Interview With Mary Ellen O’Connell, International Law Expert, on US Drone Policy

This week, reports about US government documents on drone use—including this memo outlining the legal rationale for the practice—added new fire to an already heated debate over its lawfulness.

In a telephone interview with the Global Observatory international law expert Mary Ellen O’Connell discussed the US rules governing the use of drones and the soon-to-be-approved government manual on the practice which she called “very disturbing.”

“Instead of looking to and applying with sincerity and good faith the existing rules that have been created by the international community, fundamentally in the UN Charter, the administration is finding the actual law inconvenient and is making up its own rules,” she said.

“I consider it to be the Obama administration playing at making law,” said Ms. O’Connell, whose recent op-ed in The New York Times called for accountability.

“I’m not just critical of the Obama administration, but of human rights lawyers and governments throughout the world who seem to be waiting to see what these rules are that the Obama administration is drafting,” she said.

“I fully understand the outrage, anger, and sorrow in Pakistan,” she said. “I have to point out that while the focus has been on Pakistan, I think the lawlessness of the Obama administration’s policy is underscored by what has happened in Yemen, where the very first drone attack away from an armed conflict zone occurred.” The UN concluded this killing was extra-judicial.

Ms. O’Connell also discussed the civilian impact of drones, and the new US drone base in Niger, which experts believe has implications for Mali, Libya, Algeria, and Nigeria.

Ms. O’Connell has been a professional military educator for the US Department of Defense; she chaired the Use of Force Committee of the International Law Association from 2005-2010; and recently she served as a Vice President of the American Society of International Law. She is a frequent author on international law and the use of force, including her 2012 book What is War? An Investigation in the Wake of 9/11

The interview was conducted by Andrea Ó Súilleabháin, Visiting Fellow at the International Peace Institute.

Andrea Ó Súilleabháin (AOS): Our guest today in the Global Observatory is Mary Ellen O’Connell, a Professor of Law at the University of Notre Dame and Professor of International Dispute Resolution at Notre Dame’s Kroc Institute for International Peace Studies.

An expert on the use of force, Mary Ellen O’Connell wrote a piece in 2004 branding the first CIA drone strike unlawful under international law. She has remained a leading voice for that position throughout the last decade of debate. Welcome, Mary Ellen, and thank you for speaking with me today.

Mary Ellen O’Connell (MEO’C): Thank you, Andrea. It’s very good to speak with you.

AOS: I want to start by asking you about a recent development from the White House, a soon-to-be-approved manual of rules to govern targeted killings and the use of drones. How significant is this so-called “playbook”?

MEO’C: I think it’s been appropriately dubbed by the media a “playbook.” I consider it be the Obama administration playing at making law. It’s a very disturbing development. We know enough about the drone attacks to know that the international law governing the use of force outside of US borders is sufficient; there’s no need for a new set of rules.

It’s just not part of the method of lawmaking that a secret intelligence agency of a government can make up the rules under which they are going to go forward. This is disrespectful of the rule of law in the world. News of the “playbook” indicates that this game of creating law is going to continue. The Obama administration is apparently writing a similar “playbook” for cyber attacks. For a country that has a law professor as its president, this is particularly distressing. He and his top advisors don’t seem to realize that you do not make up rules when it comes to using force—especially lethal force, and especially outside the boundaries of your own country.

AOS: I’d like to also bring up Pakistan, which is the nation most affected by US drone operations, both in the number of strikes and number of civilian deaths. What is your reaction to reports that this CIA drone manual will exempt Pakistan from its regulations for at least the first year or two of its being in operation?

MEO’C: I think this underscores the phony nature of these purported “rules.” Again, the administration is playing at making law. No one should take any of this seriously as law. The only positive thing is that there is plainly an awareness that law is critical in how any legitimate government uses military force outside its country. But it is a truly odd recognition of respect for the law. Instead of looking to and applying with sincerity and good-faith the existing rules that have been created by the international community, fundamentally in the UN Charter, the administration is finding the actual law inconvenient and is making up its own rules. Even the rules it is making up, it finds inconvenient, and grants itself exception to its rules!

I fully understand the outrage, anger, and sorrow in Pakistan. I have to point out that while the focus has been on Pakistan, I think the lawlessness of the Obama administration’s policy is underscored by what has happened in Yemen, where the very first drone attack away from an armed conflict zone occurred. You mentioned in your introduction that I wrote about that first drone attack in 2004, saying it was unlawful. Even more importantly, the UN Special Rapporteur for Extrajudicial Killing, Asma Jahangir, from Pakistan, a very well-respected human rights lawyer, did an investigation of that 2002 Yemen attack, and said it was extra-judicial killing.

I’m not just critical of the Obama administration, but of human rights lawyers and governments throughout the world who seem to be waiting to see what these rules are that the Obama administration is drafting. Many are saying that we need more information before we can assess drone strikes far away from armed conflict zones and determine whether or not they are lawful. This is simply incorrect. We’ve had a very good report on the basics of the law involved, and that was reported to the UN in January 2003.

We don’t need any more analysis of the rules. We don’t need to wait for the Obama administration to make public their playbook. Under the UN Charter the use of major military force, such as the kind of force that drones deploy (missiles and bombs weighing up to 500 pounds), is lawful only in three situations: First, where a country has been the victim of an armed attack—as provided for under Article 51 of the UN Charter; second, when authorized by the Security Council; and, third, where a state is assisting at the request of a government in an armed conflict zone, such as the civil war that’s being fought in Afghanistan.

The US and other countries, in particular NATO allies, are involved in an armed conflict, a civil war, at the invitation of the elected authorities of Afghanistan, in particular Mr. Karzai. There’s no other situation in the world where the US is involved that meets those criteria—Article 51 self-defense, Security Council authorization, or express invitation from the legitimate authorities of a country to be involved in suppressing a civil war.

AOS: I’d like to ask you what this means for international law—that we can have such a prolonged and ongoing, systematic set of violations. As these strikes continue, is there a broader danger that this practice will erode the force of international law, or have a more permanent impact?

MEO’C: I am very glad that you are interested in that question, and I’m sure your readers and listeners will be. I’m extremely unhappy that it appears President Obama and his top advisors are not concerned about the impact on international law of a country as important as the United States, purporting to write its own rules or to act in clear contravention of the existing and well-known rules.

International law is not like the law of nation-states. We don’t have regular governmental institutions; there is no world government. International law is made primarily though treaties, and through the development of customary international law. Treaties are subject to interpretation that can evolve and change over time. Customary international law follows the state practice of states when they are carrying out certain actions in the clear belief that it’s obligated by law.

These are unusual forms of lawmaking for the average person, but very important. They have governed the international community since 1648; they are much older than the law of most nation-states in the world. We have worked hard to get the rules of the UN Charter and other rules to at least mitigate the resort to and the conduct of armed conflict. These rules should be held as very precious, especially to the United States: the core UN Charter rule against the use of force, except in self-defense, or with Security Council authorization, or with the consent of a government as I explained regarding Afghanistan. These rules were primarily drafted and supported by the United States, because the United States knew after World War II how important it was to move away from military force, as technology increased and the harm caused to people everywhere increased.

Instead of supporting that trend, supporting the rules as they exist, and understanding the nature of customary law–that it needs to be reinforced and not detracted–the Obama administration has not looked for effective alternatives to the problem of terrorism. It has, in fact, exacerbated the problem by undermining the very rules against violence and the use of force, that should prevail in the world today and that should be used as a standard against which we prosecute those who would carry out terrorist bombings or invasions of other countries. The United States is making the world less safe because it is undermining the very law that should create order and peace on Earth.

AOS: I think that history is so important for us to remember. Also for me it brings up, again, the civilian impact, because so much of that work and legal development was focused on protecting civilians during conflict. I’ve noticed there’s a big divide in the debate over drones on this question. Human rights groups and international law scholars object to the numbers of civilian deaths, but others insist that drone technology and the so-called “targeted, surgical” operations can be seen as major step to changing conflict and making it less harmful to civilians. I wonder if you could share your analysis of the civilian impact of drones—both inside and outside the zone of war?

MEO’C: Andrea, so many people in this debate jump right to this question of civilians, and the civilian impact. President Obama has stressed that these drone strikes are precise, and he seems to suggest that because they’re precise that makes them lawful. He has eased his listeners into thinking only about the comparisons between, for example, high aerial bombardment of the kind we saw in the Kosovo conflict versus a drone strike against a house in Western Pakistan, but this is a wrong orientation from which to view this question.

Outside of an armed conflict zone, everyone is a civilian. Persons in uniform are still governed by the regular criminal law and peacetime rules apply. We don’t allow our police outside of an armed conflict to have rocket propelled grenade launchers. They don’t have drones that can drop bombs on homes. They are not allowed to shoot missiles at wanted terror suspects. And so it’s really a false premise to start with whether or not the weapon is precise; you have to ask where it’s being used. Outside of an armed conflict zone, all of these weapons are extremely imprecise and unlawful compared to what the law requires, and that’s peacetime policing rules.

The use of lethal force by government authorities is permissible only in situations of clear necessity, where for example a human life is at stake, but we don’t have a rule that civilians who are in the area may be killed in a police operation as collateral damage. We don’t have a collateral damage rule in peacetime civilian policing. You may not kill bystanders. One example is the escaping fugitive case. In the United States, if an escaping fugitive who is known to be highly dangerous does not stop when called upon by the police, he may be killed in the resistance of arrest—but not if bystanders are going to be killed. This is why it’s so important that your audience understand that international law makes it clear what a zone of armed conflict is, where armed conflict is going on, and where the rules with respect to the use of armed force (the Geneva Conventions and their additional protocols and customary rules) apply.

Today, the United States is involved in only one such conflict and that’s Afghanistan. And yes, in Afghanistan, it is going to be preferable for the lives of civilians, people who are not involved in the fighting, if the US uses unmanned drones rather than high aerial jet bombers. We know 20,000 people died in the Kosovo conflict. NATO has agreed, for purposes of argument, that at least 500 civilians who were not part of the fighting, who should not have died even in collateral attacks, is the likely number of deaths in the Kosovo conflict. I’m hoping that the use of drones in Afghanistan has led to far fewer civilian deaths. And so for those situations where the US has resorted to military force lawfully, the drone is a preferable weapon to the alternative.

On the other hand, we will soon be leaving Afghanistan, and for anyone to die in these coming months makes little sense to me. Civilians may never be intentionally targeted under the rule of distinction in the fighting of armed conflicts, but we also have the rule of military necessity. In a military operation involving killing and the possible killing of civilians as collateral damage, you must weigh the cost of those lives against the military objective. That calculation is becoming more and more questionable as the US and its allies withdraw from Afghanistan.

I am increasingly critical of any use of military force by the United States today, whether by drones or by other means, in Afghanistan or outside Afghanistan. It’s time to conclude that the reasons for resort to military force in today’s highly complex, socially-intricate disputes are very, very limited. And I’m sorry, for example, to see that the French resorted to force in Mali. We’ll see how that turns out over time, but it was a direct result of having used military force in Libya, and not followed up with the aftermath of that conflict.

We know so many counterterrorism experts have said that the use of drones and military force outside armed conflict zones is exacerbating terrorism, not having a long-term positive impact on suppression. Under any set of rules you want to bring to bear on the use of drones, with the exception of the CIA’s own self-written, self-important playbook, all the rules should really have led the United States, its President, and its top officials to reject the use of drones.

AOS: Finally, I want to follow-up since you’ve mentioned Mali and Libya, and those are two countries in a region where a recent announcement of a new drone base in Niger makes many predict that the program is likely to expand to Mali, Libya, Algeria, and Nigeria. I also want to ask you about the use of unmanned drones as surveillance, because the agreement with Niger is limited at this point to using US drones for intelligence in the region. What is your opinion on that, and what do you think the wider implications could be?

MEO’C: You’re absolutely right. I think it would be a terrible mistake to start expanding the use of military force to yet more non-armed conflict situations.

Nigeria has not yet descended to armed conflict. There’s a very serious problem of intercommunal violence. But if you study the history of peace, you know that using military force as opposed to creating a peaceful political resolution in which all parties are represented and work out how they’re going to live together with their differing perspectives is the only way to get long-term peace. It’s heartbreaking that the Obama administration would consider these “willy nilly attacks,” to use President Obama’s term, against suspected persons in Nigeria, or Mali, or anywhere else that the US is purporting to attack and use military force against terror suspects. It’s the wrong policy from so many perspectives.

I do not know what Niger agreed to in exchange for the US to place on a new drone base on its territory. While the agreement may currently say “surveillance only,” the officials in Niger should look at how the US has kept any promises made to Pakistan in terms of limiting its military presence in Pakistan.

The other issue is an article some of your audience may be interested in called “Seductive Drones,” published in the Journal of Law, Information and Science [by Mary Ellen O’Connell]. It talks about how technology of drones draws political leaders, especially US political leaders, into using military force where they are perhaps bound by an agreement with a country that hosts a base or other international law to not using lethal force. Something about being able to say publicly, we have done all this damage to terrorism suspects, and this constant announcement of the kill list and how many people have been killed may show great dramatic results where no US personnel are endangered in any way. Sadly, this seems to have lured two of our presidents into using military forces in places where it’s quite unlawful to do so. If I were an official in any country where the US has asked to base drones, I would look at the nature of this technology, and the impact it seems to have on American political leaders.

AOS: Mary Ellen O’Connell, thank you for speaking with the Global Observatory today. We’ll continue to follow this issue.

MEO’C: Thank you, Andrea.