Smaller drones don’t let the US off the hook for war crimes

The XQ-58A Valkyrie demonstrates the separation of the ALTIUS-600 small UAS in a test at the U.S. Army Yuma Proving Ground test range, Arizona on March 26, 2021
The XQ-58A Valkyrie releases a ALTIUS-600 small UAS during a test in Arizona, March 26, 2021

  • The US has relied heavily on drones for many missions – including lethal strikes – for decades.
  • Drones are only a platform, and what matters for international law is how those platforms are used.
  • In the US, focus on the drones themselves has overshadowed debate with the wider ethics of armed violence.
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When it comes to armed drones, is smaller and more precise necessarily better?

The question came to my mind upon seeing the news that the US Air Force just successfully test-launched a new weaponizable drone, the ALTIUS-600, making it the smallest drone in operation. Even more remarkably, this tiny aircraft was launched from the second-smallest-drone, the Kratos XQ-58A Valkyrie, while the Valkyrie was in flight.

There is nothing objectionable about the development of mini-drones. One could even argue they would be improvements, in humanitarian terms, over the use of the much larger Reaper to deliver 500-pound bombs in allegedly “precise” strikes that instead often sweep up scores of civilians and destroy the property their surviving family members rely on for their livelihoods.

But the US military’s obsession with minimalism – from fewer boots on the ground to lower-payload munitions – also minimalizes public engagement with the wider ethics of armed violence.

The emphasis on size, mobility and precision is the product of a highly limited and limiting view rife in American political discourse: that the key ethical and legal problem presented by armed drones is collateral damage. This narrative – reflected in public opinion surveys, Hollywood films and political discourse – circumscribes debate.

As Sarah Kreps, a Cornell professor and WPR contributor, notes in her book with John Kaag, the question of collateral damage is but a subset of a subset of a subset of the wider international law on the killing of human beings by governments.

Drone Strikes
Demonstrators burn the US flag during a protest against US drone strikes in the Pakistani tribal region, in Karachi, November 8, 2013.

At the overarching level, that law applies to governments in peacetime, not in war. The basic legal rule, enshrined in Article 6 of the International Covenant on Civil and Political Rights, is clear: “No arbitrary deprivation of the right to life.”

Due process is required for state-sanctioned executions; guilt must be proven, not assumed. And even the death penalty for criminals convicted of the worst genuine offenses is increasingly frowned upon and must be carried out using humane means. The only exceptions to this prohibition on the use of deadly force are in cases of imminent harm to others where no other options for preventing that harm are available.

Of course, in times of war, things shift, and the law of war applies. The default proscription against killing is lifted, but only under strict conditions, reflecting the fact that war is considered an aberration, a small subset of the variety of circumstances in which states might direct lethal force against individuals. Among the conditions that must be met, a state of war must apply.

Those doing the violence must be members of the state’s armed forces; civilian CIA pilots would be unlawful combatants. The targets must be military objectives, not civilians. And the harm and suffering caused even to legitimate military targets must be minimized to what is necessary to weaken the enemy and not involve inhumane methods or disproportionate or indiscriminate collateral harm.

Here and only here do the rules of collateral damage apply, with the central question being, How much harm to bystanders and infrastructure is acceptable given the necessity of hitting a particular legitimate military target with a particular military means deployed by a particular military actor in a particular military context?

In short, the collateral damage question is embedded within the rules governing who may be targeted, which are in turn embedded within the rules governing who may do the targeting, which are subordinate to the bigger question of whether a situation falls within the scope of war law at all, rather than peacetime human rights rules.

Yet, popular attention so often focuses on this tiny subset of the rules governing collateral damage, eliding these higher-level issues.

drone strike yemen
People gather at the site of a drone strike on a road in the southern Yemeni province of Lahj, August 11, 2013.

Suppose a drone were not only perfectly precise and relatively humane, but also carried a firearm rather than explosives or sword blades. Suppose it killed quickly, rather than burning its victims alive or hacking them death, as a new Hellfire missile is designed to do in the name of limiting collateral damage. And suppose the identity of the target could be determined without fail, using biometrics before a bullet was fired.

The accuracy of such an attack does not resolve the question of whether a kill decision is correct in the first place. These targeting decisions often rely on human intelligence – reports from locals – to determine who is allegedly a mortal danger to US interests.

But in insurgencies and civil wars, reports from local sources are just as often used to settle old scores as to provide accurate intelligence, as the research of Stathis Kalyvas, a professor at Yale, has long showed.

At times, in fact, the US has often relied not on specific kill orders of specific individuals, but rather on “signature strikes” – a best estimate of who is likely to match the profile of a suspected militant in a particular context – to determine whether to launch a strike that often targets whole groups.

As the NGOs Article 36 and Reaching Critical Will have documented, signature strikes have been carried out based on criteria as arbitrary as the sex and age of the victims, with nearly any military-age male in a frontier region vulnerable to lethal strike. These combinations of false stereotypes, faulty intelligence, mnemonic shortcuts and sheer hubris have killed scores of civilian teenage boys, not by accident, not by precision weapons failure, but by design.

These civilian men and boys directly targeted by the US include 16-year-old Tariq Aziz, a soccer player, amateur photographer and anti-drone activist. Aziz died in late October 2011 in Waziristan, Pakistan, when a CIA-fired Hellfire missile burned him and his 12-year-old cousin Waheed Khan beyond recognition as he drove to give his aunt a ride home from a wedding.

Even in a precise strike carried out far from other villages, with no collateral damage, the killings of these boys would have been not only tragic, but criminal. In a real war, we would have called this a case of civilian targeting – a war crime. In peacetime – a more accurate view of the state of relations between the US and Pakistan – we would simply call this murder.

That the Pakistani government approved or perhaps even requested the strike doesn’t make it legitimate. It merely makes both governments complicit in political murder.

US drone strikes
Pakistani protesters shout slogans against US drone strikes in Pakistan’s tribal region, October 2014.

All these important legal concerns are lost in a view of weaponized drones and targeted killings that sees the main issues as those of precision, human intelligence, accuracy and the reduction of collateral damage to “bystander” civilians, as if the civilians we are directly targeting merit no outrage on their own.

Reducing collateral damage is important in real wars, but that is not the only or even the primary concern with the use of ever-smaller lethal technology to wage ever-more subtle forms of peacetime political violence.

Terrorism is a crime. States are obligated to capture criminal suspects, put them on trial, allow them to defend themselves and free them if they are found innocent. Drones enable the opposite, as do special operations teams with kill orders.

But drones do something else as well: They provide a veneer of precision and bloodlessness that directs our attention to efforts at collateral damage control, obfuscating the reality of what is and has always been a campaign of extrajudicial execution sweeping up civilians whether by accident or by design.

Arguably, that has been the point. In November, the Center for Civilians in Conflict published a report entitled “Exceptions to the Rules,” tracking 20 years of US drone policy.

It concludes, “A policy that allows the use of covert, lethal force under the laws of armed conflict outside of the context of an armed conflict undermines the protection of internationally recognized human rights and international law.”

It added that any reform agenda must not make the mistake of focusing too narrowly on any single abuse, which “risks missing the emergence of a more problematic phenomenon, the gradual accumulation of legal loopholes.”

US drones
Graffiti protesting against US drone strikes in Sana’a, Yemen, September 2018.

As a result of this ethical devolution, not limited to but certainly epitomized by drone politics, our understanding not only of political-legal reality, but also of political-legal possibility, becomes smaller and more insignificant.

Leaders of the free world would be wise to reverse course and return to fundamental principles. One reason to be heartened is the fact that President Joe Biden’s review of the use of US drones outside of active battlefields is really a review of America’s targeted killing program.

Another is the fact that the US military might prefer to be kept in reserve for conventional wars, rather than thrust into counterterror and counterinsurgency missions for which it is ill-suited.

To be clear: Weaponized drones themselves are also not the problem. Drones are only a platform, and what matters in international law terms is how platforms are used. But if there is a reason to focus on drones, it is because of the way in which, as Gregoire Chamayou shows us, our conceptual understanding of drones as a particular technology has also impacted our ability to even notice what is wrong with their use in international law terms.

Focusing on technology relaxes our legal and ethical horizon and narrows our parameters of debate, and this needs to change. Smaller and simpler is not always better. Less is not always more.

Charli Carpenter is a professor of political science and legal studies at University of Massachusetts-Amherst, specializing in human security and international law. She tweets @charlicarpenter. Her WPR guest column will appear every other Friday.

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Biden’s restrictions on drone strikes are about much more than drones

drone strikes
A US Predator drone flies over Kandahar Air Field in southern Afghanistan.

  • On his first day in office, President Joe Biden quietly implemented new restrictions on US drone strikes.
  • The temporary measures make such strikes subject to review by the National Security Council, and they have potentially far-reaching implications.
  • See more stories on Insider’s business page.

The Pentagon confirmed this week that President Joe Biden has imposed new, temporary restrictions on counterterrorism drone strikes outside of active battlefields, making them subject to review by the National Security Council.

According to The New York Times, which first broke the news, the rules were quietly put in place on Biden’s first day in office, as a stopgap measure while his national security team conducts a broader review of US counterterrorism operations.

According to Charli Carpenter, a professor at the University of Massachusetts-Amherst specializing in the laws of war, the Biden administration’s review is a long-overdue opportunity to rein in the practice of targeted extrajudicial killings, like the drone strike that killed Iran’s top military commander, Gen. Qassem Soleimani, in January 2020. She joined WPR’s Elliot Waldman on the Trend Lines podcast this week to discuss the potentially far-reaching implications of Biden’s move.

The following is a partial transcript of the interview. It has been lightly edited for clarity.

An MQ-9 Reaper remotely piloted drone aircraft performs aerial maneuvers over Creech Air Force Base, Nevada, U.S., June 25, 2015. U.S. Air Force/Senior Airman Cory D. Payne/Handout via REUTERS
An MQ-9 Reaper over Creech Air Force Base in Nevada, June 25, 2015.

World Politics Review: What impact do you expect the Biden administration’s new rules will have on the frequency of US drone strikes around the world?

Charli Carpenter: I think it will immediately result in fewer drone strikes. Essentially what Biden is doing is he’s moving the barometer back to where it was before Trump devolved authority for drone strikes away from the executive branch and into the hands of commanders.

What that means is that anytime a drone strike is envisioned, it needs to be approved by the White House. There’s going to be a much higher level of oversight and much more concern over the legal nuances of each strike. It will just make drones harder to use, and you can imagine the weaponized drones will only be used in the most extreme cases.

WPR: What was the basis on which the Trump administration devolved the authority to commanders in the field? What impact did that have on the dynamics of the war on terror and also on the actual relationships with countries where these strikes were taking place?

Carpenter: One of the interesting things about Trump’s drone policy is we know much less about it than we knew about Obama’s policy, because he didn’t really explain his thinking or justify it publicly. A lot of those documents are classified. So, there’s a limited extent to which I can speak to it. My understanding of the rationale was that it was partly just to empower those in the field – lower-level commanders – to be much quicker on their feet.

Trump, of course, was not as concerned as the Obama administration was with the legal nuances of whether these strikes were really lawful under human rights law and under the laws of war. He also had a different perspective on grand strategy and the war on terror. I will say that I think that there was – to a great extent on the right during the Obama years – a sense that a commander’s hands were really being tied by all of the legal requirements and legal oversight for these strikes.

drone strike yemen
People gather at the site of a drone strike in the southern Yemeni province of Lahj, August 11, 2013.

WPR: How else did the rules that the Trump administration put in place differ from what the Obama administration was doing?

Carpenter: Essentially what he did is he removed oversight on strikes. He also removed the requirements to count and publicize civilian casualties.

In some respects, this really signaled to the military and to the CIA – which is not part of the military, it’s a civilian agency, but it does also have a drone program – that the gloves were coming off a bit. They wouldn’t be dealing with JAG lawyers [Judge Advocate General, the US military’s legal arm] at the highest levels, going over every strike. There was much less scrutiny on these pilots and on their commanders to account for collateral damage.

One thing that we do know from global civil society groups that track civilian casualties from drone strikes, or from airstrikes in general – groups like Airwars – is that civilian casualty counts went way up during the Trump administration. So that’s one of the concrete impacts and one of the regretful things that we would hope would be rolled back a bit by Biden’s new policy. We would hope to see civilian casualties go down.

But at the same time, I think that it’s important to note that part of the impetus for Trump’s shift comes from a sense that you heard from many commanders and troops in the field during the Obama years that their hands were really being tied in the war on terror by all of these legal nuances and legal strictures. There was a sense that much more discretion was needed in order to fight the war on terror effectively.

Now, that is disputed by many analysts who study counterterror dynamics. We know that if there’s a very large level of civilian casualties, there’s actually a blowback effect in terms of your effectiveness in counterterror operations. But there was very much a sense that this was going to assist troops. So you can imagine that there’s going to be some sense on the right that this is, again, going to hobble the troops in the field.

drone operators
Two drone operators fly an MQ-1 Predator on October 22, 2013.

WPR: One of the interesting things about this new rule that the Biden administration put in place was its distinction between active battle zones and the fact that the rules only apply to areas outside of those active battle zones. What does that distinction mean in reality? Is there a formal definition for that?

Carpenter: The Biden administration is attempting to create a formal definition, and governments do this – they creatively interpret norms and laws to suit their moral proclivities and their strategic interests at the time. This is not a term in international humanitarian law, but it does map onto an important distinction. It’s a salient distinction, the kinds of theaters where we are using weaponized drones. The International Committee of the Red Cross, which is sort of the guardian of international humanitarian law, would use language about “situations of armed conflict, in which the US is a party to the conflict.”

A situation like that would be Afghanistan or Iraq, and to some extent, Syria. But Pakistan is not such a situation. There is to some extent an armed conflict going on there, a low-level armed conflict, but the US is not a party to that conflict. It is not a party to the war in Yemen, or a party to what’s going on in Somalia.

These are three areas in which the US has used drones, to a greater or lesser extent, to essentially decapitate individuals suspected of being terrorists or al-Qaida affiliates or militants. That is a different beast than using air power in an active battle zone where the US is engaged in hostilities against either another state or nonstate armed forces.

The reason why this matters is that in war, there’s one set of legal rules that applies, and within certain constraints, you’re actually allowed to kill people. But outside of situations of armed conflict, those rules don’t apply. The rules that apply are human rights law, which says you actually can’t just carry out extrajudicial executions of individuals you suspect of criminal activity. You’ve got to capture them and try them and punish them for their crimes if they’ve committed crimes, and offer them due process and release them if they’re found innocent.

So, the idea that we would be using military air power – which also risks civilian lives in the vicinity, regardless of how precise we try to be – in areas that are not hot battlefields, is extremely problematic in terms of international law, as many human rights lawyers and human rights groups have argued. So the fact that Biden is actually pointing to this distinction can be very impactful in shifting US rhetoric and international rhetoric on when drones might be acceptable, and when they may not be.

US Air Force MQ-9 Reaper drone pilot Creech
An MQ-9 Reaper pilot controls an aircraft from Creech Air Force Base, Nevada.

WPR: We’ve seen a lot of other countries use drones in battlefields, for example, in Libya, and also recently in Nagorno-Karabakh in the conflict between Armenia and Azerbaijan. But is the US the only one right now using drones for these kinds of extrajudicial executions that you’re talking about?

Carpenter: That’s a good question. I would want to really research that before answering, but it’s certainly the country that is most known for using drones in this way. I will say that there are nonstate actors that have also tried to use drones to assassinate their enemies. It’s rather simple to actually use a weaponized drone to go after anybody you want. It’s one of the ironies that we’ve popularized and proliferated this technology, which could so easily be used against us.

But it’s the United States that has really become known for this tactic, and really criticized for this tactic by many actors, including local groups in Pakistan, a wide grassroots movement in the US and in Europe, and to some extent, the big international human rights and humanitarian law organizations.

These organizations are not so much concerned with drones per se, because drones are really not so different from their perspective from any other aerial platform for delivering weapons in an armed conflict. The concern is that they’re being used essentially for a campaign of extrajudicial execution in areas in which we’re not at war.

This is really a precedent that the US has set that thankfully not so many countries have followed. But it would not surprise me if some were beginning to, and I would expect more and more to do so in the future if this isn’t reigned in a bit. That may be what Biden is trying to do.

It may be that his advisers have decided that the risks of proliferating and justifying a type of act that could easily be used against us by our adversaries, or in areas where our civilians are at risk, isn’t worth the potential hypothetical gains in counterterror operations. They may have determined that we may in fact benefit from – in terms of our counterterror work – using means that are much more likely to protect civilians.

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