

Nobody ever said that law-making was easy and when it comes to law and war, it is doubly so. At least, within free and democratic states, there is a genuine willingness to subject acts of war against some semblance of law.

Until the bombs start falling in one's own back yard. And the defender is asked to sit tight, continue knitting and keep the flag of the United Nations and international law raised.

REFERENCES:

  • Boyle, Frank, submissions made before the Kuala Lumpur War Crimes Commission in August on 30, 2013. Reported at http://www.countercurrents.org/boyle300813.htm where professor Boyle is described as "Legal Advisor to the Palestine Liberation Organization"
  • Brennan, John, Assistant to the President for Homeland Security and Counterterrorism, remark made at the Wilson Center (http://www.wilsoncenter.org/) entitled The Ethics and Efficacy of the President’s Counterterrorism Strategy, 2012-04-30
  • NOTE 1: United Nations, Office of the High Commissioner for Human Rights, Statement of the Special Rapporteur following meetings in Pakistan, 2013-03-14
  • PressTV, Pakistan Must Take US to ICC Over Drone Strikes: Francis Boyle
  • Yousaf, Mamran, International Law Compliance: UN Adopts Resolution Against Use of Drones, Express Tribune, 2013-12-23 [http://tribune.com.pk/story/648078/international-law-compliance-un-adopts-resolution-against-use-of-drones/]

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