Legitimacy and Drones

Investigating the Legality, Morality and Efficacy of UCAVs

Steven J. Barela

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317105879
• Edition: 1
• Topic: Technology & Engineering
• Subtopic: Military Science & Technology
• Index: Technology & Engineering

Unmanned combat air vehicles, or in common parlance 'drones', have become a prominent instrument in US efforts to counter an objective (and subjective) cross-border terrorist threat with lethal force. As a result, critical questions abound on the legitimacy of their use. In a series of multidisciplinary essays by scholars with an extensive knowledge of international norms, this book explores the question of legitimacy through the conceptual lenses of legality, morality and efficacy, it then closes with the consideration of a policy proposal aimed at incorporating all three indispensable elements.

The importance of this inquiry cannot be overstated. Non-state actors fully understand that attacking the much more powerful state requires moving the conflict away from the traditional battlefield where they are at an enormous disadvantage. Those engaging in terrorism seek to goad the ruling government into an overreaction, or abuse of power, to trigger a destabilization via an erosion of its legitimacy. Thus defending the target of legitimacy"in this case, insuring the use of deadly force is constrained by valid limiting principles"represents an essential strategic interest.

This book seeks to come to grips with the new reality of drone warfare by exploring if it can be used to preserve, rather than eat away at, legitimacy. After an extensive analysis of the three key parameters in twelve chapters, the practical proposition of establishing a 'Drone Court' is put forward and examined as a way of pursuing the goal of integrating these essential components to defend the citizenry and the legitimacy of the government at the same time.

SECTION I
Through the Lens of Legality—Formal Validity

Chapter 1
Jus ad Bellum: Crossing Borders to Wage War against Individuals

Christian J. Tams and James G. Devaney

I. Introduction

Drone strikes have become an everyday reality in the war on terror. Hailed by supporters as an effective and targeted tool, drones require us to rethink questions of legitimate warfare. Legal analysis is part of that inquiry; and one would hope a relevant part. As the debate of the last decade suggests, drone strikes do not neatly fit established patterns of legal argument. In a report issued in 2010, the UN’s Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions at the time, Professor Philip Alston, indicated that targeted killing by drones had led to a “highly problematic blurring … of the boundaries of the applicable legal frameworks” the result of which “has been the displacement of clear legal standards with a vaguely defined licence to kill.”¹

Whether the existing standards were as clear as that statement suggests may be open to discussion, but that the present state of the law is at best “vaguely defined” seems difficult to dispute. From human rights law to the laws of war and principles of domestic constitutional law, drone strikes implicate a great number of legal provisions and standards and quite often are not easily categorized. The present contribution does not engage with human rights law, international humanitarian law, or indeed domestic legal orders. It addresses a separate aspect of the legal analysis: the question of whether force can be used across borders at all—whether states pursuing anti-terrorist policies can use drones against targets located abroad. In the recent discourse on drones, this matter has not received the same amount of attention as questions relating to human rights or to the rules governing the conduct of hostilities. Yet they remain fundamental, and perhaps indeed of preliminary relevance: since international law excludes, subject to certain exceptions, the use of force in the international relations between states, unless a state can establish a right to use force across borders (whether by means of drone strikes or otherwise) its conduct will fall foul of an essential standard of international legality.

While essential—perhaps even the “cornerstone” of the contemporary legal order—the rules governing recourse to force, the jus ad bellum in international legal terminology, are not static. Drone strikes no doubt present a fresh challenge, but they are not the first challenge to the jus ad bellum, which in previous decades has been tested by arguments about wars for national liberation, claims for humanitarian intervention, and more recently by debate about the war on terror. In fact, in many respects, anti-terrorist drone warfare, which is at the heart of the current debate, is but one aspect of a broader challenge to adjust the existing law to the new, or newly perceived, threat of global terrorism.

Against this background, the subsequent inquiry assesses to what extent the current jus ad bellum permits the use of drones against terrorists in foreign countries. More particularly, it situates debates about drone warfare within the broader debate about the jus ad bellum. As so much of the current debate centers on questions of human rights law and international humanitarian law, the present contribution deliberately steps back and takes a general look at the Charter regime regulating inter-state force, which it is argued continues to set the parameters of the debate. As will be shown, these parameters can evolve, and arguably have already evolved. But in order to assess the legality of drone strikes, these parameters (evolving or not) need to be engaged with—and need to be engaged with seriously. This is the aim of the present contribution. The argument is presented in two steps: Part II below introduces the general regime regulating inter-state force as set out in the UN Charter. The bulk of the analysis, in Part III, then revisits contemporary challenges to that regime and assesses whether and under what conditions, the current regime permits the use of drone strikes against terrorists. In that part, the focus is on the main exception to the use of force, namely the right to act in self-defense.

II. The General Regime Regulating Recourse to Inter-State Force

A. Basic Charter Rules

The legal rules which make up the jus ad bellum form the core of modern international law: the general ban on military force has been of crucial relevance in the development of the modern system of inter-state relations. It is considered the “cornerstone” of the UN Charter,² and “the most important principle in contemporary international law to govern inter-State conduct.”³ However, reference to this principle being the cornerstone of the UN Charter does not imply that the prohibition on the use of force is absolute or immutable. In fact, there is a wide range of issues related to the use of force that are not settled. For example, there has been significant debate regarding whether states are justified in using force to protect human rights, their nationals abroad, and, most significantly for our purposes, the use of drones against terrorist organizations operating in other states.

1. The scope of the ban on force

Mention of the UN Charter prompts closer consideration of its provisions relating to the use of force. The general prohibition on the use of force set out in Article 2(4) of the Charter obligates UN members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Articles 42, 43, and 51 of the Charter, taken together, recognize two exceptions to the general prohibition on the use of force: enforcement measures sanctioned as part of the UN system of collective security and measures taken in self-defense.

While many specific aspects of the law remain disputed, and of course the law is by no means perfectly adhered to, the Charter rules are regularly affirmed by states and other actors as the regime governing inter-state force. When applying this regime to the problems of drone strikes, two questions need to be answered:

i. Does a drone strike violate the prohibition against the use of force?

ii. Can a drone strike be justified under the Charter regime?

The first question in most settings can be answered with relative ease. A drone strike amounts to the use of military force and as such implicates Article 2(4) of the UN Charter.⁴ That provision purposefully—and in deliberate extension of earlier rules renouncing “war”⁵—bans not only large-scale military operations but all uses of “force.” If a drone strike is directed against a foreign state, it will prima facie violate the prohibition on the use of force. This is true irrespective of the motives prompting the strike, and irrespective of whether the target hit is a state agent, a member of the foreign military, or similar. Article 2(4), adopted against the backdrop of the devastating experience of World War II, deliberately opts for a comprehensive ban. While some types of breaches are mentioned expressly (namely, uses of force against the territorial integrity or political independence of other states) “any use of inter-State force by Member States for whatever reason is banned, unless explicitly allowed by the Charter.”⁶

2. Exceptions and carve-outs

As noted above, this ban is not absolute. It admits of two exceptions expressly set out in the UN Charter, one of which is of crucial relevance. Moreover, the protection against military force can be waived if the targeted state consents to the use of force. To begin with the latter scenario, the ban against force is premised on the notion that coercive might is used against another state’s will (and hence found to be illegal). If the “victim” consents the use of force—at least in the relationship between the states involved—is no longer coercive in character, but consensual. In line with this, international law in principle admits the consensual use of force on foreign soil. The question is less one of principle, but rather one related to the modalities for the expression of consent. In essence, consent is validly expressed if it is given by the competent and recognized organs of government ex ante, and in a transparent manner. This general position has been tested, without clear results, by the proverbial hard cases involving dubious forms of consent—given by puppet governments, factions involved in civil strife, and consent given ex post facto.⁷ In relation to drone strikes against terrorists operating abroad, separate questions arise which eschew a clear-cut answer, and include those concerning the validity of secret (or tacit) consent, consent expressed by organs other than the government, or the impact of discrepancies between public silence and secret connivance. At this stage, all that is required is to restate that in principle, states targeted by drone strikes can consent to the use of force and thereby remove its illegality.

As stated above, with regard to the expressly recognized exceptions to the ban on force, the UN Charter envisages two settings: military force can be employed lawfully (i) if the UN Security Council has authorized it as a collective security measure under Chapter VII of the Charter; or (ii) if force is used in self-defense under Article 51 of the Charter. The first of these exceptions has so far been irrelevant to the debate about drone strikes and is unlikely to gain relevance in the near future. While there is no doubt that the Security Council would be competent to sanction the use of drones under Chapter VII, to date it has not done so—nor indeed has it contemplated doing so. Therefore the majority of the following analysis will focus on the issue of self-defense as the most likely potential justification upon which states could rely.

As stated above, the issue of drones undoubtedly presents a fresh challenge to the jus ad bellum, but it is not the first such challenge. In fact the issue of drones raises many of the same factual and legal issues as the discourse on anti-terrorist self-defense. Consequently, some consideration of the early debates about anti-terrorist self-defense are instructive in this regard.

B. Early Debates about Anti-Terrorist Self-Def...

Table of contents

• Cover Page
• Half Title page
• Emerging Technologies, Ethics and International Affairs
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Figures and Tables
• Acknowledgments
• About the Contributors
• List of Abbreviations
• Introduction: Legitimacy as a Target
• Section I Through the Lens of Legality—Formal Validity
• Section II Through the Lens of Morality—Axiological Validity
• Section III Through the Lens of Efficacy—Empirical Validity
• Section IV Creating a Drone Court—Integration via a Policy Proposal
• Index