Stephen Groves of the Heritage Foundation has advised the Obama administration to “ignore” the upcoming U.N. investigation led by human rights lawyer Ben Emmerson on the allegations of unlawful killing by drone strike. His commentary includes numerous striking misrepresentations of the drone strike program, and a glaring omission of the CIA drone program.
He predicts three outcomes of the investigation, which I will go through point by point below:
The United States cannot legally target with deadly force al-Qaeda militants operating in countries like Somalia and Yemen where there is no “hot” armed conflict occurring.
In the first place, armed conflict is not defined on the basis of “hot” or “cold”. It either exists, or it doesn’t. And as per the specifications of international law, the US is not in an “international armed conflict” with al-Qaeda. International armed conflict is clearly defined under International Humanitarian Law (IHL) as “arising between two States“. As al-Qaeda is not a state, it is not possible for the US to be in an international armed conflict – again, under international law – with al-Qaeda. As UN Special Rapporteur Philip Alston writes in this report, “an international armed conflict cannot exist between a State and a non-state group.”
Furthermore, the blanket characterization of targeted entities in Somalia and Yemen as “al-Qaeda militants” completely ignores the opinion presented by Harold Koh – and cited in Groves’s article, no less – that the U.S. is “in an armed conflict with al-Qaeda, as well as the Taliban and associated forces“. In the same report referenced above, Alston explains that the US cannot claim to be in a transnational non-international armed conflict with al-Qaeda beyond the context of Afghanistan or Iraq “without further explanation of how those entities [collectively] constitute a “party” under the IHL of non-international armed conflict, and whether and how any violence by any such group rises to the level necessary for an armed conflict to exist.” Moreover, Alston opines that to arbitrarily “expand the notion of non-international armed conflict” to these groups would be to do “deep damage to the IHL and human rights frameworks.”
If as a thought experiment, we assume that the US is in an armed conflict with al-Qaeda, the Taliban, and associated forces, it is then the responsibility of the US to ensure that the use of lethal force is “actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.” There is no reason why using less-than-lethal force against targeted individuals would not suffice in the case of drone strikes, whose sole objective is to restrain operatives actively engaged in the conduct of hostilities against the US – especially when doing so would have the potential of completely eliminating most, if not all, of the civilian casualties that are a frequent byproduct of drone strikes.
[Also worth noting is Groves’s deliberate omission of Pakistan from his list of countries, in which the CIA has been operating a covert drone strike program since June of 2004.]
The al-Qaeda militants in those countries do not pose an imminent threat to the security of the United States and therefore cannot be targeted as an act of self-defense
International law is quite unambiguous on what qualifies as being an imminent threat: when “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” In fact, this is a position that is recognized by the US government itself, which has instead chosen to implement a unilateral policy of “preemptive” or “anticipatory” action that inherently does not correspond to imminent threats. What Emmerson is likely to conclude, as others have, is that this policy of preemptive action is not in accordance with international law and results in the extrajudicial assasination of illegitimate targets.
The risk of civilian deaths from drone strikes is so great that as a matter of international law such strikes violate the principle of proportionality.
Groves’s depiction of the “risk” of civilian deaths fundamentally ignores the “reality” of civilian deaths most accurately documented by the London-based Bureau of Investigative Journalism. In some cases, drone strikes have exclusively killed and/or maimed innocent civilians, including women and children. Even in cases where drone strikes have killed “militants”, the Obama administration has failed to sufficiently distinguish between these militants and civilians, instead counting “all military-age males in a strike zone as combatants…unless there is explicit intelligence posthumously proving them innocent.”
Drone strikes do not violate international law solely on the principle of proportionality, as explained above. They violate international law on the principles of distinction; in the case of Somalia, they violate that nation’s sovereignty; they violate IHL by illegally targeting individuals without the use of graduated force (since the threat of attack against the US is not imminent); and, were the case of self-defence to be permissible, the US government’s subsequent failure to report such actions to the United Nations Security Council as required by Article 51 of the U.N. Charter is a violation of that treaty. With regards to domestic law, the targeting of American citizens without due process is a violation of the Fifth Amendment – even if the Obama Administration believes that due process consists of the President deliberating in his office about who to kill.
Groves goes on to opine that “increased transparency” about drone strikes will “of course, be deemed by human rights activists as insufficient”. His crystal-ball notwithstanding, he seems to have a abject misunderstanding of the current state of drone strikes: there is no transparency with regards to how the USAF drone program operates, let alone how the CIA drone program operates. Furthermore, if the Obama administration is actively engaged in the violation of international law – even in not reporting the details of its drone strikes to the UNSC – it makes little sense for “increased transparency” to rectify such violations.
Groves’s problematic misportrayal of the drone program illustrates his glaring ignorance of the topic as it is described by the US government itself. It is precisely individuals like Groves who should read Emmerson’s upcoming report, because Groves fundamentally lacks a proper understanding of the dimensions of the US drone program, let alone in how it relates to the framework of international law. Koh’s public statement on drones, which as mentioned earlier is cited in Groves’s post as detailing the “legality and propriety” of the drone program, describes Koh himself as “the spokesperson for the US Government about why international law matters,” noting that “[many] people don’t understand why obeying our international commitments is both right and smart, and that is a message that this Administration, and I as Legal Adviser, are committed to spreading.” Evidently, Groves is one such individual.
Such mischaracterizations of the US drone program only serve to keep the American people ill informed about the nature of their government’s drone program, ensuring that the material consequences of any “increased transparency” will be utterly useless in an inherently flawed debate about drones.
UPDATE: The underlying assumption of Groves’s article is that the Obama administration would otherwise give weight to the conclusions of Emmerson’s panel. As Noam Chomsky has demonstrated on innumerable occasions, the US is by far the leading rogue state in the world in its enduring defiance and disregard of world opinion.