On March 7, 2019, President Trump revoked an Obama-era requirement to report on civilian deaths outside areas of active hostilities. This requirement obliged the Director of National Intelligence to report annually on civilians killed by U.S. drone strikes outside official war zones. It was instituted by Obama in 2016 to ‘promote accountability and encourage the minimising of civilian casualties’. As with anything to do with Trump, much newspaper ink has been spilt to show this as a tyrannical revocation to Obama’s ‘liberal’ approach. This is notwithstanding the fact that the requirement previously counted all military aged males in a strike zone as combatants unless there was explicit information post-humously proving them innocent. As a result, the number of civilian deaths was wildly underreported.
The U.S. drone programme is highly secretive and it has been argued that the reporting requirement does temper this covertness somewhat. However, the flawed basis upon which civilian deaths are reported undermines this bid for transparency and instead attempts to provide a veil of legitimacy for the programme. Leaders point at the low number of civilian deaths to justify the targeted assassination of individuals across the world killed remotely via satellite by operatives using joysticks over two continents away. Instead of Obama nostalgia this is an opportune time for activists to renew efforts to argue U.S. drone strikes are manifestly illegal and should be confined to a plot device in a sci-fi dystopic novel, not modern warfare.
Background
Drones are unmanned aerial vehicles which can be used for surveillance purposes or armed and fitted with weapons. Armed drones were first used by the United States in its conflicts in Afghanistan and Iraq, and in the border region in Pakistan. However, their use has expanded beyond geographical and temporal boundaries and drone strikes have been conducted in a number of countries; Afghanistan, Iraq, Pakistan, Syria, Yemen, Somalia, Libya and the Philippines. Part of the reason for drones’ popularity is because they pose no risk of American casualties. Most drone strikes are classified and shrouded in secrecy. They thereby allow for covert, clandestine and profligate uses of force which are not subject to public oversight.
Predator and Reaper drones have been used in Pakistan, Afghanistan, Yemen and Somalia – these are slow, propeller aircraft which can hover in place for 24 hours at a time, providing reconnaissance to allow for precision targeting. They use Hellfire missiles which can destroy a tank and a house killing everyone inside. The frequency of drone strikes has hugely increased since 2002. By the end of his final year in office, Bush had conducted a total of 50 strikes, 48 of which were in Pakistan. Meanwhile Nobel Peace Prize Winner Obama ratcheted up strikes and had conducted 542 in six different countries, 353 of which were in Pakistan. Trump has further accelerated the drone strike programme and ordered over 2,200 strikes in his first two years in office, five times the rate of Obama.
Legal Basis
International Law
Article 2(4) of the UN Charter prohibits the threat or use of force against another state. However, a state may consent to the use of force on its territory by another state. If it does so, there will be no violation of Article 2(4). The governments of Somalia and Yemen have given the U.S. consent to conduct drone strikes on their territory, the question of whether this consent is valid, however, given the civil wars going on in these countries, is debateable. Where the state has not consented, the UN Charter allows for two exceptions to the Article 2(4) prohibition; where the state has acted in self-defence under Article 51 and where the Security Council has authorised the use of force.
However, the right to self-defence, as stated in the Caroline case, does not allow for the use of force in response to long-term threats, only those which are imminent or immediate. This is not the case for many of the targets against which drones have been used. There has been no imminent or immediate threat posed and a long-term or potential threat is not lawful under international law, rendering most drone strikes illegal.
National Law
Drone strikes are justified under U.S. law under the Authorization for the Use of Military Force (AUMF) which was passed post-9/11 against those responsible for the attacks and affiliated forces. Even though the language of the AUMF confines the use of force to Al-Qaeda and its ‘affiliated’ groups, drone strikes are being used against groups which did not even exist in 2001 and which have been denounced by Al-Qaeda. This is a gross overreach of executive power.
Drones were initially used against leaders in Al Qaeda but the CIA later started conducting signature strikes in that individuals were targeted for meeting threat criteria based on intelligence signatures rather than targeted because of who they were. U.S. forces have identified a number of inane gestures as indicating hostile intent, including digging in the ground (a potential IED threat), running away from the site of an attack (as potentially continuing the attack), or sitting on a hill and using a cellphone (potentially passing on information or facilitating a threat). These patterns of behaviour were detected through surveillance and individuals were added to ‘kill lists’ on this basis even though many of the gestures could easily be interpreted as normal and non-threatening.
Civilian Casualties
Obama claimed very low civilian casualty figures in large part because all military aged males were counted as combatants unless there was evidence to prove they were not. He claimed a total of 2,500 terrorist group members were killed and between 64 to 116 civilians. However, the Bureau of Investigative Journalism estimates that drone strikes have caused between 2,511 and 4,020 casualties in Pakistani tribal areas alone, out of which 424 to 969 were civilians, including 172 to 207 children. The disparity between the two sets of statistics is huge and shows how much civilian deaths were underestimated.
In sum, drone strikes pose significant legal and ethical questions relating to legitimacy and accountability. It is important therefore that we not be distracted by the reality TV show that is Trump and it is equally important to remember that what Bush started, Obama made worse, and Trump will surpass both. Instead of arguing that an erroneous reporting requirement be re-instated, there needs to be a concerted effort to end the drone programme in its entirety. Mike Morell, Director of the CIA, commented in 2015 that the war on terror will go on ‘for as far as I can see.’ Unless this is stopped now, that will include drones.
