Death from above: The dilemma of drone strikes

When the United States ratified the Geneva Conventions in 1955, the Senate Committee on Foreign Relations categorized the agreements as follows: ''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 almost 70 years ago and the world was surely very different.

Warfare has evolved since then and has moved on from state actors to non-state actors. And interstate wars are slowly but surely being taken over by civil wars, ethnic conflicts and terrorism. What really haven't changed are the ideals and the premises to which we conduct ourselves during wars. The general understanding of the rules of engagement is one of the most important tenets of modern international law. So despite rapidly changing notion of warfare, the core values, which the nation-states still adhere to, are firmly rooted in the Geneva Convention. It is unlikely even the biggest violators of human rights treaties would consider ignoring the Geneva Convention officially due to its far reaching consequence. It is as close to a constitution the international order has seen. And thus the value of such a convention is held in high regard in almost every tier of statecraft.

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 usage of unmanned drones. America has benefited from the usage of unmanned drones in Afghanistan and Pakistan. And for a while this was the worst kept secret in Washington. But finally in May the counterterrorism Chief John Brennan stated at the Woodrow Wilson International Center for Scholars that, "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 the silence on these matters were expected, after the revelation of CIA torture sites in Europe and Middle East, it was not an image that the Obama administration wanted to associate itself with. So it was almost inevitable that the administration would eventually be more forthcoming unlike the Bush administration. Brennan also stated unequivocally that these strikes were not only within the legal constraints of international law but also ethical and prudent.

Despite Brennan's candidness, it was unclear from his speech about who was conducting these strikes and what measures were being taken to adhere to existing (and crystalized) international norm.

Various news media sources and security experts have suggested that the U.S. military and the C.I.A., conduct these 'drone strikes' as a counter-insurgency/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. But there is no clarification in terms of what code of conduct/process the C.I.A. is adhering to.

Before we address the issue with the C.I.A'.s usage of drones within Pakistani territory (another open secret, later verified at a Senate hearing), we must first understand what are the legal expectations/constraints to conduct a strike within the LoAC. There are three distinct principles behind each military strike within Afghanistan under the LoAC. Proportionality, necessity and distinction are these three governing principle. Now mind you, these three principles guide the process but the outcome is still based on other variables. Proportionality suggests that an action cannot be excessive in respect to military utility. In simpler terms it means you can't just carpet bomb a civilian area to kill some random terrorist. The second principle of "necessity" suggests that your target needs to have military utility, i.e. no active targeting of civilians. 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 are the reasons that fuels the usage of JDAM, which is essentially an integrated guiding system which makes 'dumb' bombs, smarter, if not, smart.

These principles direct all process concerning the usage 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 C.I.A is introduced in this process. The C.I.A. uses drones for what has been labelled as 'signature strikes', which allows the CIA to fire missiles even if it cannot determine the identities of those being marked for kill. On top of that they have used drones in Pakistan, which is not an active combat zone.

This usage of the drones by a civilian run entity like the CIA is in direct contrast to America's closest ally, United Kingdom. The U.K. has only used drones for military strikes in Afghanistan and Libya, both of which have active mandates from the U.N. for the usage of force (i.e. active combat zones). This suggests that the American policy on the usage of the drones in a non-active combat zone will be under further scrutiny as time progresses. And the United States Congress has anticipated that this policy will not fly (no pun intended) in the long run. A recently surfaced CRS (Congressional Research Service) analysis suggests that Obama administrations position on the matter are not at par with the majority of the Supreme Court, which may have to weigh in on the matter sooner if not later.

Obama administration's position seems to align with the most conservative justices within the Supreme Court when it comes to due process during wartime. It 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', it is perfectly legal to conduct these strikes. So in other words the process is less than standardized or rigorous, depending on who you talk to. On top of that, most justices within the Supreme Court reject this definition of due process.

So from a legal perspective, these drone strikes are in a precarious position even within the domestic law of the US. That in itself should be a good enough reason to reign in these strikes. But America like most nation-state, subscribes to the idea of a moralistic notion of warfare and thus the question of morality must be raised. Is it morally wrong to kill a terrorist despite his geographical location being in non-combat zone? Does a person who is willing to blow up civilians indiscriminately deserve the right to due process and protection under the various U.N. charters and the law of armed conflict? And what about collateral damage? Is it worth a life of an innocent civilian who happens to be at the wrong place at the wrong time? These are the questions American scholars and policymakers must grapple with when they look beyond the short-term benefits of these drone strikes.

Let's assume that the CIA adheres to the LoAC when it comes to drone strikes and follows distinction, proportionality and necessity. And on paper they just might. We don't know that yet and I for one will be more than willing to give them the benefit of the doubt on the matter under Petraeus's watchful eye. But any civilian casualty on any drone strike within a non-active combat-zone makes that usage fall on a rather grey territory where we are making cost benefit and game theoretic assessments over people's lives, as if they are just a blip on a screen. It may seem impolite to point that out because collectively no one seeks out civilian deaths, but if these deaths keep on happening, the method to which these targeted assassinations are being conducted are not only ineffective in the long run, but also severely problematic from a legal and moral perspective.

London-based Bureau of Investigative Journalism found that between 282 and 535 civilians have been killed by drone strikes since 2009. This includes more than 60 children and at least 50 civilians who were killed in follow-up strikes. The perceived grey area of these strikes is becoming blood red and indefensible. More importantly, this is not a functional way to counter terrorism. The amount of terror these drones have unleashed on civilians in Pakistan, have become so consistent and ever present that it has effectively negated any normal day to day life activity for a large portion of the population. And any war theorist will tell you that, a condition of state sanctioned (in this case Pakistani government's partial willingness to approve strikes) terror is one of the major conditions where terrorism finds the biggest number of recruits for the other side. If you were a 15 year old growing up in the swat valley with no school to go to, and in constant fear of being blown to pieces by a drone, your rate of radicalization would be much higher. This is not rocket science, it is much more complex than that. This environment affects all social conditions, the notion of civic identity and in-group/out-group behaviour. And from a moral perspective it is our duty to make sure that the condition of fear does not persist because the only thing a fearful citizenry produces are illiberal attitude and uninterrupted anger toward the 'outsiders'. It is hard to win hearts and mind of any group of people but it is almost impossible to win after their wedding parties have been bombed and their children have been taken out of school due to the volatility caused by these strikes.

Terrorists exist. That is the reality. What makes us different from them are not some deeply rooted biological predisposition to fundamentalism but the condition we live in. The only way to counter terrorism in the long term is through the means of changing these conditions and as long as these silent vessels of death hover over the borders of the non-combat zones like Pakistan and families lose their children to a mistake or to 'collateral damage', terrorism will thrive. This is not a moralistic point of view or a legal point of view, it just a most practical point of view and if our methods of countering terrorism come at the expense of countering terrorism in the long run, then these methods just need to go.

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Jyoti Omi Chowdhury is a war theorist and a visiting researcher at the Center for Sustainable Development, Harvard University.