Warning: long post!
The use of armed drones in the conflict areas is not exactly new, as are arguments for and against the use of this weapon. Found to be quite effective in getting to the various terrorist chiefs and their lieutenants, drones and their use are questioned for the two chief legal reasons:
Legal Reason One. Is the extra-judicial execution of a person legal, even if there seems to be enough intelligence proving the person’s terrorist activities? If you listen to US State Department legal advisor Harold Koh, the drone strikes are legal because of the right to self-defense. If you consider other voices, including these of some left-wing politicos and lawyers, the picture is strikingly different:
US Congressman Dennis Kucinich asserted that the United States was violating international law by carrying out strikes against a country that never attacked the United States.
Whatever you think of Kucinich and his free use of very vague term “international law”, the argument sounds plausible: Pakistan as a country didn’t attack the United States. And we didn’t even mention the targeted person’s entitlement to the due process of the law… and a new challenge, that of targeting terrorists who happen to be American citizens:
The Obama administration will on Monday try to persuade a U.S. judge to throw out a lawsuit challenging its program to capture or kill U.S. citizens who have joined militant groups like al Qaeda, including Muslim cleric Anwar al-Awlaki.
Legal Reason Two – “Collateral damage”. According to some sources, for every militant killed in drone attacks, at least 10 civilians also die. According to other sources, ten civilians is an optimistic estimate.
Our number was 30. So, for example, Saddam Hussein. If you’re gonna kill up to 29 people in a strike against Saddam Hussein, that’s not a problem***.
The numbers are quite horrific, and on the face of it, use of drones is a dirty business, no matter how you look at it.
Morality. And, if it were not enough, some people say that Drone attacks may be legal, but are they moral? Of course, people who ask this question, already have a pretty good idea what they think about it. They also quote some “experts” who have their own ideas on what they consider “best practice” in the use of drones:
The UN’s Special Rapporteur thinks it involves specifying very clearly, in advance, whom you are going to target, as well as where, when, and why.
After you collect your jaw and related bits from the floor, please don’t bother telling me what you think about the Rapporteur. I know, I know…
But, leaving the Rapporteur alone, one remains with uncomfortable feeling of ongoing deliberate breach of legal and moral norms, at least as established by enlightened Western civilization. On the face of it, the detractors of the drone usage raise legitimate questions, hardly answered by its practitioners and their supporters.
That is, as long as you agree with the picture of simple civilians, innocent until proven guilty in the court of law, peacefully living amongst innocent civilian population of their countries that are not in conflict with any other country for any reason. If you follow this line of thinking, pushed by various Rapporteurs all over the globe, you cannot:
- Organize a military incursion with sufficient firepower to extract the suspect from the civilian population he is so tightly mixed with. Because the said incursion is a) illegal and b) will cause an uncounted number of victims in the surrounding civilian population.
- Send in a few intelligence agents to capture and transport the suspect to a place, where the due process of law could be started, because it’s surely illegal to do so.
- Send in a small team of trained soldiers to kill the suspect, because the due process of the law…
- Send a warplane to drop a bomb on the suspects’ house because the civilians surround….
- Get a drone with a Hellfire missile, because… oh, we have been there already.
So, the only thing left to you is, apparently, to send a process server with a letter of summons that will obviously be sufficient for any civic-minded Al Qaeda (or any other) operative to present himself at the designated place and time for the due process of the law. I guess that this process server should specify very clearly in advance, whom he/she is going to serve, as well as where, when, and why. To avoid the risk of possible heart attack or, deity forbid, a bout of indigestion.
OK, but after this display of sarcasm, what is it I really think about this – frankly, unthinkable and absurd – situation? Clearly the West faces a conundrum, where all its efforts to combat terrorism will be soon hobbled by its own judiciary. As long as a terrorist is considered a civilian in the eyes of the law, any attempt to find a way to render him/her harmless will fail.
I am not a lawyer, but if a terrorist cannot be considered a soldier of an enemy’s army, he cannot be considered a civilian as well. Being armed and murderous combatant, terrorist should be defined as a legitimate target for a military (or any other, for that matter) assault, exactly as in a war situation, with all consequences following – including the danger to innocent bystanders, if the terrorist prefers to seek a shelter among them and receives such shelter.
It is imperative that the relevant legal minds take the finger out and build a necessary (and international recognized) foundation for the fight against terrorism, before legal beagles of ACLU, UN, HRW and other do-gooders close the last wall in their legal bunker of insanity.
***
(***) Regarding these numbers as they apply to Israel and its use of drones, one should remember that what is allowed to Jupiter is not allowed to the bull. The person quoted above re “Our number was 30”, after becoming an expert for the “good guys” (HRW), sings a different tune:
Marc Garlasco, senior military analyst at the emergencies program of HRW, estimates that at least 87 civilians were killed in 42 drone attacks. “Israel’s targeting choices are unacceptable and unlawful,†he declared at a press conference…
So, the Israeli average of 2 bystanders is unacceptable, where 29 was kinda fine before…
Cross-posted on SimplyJews
My legal concern is the legal status of the operators. Under international laws of warfare, they ought to be operated by uniformed members of our armed services. When controlled by CIA officers or civilian contractors, we’re breaking that law.
But I’m more concerned with their efficacy, and less with legal niceties. They do raise some good discussion topics, though…
J.
I wouldn’t argue against valuing efficacy, Jay. But my point is that if the legal foundation is neglected, very soon both CIA and the army might find themselves unable to operate the drones at all, efficiently or not.