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Drone Wars: Is it legal?

They may be cool, they may be scary, but are the drones legal? No one really knows for sure.

Philip Alston, the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, raised the alarm about drones in a report delivered to the General Assembly in May 2010.

“The greater concern with drones is that because they make it easier to kill without risk to a State’s forces, policymakers and commanders will be tempted to interpret the legal limitations on who can be killed, and under what circumstances, too expansively,” he said, decrying what he termed a “Playstation mentality to killing.”

While conceding that the use of drones could be justified in theaters of war, provided the nation deploying the weapons conformed to the laws of armed conflict, he stated flatly that drones could not legally be used outside of that mandate.

“Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal,” he said.

“Targeted killing” is the euphemism for a strike aimed at a specific individual; “assassination” is prohibited, and therefore frowned upon. Many of the individuals targeted — Pakistani militant Baitullah Mehsud, for instance, or Al Qaeda leader Ilyas Kashmiri — were killed in Pakistan, a country with which the United States is not at war.

This, then, is the crux of the problem: while, as Koh insists, the United States is in a state of armed conflict with Al Qaeda and the Taliban, it is not at war with Pakistan, Yemen, Somalia, or other areas where drones are now being deployed.

Pakistan has at times given tacit consent to the use of drones on its territory. But as popular anger grows over the strikes, the government has grown more reluctant to be seen as supporting the U.S. program, and in April the Pakistani government demanded that the drone strikes be stopped.

Nevertheless, they continue.

The issue of civilian casualties has added fuel to the fire. According to principles of distinction and proportionality, outlined above, drones cannot legally be used if there is a good chance that civilians will suffer unduly.

“With drones, the intention is not Dresden — they are not aimed at punishing civilians,” said Anatol Lieven, professor in the War Studies Department of King’s College London. “They are directed at Al Qaeda and the Taliban. But the majority of militants are living in their own homes or are guests in other people’s houses; any strikes will kill others.”

This already calls the use of drones into question on the grounds of proportionality, say experts. But even more delicate is the question of “distinction” — how does the U.S. identify combatants in a part of the world where its understanding is limited and intelligence is so often faulty?

Time and again, drones have targeted the wrong house, the wrong group, or have caused excessive collateral damage.

On March 17, a drone strike in Datta Khel, Pakistan, killed up to 44 men. While there were Taliban present, the majority of those killed were tribal elders, not militants, according to Pakistani officials.

The timing was also unfortunate, coming as it did just two days after Raymond Davis, a CIA contractor who had been arrested for the killing of two Pakistanis, was released.

“This was seen as highly provocative by the Pakistanis,” Lieven said. “They were convinced that the United States was sending a message: ‘don’t you dare try and put pressure on us.’ It conveys a sense of a military on autopilot, without the slightest idea of the political realities.”

In a region where the United States has a limited window on the intricate mechanisms that shape society, intelligence can often be faulty — the product of malfeasance on the part of informers or simple misunderstanding.

Gareth Porter, an investigative journalist with InterPress Service, released a report in June showing that, of 1,355 suspected Taliban detained in Afghanistan during a 90-day period in 2010, more than 80 percent were later shown to be innocent civilians. He openly questioned whether the data on those killed in night raids and drone strikes was just as flawed.

“The deceptive nature of those statistics, as now revealed by U.S. military data, raises anew the question of whether the statistics released by [Commander of U.S. and NATO Forces General David] Petraeus on killing of alleged Taliban were similarly skewed,” he wrote. 

Perhaps more useful than looking at the question of legality, says Lieven, is taking a more pragmatic approach.

“I have looked at drones from the point of view of morality,” he said, “and also of practicality. There is a balance between gains and losses. There have been gains, and they are real, although the reality suggests that the effects are questionable. But the losses are also great — we are alienating the population as a whole.”