Monday, August 8, 2011

Drone Warfare: Unlawful and Ineffective?


This is the final part of a multi-part series on drone warfare (Introduction here and US military future here). Today’s post focuses on the drawbacks of drone warfare in the form of two questions: Is drone warfare lawful, and is it effective in combating terrorism?

Is drone warfare lawful?
A distinction must be made between drone operations under military control and those under CIA control. The military drone program operates as an extension of conventional military operations, attacking lawful combatants in acknowledged wars. The concept of legality inherently depends on which legal code is followed. Under United States law, all drone attacks undertaken by the CIA are approved by the CIA’s lawyers, making the strikes legal under US law. Because this legality will not be challenged in an American court of law, this question is of theoretical rather than practical importance: Can CIA-operated drone strikes be considered legal and moral under accepted international law?

Under customary international law, CIA-operated drone strikes are illegal, plain and simple. Civilian combat participation is illegal under two 1977 protocols to the Geneva Convention—these protocols are recognized as customary law by the United States even though they were not ratified. CIA operatives are not members of the armed forces and are thus not lawful combatants. CIA operation of drone strikes is thus unlawful under international law as it is killing carried out by unlawful combatants. CIA personnel who are directly involved with providing targeting data and flying or arming drones are thus technically lawful targets. Although the likelihood of enforcement is incredibly small, the strikes’ illegality under international law impairs the United States’ international legitimacy.

Civilian deaths resulting from drone strikes also pose problems for morality and legitimacy. Some authors argue that unmanned warfare will actually make war lawful: “unanticipated applications of virtual military capabilities are creating unprecedented levels of transparency and are unexpectedly making international law more relevant than ever to armed conflict.” Statistics support this claim as the percentage of civilian deaths has dropped from around 20 percent in 2004 to less than 5 percent in 2010. But at the same time, civilian casualties are more problematic than ever: “Incidental civilian casualties caused by U.S. attacks threaten the legitimacy of these military operations on a fundamental level, especially when humanitarian motives are invoked as a basis for U.S. intervention.” The principle of proportionality states that a military target cannot be attacked if the likelihood of civilian casualties would be excessive in proportion to the number of military targets killed. Though there is no metric to determine what an excessive amount of civilian casualties, civilian deaths not only bring the morality and legality of drone strikes into question but also hinder the overall effectiveness of drone warfare as a counterterrorism tactic.

Is drone warfare effective?
Despite a ramping up of drone attacks since Obama took office, militant attacks continue to emanate from Pakistan with regularity. The militant leaders who are being killed are those most likely to broker a peace with the Afghan regime; new leaders are younger and likely to be both more radicalized and unwilling to compromise. Statistics further bolster claims of drones’ ineffectiveness. On average, only one in seven strikes kills a militant leader; less than 2 percent killed by US drone strikes in Pakistan were leaders of al-Qaeda or groups allied with them. Violence in Pakistan has also risen dramatically since the program’s inception (from 150 terrorist incidents in 2004 to 1916 in 2009). Counterterrorism expert David Kilcullen sums up the dilemma of drone strikes in Pakistan:

“The drone strikes are highly unpopular. They are deeply aggravating to the population. And they’ve given rise to a feeling of anger that coalesces the population around the extremists and leads to spikes of extremism well outside the parts of the country where we are mounting those attacks.”

Kilcullen’s testimony is borne out by a 2009 Gallup poll, which found that only 9 percent of Pakistanis support drone strikes. Two-thirds of those polled in tribal areas also said that suicide attacks against US military targets are justified. Popular anger deriving from civilian deaths as well as a rise in terrorist incidents has effectively made the idea of drone strikes directly antithetical to the counterinsurgency doctrine of winning the hearts and minds of a population: “Popular anger against drone missions deprives U.S. forces of the good will they need to woo neutrals to their side, which diminishes the returns of successful kills. It is the kind of vicious spiral that undermined U.S. efforts in Vietnam.”

Concluding Thoughts
Drone strikes have become an incredibly popular tool in the United States’ arsenal in the field of counterterrorism, and the incentives remain in place for both the military and political establishment to continue expanding drones’ role in counterterrorism. While these strikes have killed upwards of 1,300 militants in Pakistan alone, it remains unclear whether they are legal, moral, or even effective. Though the likelihood that CIA operatives will be prosecuted for conducting drone strikes is farfetched at best, the consequences of drone warfare on the effectiveness of America’s counterterrorism strategy are real. A loss of credibility and legitimacy in the eyes of populations whose trust we are trying to win far outweighs the benefits derived from killing predominantly low and mid-level militants. Drone strikes are a tactic and not a strategy—relying upon them alone as the primary means of counterterrorism will not suffice until it is coupled with articulated, focused ends.

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