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Abstract
The use of lethal drones by the United States (US) marks a paradox insofar as the US government claims that these strikes respect human rights, while the human rights community – including Human Rights Watch and Amnesty International – raise serious concerns that challenge this claim. Would reconciling these seemingly mutually exclusive human rights narratives regarding drone use lead to the formation of a more robust regime that would provide greater respect for human rights than in the current state of legal and moral ambiguity? In order to explore this question, we examine the evolution of these conflicting discourses through three key frames of legitimation – strategic, legal and normative. We argue that the US government has moved from a strategic-legal framework characterised by a focus on strategic objectives and a permissive view of international humanitarian law to a legal-normative discourse that, by incorporating the principles of just war theory, has restrained the strategic scope of the drone programme while reinforcing the legitimacy of international humanitarian law as the paradigm of choice. Comparatively, we assert that the human rights community has pursued a human rights-centric approach that rejects the more permissive standards of an international humanitarian law-centric legal paradigm, while pushing a normative agenda that seeks to enhance respect for human rights under both international humanitarian law and international human rights law. This includes rejecting the US interpretation of just war principles and appealing to a broader understanding of the right to life norm. Taking these ‘right to life’ considerations seriously raises concerns about whether drones can ever satisfy human rights. In the conclusion, we explore how combining certain elements of these narratives may contribute to an emerging norm on drone use.
Acknowledgements
The authors would like to thank the following centres at the University of California, Irvine for their support of this research: the Center for Citizen Peacebuilding, the Center for Global Peace and Research Studies, and the Academic Council on Research, Computing and Library Resources.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributors
Daniel R. Brunstetter is associate professor in the department of political science at the University of California, Irvine. His work on the ethics of drones has appeared in Ethics & International Affairs, The Atlantic and the Journal of Military Ethics. He has published more generally on the contemporary applications of the just war tradition in Political Studies, Raisons Politiques, International Relations, Review of International Studies and elsewhere. His current research focus is the use of limited force in contemporary politics.
Arturo Jimenez-Bacardi is a PhD Candidate at the University of California Irvine. His dissertation analyzes the institutionalization of international law into the U.S. national security process, focusing on how this process has affected the use of torture and targeted killings since the Vietnam War. His latest article, forthcoming in the European Journal of International Relations (with Jonathan Graubart), examines the contestation over the normative power of the UN Security Council in the Arab-Israeli conflict.
Notes
1 The literature on the ethics of drones is vast. For a good overview, see Frank Sauer and Niklas Schörnig, ‘Killer Drones: The “Silver Bullet” of Democratic Warfare?’, Security Dialogue 43, no. 4 (2012): 363–80; Daniel Brunstetter and Megan Braun, ‘The Implications of Drones on the Just War Tradition’, Ethics & International Affairs 25, no. 3 (2011): 337–58; Christian Enemark, Armed Drones and the Ethics of War: Military Virtue in a Post-Heroic Age (New York: Routledge, 2013); James DeShaw Rae, Analyzing the Drone Debates: Targeted Killings, Remote Warfare, and Military Technology (New York: Palgrave Macmillan, 2014).
2 Rosa Brooks, ‘Drones and the International Rule of Law’, Ethics & International Affairs 28, no. 1 (2014): 83–103.
3 Barack Obama, ‘The National Security Strategy of the United States of America’, Washington DC, The White House, May 2010, 22. http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf (accessed 4 November 2014).
4 Megan Braun and Daniel R Brunstetter, ‘Rethinking the Criterion for Assessing CIA-Targeted Killings: Drones, Proportionality and Jus Ad Vim’, Journal of Military Ethics 12, no. 4 (2013): 304–24.
5 Avery Plaw, ‘Counting the Dead: The Proportionality of Predation in Pakistan’, in Killing by Remote Control: The Ethics of an Unmanned Military, ed. Bradley. J. Strawser (New York: Oxford University Press, 2013), 126–53.
6 For the purposes of our analysis, we focused mainly on the following reports: Philip Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions', Human Rights Council (New York: United Nations General Assembly, 2010). http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf; Christopher Heyns, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions' Human Rights Council (New York: United Nations, 2013). http://justsecurity.org/wp-content/uploads/2013/10/UN-Special-Rapporteur-Extrajudicial-Christof-Heyns-Report-Drones.pdf; Ben Emmerson, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’, General Assembly (New York: United Nations, 2013). http://justsecurity.org/wp-content/uploads/2013/10/2013EmmersonSpecialRapporteurReportDrones.pdf; Human Rights Watch, ‘Between a Drone and Al-Qaeda’ (New York: HRW, 2013). http://www.hrw.org/node/119909/section/7; Amnesty International, ‘Will I be Next? US Drone Strikes in Pakistan’ (London: Amnesty International, 2013). http://www.amnestyusa.org/sites/default /files/asa330132013en.pdf; Human Rights Watch, ‘A Wedding that Became a Funeral: Us Drone Attack on Marriage Procession in Yemen’ (New York: HRW, 2014). http://www.hrw.org/reports/2014/02/19/wedding-became-funeral; Amnesty International, ‘USA: The Devil in the (Still Undisclosed) Detail. Department of Justice “White Paper” on Use of Lethal Force against US Citizens Made Public’ (Amnesty International, 2013). http://www.amnestyusa.org/sites/default/files/the_devil_in_the_still_undisclosed_detail.pdf; International Human Rights and Conflict Resolution Clinic (Stanford Law School), and Global Justice Clinic (NYU School of Law), ‘Living under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan’. http://www.livingunderdrones.org/wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf. All reports accessed on 4 November 2014. The HRC documents also highlighted many other issues related to human rights that are beyond the scope of this article. These include the lack of: transparency of the US drone programme, a formal process for victims of drone strikes to seek justice, and access to reparations for survivors.
7 Ronald R. Krebs and Patrick Thaddeus Jackson, ‘Twisting Tongues and Twisting Arms: The Power of Political Rhetoric’, European Journal of International Relations 13, no. 1 (2007): 35–66.
8 Ibid., 36.
9 Neta C. Crawford, Accountability for Killing: Moral Responsibility for Collateral Damage in America's Post-9/11 Wars (Oxford: Oxford University Press, 2013).
10 Heynes, ‘Report’, 2.
11 Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).
12 James G. March and Johan P. Olsen, ‘The Logic of Appropriateness', in The Oxford Handbook of Public Policy, ed. Michael Moran, Martin Rein, and Robert E. Goodin (New York: Oxford University Press, 2008), 689–90.
13 Anthea Roberts, ‘Legality vs. Legitimacy: Can Uses of Force Be Illegal but Justified?’, in Human Rights, Intervention, and the Use of Force, ed. Philip Alston and Euan Macdonald (New York: Oxford University Press, 2008), 179–213.
14 Presidents were aware of a moral framework – sometimes called just war theory, other times referred to as the concept of just war. For a discussion, see Daniel R. Brunstetter, ‘Trends in Just War Thinking During the U.S. Presidential Debates 2000–12: Genocide Prevention and the Renewed Salience of Last Resort’, Review of International Studies 40, no. 1 (2014): 77–99.
15 Barack Obama, ‘Obama's Nobel Remarks', The New York Times, 11 December 2009.
16 For a discussion, see Megan Braun, ‘Predator Effect: A Phenomenon Unique to the War on Terror’, in Drone Wars: Transforming Conflict, Law and Policy, ed. Peter Bergen and Daniel Rothenberg (Cambridge: Cambridge University Press, 2014), 253–84.
17 For a discussion of Obama's use of just war principles, see Brunstetter, ‘Trends in Just War Thinking’, 11–16.
18 BBC Staff, ‘Obama Defends US Drone Strikes in Pakistan’, BBC, 31 January 2012. http://www.bbc.co.uk/news/world-us-canada-16804247?print=true (accessed 15 March 2012).
19 Braun and Brunstetter, ‘Rethinking the Criterion’, 306–10.
20 Barack Obama, ‘Remarks by the President at National Defense University’, 23 May 2013. http://www.whitehouse.gov/the-pressoffice/2013/05/23/remarks-president-national-defense-university (accessed 7 May 2014).
21 CNN, Live Today, interview with Paul Wolfowitz, 5 November 2002. http://www.defense.gov/transcripts/transcript.aspx?transcriptid=3264 (accessed 5 July 2014).
22 Howard Witt, ‘U.S.: Killing of Al Qaeda Suspects Was Lawful’. http://articles.chicagotribune.com/2002-11-24/news/0211240446_1_al-qaeda-killings-terrorist (accessed 5 July 2014).
23 Doyle McManus, ‘A U.S. License to Kill’, The LA Times, 11 January 2003. http://articles.latimes.com/2003/jan/11/world/fg-predator11 (accessed 5 July 2014).
24 McManus, ‘A U.S. License to Kill’.
25 George Tenet and Bill Harlow, At the Center of the Storm: My Years at the CIA (New York: Harper Collins, 2007), 160.
26 Greg Miller, ‘Despite Apparent Success in Yemen, Risks Remain’, The LA Times, 6 November 2002. http://articles.latimes.com/2002/nov/06/world/fg-yemen6 (accessed 5 July 2014).
27 New America Foundation, ‘Drone Wars Pakistan: Analysis'. http://securitydata.newamerica.net/drones/pakistan/analysis (accessed 30 June 2014). For a discussion of the pros and cons of alternative sources for data on drone strikes, see Plaw, ‘Counting the Dead’, 136–7.
28 Charles W. Kegley Jr, and Gregory A. Raymond, ‘Preventive War and Permissive Normative Order’, International Studies Perspectives 4, no. 4 (2003): 390–1.
29 Michael P. Scharf, Customary International Law in Times of Fundamental Change (New York: Cambridge University Press, 2013), 200.
30 Ibid., 199.
31 Emphasis added, George W. Bush, ‘The National Security Strategy of the United States of America’ (Washington, DC: The White House, September 2002), 15.
32 Whitley Kaufman, ‘What's Wrong With Preventive War? The Moral and Legal Basis for the Preventive Use of Force,’ Ethics & International Affairs 19, no. 3 (2005): 23–38.
33 Matthew J. Flynn, First Strike: Preemptive War in Modern History (New York: Routledge, 2008), 3.
34 Neta C. Crawford, ‘The Slippery Slope of Preventive War’, Ethics & International Affairs 17, no. 1 (2003).
35 Not all states reject the preventive force doctrine. Other states, including Russia and Israel, have their own versions. See, for example, Ariel Colonomos, The Gamble of War: Is it Possible to Justify Preventive War? (New York: Palgrave Macmillan, 2013).
36 Kerstin Fisk and Jennifer M. Ramos, ‘Actions Speak Louder Than Words: Preventive Self-Defense as a Cascading Norm’, International Studies Perspectives 15, no. 2 (2014): 163–85.
37 McManus, ‘A U.S. License to Kill’.
38 David Luban, ‘The War on Terrorism and the End of Human Rights', Philosophy and Public Policy Quarterly 22, no. 3 (2002): 9–14.
39 Scott Shane, ‘Secret “Kill List” Tests Obama's Principles', The New York Times, 29 May 2012.
40 For example, see Martin Shaw, ‘Risk-Transfer Militarism, Small Massacres and the Historical Legitimacy of War’, International Relations 16, no. 3 (2002): 343–59.
41 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2006), 251–68.
42 Luban, ‘War on Terrorism’, 13–14.
43 Kenneth Anderson, ‘Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy?’, in Targeted Killings: Law and Morality in an Asymmetrical World, ed. Claire Finkelstein, Jens David Ohlin, and Andrew Altman (Oxford: Oxford University Press, 2012), 283–4.
44 Obama, ‘Remarks by the President at National Defense University’.
45 John O. Brennan, ‘The Ethics and Efficacy of the President's Counterterrorism Strategy’, Wilson Center, 30 April 2012. http://www.wilsoncenter.org/event/theefficacy-and-ethics-us-counterterrorism-strategy (accessed 15 July 2012).
46 Brennan, ‘Ethics and Efficacy’; Brunstetter and Braun warn that such an argument may nullify the last resort criterion if ‘the targeted killing of (alleged) terrorists becomes the default tactic’, see Brunstetter and Braun, ‘The Implications of Drones', 345–6; Brooks takes issue with the way the US defines ‘feasibility’ and ‘imminence’, arguing that the US understanding of these terms is very problematic. For a thorough discussion, see ‘Drones and the International Rule of Law’, 94–5.
47 Brennan, ‘Ethics and Efficacy’.
48 There are, of course, intense scholarly debates about what the principles mean and the level of restraint they should imply. See for example the various viewpoints in Davi Rodin and Henry Shue, eds, Just and Unjust Warriors: The Moral and Legal Status of Soldiers (Oxford: Oxford University Press, 2008).
49 Emphasis added, Obama, ‘Remarks by the President at National Defense University’.
50 Obama, ‘Remarks by the President at National Defense University’; this is different from early – and patently false – claims that there had been zero civilian casualties because it speaks to future strikes, not to past strikes for which dubious counting methods were used; See Scott Shane, ‘CIA is Disputed in Civilian Toll on Drone Strikes'. http://www.nytimes.com/2011/08/12/world/asia/12drones.html?pagewanted=all (accessed 2 November 2014).
51 New America Foundation, ‘Drone Wars Pakistan: Analysis'.
52 Braun and Brunstetter, ‘Rethinking the Criteria’, 315–19.
53 New America Foundation, ‘Drone Wars Pakistan: Analysis'.
54 Eric Schmitt, ‘Lull in Strikes by U.S. Drones Aids Militants in Pakistan’. http://www.nytimes.com/2012/01/08/world/asia/lull-in-us-drone-strikes-aids-pakistan-militants.html?pagewanted=all&_r=0 (accessed 2 November 2014).
55 See, for example, Amnesty International, ‘Will I Be Next?’, 28; International Human Rights and Conflict Resolution Clinic, ‘Living under Drones', 114; Alston, ‘Report’, 24–5.
56 The real test that such changes will be solidified lies in seeing whether unmitigated drone strikes would resume should another 9/11-type attack occur, what would happen if al-Qaeda resurge in Pakistan and Islamabad balk at taking the responsibility of dealing with the threat, or if the next US president has a completely different view of just war. We thank an anonymous review for bringing these concerns to our attention. The risk of a return to the period of signature strikes could be diminished if norms restricting drone use – whether within US institutions and/or internationally – are solidified, a point that we address later in the article.
57 International Human Rights and Conflict Resolution Clinic, ‘Living under Drones', 110; See also, Alston, ‘Report’, 55.
58 Alston, ‘Report’, 3.
59 Emmerson, ‘Interim Report’, 19; Alston, ‘Report’, 107–8; International Human Rights and Conflict Resolution Clinic, ‘Living under Drones', 111; Amnesty International, ‘Will I Be Next’, 44–6; Human Rights Watch, ‘A Wedding That Became a Funeral’, 22.
60 Amnesty International, ‘Will I be Next?’, 23.
61 Heyns, ‘Report’, 6.
62 Ibid.
63 Quoted in: International Human Rights and Conflict Resolution Clinic, ‘Living under Drones', 107–8.
64 Alston, ‘Report’, 21–2; Amnesty International, ‘Will I Be Next?’, 43–4.
65 Fernando R. Tesón, ‘Targeted Killing in War and Peace: A Philosophical Analysis', in Targeted Killings: Law and Morality in an Asymmetrical World, ed. Claire Finkelstein, Jens David Ohlin, and Andrew Altman (Oxford: Oxford University Press, 2012), 403–33.
66 ‘Joint Letter to President Obama on Drones and Targeted Killings', 5 December 2013. http://www.hrw.org/news/2013/12/05/joint-letter-president-obama-drone-strikes-and-targeted-killings (accessed 15 July 2014).
67 ‘Joint Letter’; for a detailed discussion of the DoJ White Paper in question, see Brooks, ‘Drones and the International Rule of Law’.
68 International Committee of the Red Cross, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, ed. Nils Melzer (Geneva, Switzerland: International Committee of the Red Cross, 2009).
69 Alston, ‘Report’, 19.
70 Ibid., 20.
71 Human Rights Watch, ‘A Wedding That Became a Funeral’, 24.
72 See also the descriptions in: International Human Rights and Conflict Resolution Clinic ‘Living Under Drones', and the congressional testimonies from the various Pakistani families, http://chrgj.org/transcripts-of-testimonies-from-may-8-congressional-hearing-on-u-s-drone-policy-now-available/ (accessed 22 July 2014).
73 Braun and Brunstetter, ‘Rethinking the Criteria’, 319.
74 Ibid., 315.
75 Ibid., 318.
76 Emmerson, ‘Report’, 23.
77 Harold Koh, ‘How to End the Forever War?’ http://www.lawfareblog.com/wp-content/uploads/2013/05/2013-5-7-corrected-koh-oxford-union-speech-as-delivered.pdf (accessed 20 July 2014).
78 Robert M. Hormats, ‘The United States' “New Silk Road” Strategy: What is it? Where is it Headed?’, U.S. Department of State. http://www.state.gov/e/rls/rmk/2011/174800.htm (accessed 1 July 2014).
79 Plaw, ‘Counting the Dead’, 144–50; for a counter-argument, namely that certain populations in Pakistan view drones as having had a positive effect on the quality of life, see Christine C. Fair, ‘Drones over Pakistan: Menace or Best Option?’, The Huffington Post, 2 August 2010. http://www.huffingtonpost.com/c-christine-fair/drones-over-pakistan----m_b_666721.html.