This podcast is a lecture originally given at the School of Oriental and African Studies and aired on SOAS Radio. It was arranged and recorded by the Centre of International Studies and Diplomacy and produced by Victor Ponsford.
Drones are some of the most controversial weapons used by the US. Drone strikes now take place in Pakistan, Afghanistan, Yemen and Somalia. To some – including the US government – it’s a vital piece of modern weaponry in the ‘Global War on Terror’, yet detractors point out the ambiguity of drone use under international law and how each strike galvanises potential recruits for Al Qaeda. In this lecture – part of Pod Academy’s SOAS lecture series – Professor David Luban, a leading scholar of international law and the use of force, focuses on the moral and legal issues of drone warfare.
David Luban: I want to start with a story, a story that was published in the New York Times last summer about how, inside the White House, drone targets are chosen. In the story, what we learned about were meetings in the White House called Terror Tuesdays in which nominations for drone attacks were chosen. The big revelation of this story was that, on any case that was in the least bit contestable, the president himself would eventually review the evidence and make the decision. But there was another aspect to this story which was quite remarkable which was that the president was somebody who was there as a moral backstop, to issue a veto when the evidence wasn’t absolutely straightforward, absolutely clear, and the article said that the president was a student of just war theory who read St Augustine and Thomas Aquinas.
I want to focus on some of the moral issues because it seems to me that even the legal issues are ultimately moral issues. So what I’m going to be talking about is Just War theory and drones. Just War theory is a certain subset of moral philosophy.
First let me give some background about drones. The drone programme is using unmanned aerial vehicles – the predator and reaper – which are pilot-less airplanes about thirty feet long, which have hell fire missiles on them and circle for hours on end overhead, with a remote operator – usually back in the United Sates – who is sitting at a screen with headphones and piloting the drone. The drone can do almost endless amounts of surveillance. Because it doesn’t have a pilot who’s in it, there’s no element of human exhaustion that comes in and it can kill from the sky. The programme has been going on since 2004, mostly in Pakistan but also in Yemen and, more recently, in Somalia, where there have been drone strikes reported against the Islamist group Al Shabab.
Drone strikes are an overlapping category with targeted killings. Targeted killing obviously doesn’t have to be done by a drone and some of the United States drone strikes are what the military calls personality strikes. It means: “Here’s a particular person we have surveillance on, we have evidence on”, so we claim, “who is an Al Qaeda leader who can’t be captured”. That’s part of the claim that’s built into the need to use legal force [that is] going to kill, but there are also what are called signature strikes. Signature strike means it’s not an identifiable individual, it’s an identifiable pattern of behaviour, and these are much more controversial in many ways; they’re sketchier. The pattern of behaviour: what are we talking about? Well, one that would be more or less uncontroversial from the point of view of the law of war would be a truckload full of heavily armed men heading toward the Afghan border, and that might be innocent, but it does have the signature of combatants that are heading for the border to enter into the fight and those would be a legitimate military target. That’s part of the US claim. So, signature strikes are not targeted killings and some targeted killings are not drones. The targeted killing of Osama Bin Laden obviously was not done by drones.
Who actually is carrying out these drone operations? They’re basically being carried out by the CIA, which is not military, and by the special forces, which is military. And one of the most problematic aspects of the drone programme is that there is very little knowledge about who is doing what. They seem like parallel organisations, and the parallel organisations both have their own sets of drones, both have their own kill lists and both of them are rather secretive; there is very little sense of accountability.
One of the things you are going to hear me coming back to again and again is how little we, who aren’t in the US government, actually know. There is a term that’s sometimes used: double hatting. Double hatting means that somebody who is in the military is then detailed to the CIA or vica versa, so that they are wearing two hats; they’re governed by two distinct bodies of US domestic law. All in all, it’s a programme in which the lines of accountability are very hard to draw and one can conjecture that that’s deliberate, that it’s intentional, that it’s very hard to figure out who is behind any particular strike.
What I think almost everybody knows is that the drone programme, which began under the Bush administration, has ramped up dramatically in the Obama administration. One of the databases, the Bureau of Investigative Journalism here in London, says that since 2004 there have been 352 US drone attacks in Pakistan and, of them, 300 have come in the Obama administration. So this has become the Obama administration’s weapon of choice in pursuing what it no longer calls the Global War on Terror.
What are we talking about in terms of the magnitude of damage? How many strikes? How many casualties? How many of them are civilian casualties? That is incredibly hard for anybody to know because when a drone strikes oftentimes it’s in a fairly remote area where outside observers have a hard time getting in. We are talking about the tribal areas in north west Pakistan and, when the observers come in, they have to take the word of people on the ground about who is a civilian, who is a militant, who is Al Qaeda, who not. We don’t know how reliable the reporting is. The United States government doesn’t put boots on the ground to find out; they do have video feed. That being said, there are counts and there are three databases that have been kept for years. Basically, what we are talking about is drone strikes in the low hundreds: 200 to 300 to 400 drone strikes. Total number of people killed: 2000 -4000. Civilian casualty estimates are ranging from 5% of the people killed to 25% or even higher because there are other organisations beside the three that keep databases that are reporting higher civilian casualty counts, but once again it is really hard to know and it’s doubly hard to know because it’s extremely controversial who counts as a civilian and who not, and that’s something I want to come back to shortly. I think one other thing that’s worth saying, and I’ll come back to this later as well, [is]: so far I’ve just talked about people killed, but obviously people killed is not the only damage that drones do. There are people who are not killed but badly injured, there is property destroyed, there are other consequences for the communities that are targeted by drones and those are very important to keep in mind. That’s the factual background: several hundred drone strikes, several thousand casualties, civilian casualty rates ranging up to around one in five.
Now, the basic just war criterion, for when war can be waged, of the last sixty years is very straightforward: you need a just cause. There are other conditions besides just cause, but you need a just cause and the only just cause that’s acceptable is self-defence. Starting with the United Nations charter, but among theorists even before that, the idea is that no first use of force is justifiable unless it could be subsumed under self-defence. The United Nations charter bans all use of force and threatened use of force. It has that one exception in Article 51 of the UN charter that there’s an inherent right of self-defence that states still possess.
At this point, let me give the United States government’s view about what’s going on with the drone campaign. The US view is that everything that it’s doing falls under Article 51 of the UN charter, that in fact the United States is doing nothing but fighting a war of self-defence and that that’s what the drone attacks are about. Why? Well, because the states that the drone attacks are being carried out in, Pakistan, Yemen, Somalia, are unwilling or unable to control Al Qaeda within their territory. This is the kind of buzzword or legalistic catch phrase that’s used by the United States government and the US view spelled out in speeches by a number of US officials over the last two years has been that the United States is at war with Al Qaeda and it can use force to defend itself and it can use force in the territory of any country that is unwilling or unable to deal with Al Qaeda by itself. This unwilling and unable criterion is something that lawyers argue about ferociously. It actually goes all the way back to St Augustine, whose idea of a Just War was actually, you can launch a war against a prince if that prince has armed groups within his territory that are harming you and won’t do anything about it. That is a just cause for war and at one point Augustine almost gives that as the definition of a Just War.
What about the objection that the drone attacks are violating the sovereignty of Pakistan, Yemen and Somalia? Here the United States government offers two answers: one is that the unwilling-or-unable-criterion means that the inherent right of self-defence applies and that is a place that a sovereign state can use force against another sovereign state. But there is also a strong sense that these three states have consented to have the drones used in their territory. There are dozens of reports that Pakistan, Yemen and (to the extent that there is a government in Somalia) [Somalia] have given secret consent to the United States to use drones. The Bureau of Investigative Journalism reports a number of cases in which the Pakistani government has not only approved the US use of drones, but given the intelligence: “Here is where the person is, here is the information we have about him, go get him”. One of the rumours is that these consents have always been conditioned on the United States government not admitting that it was actually doing it and that was, from the legal point of view, a catch 22 for the United States government. Without consent then it might be a violation of state sovereignty, but the consent means: “Don’t admit it”, so how can you admit it?
I’ve heard US government lawyers say that that was the reason that there was almost complete silence about the drone programme for years. In fact it’s only been within the last year that the United States government has even officially admitted that it had such a drone programme. Now my view is that there is significant merit to the US position that the drones are in self-defence in at least some cases. I think the most notable one is in Yemen because in Yemen of course there were at least three terror bomb attempts: there was the underwear bomber trying to bring down an airliner, there was the printer cartridge bomber who packed explosives and mailed them to a synagogue in Chicago and then there was a third case that was reported last May of another underwear bomber that was captured because the person he was dealing with was actually a Saudi spy, who had a kind of explosive that was designed to evade airline security. So it seems to me that these are very real attacks, this isn’t just a weapons-of-mass-destruction-in-Iraq: “We’re going to come up with some pretext and go in”. These were real attacks that happened and I think that a legitimate government always has to try to defend its people when somebody is launching an armed attack on them.
That’s all I want to say about the actual justification for the use of force. I think that what’s more significant is, not the question of when a state can use force, but how it can fight. In the terms of the Just War theory, this is called jus in bello – ‘justice in war’. As distinct from jus ad bellum, which is the ‘justice of war’, when war can actually be raised.
The single most important rule in the jus in bello is not actually one that comes out of any of the Just War classics: it is simply “Thou shalt not target non-combatants”. Non-combatants means civilians or soldiers who’ve surrendered or who are wounded. “Thou shalt not target non-combatants”. The way that the law of war puts it is this: this is from the Geneva Conventions Additional Protocol: ‘Military shall at all time distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. To do otherwise is to commit a war crime.’
There are big problems in figuring out a conflict against a non-state actor who is a civilian, and who counts as a civilian. Obviously Al Qaeda is not wearing uniforms; an Al Qaeda operative may not be full-time. In the words of the Red Cross, they might not have a continuing combat function, and how do you tell? The United States government has asserted in court documents that Al Qaeda has no civilian wing, so that issue doesn’t arise. However, it’s never made its evidence or its reason for making that assertion public and it’s not at all clear, in Yemen at least, that that’s true. At least the news reports that I’ve seen said that, as Al Qaeda has gained more traction in Yemen, it’s taken on more and more governance and social welfare functions and actually has what you might call a civilian wing.
I think the biggest problem with figuring out who’s a civilian and who isn’t that’s come out in recent months’ revelations is the way in which the CIA counts civilians after a drone strike. The same news article that I mentioned at the beginning about Obama making his decisions at Terror Tuesday had one electrifying revelation – the CIA, if it encounters a case of uncertainty, counts that person as a combatant, not as a civilian. Since then government lawyers have indignantly denied that, and said the reporter got it wrong. The state department legal adviser, speaking at my home university last month, when somebody asked him about it said it is completely false. I don’t know whether it’s true; this is one of these places in which the incredible lack of transparency in what the United States government has been doing is once again really damaging. It’s completely contrary to US military doctrine: military doctrine says that, in a case of uncertainty about whether somebody’s a civilian or a combatant, you always assume they’re a civilian. But this news article said that the CIA, which isn’t governed by military doctrine, might be doing it the other way around.
Now think what that means: it means that a drone strike hits and there’s video feed and there are corpses, and the corpses that you see include military-aged men. Well, what does that mean? I assume that means any man who’s between the age of fifteen and fifty and, in case of uncertainty, let’s just say that that was a combatant. In that case, when you’re trying to figure out what the collateral damage, the unintended civilian casualties were, you get very few civilians and you get a lot of combatants and you get to come out and announce: “We hardly ever kill civilians”. But in fact that’s because of an artifice of the counting and I think that this is a huge problem if it’s true. And it would be even more huge if the president is then relying on this in order to make his own decisions in cases of uncertainty because then what he’s got is the CIA coming to him and saying: “We hardly ever get civilians; almost everybody we’ve hit is a combatant.” If it really means any military-aged men, well that’s a cheat.
I mentioned collateral damage and this is, I think, the next major theme in both the Just War theory and the Law of War. I actually hate the term ‘collateral damage’ because to me it sounds like one of these euphemisms that people use when what they really mean is ‘dead and maimed civilians or people who are burying their children’ but I actually think that the Law of War term, which is incidental damage, is even worse and so I think we are just stuck with this term. The more precise one would be ‘unintended civilian damage’. The additional protocol says that’s not right. What it says is that: disproportionate means ‘excessive in relation to the concrete and direct military advantage anticipated’. So the idea is that, if a military target is really important, then a certain amount of unintended civilian damage is lawful. But too many, too large civilian damage is unlawful; so disproportionate, excessive in relation to the concrete and direct military advantage of destroying this target.
I think at this point we are getting into the heart of the problem with drone attacks and targeted killings, and I think even with the modern Law of War itself, because it turns us away from looking at the actual total human costs; and, instead, in what I think of as a kind of lawyers’ la la land, of proportionality calculations as though there is such a thing as a proportionality calculation. You ask military lawyers: “What’s your rule? I mean is it like ten dead civilians for one dead target? What are you talking about?” They’ll all say: “No, no, no, we don’t have a formula.” Well if you don’t have a formula, what exactly are you talking about? That’s the la la land part. The problem is that we’re moving away from a question which I think of as the basic human question: ‘Is this really awful?’ to a different one which is: ‘Is this disproportionately awful?’
Now in one way that’s inherent to the whole enterprise of moral judgements in war. Look, in war shit happens. The law of war is predicated on the idea that you’re in an abnormal human situation in which awful and violent things happen to people and, if awful and violent things happen, you are discriminating between some awful and violent things that are morally acceptable and some that aren’t. And then I suppose that proportionality makes sense as a way of talking about it; but it seems to me that, when you’ve got something like the drone campaign which goes on and on year after year with one . . . (let’s give the US government the benefit of the doubt, for the sake of argument) . . . one proportional attack after another, one lawful attack after another, the absolute magnitude of the damage, it seems to me, becomes morally relevant because the evils are piling up.
Now at this point I want to talk a little bit more about what kind of damage, besides actual deaths, the drones do. The worry is that, when they keep piling up year after year, the ability of communities to survive is undermined; so obviously in addition to deaths and injuries there’s loss of homes in some of the poorest communities in the world, so homeless people, people driven out of their communities, loss of property.
More subtle bad effects have been, [as] numerous observers on the ground in the communities that are affected say, that they’re living in a constant state of psychological trauma because they hear the drones buzzing around overhead and parents who will not send their children to school because of drones buzzing overhead. So the possibility of the children becoming educated and developing the community is stunted and impaired.
After a drone strike, there have been numerous reports that people in the vicinity . . . (these are kind of parallel equal and opposite evils) . . . one of [these reports] is [the belief that] there must have been informants that let the Pakistani government and therefore the US government know about them, so revenge against possible informants, that’s another kind of distant collateral effect. On the other side, people who are in the vicinity whose family have been killed by drones are stigmatised as terrorists because, after all, where there’s smoke there’s fire. “There was a drone, so these must be Al Qaeda and Al Qaeda seems to be bringing these evils onto our community and, since they’re bringing them onto the community, we don’t want them in the community any more.” There are some anthropologists who say, “Look these are communities in which part of the basic ethical framework is a kind of hospitality. Somebody comes to your house and you take them in” and of course now if you take in Al Qaeda, then you are a possible target for a signature strike, so that part of the community’s fabric is undermined. And of course there might be the possibility of destabilising a government which seems impotent to stop its own citizens from coming under foreign attack. There might be unfulfilled desires for vengeance or for justice.
All of this is being done in the name of eliminating terrorist attacks on the American homeland. Now that’s a legitimate goal; reducing those kinds of attacks is a legitimate goal of government. Some might say that the only or the first legitimate goal of any government is to safeguard its own citizens. The question is when it should stop. Now last week the Defence Department General Counsel, J Johnson, gave a talk at the Oxford Union and it was a very interesting talk because it was the first one in which a US official has talked about when . . . they don’t say War on Terror in the Obama Administration, but I’ll say that cos that’s what they mean . . . when the armed conflict ends. And what Johnson said was this: that the goal is to reach a certain tipping point where Al Qaeda is no longer able to launch a strategic attack against the United States. And now I want to quote from the speech: “At that point we must be able to say to ourselves that our efforts should no longer be considered an armed conflict against Al Qaeda and its associated forces; rather a counter-terrorism effort against individuals who are the scattered remnants of Al Qaeda” and then he says “and that’s a matter for law enforcement, not for military force”. So when Al Qaeda is destroyed, when the tipping point is reached and it can no longer function as an organisation, then the armed conflict switch gets flipped to the off-position, the law enforcement switch gets flipped to the on-position.
I welcome the fact that finally a US government official has said that there’s some point at which the conflict ends, but I think that the point that he describes is unrealistic. It says in effect that there has to be zero risk of Al Qaeda functioning as an organisation that could launch another 9/11, but there’s never going to be zero risk. 9/11 was not a high technology operation; it was a sophisticated and well-planned operation, but the idea that all risk of this organisation being able to carry it out, if we even know what this organisation is, I think is hopelessly unrealistic and that means that the war doesn’t end and the destruction, even if every single attack is proportionate and every single attack is lawful, which I’m assuming is not true, but let’s give it the benefit of the doubt, just keeps piling up. To me that’s a limitation of Just War theory and the associated body of international and humanitarian law themselves: they leave states to define when it’s over and, if states define when it’s over as risk down to zero, then it’s never over.
I’ve been talking mostly about Just War theory, but I haven’t been saying very much about drones themselves. I’d like to talk a little bit about drones themselves because I think there’s significant emotion around the subject of drones. There’s a lot of unclarity about what is and isn’t the real problem with drones and it might help if we sort out several strands of what it is that bothers us about drones, if we’re bothered about drones, which I assume at some level everybody is. One of them is that there’s a kind of dystopic terminator-like idea of inanimate objects hunting down human beings. That’s a kind of creepiness factor which I actually think is not the most salient factor because the fact is drones are weapons of war that kill at a distance, but so are manned aircraft, so is artillery, in its day so is the long-bow, so is the cross-bow. I mean in the twelfth century the church banned cross-bows because they thought that it was immoral that an armed knight – heavily trained, aristocratic – could be picked off at a distance by some peasant with a long-bow or a cross-bow.
Killing at a distance, that’s just the creepiness factor – and unfortunately the drone technology is not only owned by the United States; everybody’s got it. The United States spends less than half the money that’s spent in the world on drones. I assume that drug cartels have their own drones. It’s like nuclear weapons, where once the genie is out of the bottle technologically speaking, it’s not going back in and I think we’re going to have to learn in some way how to live with drones, but I don’t see them being morally on a different order than a bomber, certainly not than a bomber with a nuclear weapon.
So what else is there? There’s the idea that the pilot is playing a video game somewhere in Nevada, somewhere in Florida, sitting at the screen. I actually at one point talked with a friend who had visited the command where this was going on and he said that it was the oddest thing to see somebody sitting at a screen saying: ‘There!’. This was actually a surveillance drone that was guiding a ground operation. “Not that door. Not that door. That door!” and then suddenly, on the screen, a big explosion and the door disappears and then the pilot says “Oh, got to go, got to pick up my kids from primary school”, and takes off the headset. That seems really dangerous because it takes all the risk out of the war and it makes it too easy and, in particular, it seems like there’s this idea of a video game war. What the US military says in response I’m not competent to judge. This is: ‘This is less video game than traditional aerial bombardment because in fact the drone pilot keeps the video feed on and actually goes down and sees what the damage is, whereas a traditional bombardier bombs away and then turns the airplane around and flies off and never has to engage with the fact that there’s human damage’. And there have been mixed reports about how much stress drone pilots experience from seeing the after-effect of their handiwork, but I’m assuming that it’s not negligible and so this doesn’t strike me as the most morally significant fact about the drones.
I think there’s this sense that, if the United States government knows enough about this particular person to target them with a drone, then they know enough to send in the special forces and arrest them, to capture not kill. So this argument goes: ‘Morally required to capture and not kill and legally required to capture and not kill.’ And I’m not sure that this is a particularly good argument either because it doesn’t take into account the dangers that are posed to innocent civilians by a capture operation and it seems to me that it might be much worse to send special forces in to try to capture somebody and then shoot their way out; much more dangerous to civilians than the drone operation. And if the point is to protect innocent civilians, I’m not actually certain that that’s a benefit.
It seems to me that, under both the law and morality of war, the two main questions about drones, about those kinds of killing operations, are first whether they’re militarily necessary, does self-defence require them, and the second, does proportionality permit them? I’ve criticised proportionality as a standard, but it is the legal standard. And the sad answer is we’ve got no way of telling because all of the information is secret and it’s all kept under wraps and I think this is really one of the most devastating problems with the US drone programme. The story that I began with, Obama sitting around on Terror Tuesdays, was the endpoint of a series of little releases of information that had been trickling out for a while. There was first a great deal of frustration because the United States government wouldn’t admit that it had a drone programme and therefore people who wanted to say: “What’s your legal justification?” couldn’t get one because how can you justify something that you’re not even admitting that you’ve got? Finally, in 2010, the state department legal adviser made a first stab at giving a justification behind US policies, but it was so vague. It was basically: “The United States is law abiding and we comply with the Law of War and Article 51 of the United States charter justifies it. Thank you, ladies and gentleman, good night and good luck.” The next was a speech by the national security adviser in 2011. Then a month later there was a revelation in the New York Times of a secret justice department memo that had an elaborate justification for drone killings, but it was never released and has still not been released. There was a speech by the attorney general this past March that gave more legal details than we’ve ever seen before and then there was Jeh Johnson’s speech at Oxford (November 2012), but all of this is just a drip drip drip of ideas without any actual understanding of the most significant decision: how are people chosen for these kill lists?
From one point of view any targeted killing operation is an extra-judicial execution without due process of law. One of the routine counter-arguments is, in an armed conflict due process doesn’t mean arrests, arraignments, defence lawyers, trials, evidence; but what does it mean? The answer is we haven’t got the slightest idea what it means other than this anecdotal story about the president and his advisers sitting around with power point presentations and baseball cards with the faces of nominees for targeted killings on the baseball cards. At the very least, one would want within those deliberations somebody who was an institutionalised devil’s advocate who is arguing: “This is not the right person, you don’t have enough evidence.” Is there such a person? We don’t know. Philip Alston, who is the United Nations Special Rapporteur on extra-judicial executions, wrote an important article last year arguing that in fact one of the biggest threats to the rule of law is not the drone programme itself but the secrecy and utter unaccountability. Alston said accountability, not just within the United States government but to the international community, is what the Rule of Law is all about and I think that that’s absolutely right.
All we have so far are assurances that whatever internal processes the US government uses are conscientious, undertaken in good faith, evidence-driven, these are people of great integrity, they study Augustine and Aquinas, they’re very reluctant to do this and so on. So you think: “This is sounding good. I don’t know if it’s true or false, but maybe we should take their word for it”; until the clock struck thirteen last week and there was an article, once again in the New York Times, saying that, as the presidential election approached, and it looked as though Mitt Romney might win, there was frenzied activity within the US government to actually write a rule-book for the drone programme because: “We trust ourselves, but what if this guy wins and he’s the one who’s in charge? Let’s codify things.” This was published on November 24th. This means that all along, notwithstanding these reassurances, there hasn’t been a rule-book.
Let me just conclude with some final worries. Let me read a little excerpt from Johnson’s Oxford speech, “We cannot and should not expect Al Qaeda and its associated forces to all surrender or lay down their weapons in an open field or to sign a peace treaty with us. They are terrorist organisations. Nor can we capture or kill every last terrorist who claims an affiliation with Al Qaeda.”
He gets it that Al Qaeda is not a formal organisation and he seems to get it that anybody who claims to be an Al Qaeda member can’t be captured or killed because that means capturing or killing maybe till the end of time, until the indefinite future; but they’re not drawing the conclusion from this. They’re too focused on the baseball cards and the power point presentations to ask what the point of this is. One day, after the Obama- sitting-reading-Aquinus article was published, the Washington Post published an article about Yemen saying that in fact the drone programme in Yemen was infuriating so many Yemenis that it was the greatest recruiting tool that Al Qaeda had had and Al Qaeda on the Arabian Peninsula was growing and growing. So, lost in the baseball cards is the idea that somehow this is an operation that could succeed and here I’ll just mention that one of the other classical conditions of Just War theory going back to the seventeenth century is that it has a reasonable chance of success. Without that, the use of force simply isn’t justified at all.
The Drones Quilt: The featured image for this podcast is a square from the Drones Quilt, a project of the Fellowship of Reconciliation. FoR is a charity that promotes non-violence and peace and works to end armed conflict, campaigning on peace issues and educating about a philosophy of non-violence.
The quilt is a work of advocacy. It’s a really simple project designed to raise awareness about drones and remind the government that those killed by drones are human beings, whose lives are sacred. The pictures from the quilt were taken at this year’s Edinburgh Festival where the quilt was displayed.
The Bureau of Investigative Journalism keeps a watching brief on drone strikes – up-to-date information on US and UK drone strikes.