Drone War May be Secret, but Still Has to Follow the Law

From late July to mid-August, the United States peppered Yemen with drone strikes.  Although the U.S. government itself doesn’t acknowledge them, they’re supposedly in response to the still vaguely-defined security threat arising from an alleged, highly dubious conference call among supposed al Qaeda leaders.

Whatever the reason, the barrage has left at least 40 people dead, according to news reports.  Like the security threat itself, those “suspects” remain unnamed.  The U.S. doesn’t report or acknowledge their deaths – or those of any innocent civilians who might have died along with them.

All of this underscores the quaking ground on which the Obama administration’s secret drone policy rests.  Not only doesn’t the United States admit it’s bombing people in other countries with its remote-controlled planes, but it has consistently failed to name and explain its right to do so.

There are laws that govern when a country like the United States can kill people.  Those are international laws – the laws of war, most of which were painstakingly developed after the horrific mass killings of World War II – and international human rights law, which governs when a nation can kill in self-defense.  As the most powerful nation in the world, the United States seems to believe either that it need not really follow those laws, or at least that it need not explain how its actions comply with them.

In Yemen, for example, is the United States at war there, and is that the justification for the drone strikes?  To be in a state of armed conflict, under international law, the level of violence on both sides can’t just be sporadic acts of terror; it must be a sustained and continuous armed conflict that reaches a level of intensity that constitutes a war.  Do the actions of the Yemeni group Al Qaeda in the Arabian Peninsula, or AQAP – which so far has made three failed attempts to attack in the United States since the group’s creation in 2009 – reach that level?  It’s doubtful.

AQAP is largely a regional group whose beef is with the government of Yemen, not the United States. Its grievance with the United States is likely that the U.S. government has been killing its members in support of the Yemeni government’s war against them.

Legally, the United States can join the Yemeni government’s war against its domestic insurgency if it wants to.  Is that what it’s done?  If so, then as a matter of democratic principle, it ought to tell that to the American people, so we can have some say in that decision.

Alternatively, the U.S. government could claim that the drone strikes are a form of self-defense against an imminent threat from AQAP.  But killing in self-defense is only lawful when the threat is specific and imminent – not when it’s a vague overheard threat by supposed al Qaeda leaders to attack something, somewhere.  Because in that case, how would you know who to kill?

In fact, U.S. officials have acknowledged (unofficially, of course) that they don’t know if the drone strikes and dozens of deaths have had any impact on the threat they were concerned about.  Given how unclear the threat was, that’s not surprising.

None of this is to say that the United States can’t protect itself against terrorist threats.  Of course it can.  It was perfectly lawful, for example, to close U.S. embassies and evacuate American personnel if the U.S. had reason to believe they were in danger.  But to use drone strikes to kill groups of people traveling across Yemen who may or may not be connected to the plot in question is not only illegal, but it’s hardly a smart move.  After all, the latest threat was reportedly planned in retaliation for a previous U.S. drone strike.  With this logic, where does it ever end?

The answer lies, to some extent, back with the rule of law.  The laws of war and international human rights law exist for good reason, and they’ve earned wide respect around the world. Even if terrorist groups don’t follow them, it’s important to demonstrate that we do – not because we’re weak, but because following the rule of law demonstrates our values and our respect for life. That, in turn, helps earn us the respect of those who are seeing the drone strikes in their country. They have a choice: they can support our efforts to defeat the terrorism in their midst, and from which they suffer every day; or, if angered by our unexplained lethal actions in their homeland, they can join the terrorists against us.

It’s a point made over and over again by respected Yemenis and American experts alike. Yet it seems to go unheeded.

So far, President Obama has failed to demonstrate that he’s following the rule of law in carrying out his secret drone war.  Most recently, he claimed the United States kills only terrorists who pose a “continuing and imminent” threat, but that’s a standard nowhere to be found in international law.  It conflates wartime and peacetime authority in a way that ultimately makes no sense.  If a threat is “continuous” but not specific, then it’s by definition not “imminent.”  And what constitutes a “continuous” threat – membership in AQAP?

As a U.S. official recently told the New York Times, the US now believes it has the right to go after even low-level AQAP members, such as a driver – an attempt to get the future “rising stars” of the organization.

Decapitating anticipated future leadership of an organization is a speculative strategy at best.  There’s also no support for it in existing law.  Would we accept the governments of Russia or China or Iran killing unnamed individuals who they suspect might in the future lead an insurgency against them?  What kind of world would that be if we did?

The United States can and must not only claim to follow the rule of law, but demonstrate that it does so.  This new video demonstrates the weakness of its latest vague and incoherent claims that its secret drone program is lawful.

It’s time to hold our government accountable. Failure to do so will be disastrous for us all.


Published on August 27, 2013


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