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COLUMNISTS

UAVs: Human and Legal Aspects

Andrei AKULOV | 02.11.2012 | 00:00
 

Right before the presidential candidates debates on October 11, 2012, President Obama had authorized his 297th unmanned aerial vehicle (UAV) strike since taking office. 17 Pakistanis lost lives as a result. The Pakistan’s Foreign Ministry said the strike was a clear violation of international law and sovereignty of a country that is not in the state of war. Less than a week later, on October 19, 2012 the CIA announced it would ask the White House to approve a significant expansion of UAVs fleet to step up lethal campaigns in non-belligerent states. The ramping up of drone strikes has been one of the more controversial elements of the Obama administration’s foreign policy…

What is UAV

An unmanned aerial vehicle (a drone) is an aircraft without an operator on board that flies under remote control or autonomous programming. New revolutionary trends define the ways of further UAV technology evolution. On April 4 the British Guardian reported U.S. scientists have undertaken research into a new generation of drones that would be nuclear-powered in the hopes of allowing them to be able to fly for months in remote areas. In an effort to create a hard-to-detect surveillance drone that will operate with little or no direct human supervision researchers are mimicking nature. The new miniature - size devices will be able to land precisely and fly off again at speed and be helpful inside caves and barricaded rooms to send back real-time intelligence about the people and weapons inside. As early as in 2007 the US government was reported to covertly develop robotic insect spies when anti-war protesters in the United States saw some flying objects similar to dragonflies or little helicopters hovering above them. In 2008, the US Air Force showed off bug-sized spies as «tiny as bumblebees» that would not be detected when flying into buildings to «photograph, record, and even attack insurgents and terrorists». Around the same time the so-called Ornithopter flying machine based on Leonardo Da Vinci’s designs was unveiled and claimed they would be ready for roll out by 2015 Lockheed Martin's Intelligent Robotics. Laboratories unveiled «maple-seed-like» drones called Samarai that also mimic nature. US troops could throw them like a boomerang to see real-time images of what's around the next corner. 

The gist of the problem

Until recently they had been used primarily for surveillance, most notably during the Gulf War and the conflict in the Balkans in the 1990s. The first armed drones flew in Afghanistan in early October 2001. In the aftermath of the September 11, 2001 attacks, the Bush administration began a campaign of «targeted killings» against suspected members of Al Qaeda and other armed groups. It allegedly started in February 2002 in Afghanistan. Six months later the US took the program to Yemen. It set the precedent for a full scale program of targeted killing by UAVs in Pakistan where the strikes have displaced hundreds of thousands of innocent people. It raises the issue of efficacy of such operations. When President Bush left office in January 2009, the US had carried out at least 50 drone strikes according to the New America Foundation. Since then, President Obama has reportedly carried out around 300 strikes in over three and a half years. The drones have killed targets in at least six countries: Afghanistan, Pakistan, Yemen, Iraq, Somalia and Libya. A key feature of the Obama administration’s use of drones has been a reported expansion in the use of «signature» strikes. Till 2007 it had been «personality» strikes targeting named, allegedly high-value leaders of armed, non-state groups. Under Obama the program expanded to include far more «profile» or so-called «signature» strikes based on a «pattern of life» analysis. There is a wide room for a mistake because the targets are individuals or groups «who bear characteristics associated with terrorism but whose identities aren’t known». 

The President takes the final decision on delivering strikes. The CIA and the US Special Operations Command submit their target lists. The administration claims to have a thorough vetting process by which names are chosen. The operations have been conducted in almost complete secrecy, with little congressional oversight and almost no public discussion because the UAV program is operated and run by the CIA. The dramatic increase in the use of UAVs has pushed the question of their legality. Think tank savvies and even politicians, like former presidential candidate libertarian Ron Paul, have raised the issue. For several years the American Civil Liberties Union (the ACLU) has been trying to use lawsuits to push the administration into greater disclosure. In the face of mounting pressure, John Brennan, the President’s counterterrorism adviser, has gone public this year. His April speech was the administration’s first public acknowledgment of the UAV strikes. He has countered legal criticism by saying the US is in an «armed conflict with al-Qaeda, the Taliban, and associated forces». The White House believes that defining the enemy in such broad terms provides the legal basis for pursuing terrorists in other countries. A lot of experts feel uncomfortable with obscure terminology and lack of transparency of the process. Mr Brennan has largely avoided the issue of «signature strikes». Amid the legal questioning, there is also growing unease in Washington foreign policy circles about the long-term effectiveness of the operations. There are growing calls, particularly among Democrat-leaning foreign policy experts, for the next administration to establish clearer rules about exactly how drones can be used. Anne-Marie Slaughter, who was head of policy planning at the state department in the first two years of the Obama administration says, «We will suffer enormously for setting this precedent. I do not want to be in a world where China can decide who to target». 

Proliferation

Without an international framework governing the use of UAVs, the United States is setting a dangerous precedent for other nations. A decade ago, it had a virtual monopoly on drones. No longer so. As history goes, there is a great chance the technology will be used against the US quite soon. There are over 70 countries that possess or are developing UAV technology. A 2011 study estimated that there were around 680 active drone development programs run by governments, companies and research institutes around the world. The United States and Israel dominate, but South Africa, Germany, Austria, and Italy all export UAV technology, as well. Sweden, Greece, Switzerland, Spain, Italy and France are working on a joint project. China has already announced that it plans to use UAVs to monitor the disputed islands in the South China Sea. Iran is on the way of implementing its own program. Last month Israel shot down a Hezbolla operated drone just 30km from the Dimona nuclear facility. In July Turkey said it planned to arm a domestically produced UAV, the Anka. Easy to guess it would use it to strike targets in Syria. Just as the U.S. government justifies its drone strikes with the argument that it is at war with al Qaeda and its affiliates, one could imagine that India might launch such attacks against suspected terrorists in Kashmir, or China might strike Uighur separatists in western China, or Iran might attack Baluchi nationalists along its border with Pakistan. Building UAVs, particularly armed ones, takes sophisticated technology and specific weaponry, but governments are increasingly willing to invest as the technology is increasingly seen as an integral part of modern warfare. As it becomes more widely accessible, it is only a matter of time before non-state actors acquire it. So as in case of weapons of mass destruction we face a proliferation problem that needs to be urgently addressed internationally before the Pandora’s box is open.

Legal aspect

Because there is little precedent for the classified US UAV program, international law doesn't speak directly to how it might operate. What is obvious us that the drone warfare violates Article 51 of the U.N Charter that defines the rules of self-defense because the United States is not attacked. For instance, the operations in Pakistan run afoul of international law which limits self-defense against prospective threats to ones which are «imminent». The signature tactics are inherently in violation of the principle of distinction because it fails to identify civilian or militant. Drone attacks run against the principle of proportionality concerning unintentional civilian casualties in war. They violate Article 2 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War by disregarding the human rights of the innocent civilians killed in the strikes. Furthermore, the US UAV tactics conflict with International Covenant on Civil and Political Rights (ICCPR), which prohibits «arbitrary» killing even during an armed conflict. The executions of innocent human beings without trials constitute war crimes. The American Civil Liberties Union (ACLU) estimates that around 4,000 people have been killed in US drone strikes since 2002 in Pakistan, Yemen and Somalia. Of those, a significant proportion were civilians. In Pakistan alone 1,907 to 3,220 people have killed since 2004, 15-16 per cent of them were «non-militants» or «collateral damage». The death toll has escalated significantly since Obama became president. The USA is not a signatory to the International Criminal Court (ICC) or many other international legal forums where legal action might be started. It is, however, part of the International Court of Justice (ICJ) where cases can be initiated by one state against another. Conducting drone strikes in a country against its will could be seen as an act of war. Pakistan has considered challenging the legality of the program at the United Nations. «No country and no people have suffered more in the epic struggle against terrorism than Pakistan,» Pakistan President Asif Ali Zardari told the U.N. General Assembly on September 25, «Drone strikes and civilian casualties on our territory add to the complexity of our battle for hearts and minds through this epic struggle». Senior U.S. officials worry about maintaining the support of an important ally - the UK, where officials have begun to express concerns privately about the extent of Pakistan's consent. Britain began a review to see whether under British law it could continue to cooperate with the program after Pakistan closed the CIA's drone base in December. It took the action after a strike by a manned U.S. aircraft killed two dozen Pakistani troops mistaken for militants. 

On the home front the efforts are on the way to fend off legal challenges. The argument is put forward saying the U.S. law gives the government broad wiggle room to pursue al Qaeda and its affiliates wherever they may be. A Congress joint resolution, called Authorization for Use of Military Force, adopted right after the Sept. 11, 2001, says the president is authorized to use force against the planners of the attacks and those who harbor them. The above mentioned resolution authorized attacks on those who carried out the 9/11 attacks and those who harbored them. But the act did not cover mere «supporters» of such groups and associated forces. Under this ruling «signature strikes» and «secondary strikes» would be illegal under US law. UAV attacks in non-war theatres (Pakistan, Yemen and Somalia) are not covered by international legislation, consequently, not only the killing of innocent civilians, but also of terror suspects without trial is illegal. Still, no matter such evident reasoning, White House counterterrorism adviser John Brennan said in an April speech the administration had concluded there is nothing in international law barring the U.S. from using lethal force against a threat to the U.S., despite the absence of a declared war, provided the country involved consents or is unable or unwilling to take action against the threat.

Conclusion

The subject has hardly come up in the course of the election campaign practically ignoring a very controversial aspects of the foreign policy agenda. The incumbent administration has violated the sovereignty of other states more times than any other. A Nobel Peace laureate, President Obama has dramatically expanded the intensiveness of intrusions into the territory of non-belligerent states. It goes along with other hostile acts like the Stuxnet computer virus, the first cyber attack against another nation the US is not at war with. Mitt Romney, the incumbent President’s Republican challenger, has used every opportunity to make US policy «weaknesses» come to light, though the UAV attacks against alleged terrorists do not fit very well into this attack line. Actually he said little about how he might use drones, except that they were «no substitute for a national security strategy for the Middle East». Hardly anything positive could be expected from the candidate who said that he does not believe that waterboarding is torture and that he would allow enhanced interrogation techniques that go beyond those now permitted by the army field manual, and his security advisers have recommended that he rescind the existing restrictions.

The incumbent administration’s widespread use of drones is starting to come under sustained criticism that the next president will find it hard to ignore. A flurry of challenges is calling into question the legal and ethical aspect of UAV policy. The November 6 vote over, the next president is likely to find himself under intense pressure to discuss the subject more openly. What we have at present is a claim the US executive branch has a right to arbitrary kill anybody it finds expedient, no matter where the person and at any time it wishes relying on classified data discussed in a secret process by the people out of public sight. The idea of adding a nuclear element to the program is only likely to further stoke controversy. For instance, an accidental crash will turn a drone into a dirty bomb – actually a weapon of mass destruction, something the USA says it fights so hard to prevent the proliferation of. A nuclear propulsion system may get into the wrong hands. Being so much inclined to lecturing others about democracy and the necessity to comply with the international law, the US government shies away from public discussion of the most important foreign policy aspects and commits flagrant violations of international law in broad daylight. It’s high time to make the issue come to the fore of present day international agenda. In June this year both China and Russia issued statements to the UN Human Rights Council condemning the US use of UAV strikes. On October 4 Russian Foreign Minister Sergei Lavrov at a joint news conference with his Pakistani counterpart Hina Rabbani Khar in Islamabad, «It is not acceptable to violate the sovereignty and territorial integrity of any state». In August UN Special Rapporteur on Human Rights and Counter-Terrorism Ben Emmerson said that the US must cooperate with an independent investigation into its use of drone strikes or the UN would be forced to step in. He emphasized there was growing pressure from around the world for this issue, with many country’s condemning the strikes in the strongest possible terms. Announcing that he is in the process of preparing a report on American drone attacks for the next meeting of the UN’s Human Rights Council in March, he told press that this issue will «remain at the top of the UN political agenda until some consensus and transparency has been achieved».

 
Tags: Afghanistan Middle East Pakistan
 

 
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