Say What You Want About Drones—They're Perfectly Legal

Just because they are more technologically advanced than other weapons doesn't mean they violate international law.
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The aftermath of a drone strike in southern Yemen (Reuters)

I hate Obama's drone war--but, under the law, he has a perfect right to fight one. Armed drones in war may be new, but their use introduces no new ethical or legal issues.

In the Western world, the laws of war are built on the foundation of the Just War tradition. The principles for employing force are fairly simple and realistic. The use of force has to be under a competent sovereign authority. And it has to be proportional--that is, the level of force used must be appropriate to the military mission, with appropriate care taken to avoid harming innocents.

Those rules apply regardless of the weaponry involved, be it hand grenades, nukes... or armed drones. As I said, nothing new here.

Our laws and treaty obligations place a legal framework around the principles of the Just War tradition. At times, the United States has modified these legal instruments to account for the unusual destructive power of certain weapons -- their ability to inflict intentional and unnecessary cruelty or to pose an indiscriminate threat to innocents. For example, the U.S. helped pen conventions on poison gas and biological weapons, as well as treaties to help stem the proliferation of nuclear weapons.

Drones, however, present none of these issues. There is nothing novel or unusual about the destructive potential of a drone strike.

Pretty much every weapon in the U.S. arsenal may be used in war, provided the users (1) have the legal authority to use them, (2) aim them at that legitimate targets, and (3) use them according to the rules of engagement laid out by their commanders. All those bases are covered when it comes to drones.

Congress has given the commander-in-chief an Authorization to Use Military Force--AUMF in Washington-speak--and that's all the legal authority he needs. And, as Mark Bowden's article in this month's The Atlantic illustrates well, the administration has plenty of rules for running armed drone operations.

Here is the brutal reality of war: It always requires targeting enemies with lethal force. It is an operational necessity. And it is legal.

The problem some people have with killer drones in combat has little to do with the technology of flying weapons. As my colleague at Heritage, Cully Stimson testified before Congress, "Much criticism of drone warfare is actually criticism of broader policies, such as the application of the law of armed conflict to the present conflict, geographical limitations on such conflict, and targeting decisions. Whether a strike is carried out by a drone or an airplane (with the pilot in the vehicle itself) has little or no bearing on these broader policy issues."

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Turning drone strikes into a battle of legal briefs is more an act "lawfare" than warfare--an attempt to hamstring U.S. military operations by clothing complaints in legal-sounding arguments. Amnesty International declared in its 2012 report that U.S. operations do not "recognize the applicability of international human rights law," an assertion the report conclusively fails to document. Christof Heyns, the UN special rapporteur on extrajudicial killings and summary or arbitrary executions, stated at a conference in Geneva that some U.S. operations might constitute "war crimes." Though he has been on the job for many months, he has yet to prove that allegation.

To recapitulate: President Obama has the right to drone on as long as the authority of the AUMF remains in force and as long as he operates within that authority (or operates under some other legal authorization for the use force).

That said, it must be noted that the president's way of drone warfare makes little sense. Forget about the lawfare challenges. In going forward with its drone wars, the White House faces at least four big problems for which it has no good answers.

First, the drone war isn't working. The threat posed by al Qaeda and its affiliates--both in their operational capacity to keep targeting the West and in their efforts to destabilize countries in the Middle East and North Africa--continues to grow despite the drone campaign. Obama is battling a global Islamist insurgency with a flyswatter. He likes to say we're winning, but in reality we are losing ground.

Second, the AUMF authority likely won't last forever. Meanwhile, international pressure against the drone strike operations is growing. Before his term is over, Obama may find himself compelled to give up the drones--which have so far been his best answer for Al Qaeda.

Third, U.S. dominance on drone warfare is coming to an end. Other actors are getting into the business. The U.S. has pretty stringent export controls for selling drone technologies--even to our most faithful allies. That is a problem, because if even friendly buyers can't acquire these weapons from us, other suppliers will to step in to fill the void. Those suppliers may be far less discriminating in terms of who they'll sell to or how the weapons might be used.

The U.S. is still the Walmart of drone warfare, but over 50 nations already manufacture or employ drones. The Administration ought to update its export control rules and get into the business of responsible exporting, rather than watch unwelcome competitors come to dominate the market.

Fourth, the U.S. needs to start thinking about what the rules should be for the next generation: "autonomous" killing drones--machines that operate without a human operator. That will be something quite different, and unlike today's drones, they will require change in the rules of war. Unlike a passive autonomous weapon, like a landmine, an autonomous drone could roam the battlefield actively seeking enemies to wipe out. That new way of war may be on the not-too-distant horizon. How the Pentagon should handle that is something that ought to be thought about now.

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 James Jay Carafano is vice president for defense and foreign policy issues at The Heritage Foundation.

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