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24 most people in Yemen have with these strikes is that they kill civilians and that they are
conducted by a foreign state. They would not have problems with drone strikes conducted by the Yemeni government because “drones remind us that we don’t have the ability to solve our
problems by ourselves.”25 These two articles show that people living in the areas directly affected by drone strikes and terrorism are generally in favor of the strikes because they see the positive impact that they have in defeating al Qaeda and its affiliates.
2.2 The Legality of the U.S. Drone Program
Christian Enemark (2011) uses three indicators to judge the ethical justification for carrying out drone strikes and to determine whether or not they should continue in Pakistan. The three indicators are benefits, discrimination, and proportionality, with particular emphasis on the final two. They are a part of the U.S. strategy in Pakistan called counterinsurgency incorporating counterterrorism (COIN). With current evidence and little transparency, it is not possible to determine how much the U.S. benefits from using drones. The strikes do considerable damage to the functionality of the targeted groups, but when it comes to winning the hearts and minds of the local noncombatants, the evidence does not favor the continuation of the program. Evidence does suggest that the tactic of decapitation—targeting HVTs—does not aid in causing
organizations to fall apart, especially fervent religious ones. The decapitation strategy assumes that HVTs are more capable than lower level targets and not just more religious.26 The
discrimination indicator, or the fact that combatants are targeted and not noncombatants, is also inconclusive. Drones are more accurate in theory due to better technology, but without official data for people killed in strikes, it is impossible to determine whether drone strikes are
25 Swift, “The Drone Blowback Fallacy.”
26 Enemark, “Drones over Pakistan,” 222-226.
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25 discriminatory.27 The final indicator, proportionality, tests whether “anticipated harm resulting from using force in pursuit of a legitimate military objective must not be excessive in relation to the expected military benefits.28” Once again, Enemark (2011) cannot give a definitive answer.
The COIN philosophy seeks out higher quality targets over a greater quantity of targets, but with the expansion of the drone program to target people who meet certain pattern-of-life standards, the U.S. cannot claim that the CIA follows suit. Until the U.S. releases information on judging the value of targets or the standards used to determine whether someone is dangerous, drone strikes cannot be considered proportionate.29 The inconclusive nature of the drone program’s benefits, discrimination, and proportionality allows terrorist groups in Pakistan to “portray their opposition [the U.S.] as unethical by the opposition’s own standards.”30 This doubt helps the combatants gain more recruits by claiming that the U.S. acts in an unethical manner, and, therefore, until the U.S. becomes more transparent with its drone program, it should cease all operations to stop causing more harm than good.
On the other hand, Andrew C. Orr (2011) argues in favor of the overall legality of the U.S. drone program in Pakistan. He evaluates the legality of jus ad bellum, or the initial reason for starting the strikes, and jus in bello, or the legality for individual strikes.31 Using many different standards, treaties, and conventions, Orr (2011) concludes that the initiation of the program is legal in general because it did not violate the sovereignty of Pakistan and the U.S.
acted in self-defense when starting the program. Pakistan cannot and does not attempt to remove al Qaeda from its borders—allowing the U.S. to intervene lawfully without violating its
27 Enemark, “Drones over Pakistan,” 227-230.
28 Ibid, 230.
29 Ibid, 230-232.
30 Ibid, 233.
31 Orr, “Unmanned, Unprecedented, and Unresolved,” 733-752.
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26 sovereignty.32 Also, the U.S. has acted in self-defense against a continuing threat, and until the U.N. acts in a way to stop the threat, the U.S. may continue its operations legally because “self-defence may continue until the [Security Council] has taken effective action rendering armed force by the victim unnecessary.”33 Furthermore, the drone program passes the Boskoski Test which lays out the framework for an armed conflict against a non-state actor, and the Geneva Convention and the International Covenant on Civil and Political Rights do not apply.34
However, he cannot conclusively determine the legality of individual strikes because they rely on the same three criteria that Enemark (2011) uses: proportionality, discrimination, and benefits.
Until the U.S. government releases more information regarding each strike, these criteria are speculative at best. Generally speaking, the strikes have grown more and more proportionate with the development of more accurate technology. The issue of discrimination is difficult to analyze due to the covert nature of terrorist organizations, but as long as the U.S. attempts to target combatants and avoid noncombatant casualties, the requirement is generally fulfilled. Orr (2011) adds another criterion to his jus in bello analysis: human shielding. Law prevents the targeting of involuntary human shields, but it is unclear when addressing voluntary human shielding (the author concludes that voluntary ones should be considered as combatants). In the end, overall, the program is generally legal, but the legality of individual strikes is murky due to little available data.35 The U.S. must develop a public framework for strikes and declassify data that allows the public to understand and to test the legality of the U.S. drone program.
Laurie R. Blank (2012) takes the same criteria that Orr (2011) and Enemark (2011) use in determining the legality of U.S. drone strikes (discrimination, proportionality, and necessity) and
32 Orr, “Unmanned, Unprecedented, and Unresolved,” 736.
33 Ibid, 737.
34 Ibid, 742-746.
35 Ibid, 746-750.
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27 concludes that the program meets all of the necessary thresholds of legality. The article focuses on jus ad bellum and does not address jus in bello. Enemark (2011) argued that each prong did not have enough evidence for a proper conclusion, and Orr (2011) agreed with Enemark (2011) but argued that there was enough for a more solid conclusion. Blank (2012) does not hesitate in her arguments on the legality of these three points. The drone as a weapon meets the necessary standards required by the U.N. to be a legal weapon because the missiles are used by other vehicles, are able to be discriminate, and can minimize harm. Anticipation of misuse of a drone does not make it unlawful. Furthermore, the fact that drones can fly for hours on end using high-powered cameras allows for operators to distinguish between combatants and noncombatants.
These features meet the legal requirement of discrimination. The ability to fly long hours also plays a role in the proportionality of a drone strike. The “anticipated military advantage” must outweigh the “expected loss of civilian life or damage.” These issues are determined before the strike occurs, not after. Proportionality focuses on the protection of civilians, but does not prohibit the death of civilians as long as damage is not considered excessive. Finally, the issue of necessity relates to the number of precautions taken before a strike occurs. A drone’s ability to fly for an extended period of time allows for the pilot to survey the area, identify the target and collateral damage, and determine the proper moment to strike. The number of hours clocked before each strike meets the requirements for necessity/precaution.36 Drone strikes, no matter where they occur in the world, are legal under the law of armed conflict and international
humanitarian law, but with improved technology, the standards may become too strict in regards to civilian deaths. The standard could easily change from accepting the possibility of civilian casualties to forbidding them due to increased precision in cameras and targeting capabilities.
This change will harm civilians more than benefit them because pilots will ignore the
36 Blank, “After ‘Top Gun,’” 683-702.
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28 unreasonable new standards or no longer engage in strikes—endangering the civilians in a
different way.37
While previous articles focused solely on the legality of the U.S. drone program in
Pakistan, M.W. Aslam (2011) expands the conversation to include both legitimacy and prudence.
He addresses the issue of so-called great power responsibility, but does not make any major conclusions regarding whether the drone program is in line with this thinking—that great powers are expected “to act as guardians of international society.”38 The issues of consent or
self-defense are the keys to determine the legality of drone strikes. With little available evidence for Pakistani consent to the strikes and whether the strikes are preemptive or preventative, he argues that the program’s legality is dubious at best. Consensus, or approval from the international community, regulates the legitimacy of strikes. While the notion of preemption is gaining more consensus as the threat of terrorism increases around the world, the U.S. does not have a positive consensus supporting its actions in Pakistan. Neither NATO allies nor the United Kingdom have openly spoken about it, and one German official has supported Pakistani opposition.39 It is not prudent for strikes to continue for many reasons. A drone strike that kills civilians pushes surviving family members to join militant groups due to the custom of badal, which demands family members kill those who killed their deceased relatives. The program damages the very fabric of the FATA by sowing distrust and starting witch hunts for spies. The U.S. undermining of Pakistani public opposition helps to push people into supporting the militants, increasing regional Pashtun nationalism, uniting formerly divided militant groups, and causing revenge
37 Blank, “After ‘Top Gun,’” 713-715.
38 M.W. Aslam, “A critical evaluation of American predator strikes in Pakistan: Legality, legitimacy, and prudence,”
Critical Studies on Terrorism, vol. 4, no. 3 (2011): 2.
39 Ibid, 5-10.
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29 strikes against both U.S. and Pakistani interests.40 The U.S. drone program’s legality is once again considered inconclusive; it has no legitimacy at the international level; and it causes greater damage to overall grand strategy in fighting terrorism in Pakistan by destabilizing the area and radicalizing the affected population.*