Gleider I Hernández is Lecturer in Law, University of Durham. The author is grateful to Dr Philippa Webb, Professor Michael Schmitt and Thomas Liefländer for their exchanges of views on this topic.
The 2012 revelation that United States President Barack Obama was immersed in the authorisation and execution of targeted drone strikes by the CIA against suspected terrorists in Afghanistan, Pakistan, Yemen and Somalia was, to put it mildly, important. Shielded from open scrutiny from Congress or the judiciary, and operating on the margins of the public eye, the ‘kill list’ of candidates has resulted in an astonishing number of drone strikes, with the Bureau of Investigative Journalism estimating between 240 and 347 people have been killed in Yemen since 2002, with a further 2541 to 3533 killed by some 278 CIA drone strikes in Pakistan.
As such, three developments in the last fortnight go some way to lifting the veil of secrecy that had heretofore surrounded the US’ weaponised drones program (on which I was asked to comment on the BBC World Service last Friday, linked here):
- The 22 May letter from Attorney-General Holder disclosing certain information about the US citizens who have been killed by US counter-terrorism operations outside areas of active hostilities.
- President Obama’s 23 May speech at the National Defence University, which has been described as the most important speech on counter-terrorism policy since 2001.
- The simultaneous release of a Fact Sheet entitled ‘US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’ (and referred to by Obama as the “Presidential Policy Guidance” (PPG)). This document sets out a number of principles with respect to the United States’ conduct of counterterrorism operations.
Ben Emmerson QC, UN Special Rapporteur on Human Rights and Counterterrorism, has suggested Obama’s speech ‘affirms for the first time this Administration’s commitment to seek an end to its armed conflict with Al Qaida as soon as possible; it reminds the world that not every terrorist threat or terrorist attack can be equated with a situation of continuing armed conflict; it sets out more clearly and more authoritatively than ever before the Administration’s legal justifications for targeted killing, and the constraints that it operates under; it clarifies, and proposes improvements to, the procedures for independent oversight; and it sets out the steps the President is now resolved to take in order to close Guantanamo Bay’ (for the full press release, see here.)
Although there is much truth to Emmerson’s cautious endorsement of the principles contained in Obama’s speech, there are important policy considerations that have been made public and deserve further scrutiny. Moreover, when taken together, Obama’s speech and the Presidential Policy Guidance represent a claim to the normalisation or even a ‘banalisation’ of the practice of targeting terror suspects at large.
The effects of the policy entailed by the Obama speech and the PPG have attracted reactions from the Guardian, the BBC, Le Monde), and the blogosphere (including Kevin Jon Heller at Opinio Juris, Ryan Goodman and Sarah Knuckey at Esquire, and the summary of coverage on Lawfare) are parsing the President’s words and the PPG, with commentators focusing on which questions remain unanswered. These include, inter alia,
- The geographic scope of the PPG: The principles are said to apply ‘outside the United States and areas of active hostilities’, but does that include Pakistan, Yemen and Somalia? If not, is the international law of armed conflict exhaustive ? It is true that the US Supreme Court maintained in Hamdan v Rumsfeld that the war on terror is a non-international armed conflict; even if that is the case, however the PPG seemingly applies beyond areas of active hostilities, in some sort of penumbral wider zone where international humanitarian law may not apply. Given the United States’ view that human rights law does not apply extraterritorially, this is worrying.
- Are signature strikes allowed under the PPG? The document clarifies in a footnote that ‘it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants’, but they also speak of the ‘terrorist target’ rather than a named individual, leaving the door open for strikes based on behaviour alone and not identity. Similarly, the phrase ‘terrorist target’ gives no indication as to whether it is only senior operational leaders who are being targeted.
- The means through which drone strikes will continue. The PPG is silent in this regard; and Obama’s speech does nothing more than indicate a preference that, in future, drone strikes would be carried out primarily through the US military rather than through the CIA. Although that shift may be a purely practical response to the secrecy with has shrouded drone operations to date, it may signal a willingness to assume responsibility for compliance with international rules regarding the use of force and a commitment to greater transparency.
I wish to explore some further issues, beginning first by considering how this claim is situated by the United States. The Fact Sheet makes clear that the US maintains its ‘legitimate claim of self-defense’, which in practice translates into its claimed right to use lethal force against terrorist suspects: this is embodied in its ‘first principle’ in the PPG, that there must be ‘a legal basis’ for using lethal force. Viewed positively, the first principle represents an acknowledgment that the drone policy cannot be pursued without reference to any plausible standard. Yet the United States seems to assert a right to ‘self-defence’ beyond the understanding contained in Article 51 of the Charter. As formulated, this right to self-defence has overtones of righteousness and to the moral legitimacy of these practices. That claim is baldly justified through the assertion that the drone strikes are part of a wider ‘just war’ (see Luban’s 2012 Boston Review article presaging the claim, here), of ‘a war waged proportionally, in last resort, and in self-defense.’ Much of the rhetoric in Obama’s speech and the PPG, in particular the claim that something need not merely be legal, but ought also to be ‘wise and moral’, seem designed precisely to reinforce the normalisation of the practice of targeting through drone strikes.
There are further ambiguities in the new policy which are troubling. The ‘second principle’ in the PPG emphasises that the United States ‘will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons’. Yet the elasticity of these terms raises serious questions, not least about the self-judging aspect of ‘imminence’, but also raises the curious question as to how something can be simultaneously imminent and continuing. Prior statements (and the leaked DOJ White Paper of 4 February 2013) suggest that the United States has embraced an ‘elongated’ concept of imminence that has attracted criticism for its inconsistency with the international law on anticipatory self-defence.
Further, it remains to be seen as to whether any move from the CIA to the military will further entrench this elongated concept of imminence, a concept which departs from general international law. I feel it necessary to point out that Obama has acknowledged that his ‘administration submitted information about Awlaki to the Department of Justice months before Awlaki was killed, and briefed the Congress before this strike as well.’ To my mind, that admission seems to confirm the confusion between imminence and the continuing nature ascribed to terrorist activities.
Perhaps the most important substantive elements in the PPG are found in the ‘third principle’, which makes conditional the normalisation of drone strikes with a series of standards with which any drone strikes must conform:
1) Near certainty that the terrorist target is present;
2) Near certainty that non-combatants will not be injured or killed;
3) An assessment that capture is not feasible at the time of the operation;
4) An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5) An assessment that no other reasonable alternatives exist to effectively address the threat to U.S. persons.
The standards set out in the third principle go some way to establishing a legal framework within which to assess drone operations, yet in doing so, a number of ambiguities are set out that more likely than not will make accountability an open question. It is true that the threshold of ‘near certainty’ that non-combatants will not be injured fortifies the protection of civilians beyond what is required by IHL; as Goodman and Knuckey suggest, it is in theory more restrictive than the standard proportionality test. Yet, the third principle lays out no substantive guidance as to what precautions ought to be taken to safeguard against civilian harm. Given the application of the PPG outside of areas of active hostilities, the question remains open as to how the United States perceives whether similar obligations of distinction and precaution apply as a matter of international law. It also begs the question as to why the military, rather than the CIA (which has been engaging in drone strikes for a decade) ought now to assume the responsibility for the strikes, putting aside the potential advantages in terms of accountability and transparency that may flow from military control.
Another question concerns how non-combatants will be defined. A footnote in the Presidential Policy Guidance tells us that ‘[n]on-combatants are individuals who may not be made the object of attack under applicable international law’. The term ‘non-combatant’ does not include an individual who is part of a belligerent party to an armed conflict, an individual who is taking a direct part in hostilities, or an individual who is targetable in the exercise of national self-defense’. It seems that once again the Guidance conflates jus ad bellum with jus in bello.
Furthermore, the United States’ position seems again to have elongated the category of ‘indirect participants’ in hostilities, as Article 13, paragraph 3 of the Second Additional Protocol stipulates that civilians retain their protection until they take direct part in hostilities, but is silent as to what kinds of indirect participation deprives individuals of their protection (see Red Cross guidance, Rule 6, here). Perhaps inspiration may be found in Article 42 of the Fourth Geneva Convention, which admittedly applies only in international armed conflicts; the said Article allows for the detention of certain individuals; but it does so ‘only if the security of the Detaining Power makes it absolutely necessary’. The only interpretation of the United States’ position here would seem to be that, in cases of non-international armed conflict at least, it is free to target, with lethal force, individuals suspected of posing a threat to its national security. Whatever the United States’ position on the customary legal status of the Second Additional Protocol, the legal basis for the Obama administration’s claim seems rather novel, to put it mildly.
The legalisation project regarding drones goes further. Obama confirmed in his speech that he would ask Congress to review his proposal for ‘oversight of lethal actions outside of warzones’ to be subject either to review by a special court or to an independent oversight board. In his own words, ‘the establishment of a special court to evaluate and authorise lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority,’ The second option, the establishment of an independent oversight board within the executive branch, ‘avoids those problems, but may introduce a layer of bureaucracy into national security decision-making, without inspiring additional public confidence in the process.’
The two oversight mechanisms described above would constitute recognition of the necessity of greater transparency regarding drone strikes. What raises eyebrows, however, is the rather one-sided view as regards to whom such transparency is owed. The PPG reveal that ‘appropriate Members of Congress have been kept fully informed’ of previous counterterrorism operations. Moreover, they suggest that ‘appropriate Committees of Congress will be notified’ of future operations conducted under the said standards and procedures. Such judicial or executive oversight is confined to advance scrutiny of operations, to ensure that appropriate measures are taken before an attack. No accountability mechanism to review operations after they have occurred would be put into place, though there is a suggestion of ‘notification’ post facto. This is a one-sided notion of accountability: there is no acknowledgment of the duty to investigate operations and provide reparations for victims of strikes that kill or injure civilians.
What is more, there is no mention of transparency to persons outside of Congress, including the communities affected by the strikes and the State where the attack takes place. Now, the fact of civilian casualties does not in itself constitute a breach of international humanitarian law: if an attack complies with the principles of distinction and proportionality, and where appropriate precautions are taken, such civilian casualties are reducible to ‘collateral damage’. It is through this oversight that the technical efficacy of drone strikes and their ability to minimise collateral damage will be subject to heightened scrutiny (see, for example, Professor Michael Schmitt, here). With the effects of drones on communities and victims being called into question (see the poignant testimony of Ibrahim Mothana on drone strikes in Yemen, given to the United States Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights on 1 May 2013), oversight of any sort seems an absolute necessity, even as it will itself contribute to the legal discourse that contributes to the banalisation of drone attacks.
There is nothing new in a claim to the legalisation of violence such as that of Obama’s. The proposed standards and policies—as well as the creation of oversight mechanisms—represent an aspiration to adhering to standards within the law, rather than operating within the penumbra of legality and transparency. To the extent that the law can be an effective tool to contain unnecessary violence and the death of innocents, this modicum of transparency and oversight are welcome. But Obama’s policy retains elements of ambiguity that maximise the margin of manoeuvre, all whilst reaffirming peremptorily the right to exercise pre-emptive self-defence in situations where suspected terrorists may be targeted with lethal force. Accountability thus remains a significant problem and clarification should be sought vigorously.
A final point. Within this post I have alluded numerous times that the Obama speech and guidance represent a normalisation of extrajudicial killing, a claim to the legitimisation of violence by reference to the need to resist ‘the terrorists’. I confess discomfort with this: whatever the veneer of order wrought by the new policy, it is a classic example of what Walter Benjamin called ‘law-preserving’ violence, violence instrumentalised to further ends within the law. We lawyers, and especially international lawyers, tend to heave a sigh of relief whenever things are brought within the embrace of the law. The pragmatists amongst us would suggest that violence in such circumstances is unavoidable, and that the transparency and accountability brought by law will help to control violence. But is this enough?