15.03.2015 Author: Matthew Crosston

Ethics, Law, and the Changing Drone Landscape

1284517305591Perhaps the most striking thing when reviewing the impressive literature that examines drone conflict and international law is just how easy it is to find an opinion for all perspectives. Many of these divergent opinions are rational, well-argued, and thoughtful. The legal discussions explain how American drone usage is both in line with the United Nations Charter and a violation of it; how America’s CIA drone program both adheres to jus ad bellum requirements while also not keeping with the conditions of necessity and proportionality; how drones in general utterly upend the Geneva Conventions but also fall in line with them; how Article 51 of the U.N. Charter completely covers the entirety of the American drone program while the same program also makes a mockery of Article 51. In other words, to date the positions in the literature seem to justify whatever agenda the original authors want to push.

The United States to this point, because of its preeminent technological advantage over the rest of the world, has played a bit fast and loose in terms of legal positioning and making a stand on global norms. The domestic law that bans assassinations, for example, shows the great legal agility employed in the U.S. Presently, America emphasizes that its domestic law ban on assassinations is defined in a very narrow and explicit way. Consequently, the targeted killings of military leaders are deemed permissible during armed conflict. The problem for some, of course, is that many if not most of the targets in the war against terror overseas have been non-uniformed, non-state actors moving in a transnational and non-aligned way. There is no real consensus in thoughtful intellectual circles as to whether or not such actors are justly categorized as ‘military leaders.’ But the United States does categorize them in this way and therefore considers drone killings of such actors as not only within the guidelines of its own domestic laws, but within international law as well.

In all honesty, this debate is at least immaterial, if not irrelevant, to the larger consequential empirical concern addressed here: if America plays so ambiguously with its own laws and interprets international law for its own best national security interests, then why is it so difficult to consider a world where other states do the exact same thing? This would not be action based on spite but on precedent: since there are no consensus global norms on the use of drones in conflicts, why would new members of the drone community not simply base their own behavior on the present-day actions of the drone leader? Inexplicably, the United States military and intelligence communities seem to not take this possibility with great seriousness. Quite frankly, this is odd because the logic is simple and basic.

The same American looseness applies when considering international law that frowns upon civilian casualties. It is not that there is a global norm explicitly forbidding such deaths, but rather the targeting decisions are expected to avoid as best as possible civilian casualties and damage. Yet the laws of armed conflict, which the United States constantly cites, dictate that one is not prohibited from attacking a legitimate target just because of its proximity to civilians or civilian property. In other words, the ambiguity in the law is maximized through the technological advantage innate to the American drone program. This intensifies the asymmetry where the players see American actions occupying a strange shadow land of legality where things are either legal but discouraged (and done anyway) or are illegal but not enforced.

It is not illogical that the United States wishes to maximize a national security advantage, especially one that could result in the elimination of enemies that are intent on inflicting death and damage upon America. The disconcerting aspect is the fact that the technical functionality of drones cannot remain in the hands of the U.S. exclusively. This is somewhat different from the argument that says other players will rival America. No one may ever catch up to America in terms of drone superiority and talent. But if the functionality of other players’ drone fleets improve enough to be able to act on its own national security interests the way America does, then without doubt International Relations will be fundamentally altered to its detriment. This reluctance by the U.S. to consider norms or global standards while it has the decided advantage is in all likelihood going to be the foundation as to why other countries, having now gained entrance into the weaponized drone club, will also reject such norms being pushed onto them.

Put another way, there should be legitimate concern that the manner in which America has so prominently utilized drones will teach lessons to other states that may fundamentally undermine the principle of last resort when it comes to war and conflict. The rules for war and entrance into war are thankfully quite distinct, explicit, and rare. Drones seem to be playing along the edges of these borders, whether it concerns formal law or ethical norms or global consensus on behavior. Since America’s own usage has blurred the lines of law and positioned drone conflict as something short of formal war, perhaps other states will also not feel the need of hyper-restraint.

These subtle legal arguments made by the U.S. are creating a not-so-subtle change in perceptions about the applicability of drones. These perceptions are changing the sense of permissibility when it comes to extrajudicial killings. Right now this perception causes no harm to the United States because there are literally no states ready to inflict damage via drone upon American targets or interests. But is that state of affairs guaranteed to last long into the future? Given the nature of technological evolution and proliferation it simply cannot remain so. America will remain dominant, certainly. But it will not be dominant alone, as it is now. It will be dominant with other players, perhaps many players, on the field and capable of asserting their priorities in the name of national interests. That reality might be quite harrowing as there seems to be an American overconfidence at the moment that its own interests and assets could never be legitimately targeted. What this overconfidence is founded upon is a mystery, however, given how purposely blurred and fuzzy America has made the drone rules of the game.

Indeed, some explanations are a mixture of hubris with logistical largesse: terrorists or other enemies of America will not employ UAVs as a first preference because there are just so many aspects needed to successfully utilize a drone for attack. This thinking has thankfully been properly dismissed but that dismissal has not been recognized as fully as needed:

“To describe this line of argument as woefully complacent would be a vast understatement. What the 9/11 attacks showed more than anything was a willingness on the part of the perpetrators to think creatively and to employ technologies and tactics that were entirely unconventional in order to achieve a strategic surprise, shock, and destruction. They have also shown a propensity to attack symbolic targets like the Pentagon or the World Trade Center in part because they are defended and have been attacked previously. By attacking the same targets they seek to make the point that nothing is invulnerable or off-limits.”

When the standard debate about ethics and law over drones is liberated from legal obfuscations and focused solely on empirical consequence, a very dangerous atmosphere is seen emerging: one where the U.S. relies too heavily on both an exclusive dominance that won’t likely last and an unfounded faith that its actions won’t be seen as precedent-setting or norm-establishing.

Dr. Matthew Crosston is Professor of Political Science and Director of the International Security and Intelligence Studies program at Bellevue University, exclusively for the online magazine “New Eastern Outlook”