Regulating the Rise of Drones

The use of drone technology is growing into a global phenomenon. Over 50 countries have purchased “drones,” or unmanned aerial vehicles, for intelligence, surveillance, and reconnaissance purposes, and a number of countries have started in-country development programs for armed versions. In 2011, the Teal Group consulting firm estimated that worldwide spending on drones will nearly double over the next decade, from $5.9 billion to $11.3 billion annually.

The growing popularity of weaponized drone technology, however, has not been matched with international discussion about their implications for human rights, national sovereignty, the laws of armed conflict, and for war itself. In his report to the UN Human Rights Council in June 2010, the former United Nations Special Representative on Extrajudicial Executions, Phillip Alston, recommended a summit meeting of key military powers to discuss these issues. Two years later, public debate of the legal and ethical implications of this weaponry has been notably limited, and no progress has been made to develop an international policy framework for their use.

Key Conclusions

International humanitarian law provides a legal framework for the use of force during armed conflicts. Outside of war zones, in places like Pakistan, where drone strikes have taken place, international human rights law provides limits on the use of lethal force. However, there is controversy as to whether US drone strikes are legal because there is little transparency and the US government has taken an expansive interpretation of “the right to self defense,”—which applies to geographically-unlimited counter-terrorism operations. If other countries follow suit, there could be negative consequences for the international system and for the international laws governing war.

There appears to be increasing acceptance from military powers that engaging in counterterrorism operations in self defense is legal and justified if countries that host terrorist networks are “unwilling or unable” to deal with the threat themselves. Drone strikes may become an easier tactic in such states because they are effective, relatively cheap, and carry fewer risks, but their use could challenge national sovereignty in fragile states.

The US government should increase transparency around its drone program, including providing the legal limits of the program and the number of civilians killed, so that a conversation can begin on an international level to regulate the use of these technologies. Key military powers should be willing to participate in an international dialogue where this issue can begin to be addressed.

Analysis

Drone technology is a relatively cheap and effective tool for providing surveillance, reconnaissance, and carrying out targeted attacks. They are operated remotely (the US uses places such as Nevada and upstate New York), and therefore they do not carry the risks of military loss of life. Supporters of drone strikes as a military tactic argue that they allow for a “light footprint” approach, where enemies can be eliminated without putting boots on the ground. In Libya, for example, NATO decided they would not send ground forces (except for military advisors to assist the rebels), and used drones to patrol over the territory. The US eventually contributed armed “predator” drones to carry out attacks against Qaddafi’s forces— arguing that they were ideal in an urban setting because of their ability to fly at lower altitudes than conventional jet fighters, allowing for better identification of military targets.

In an environment of financial austerity, the Obama administration has relied more heavily on the use of drone strikes to eliminate terrorist threats abroad. With NATO planning to withdraw from Afghanistan by 2014, these strikes are expected to increase significantly in the future, particular in Pakistan’s tribal areas. This trajectory is clear from the US Air Force, which now trains more drone operators than jet and bomber pilots.

US drone strikes in Pakistan, Somalia, Yemen, and Libya—outside the more traditional battlefields of Afghanistan and Iraq—have called into question the legality of drone strikes. The Central Intelligence Agency (CIA) manages the majority of US drone strikes outside of US war zones–primarily in Pakistan–in total secrecy. Unlike the Department of Defense, which has conducted investigations in response to civilian casualties, the CIA does not have public accountability mechanisms. Moreover, by refusing to provide transparency, critics argue that the US government has circumvented a public debate and the institutional checks that should take place before entering into hostilities. With ostensibly few risks and little sacrifice, some military ethicists argue that weaponized drone technology will lead societies to become more detached from the harsh realities and sacrifices of war, thus making war more likely.

Reports on civilian deaths from drone attacks have varied considerably. The US government does not officially acknowledge its drone program and therefore has not released an exact figure of civilian casualties, but government officials have claimed in public statements that the number of civilian casualties is quite low (a seemingly problematic contradiction). In a 2010 report, the New America Foundation found that between 2004 and 2010, approximately 32 percent of those killed in Pakistan were not engaged in hostilities. However, because of the difficulty in verifying the number of civilians killed, and without transparency about civilian casualties from the US government, the legality of these strikes under international law cannot be determined. Moreover, because of this opacity, the narrative offered by some groups that drone attacks result in a high number of civilian casualties goes uncontested–to the detriment of US counterinsurgency efforts.

The US government has defended the use of drone attacks outside the theatres of war as self defense, but human rights advocates, including the American Civil Liberties Union, have challenged their legal basis and argued that the US government should clarify the legal limits of these killings. Among the criticisms is that the US has provided no criteria on how it determines its targets, and that it carries out these attacks in a seemingly unconstrained time and geographical scope–maintaining the right to attack al- Qaida and it’s loosely defined “associated forces” around the globe.

Recognizing the potential for other countries to follow suit, Phillip Alston stated in a 2011 interview (echoing the findings of his report), “This [the US] interpretation of the right to self defense is so malleable and expansive that it threatens to destroy the prohibition on the use of armed force contained in the United Nations Charter. If other states were to use this justification for the killing of those they deemed to be terrorists, the result would be chaos.” Indeed, one only needs to look at the number of countries that abused counterterrorism laws to target dissidents after 9/11 or think of Presidents Bashar Al Assad and the late Muammar Qaddafi labeling domestic uprisings as acts of “terrorists” to see the risk for abuse.

As a growing number of countries are developing and purchasing similar technologies, the US has set a precedent. According to The New York Times, “this is the first time in history that a civilian intelligence agency is using robots to carry out a military mission, selecting people for killing in a country where the United States is not officially at war.”

Currently, the US far exceeds any other nation in developing drone technology—it is even reportedly developing a nuclear drone that can fly for longer periods of time. The US has sold unarmed surveillance drones to a number of its allies, but the US Congress has been reluctant to export armed drones even to its closest allies, despite proposals from the Pentagon, indicating that the US leadership finds the proliferation of this technology potentially dangerous. The US has sold armed drones to Britain and is considering a deal with Italy, which has requested armed drones to better protect its forces in western Afghanistan. The US is also considering providing armed drones to Turkey so that they can target members of the outlawed Kurdistan Workers' Party.

While the US may be the only exporter of weaponized drones, other countries have begun developing their own versions. Israel is the second largest exporter of unarmed surveillance drones and has a fleet of armed drones; they also do not officially acknowledge that they carry these weapons even though their use is widely known and has been criticized by Human Rights Watch for reportedly killing civilians in the 2009 Gaza War. China has been developing an armed drone that rivals US technology, which could potentially fill a vacuum in the export market. Other countries, such as India and Russia, are believed to be developing armed drones; Pakistan plans to obtain them from China; and Iranian President Mahmoud Ahmadinejad unveiled an armed drone in 2010 he called the "ambassador of death.”

Drone strikes also raise potentially alarming implications for national sovereignty. A number of countries with which the US is not at war have secretly allowed the US government to carry out drone attacks on their territory, including Pakistan, Somalia, and Yemen. Pakistan and Ethiopia, however, have threatened to end this cooperation with the US on drone strikes once it became public knowledge, due to a lack of public support. However, even without the permission of host governments, the US will likely continue to carry out attacks in states deemed critical for counterterrorism, especially in Pakistan, where 95 percent of strikes have occurred. In remarks last September, John Brennan, the White House senior adviser for counterterrorism and homeland security, recognized the international legal constraints of carrying out military strikes on foreign countries, but reiterated that the US would continue to target al- Qaida in states unwilling or able to do it themselves.

The implication of the notion of “unwilling or unable” is that states have a responsibility to maintain effective control of their territory, and, if they are unable to and become safe havens for terrorists, then other states have the right to take action to defend themselves. This same thinking can be found in UN Security Council resolutions on counterterrorism, such resolution 1373 (2001), passed under Chapter 7 of the UN Charter (and therefore legally binding), calling on states to take specific measures to prevent terrorist activities on their territory. Yet there is no international definition of “unable or unwilling” and with the growth of transnational armed groups, the risk that perceived threats could justify preemptive military action within a sovereign state–especially using rapidly developing drone technology– is becoming increasingly likely.

Ann Wright is a Research Assistant at the International Peace Institute

About the photo: MQ-1 Predator unmanned aerial vehicle, US Air Force photo, found here


Faculty
Very interesting article bringing attention to this issue--not just as a US policy but as an alarming global trend. As you've pointed out, drones could potentially benefit war by limiting civilian casualties because they are more targeted, but I fear that if they remain unregulated, they will be abused. The fact that so many governments have attacked dissidents under the guise of counter-terrorism operations really highlights how these technologies could be abused in the wrong hands.
written by James McLeod, May 11, 2012
University Student
Thank you Ms. Wright for your very informative article. An initial question is whether the 'unwilling or unable' clause includes 'unaware.'

If a country with which the U.S. is not at war is unknowingly hosting a member of a terrorist group, would the U.S. go ahead with a drone attack before first consulting that country's government? If so, wouldn't that be a breach of international law even if the attack was in such dubious self-defense nature? The U.S. could also argue, as it did a year ago when it disregarded the national sovereignty of Parkistan to target Bin Laden, that the very act of consulting a government could undermine the targeting mission. What are your thoughts?
written by David Sanchez, May 06, 2012
Senior Researcher/Project Leader
It's unfortunate that Ms. Wright has not successfully contributed anything new to the debate over armed drones. The article is factually superficial, and ignores complicates realities surrounding RPVs.
written by Michael Ashkenazi, April 26, 2012

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