Are US drone attacks legal? For over 15 years lawyers on both sides of the argument have been wrestling with the question of whether unmanned US drone strikes carried out on foreign soil are legal under international law.
In August, the White House released a redacted version of President Obama’s policy on using unmanned aerial vehicle (UAV) drone strikes to target militants across the globe. US officials have stated that up to 31 December 2015, the US military and the CIA launched 473 strikes, mostly with drones, killing between 2,372 and 2,581 enemy combatants.
The drone attacks continue. Earlier this year a unmanned drone flying over Pakistan, operated remotely from a US military base, killed the Afghan Taliban leader Mullah Mansoor. During the summer, a US drone attack also killed a senior military commander of al-Shabab, which the US claims is part of al-Qaeda, in Somalia.
Are US drone attacks legal?
Are drone attacks legal? Broadly, to determine the legality of drone ‘targeted killings’ we need to look at:
- is the US is an ‘armed conflict’ with the country or organisation that is being targeted?
- are members of the so-called Islamic State (ISIS) and al-Qaeda legitimate targets?
- are Pakistan, Afghanistan, Yemen and Somalia part of the active battlefield?
- can the drone attacks be justified under international law by the US’ right to self defence?
1. Is the US in an armed conflict?
There is no direct legal definition of ‘armed conflict’. But, generally, under pubic international law armed conflicts involve armed force between States or protracted armed violence between government authorities and organised armed groups within a State.
Non-international armed conflicts (NIAC) involve hostilities between a State and an organised non-state armed group. The US government’s position is that it is engaged in a NIAC with al-Qaeda and ISIS and their affiliated groups. The International Humanitarian Law (IHL) (also known as the ‘laws of war’) regulate activities during a NIAC.
On the other hand, Rogers and McGoldrick consider that the conflict with radical Islamic militants is “too diffuse and sporadic to satisfy the necessary factual intensity of conflict”. If this view is correct, the law outside an armed conflict would apply. As such, the drone attacks must abide by International Human Rights Law (IHRL) and the domestic law of the territorial state, including those relating to the use of lethal force.
Under IHRL, a targeted killing would only be legal if it is:
- proportionate – which generally means that if it is necessary to to protect life; and
- necessary – that is, there are no other means, such as capture to prevent the threat.
2. Active battlefield of the armed conflict?
The US government argues that the war against the al-Qaeda, ISIS and their affiliates is a war of self defence in direct response to the September 11 terror attacks. They therefore claim that the war extends beyond the ‘hot battlefield’ to wherever members of those organisations are found.
The International Committee for the Red Cross disagrees with this and considers that, as a matter of international law, armed conflicts have geographic limits. This means that the existence of an armed conflict is determined by the facts on the ground in the state in question and countries like Yemen and Somalia, who the US is not at war with, may not be the ‘active battlefield’.
3. Are ISIS and al-Qaeda members legitimate targets?
The US government’s view is that ISIS and al-Qaeda are both organised armed forces. Their function is to conduct hostilities against the US, its allies, their personnel and civilians. For example, al-Qaeda members carried out 9/11 in the context of their declared ‘jihad’ against the US. Taking this to its logical conclusion, al-Qaeda and ISIS members are therefore combatants that the US can legal target and kill as legitimate targets under the IHL.
4. US right to self-defence
Under Article 51 of the UN Charter, international law permits the use of lethal force by States in self-defence in response to an ‘armed attack’. Such force must be both necessary and proportionate.
The US asserts its right to self-defence on the basis that its drone attacks involve ‘targeted killing’ of what it suspects to be terrorists. The US government’s test on when a targeted killing is legal involves carefully examining if:
- the individual poses an imminent threat of violent attack against the US;
- capture is not feasible; and
- the killing would be consistent with laws of war.
Drone attacks may also be legal if the US has a right to pre-emptive self defence. Pre-emptive self-defence is not stipulated in a treaty. However, customary law provide that if the US is threatened with an imminent armed attack, it can take measures to repel the threat. It cannot use ‘retaliation’ as a justification to use this defence. There are other limits to the right of pre-emptive self defence. These include that the US is only able to take measures that will prevent the imminent attack from happening in the future. It may also only use force great enough to remove the threat.
Summary: Are drone attacks legal? Two different views
Are US drone attacks legal? The US government has made its view clear in various press releases and new conferences. But there are differing opinions amongst legal commentators.
Drone attacks are legal under international law
Proponents of US drone attacks overseas argue that the targeted killings are legal under public international law because the US is engaged in a non-international armed conflict with al-Qaeda and ISIS for the purposes of counter-terrorism.
al-Qaeda and ISIS militants are legitimate targets who, from their bases in Pakistan, Afghanistan, Yemen and Somalia, are involved in planning and carrying out attacks and terrorist activities against the US and its allies. The ‘hot battlefield’ of the war on terror therefore extends to the countries where the al-Qaeda and ISIS militants are located.
In addition, the US argues that it is acting in self-defence (or potentially pre-emptive self-defence) because the countries where the militants are based are not able (or willing) to control the militants within their borders to prevent attacks against the US like 9/11.
Drone attacks are not legal under international law
However, other legal commentators maintain that drone attacks are not legal because the US is not engaged in a war or armed conflict with Pakistan, Afghanistan, Yemen or Somalia.
Their view is that as the drone strikes are not carried out under the auspices of an ‘armed conflict’, the targeted drone killings must meet the criteria of the International Human Rights Law, which they do not. This is because they claim the drone attacks are not proportionate and necessary. They do not believe that the requirements of IHRL are met as there is no direct imminent threat against the US and the US could capture the militants instead of killing them. Some legal commentators also question whether the drone strikes are in fact retaliatory in nature.
The Human Cost
Regardless of the black letter legalities of the war on terror, human rights advocates raise the issue of collateral damage and the cost to human life. Hundreds of innocent civilians are often are killed if they happen to be in the vicinity of a missile strike from a UAV drone.
As Howard Zinn famously said ““There is no flag large enough to cover the shame of killing innocent people.” As America’s weapons of war evolve and the tactics used by al-Qaeda and ISIS militants become more elaborate, it appears that, as with many previous wars, innocent civilians will bear the brunt of the fallout of this 21st century-style remote warfare.