Not This Again...

Drones are back in the news this week (not that they ever left) as Amnesty International and Human Rights Watch reports have rekindled controversy over several aspects of the U.S. UAV program.  Somewhat ironically, the reports were released just a week after new figures on the casualties of the Iraq War, a cold reminder of the cost of a ground invasion. 

We’ve heard a lot of these arguments before, from Yemenis who say drone strikes fuel terror group recruitment to the Code Pink activist whose 15 minutes came when she disrupted Obama’s May 2013 foreign policy speech at the National Defense University.

The President’s reaction to Medea Benjamin’s bold statements this spring was telling- clearly he takes challenges to the legality and morality of drones seriously, and is cognizant of the many criticisms.  And yet six months later, little has changed on the transparency front and the same arguments are being made by rights groups.   

Many of these arguments can be dismissed by invoking the “least bad option” defense; virtually any other action toward Al Qaeda cells operating in the Afghanistan-Pakistan border region (short of ignoring them) would result in a greater number of civilian casualties, higher cost in American resources and lives, greater alienation and fear amongst the local population, and easier recruitment to extremist ideologies.  Protests against violations of the territorial sovereignty of weaker states are barely worth recognizing.  And for every story of a family terrorized by drones, there’s an interview with Pakistanis who are grateful that someone is going after the militants who have threatened their safety for years.

Family of Mamana Bibi, matriarch killed by a drone strike while gardening

It is clear that this dialogue on the morality (and effectiveness) of drones will continue without resolution.  But more legalistic concerns were raised in the Amnesty International report, and are worth being addressed.  AI accuses the U.S. of committing war crimes, and of carrying out extrajudicial killings.  This is where things get really murky.

The U.S. is not at war with a state, but rather a nebulous non-state entity with secretive leadership and no official representation.  Bearing this in mind, how do we determine who are enemy combatants?  And what constitutes a war zone?  Are the Federally Administered Tribal Areas of Northern Pakistan?  Is Yemen?  Which rules apply, International Humanitarian Law or International Human Rights Law? And what is the place of Pakistani or American domestic law?

It’s not as if the drone program operates without (slightly flexible) rules.  Generally, UAV strikes are to be reserved for suspects who cannot be captured alive in states with a professed inability to police in ungovernable spaces.  But how these self-imposed regulations fit into the larger framework of international law and agreements is still unclear.  As drone technology proliferates globally, elucidating and codifying the legality of targeted killings becomes increasingly important.

Problems of transparency complicate the dialogue.  The U.S. stance on drones is predicated on the assumption that UAVs are extremely accurate and carefully regulated, but stories like that of Mamana Bibi (and numerous others) seem to indicate otherwise.  As long as the program is shrouded in secrecy, arguments about collateral damage will continue to dominate the discourse at the expense of earnest efforts at legalization.