Jyoti Omi Chowdhury

When the United States first ratified the Geneva Conventions in 1955, the Senate Committee on Foreign Relations categorized the agreements as ‘‘a landmark in the struggle to obtain for military and civilian victims of war, a humane treatment in accordance with the most approved international usage. The United States has a proud tradition of support for individual rights, human freedom, and the welfare and dignity of man. Approval of these conventions by the Senate would be fully in conformity with this great tradition.’’ That was exactly seventy years ago, when conventional warfare was the norm and the world was very different.

Warfare has evolved rapidly since then. Today, conflicts between state actors and non-state actors are common. Interstate wars are becoming a thing of the past, having been largely replaced by civil wars, ethnic conflicts, terrorism and humanitarian interventions. But the laws governing warfare and the ideals they defend remain. The rules of engagement are one of the most important tenets of modern international law. Even with the rapidly changing notion of warfare, the core values to which nation-states still adhere are firmly rooted in the Geneva Conventions. Even bad actors tend to respect the Geneva Conventions—and understand that violating these conventions can produce harsh consequences. It is the closest thing to a constitution that the international order has seen. And, thus, the value of such conventions is held in high regard in almost every tier of statecraft.
Despite their seeming acceptance as a codified rule of law, the Geneva Conventions have been inadequate and, at times, irrelevant in addressing the evolving and pressing nature of modern conflict. 

If we examine the current state of the War on Terror, we will find that one of the most common practices in combating terrorism is through the use of unmanned drones. The United States has benefited from the use of unmanned drones in Afghanistan, Pakistan, Somalia and Yemen. For a while, this was the worst kept secret in Washington. Finally, in May 2012, then-Counterterrorism Chief John Brennan stated, before an audience at the Woodrow Wilson International Center for Scholars, “Let me say it as simply as I can. Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States government conducts targeted strikes against specific al-Qaeda terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones.”

More or less every security analyst applauded Brennan’s comments, which were exceptionally candid for an administration that has been tight-lipped about its counter-terrorism measures. While discretion on these matters is to be expected, the Obama administration was exceptionally guarded, especially after reports of CIA torture sites in Europe and the Middle East. Brennan and Attorney General Eric Holder also stated unequivocally that these strikes were not only within the legal constraints of international law, but also that they were ethical and prudent. 

Despite Brennan’s candidness and the administration’s willingness to share some details about drone strikes, much remains unclear. Three years after the revelation of drone strikes in sovereign territories, the administration has not identified which government agency oversees the program. Nor has the administration identified what steps, if any, are being taken to ensure that the United States adhere to existing international norms that bind government actors to be accountable, like they would members of the military. In light of the Senate’s recently issued report on the CIA’s use of torture, which suggested inadequate oversight, the lack of transparency about the drone program should be addressed.  

Media sources from the New York Times and Washington Post, along with security experts, have suggested that the U.S. military and the CIA, conduct these “drone strikes” as a counter-insurgency/anti-terrorism measure. 

The U.S. military is bound by the laws of armed conflict (LoAC) and thus has to go through a rigorous process to conduct these strikes within an active zone of combat, i.e. Afghanistan or Iraq. But there is no clarification in terms of what code of conduct/process the CIA is adhering to. On top of that, there is another issue at play. The operatives who are conducting these drone strikes do not always know who they are killing, nor how many. The whole process is mired in a sort of mixture of fearful and hopeful strikes. While such characterization may seem abhorrent the reality of the matter is that the drone strikes are based on information provided to the operating agencies through an intermediary and thus exhibit a level of uncertainty previously unheard of. This point is further substantiated by the fact that there is no reliable data that accurately tabulates the number of people killed in these strikes. That in itself is alarming. 

We must ask ourselves before we address the issue with the CIA’s use of drones within Pakistani territory (another open secret, later verified at a Senate hearing), what the legal expectations and constraints govern the use of drone strikes within the LoAC. There are three distinct principles behind each military strike within Afghanistan under the LoAC—proportionality, necessity and distinction—which are supposed to guide the process, but the outcome is based on other variables, as well. 

Proportionality suggests that an action cannot be excessive in respect to military utility. In simpler terms: a country can’t simply carpet bomb a civilian area to kill a terrorist. The second principle of necessity suggests that your target needs to have military utility. In other words, regular civilians are off-limits. The third principle of distinction is attached to the second one. It basically means that only military targets are marked for drone attacks, not civilians. 

These principles guide the use of drones operated by the U.S. military in an active combat zone. They follow a code of conduct that is consistent with the LoAC. But things start getting muddy once the CIA is introduced into the process. The CIA uses drones for what have been labeled “signature strikes,” in which missiles are sometimes fired even if the identities of those being marked for murder cannot be verified. On top of that, the CIA has used drones in Pakistan, itself not an active combat zone. The problem of civilians getting killed—either by association or by mistaken identity—has become a particularly dirty feature of the drone war. And with limited to no accountability on the issue, there are no punitive measures taken against someone who drops a bomb on a wedding party or kills a grandmother picking okra. 

At a briefing held last year on Capitol Hill, the thirteen-year-old grandson of a sixty-seven year old woman killed by a drone strike while picking okra outside her house, told five lawmakers that he prefers grey skies over blue skies because drones cannot attack when it’s overcast. Such is the continuing legacy of almost 350 drone strikes committed from 2008. Yet there has been no criminal investigation—let alone jail sentences or other punishments—handed out to those responsible for civilian casualties. While that may seem like a failure of the US government, it is also a failure of international law.  

The use of drones enjoys considerable support. Many argue that CIA-sanctioned drone strikes are necessary for eliminating threats on the ground. Unfortunately, this position is not at all consistent with that of our major allies on the matter. The use of drones by a civilian run entity has not passed legal muster in the United Kingdom. Great Britain has only used drones for military strikes in Afghanistan and Libya, both of which have active mandates from the United Nations for the use of military force. The American government itself recognizes that its drone policy may not hold up in the long run. A recent Congressional Research Service analysis suggests that the Obama administration’s position on the matter is not without possible challenge.  Indeed, the United States Supreme Court may weigh in on the matter sooner than later.

The Obama administration’s use of drones aligns with the most conservative wing of the Supreme Court when it comes to due process during wartime. The use of drones is heavily dependent on the principle (when it comes to CIA conducted drone strikes) that as long as there is a “good-faith executive determination of imminent threat,” it is perfectly legal to conduct these strikes especially without the direct involvement of the military. In other words, the process is neither standardized nor rigorous, and its appropriateness depends on whom you talk to. On top of all that ambiguity there is a long running debate about what constitutes “imminent threat” within legal circles. As it stands now, the Obama administration decides on what constitutes “imminent threat”—a view that is entirely subjective. It is fair to say, then, that the Obama administration is further propagating a policy that is both legally ambiguous and in contravention of not just agreed upon international norms but also common sense.

Until this administration and future ones find a constructive legal policy that oversees CIA conducted drone strikes, such tactics within non-active combat zones will border on the edge of illegality, and set bad precedents for countries that may seek to use drones against their own civilian population under the pretense ambiguities such as “imminent threat.” That realization may have finally dawned on the Obama administration. During the 2015 State of the Union President Obama provided first real indication that there needs to be a more transparent way of conducting the drone strikes. Due to ever increasing scrutiny from international organizations and their allies within the American public the administration may have shifted to a more common sense approach which, by definition, would provide far more clarity to the issue. This remains to be seen, however, and offers cold comfort to vulnerable populations routinely targeted by American drones.  

It is worth noting that targeted drone strikes are a short term solution to terrorism that have long term impacts on those communities bearing the brunt of such violence. Without proper checks and balances, such strikes not only remain in the shadows between legality and illegality but also undermine efforts at building societies that can internally withstand the threats of reactionary terrorism. If the administration does not follow through on its promise to create a legally defensible and transparent way of conducting drone strikes, then the legacy of impunity will surely overtake any small gains the current drone strikes are achieving. Current US drone policy render the country at once increasingly vulnerable to terrorist attack and morally suspect in the eyes of friends and foes alike. Neither outcome is desirable. 

Jyoti Omi Chowdhury is a War Theorist. His research focuses on counter-insurgency, causes of civil war and the politics of development.