Friday, October 24th, 2014

Do drone attacks comply with international law?

Leon Panetta discussed a range of national-security topics on ABC's This Week
Leon Panetta discussed a range of national-security topics on ABC's This Week

On the June 27, 2010, edition of ABC's This Week, CIA Director Leon Panetta offered comments on several high-profile national security issues, including U.S. drone attacks against terrorist targets overseas, especially in Pakistan.

At one point in the interview, host Jake Tapper said to Panetta, "I know you can't discuss certain classified operations or even acknowledge them, but even since you've been here today, we've heard about another drone strike in Pakistan and there's been much criticism of the predator drone program, of the CIA. The United Nations official Phil Alston earlier this month said, 'In a situation in which there is no disclosure of who has been killed for what reason and whether innocent civilians have died, the legal principle of international accountability is by definition comprehensibly violated.' Will you give us your personal assurance that everything the CIA is doing in Pakistan is compliant with U.S. and international law?"

Panetta responded, "There is no question that we are abiding by international law and the law of war. Look, the United States of America on 9/11 was attacked by al-Qaida. They killed 3,000 innocent men and women in this country. We have a duty, we have a responsibility, to defend this country so that al-Qaida never conducts that kind of attack again. Does that make some of the al-Qaida and their supporters uncomfortable? Does it make them angry? Yes, it probably does. But that means that we're doing our job. We have a responsibility to defend this country and that's what we're doing. And anyone who suggests that somehow we're employing other tactics here that somehow violate international law are dead wrong. What we're doing is defending this country. That's what our operations are all about."

We zeroed in on Panetta's statement that "there is no question that we are abiding by international law and the law of war" in relation to operations in Pakistan, especially concerning drone attacks.

At first we wanted to put this statement to the Truth-o-Meter. However, for reasons that will become clear, we decided Panetta's statement, as worded, did not lend itself to the rating system. Still, we decided it raises interesting questions worth exploring.

First, some background. Drones are remote-controlled, pilotless, aerial vehicles that can conduct surveillance and, if specially equipped, fire weapons that are able to hit targets of interest, including killing individuals. These drones first became commonly used in the administration of former President George W. Bush, and their use has increased under President Barack Obama. They have been used with regularity on the battlefields of Iraq and Afghanistan by uniformed military forces. Drones have also reportedly been used by the CIA to target suspected terrorists.

In his question to Panetta, Tapper noted that doubts have been raised about the propriety of such attacks, particularly the ones conducted by the CIA on suspected terrorists. Tapper specifically cited a report by Philip Alston, a New York University law professor who also serves as the United Nations' Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. The May 28, 2010, report was addressed to the UN General Assembly's Human Rights Council.

In the report, Alston analyzes the legality of "targeted killings," which he defines as "the intentional, premeditated and deliberate use of lethal force, by states or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator." Drone attacks are one type of targeted killing.

Alston's report acknowledges that "such policies have been justified both as a legitimate response to 'terrorist' threats and as a necessary response to the challenges of 'asymmetric warfare.'" But it also raises a number of questions, including possible conflicts with existing international humanitarian law. Here are a few of them:

• In what types of conflicts are targeted killings justified? Does the deadly pursuit of all suspected terrorists, or only certain kinds, qualify for protection under international law? When is the argument of "anticipatory self-defense" recognized as a legitimate justification for a targeted killing?

• Do the attacks take enough care to prevent the collateral loss of life of civilians?

• Are the attacks proportional to the threat?

• Is there enough transparency and accountability surrounding the decision-making behind targeted killings? This is especially important for drone attacks, in which intelligence is gathered and analyzed thousands of miles away by civilians working for a high-secrecy intelligence agency, rather than by military personnel in the theater of operation who are subject to well-established rules of engagement.

Alston's report does more than raise these questions -- it argues that the way targeted killings, especially drone attacks, are currently handled poses significant problems under international law.

The report finds "a highly problematic blurring and expansion of the boundaries of the applicable legal frameworks –- human rights law, the laws of war, and the law applicable to the use of inter-state force. Even where the laws of war are clearly applicable, there has been a tendency to expand who may permissibly be targeted and under what conditions. Moreover, the states concerned have often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. Most troublingly, they have refused to disclose who has been killed, for what reason, and with what collateral consequences. The result has been the displacement of clear legal standards with a vaguely defined license to kill, and the creation of a major accountability vacuum."

The report doesn't flat-out state that what the United States is doing is illegal, but it raises tough questions that would lead some observers to make that conclusion.

All this serves as backdrop to Tapper's question -- the one to which Panetta answered, "There is no question that we are abiding by international law and the law of war."

As we scrutinize Panetta's statement, we see two possible ways to view it.

The first is to see whether there's any credible dissent from the notion that "we are abiding by international law and the law of war" in "everything the CIA is doing in Pakistan." If there is credible dissent, then Panetta's statement that "there is no question" would be a clear exaggeration.

We do detect dissenters from Panetta's perspective -- beginning with Alston himself, who certainly exudes skepticism even if not outright opposition.

"There are a huge number of legal questions associated with the drone program," said Steven R. Ratner, a University of Michigan law professor who specializes in international law. "Alston's report does not itself say that the U.S. drone program is illegal. He just raises a lot of good questions, (while leaving) the door open for some actions as legal." To Ratner, Alston qualifies as "a legitimate source of authority who is asking whether the U.S. is abiding by international law."

Other experts in international law are raising similar questions.

Mary Ellen O'Connell, a University of Notre Dame law professor, argues that "without a right to use military force on Pakistan's territory, we not only violate that state's rights under international law, we are violating the human rights of all victims, regardless of whether they are Taliban militants on a CIA hit list or bystanders. Some of the publicly acknowledged strikes in Pakistan have not been part of Pakistan's own armed conflict hostilities with Taliban. I know of no justification in international law for those."

Peter Spiro, a Temple University law professor, agrees that Panetta is too quick to deny the existence of dissent over these questions. "This is a novel application" of international law, Spiro said. "We'll have to wait to see whether it's fully accepted by the international community."

So if Panetta's comment was intended to suggest that there's an absence of dissent or uneasiness about the validity under international law of U.S. actions, he'd be wrong.

But our experts also pointed out an alternate and, in our view, justifiable approach to parsing Panetta's statement. He might have meant, "There is no question in my mind that we are abiding by international law and the law of war." And that is a statement that is simply impossible for us to judge, because we don't have adequate information. Where CIA drone attacks are concerned, the agency has simply not made enough information public, from the identities of the targets to the collateral damage.

"So we can't know if it's true, mostly true, or untrue," said Ratner of the University of Michigan. "It is not possible to verify anything in a covert program."

We should add that a number of experts we talked to give Panetta and the United States a good bit of credibility on these issues.

"To my knowledge, neither Phil Alston nor anyone else has produced any evidence that U.S. drone strikes in Pakistan are deliberately aimed at non-combatants," said Steven Groves, a fellow at the conservative Heritage Foundation. "My understanding is that the CIA and the Defense Department take great pains to ensure that their targets are legitimate and that civilian deaths are minimized. Civilian deaths do tragically occur, especially when targets intentionally embed themselves in civilian populations. Regardless, international humanitarian law contemplates such tragic civilian deaths as an often unavoidable part of war."

Both Ratner and Spiro placed significant weight on the assurances by Harold Koh, the State Department's legal adviser, that U.S. activities are legal.

In a March 25, 2010, address to the American Society of International Law, Koh said that it is "the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war. ... As recent events have shown, al-Qaida has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaida leaders who are planning attacks."

The idea that the United States is in an armed conflict with al-Qaida, the Taliban, and other groups around the globe is shared only by the U.S., Israel and possibly Russia, O'Connell said. But many experts, such as Ted R. Bromund, senior research fellow at the Heritage Foundation, say there's good reason to classify the conflict with al-Qaida and other groups as a war, rather than a law enforcement effort, which would present more stringent restrictions.

And to many liberals, an endorsement by Koh, the former dean of Yale Law School, is noteworthy, since liberals account for many of the most critical voices on the issue of drone attacks. To many, Koh's specialty -- human rights law -- makes him an important voice of reassurance.

Despite the defense of U.S. actions by Panetta and Koh, we are uncomfortable stating with any certainty that a covert program is definitively operating within the law. We simply can't verify it independently. So we are refraining from rating Panetta's comment on the Truth-o-Meter.