The ruckus is in regard to the legality, morality, and efficacy of the UAV strikes. As with any aspect of international relations, there are those who are in favor of the strikes, and those who are opposed. This issue is by no means clear-cut and the holes in each argument are only exacerbated by severe lack of clarity on the subject within the codes of domestic law, accepted international law, and definitions and interpretations which cloud the issue and confuse any possible solution.
The most prominent aspect of the debate centers on legality. Two sets of legal codes have bearing on the question of legality; first, domestic law, and second, international law. Domestic law deals with the issue in terms of assassination, at least in the minds of the opponents. International law, on the other hand, evades the subject of assassination all together and forces the observer to make sense of various badly written codices to draw any meaningful conclusions. The latter provides guidelines for use of lethal force which in some instances only may apply.[2]
Before a discussion of law can take place, either domestic or international, it must be understood that there is no widely accepted definition of assassination. The word assassination is used in this thesis to encompass the practice of the CIA of killing enemy personnel using UAV strikes. This piece of the debate figures in nicely on behalf of the Bush administration inasmuch as it has defined the practice engaged in by the CIA as combat rather than assassination. The lack of a specific legal definition enables justification for numerous activities which an ordinary reasonable person might consider to be assassination, but which may be defined in other ways. It must also be noted that within the debate, several other words are used interchangeably with the word assassination, extra-judicial killing, among others.[3]
LEGALITY
Domestic Law
Domestic law regarding assassination comes from two sources; first, what’s known as the Lieber Code, and second, a series of executive orders. The Lieber Code, established in 1863 by Abraham Lincoln,[4] outlines “the Government of Armies of the United States in the Field.”[5] It is much the same as an executive order and outlines the authorized and prohibited actions of the military, of which the president is the Commander in Chief. The Lieber Code states:
“The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.”[6]
In some sense, this article bans wanted posters which read: “Wanted: Dead or Alive” or anything resembling such an advertisement. Although the law speaks specifically to “rewards for the assassination of enemies”, it only mentions a reference to “The law of war” and states that said law prohibits proclaiming an individual an outlaw and authorizing his extrajudicial killing, and never addresses the targeting of enemy personnel by government forces. It does not prohibit the assassination of enemy personnel.
The second article of domestic law which relates to the killing of enemy personnel by the CIA is a series of Executive Orders (EO): EO # 11,905, issued by President Gerald Ford in 1976;[7] EO # 12,036, issued by President Jimmy Carter in 1978;[8] and EO # 12,333 issued by President Ronald Reagan in 1981.[9] Each of these, with minor variations, prohibits assassination or conspiracy to engage in assassination by personnel either employed by or working on behalf of the United States Government. The problem with these when debating the use of UAVs by the CIA in targeting and killing enemy personnel is that they are not codified, they are theoretically reversible by later EOs, and they do not govern the actions of the President as the ultimate executive officer in the executive branch. Basically, the president can rescind or rewrite an EO if he wants to.
In authorizing the use of force by the CIA against enemy personnel in this case, the George W. Bush administration has made it clear that this assassination prohibition does not apply to actions taken against enemies of the United States in a time of war, especially when that enemy has made it perfectly clear that its objective is to continue killing Americans, anytime, anywhere, anyhow.[10]
International Law
International law regarding assassination is virtually nonexistent. In all of the Geneva Conventions, the UN Charter, and the Hague Conventions, there is no reference to assassination.[11] It is neither defined, nor prohibited in international law. There are however references to aspects of assassination which could indirectly define how assassination is used in international conflict.[12]
General use of lethal force is justified in the UN Charter under Article 51 when a member state acts in self defense. The article reads:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”[13]
As stated in Article 51, member states retain the right of self-defense. Article Two of the charter suggests member states “refrain” from using force[14] but Article 51 clearly trumps this suggestion. The striking lack of clarity in Article 51 leaves the potential for gaping holes in any attempt to support or oppose a use of force for any reason. First, the definition of an “armed attack” is open to the interpretation of the attacked party. To go a little deeper, the definition of “armed” and the definition of “attack” may be different to different people and due to the relatively fearful nature of the UN, a little creativity would go a long way in defining “armed attack” in one's favor.
For example, it is readily apparent that the invasion of Kuwait by Saddam Hussein of Iraq in 1990 fits the general definition of “armed attack”. Of that, few would argue. However, if for some reason Iran decided to lay maritime mines to impede shipping through the Strait of Hormuz, would this be considered an armed attack? It would certainly be armed, but would it be considered an attack? Large numbers of western, oil poor nations would certainly think so.
When al Qaeda jihadis hijacked four airliners on September 11, 2001 using nothing but knives and razorblades, was it an armed attack? It was certainly an attack, but on an international scale could it have been considered “armed”? Perhaps on the streets of New York City it might have been considered an armed attack, but on an international stage it is hard to suggest that men wielding pocket knives pose an international hazard. Until September 11, relatively few people would have considered a pilot in the cockpit of his aircraft to be armed. Nevertheless, ever since that day, the oft repeated description of those airliners has been as guided missiles.
To be short, virtually any act of physical hostility from one entity to another, whether state or non-state actors, could be considered an armed attack with a little creativity.
Within Article 51 there is no mention of how said self-defense should occur in regard to such things as proportionality of force and measured response. In other words, if Hamas lobs a thousand small surface to surface missiles into Israel killing a mere handful of civilians, and Israel responds by launching a vastly disproportionate ground invasion to eliminate the threat of further “armed attack”, based solely on Article 51, Israel is justified because there is no clarification of “inherent right...of self-defence”. There is no qualifier behind the “inherent right” which could be interpreted as vastly disproportionate use of force.[15]
By this statement, e.g. “inherent right...of self-defence”, it is natural to assume that assassination would be a permissible defense no matter the nature of the initial attack since there is no specific prohibition on assassination.
MORALITY
As it pertains to morality, the CIA program of assassinating top al Qaeda and Taliban terrorists seems right in its element. The opponents of the UAV program often cite the numbers of casualties, usually civilian, which the drones have inflicted.[16] Depending on the source as well as the time period the estimate covers, these numbers have quite a range but generally between the ramp up of these attacks by the Bush administration to President Obama's forth month in office the casualty total comes to between 600 and 700 individuals.[17] One estimate puts the kill ratio of civilians killed to al Qaeda leaders at 50 to 1.[18]
The morality argument is two pronged, the first lying in the morality of assassination itself. As already explained it is a difficult task to determine whether or not assassination is moral if few can agree on the definition of assassination, nor can they agree on whether or not these drone attacks constitute assassination.
The second morality argument lies in the collateral damage. This element is somewhat less problematic. At the end of January, 2006, Ayman al Zawahiri, Osama bin Laden's right hand man, delivered an address to the world in which he called President George W. Bush “the butcher of Washington”[19] for the Muslim civilians who have perished as a result of America's wars in the middle east. This coming from a man and an organization which intentionally target, not only western civilians, but Muslims as well, all in order to turn public opinion and serve his/its own interests.
Although it may be easy to justify the killing of Muslim civilians by American forces simply because that's what the Muslims do, this logic is unwise and irrational. A 50 to 1 kill ratio using UAVs is no better than the United States using the same wanton disregard for human life against the jihadis that they have used against America. This strategy will likely provoke the same animosity in the Middle East toward the United States as September 11, 2001 provoked in America toward the jihadis. In a part of the world where the only way to win the war is to win the hearts and minds of the people, provoking this kind of animosity is probably a bad idea. Not only is it bad PR on the part of the Americans, but it provides unending propaganda fodder for the jihadis.
EFFICACY
As already explained the kill ratio of civilians to al Qaeda leaders is probably quite poor. Although it may be impossible to verify the numbers claimed by either the United States Government, which tend to look better than 50 to 1, or by whatever other source has claims to make about the civilians killed by CIA operated UAVs, it is clear the ratio is not particularly good. With that in mind, it is important to observe that the cost of the program in terms of propaganda ammunition for the jihadis is tremendous. Whether the numbers play out in reality or not is immaterial when al Qaeda and the Taliban are using the images of the dead women and children to stir up animosity toward the west.
The jihadis do not necessarily inspire loyalty among the civilian population. In fact, it's quite likely that relatively few civilians in Afghanistan and Pakistan actually identify with the jihadis or feel any loyalty to them. It is more likely that most of the population would rather they keep to someone else's town.[20] However, when the Americans fly in and kill half of a person's family, that provides pretty strong motivation to join with the enemies of the Americans, whether they agree philosophically or not. If the Americans were there building infrastructure, and the jihadis were the ones killing people's families, as was the case in Iraq, it would be much more likely that the jihadis would become the ones alienated from the population. The jihadis would be the ones losing the battle for hearts and minds rather than the Americans.[21]
CONCLUSION
The three major arguments in the debate about the use of UAVs by the CIA to strike at the leadership of al Qaeda and the Taliban each have significant flaws. The legality argument is too full of holes to hold much water. The morality argument, while logical in some ways, is either based on the nonexistent definition of assassination or finds fault in the amount of collateral damage caused by the strikes. When the national security of the United States and other western powers is at stake, it is hard to justify the cessation of the program on the moral grounds identified. Finally, and most reasonably, is the efficacy argument. It is counterproductive for America to continue to further alienate the Muslim population by continuing a program that yields such limited results.
It seems the most reasonable plan moving forward would be to continue utilizing the drones, but to severely curtail their kill rate. It would be nearly as irrational to completely eliminate such a potent and useful weapon system as it would be to rely entirely on it. Stricter criteria for strikes ought to be drawn up to limit the strikes as they have been permitted and allow only the most obvious targets to be engaged.
It would be foolish to believe that war in any sense is ideal and as foolish to believe that the jihadis are anything less than barbaric in their methods of waging war. The national security of the United States and their allies should be the greatest concern when judging this issue and it seems that at this point in the battle, the most valuable asset in defeating the jihadis would be to have the confidence and loyalty of the population. This should be the objective the CIA in their UAV operations into the foreseeable future.
[1] Christopher Drew, “Drones Are Weapons of Choice in Fighting Qaeda,” March 16, 2009. http://www.nytimes.com/2009/03/17/business/17uav.html?_r=3&pagewanted=1&ref=world. (accessed November 14, 2009).
[2] Jason D. Soderblom, “Time to Kill? State Sponsored Assassination and International Law,” February 11, 2004. http://world-ice.com/Articles/Assassinations.pdf. (accessed November 19, 2009).
[3] Philip Alston, interview by Amy Goodman, Democracy Now, October 28, 2009. http://www.democracynow.org/2009/10/28/un_special_rapporteur_on_extrajudicial_killings. (November 16, 2009).
[4] Gerry J. Gilmore, “Modern Law of Warfare Instituted During the Civil War,” April 7, 2003. http://www.defenselink.mil/news/newsarticle.aspx?id=29147. (accessed November 14, 2009).
[5] Lieber Code: Section IX: Article 148. 1863. http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument. (accessed November 13, 2009).
[6] Lieber Code: Section IX: Article 148. 1863. http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument. (accessed November 13, 2009).
[7] Executive Order no. 11,905, United States Foreign Intelligence Activities, Sec. 5 (g), (February 18, 1976). http://www.fordlibrarymuseum.gov/library/speeches/760110e.htm. (accessed November 14, 2009).
[8] Executive Order no. 12,036, United States Intelligence Activities, Section 2, Title 305, (January 24, 1978).http://www.fas.org/irp/offdocs/eo/eo-12036.htm. (accessed November 14, 2009).
[9] Executive Order no. 12,333, United States Intelligence Activities, Part 2, Title 11, (December 4, 1981). http://www.tscm.com/EO12333.html. (accessed November 14, 2009).
[10] Mark Mazzetti and Scott Shane, “C.I.A. Had Plan to Assassinate Qaeda Leaders,” New York Times, July 13, 2009. HTTP://WWW.NYTIMES.COM/2009/07/14/US/14INTEL.HTML?_R=1. (accessed November 16, 2009).
[11] Jason D. Soderblom, “Time to Kill? State Sponsored Assassination and International Law,” February 11, 2004. http://world-ice.com/Articles/Assassinations.pdf. (accessed November 19, 2009).
[12] Jason D. Soderblom, “Time to Kill? State Sponsored Assassination and International Law,” February 11, 2004. http://world-ice.com/Articles/Assassinations.pdf. (accessed November 19, 2009).
[13] United Nations, “Charter of the United Nations,” Chapter VII, Article 51. June 26, 1945. http://www.un.org/en/documents/charter/chapter7.shtml. (accessed November 14, 2009).
[14] United Nations, “Charter of the United Nations,” Chapter I, Article 2. June 26, 1945. http://www.un.org/en/documents/charter/chapter1.shtml. (accessed November 14, 2009).
[15] United Nations, “Charter of the United Nations,” Chapter VII, Article 51. June 26, 1945. http://www.un.org/en/documents/charter/chapter7.shtml. (accessed November 14, 2009).
[16]Jane Mayer. “The Predator War: What are the risks of the C.I.A.’s covert drone program?” The New Yorker, October 26, 2009. http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer. (accessed November 14, 2009).
[17]Peter Bergen and Katherine Tiedemann, “The Drone War,” June 3, 2009. http://www.newamerica.net/publications/articles/2009/drone_war_13672. (accessed November 16, 2009).
[18] Gareth Porter, “The CIA’s Drone Wars,” June 12-14, 2009. http://www.counterpunch.org/porter06122009.html. (accessed November 14, 2009).
[19] Ayman Al-Zawahiri, “Bush the ‘butcher of Washington,’” January 30, 2006. http://www.cnn.com/2006/WORLD/asiapcf/01/30/zawahiri.transcript/. (accessed November 20, 2009).
[20]David Kilcullen and Andrew McDonald Exum, “Death From Above, Outrage Down Below,” May 16, 2009. http://www.nytimes.com/2009/05/17/opinion/17exum.html. (accessed November 15, 2009).
[21] David Kilcullen and Andrew McDonald Exum, “Death From Above, Outrage Down Below,” May 16, 2009. http://www.nytimes.com/2009/05/17/opinion/17exum.html. (accessed November 15, 2009).
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