The Ethics of Drone Warfare
No aspect of modern warfare is as controversial as the use of armed drones. Everything about drone technology is contested: its novelty, legality, morality, utility, and future development. Even the choice of what to call such systems is value-laden.
--Professor Sir David Omand GCB
Former United Kingdom Security and Intelligence Coordinator
Technology does not remove the possibility of virtue, but it does increase the possibilities
for vice. This is only to be expected, for in warfare, as in all other human activities,
there’s a very small area of potentially appropriate acts—only one small bull’-eye area
in the moral target. But the possibilities for wrong acts—for missing the bull’s-eye
are limitless. Every technological advance gives us one more small space for possible
virtuous acts, but endless possibilities for vice.
a. “The first U.S. drone strike is believed to have occurred in 2002 when a Hellfire missile launched by a Predator drone killed four suspected al-Qaeda members in Yemen.”
b. From 2005 to 2013 use of armed drones increased by 1,200%
c. More drone strikes by Obama administration in 2009 than the Bush administration during the entire time
d. By early 2012 Pentagon had 7,500 drones: representing approximately one-third of all U.S. military aircraft
e. Predators and Reapers flew 369,913 flight hours in 2014: 6 x’s higher than in 2006
f. Pentagon is asking Congress for $904 million in 2016 to buy 29 Reapers: more than double the number sought in 2015
2. Potential benefits of drone technology
i. Have an aircraft of any size
ii. Don’t need to design craft around humans (no need for life support systems, i.e., pressurized cabins)
b. Improved duration of flight times à from hours to weeks
c. Ability to risk dangerous conditions (i.e., extreme weather)
d. Claimed to reduce collateral damage and civilian casualty
3. Ethical issues to consider:
“As for drones, while further advancement in relevant technologies is inevitable, it must also be recognized that technology in general is advancing at a pace that outstrips the political, legal and ethical frameworks upon which coexistence and cooperation with global partners is built.”
a. Who is in charge, what is their training, and to whom are they accountable?
i. “Another issue in drone use is the fact that strikes are carried out by joint operations. The heavy involvement of the CIA and CIA contractors in the decisions to strike may alone account for the high-unintended death rate. CIA operatives are not trained in the law of armed conflict. They are not bound by the Uniform Code of Military Justice to respect the laws and customs of war. This fact became abundantly clear during the revelation of U.S. use of interrogation methods involving torture and cruel, inhuman and degrading treatment. Given the impact of that unlawful conduct it is difficult to fathom why the Obama Administration is using the CIA to carry out drone attacks. Under the law of armed conflict, only lawful combatants have the right to use force during an armed conflict. Lawful combatants are the members of a state‘s regular armed forces. The CIA is not part of the U.S. armed forces. They do not wear uniforms. They are not subject to the military chain of command. They are not trained in the law of war, including in the fundamental targeting principles of distinction, necessity, proportionality, and humanity. Rather, the CIA has a list of intended targets. They judge success by the number of persons on the list they kill.”
b. Determining the legitimacy of a target
i. U.S. Dept. of Defense: Joint Integrated Prioritized Target List (2009): 400 names of individuals described as “known terrorists”
ii. Is the definition of “terrorist” too broad?
iii. “The inclusion of Taliban financiers on the so-called ‘kill list’ is a case in point. Although terrorist financiers may be classified as terrorists, there is debate as to whether they can be deemed a legitimate target for a kill list under IHL [International Humanitarian Law]. According to ICRC [International Committee of the Red Cross] guidance, IHL stipulates that the decisive criterion as to whether an individual is a member of an organized armed group, terrorist or otherwise, is to prove a continuous combat function. Furthermore, any individual falling outside this category would be classified as a civilian. In other words, unless a Taliban financier can be proved to be a combatant on a continual basis, it would be unlawful to target under IHL.”
c. “Rescuer attacks” also known as “follow-up strikes”
“One example is the killing of senior al-Qaeda leader Abu Yahya Al-Libi on June 4, 2012. Following an initial drone strike which killed five people and injured four others, a group of 12 people, including local residents, came to the assistance of the victims. Al-Libi was reported to have been overseeing the rescue efforts and was killed in the second strike, along with between 9 and 15 other people, including six local tribesmen. In other words, six civilians were killed working in a humanitarian capacity alongside a group of al-Qaeda operatives under a senior al-Qaeda official.”
d. Geographical sovereignty
i. Does the “host state” consent to drone strikes?
ii. Pakistan denies consent publicly
e. Proportionality: Anticipated collateral damage and civilian casualty
i. “U.S. estimates of extremely low or no civilian casualties appear to be based on a narrowed definition of ‘civilian,’ and the presumption that, unless proven otherwise, individuals killed in strikes are militants. In May 2012, The New York Times reported that according to unnamed Obama administration officials, the United States ‘… in effect counts all military-age males in a strike zone as combatants… unless there is explicit intelligence posthumously proving them innocent.’”
ii. “Recent UN reporting suggests that drone strikes have resulted in considerably more civilian deaths than U. S. officials have publicly acknowledged. According to UN Special Rapporteur Ben Emmerson, at least 400 civilians have been killed in Pakistan alone.”
f. Does the target present a direct and imminent threat?
i. “However, some analysts believe that, today, al-Qaeda constitutes more of an ideological influence than a direct threat.”
ii. “Traditionally, there has been substantial consensus among states and international law experts that an imminent threat is one that is concrete and immediate, rather than speculative or remote. But according to a leaked 2011 Justice Department White Paper— the most detailed legal justification that is publicly available—the United States is now taking a radically different approach to defining imminence. According to the White Paper, the requirement that force only be used to prevent an “imminent” threat “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” This seems—and is—at odds with the traditional view. The White Paper goes on to assert that “certain members of al-Qa’ida are continually plotting attacks . . . [and] would engage in such attacks regularly [if they] were able to do so, [and] the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur.” As a result, the White Paper concludes that any person deemed to be an operational leader of al-Qaeda or its “associated forces” inherently presents an imminent threat at all times—and as a result, the United States can lawfully target such persons at all times, even in the absence of specific knowledge relating to planned future attacks.
“At risk of belaboring the obvious, this understanding of imminence turns the traditional international law interpretation of the concept on its head. Instead of reading the imminence requirement to mean that states must have concrete knowledge (or at least reasonable suspicion) of an actual impending attack in the near future, the United States appears to construe lack of knowledge of a future attack as the justification for using force; that is, since the United States “may not be aware of all Al Qa’ida plots . . . and thus cannot be confident that none is about to occur,” force is presumed always to be justified against the kinds of people considered likely to “engage in . . . attacks . . . if [they] were able to do so.” From a rule-of-law perspective, this is a radical assault on a once-stable concept. If “imminent threat” can mean “lack of evidence of the absence of imminent threat,” it is impossible to know, with any clarity, the circumstances under which the United States will in fact decide that the use of military force is lawful.”
g. Issues of “necessity” and “proportionality”
i. “Are all drone strikes “necessary”? Could nonlethal means of combating terror- ism—such as efforts to disrupt terrorist financing and communications—be sufficient to prevent future attacks? Might particular terror suspects be captured rather than killed? Do drone strikes inspire more terrorists than they kill? Also, to what degree does U.S. drone policy distinguish between terrorist threats of varying gravity? If drone strikes against a dozen targets prevented another attack on the scale of, few would dispute their appropriateness or legality—but we might judge differently a drone strike against someone unlikely to cause serious harm to the United States. Unfortunately, if U.S. decision-makers generally lack specific knowledge about the nature and timing of future attacks—which the White Paper acknowledges—judgments of necessity and proportionality literally become impossible. How can one decide if lethal force is necessary to prevent a possible future attack about which one knows nothing? How can proportionality be deter- mined? Here again, the U.S. legal theory underlying targeted killing makes it impossible to apply key principles in a meaningful way. Both necessity and proportionality come to be evaluated in the context of purely hypothetical worst-case scenarios (in theory, any terror suspect might be about to unleash another catastrophic attack on the scale of). As a result, these “limitations” on the use of force establish no limits at all.”
h. Potential negative effects on local populations
i. “Covert drone strikes take a particular toll, striking unannounced and without any public understanding of who is, and importantly, who is not a target. For victims, there is no one to recognize, apologize for, or explain their sorrow; for communities living under the constant watch of surveillance drones, there is no one to hold accountable for their fear.
i. Personality targeting vs. signature targeting
1. Personality targeting: an individual whose identity is specifically known is targeted
2. Signature targeting: unknown individuals often in groups are targeted. These match a pre-identified “signature” of behavior that the U.S. links to militant activity or association.
a. Signature strikes are more controversial
b. Make up significant proportion of covert drone strikes—the majority in Afghanistan
c. “Indeed, according to one unnamed U.S. official, the United States has killed twice as many ‘wanted terrorists’ in signature strikes than in personality strikes. U.S. officials have also reported that most of the people on the CIA’s kill list have been killed in signature strikes.”
d. Could create the potential for increased collateral damage
e. Criteria for determining suspicious behavioral patterns (signatures)
i. Challenge for intelligence—“when human intelligence is lacking and decisions need to be made based on aerial intelligence alone.”
ii. Pre-planned attacks vs. Dynamic targeting
1. Pre-planned attacks: conducted at a scheduled time and after elaborate processes of collateral damage estimation are taken into account
2. Dynamic targeting: decisions made in a short window of time without the time for collateral damage controls. The risk of collateral damage increases
j. Assessing short, mid, and longer term impacts of drone strikes
i. Short term success: killing enemy commander
ii. Mid and long term
1. Glorify enemies as martyrs
2. Create more propaganda for jihadists
k. Distinguish between counterterrorism and counterinsurgency
i. Two different policies that employ different strategies
ii. Drone strikes may run undermine counterinsurgency
“In May 2012, a study based on interviews with government officials, tribal elders, and others in Yemen carried out by the Center for Civilians in Conflict concluded that: ‘… and unintended consequence of the attacks has been a marked radicalization of the local population.’”
l. Secrecy of drone warfare program in the U.S.
i. “The U.S. government runs two drone programs. The military’s version, which is publicly acknowledged, operates in the recognized war zones of Afghanistan and Iraq, and targets enemies of U.S. troops stationed there. As such, it is an extension of conventional warfare. The C.I.A.’s program is aimed at terror suspects around the world, including in countries where U.S. troops are not based. It was initiated by the Bush Administration and, according to Juan Zarate, a counterterrorism adviser in the Bush White House, Obama has left in place virtually all the key personnel. The program is classified as covet, and the intelligence agency declines to provide any information to the public about where it operates, how it selects targets, who is in charge, or how many people have been killed.”
ii. “We do know, however, that as a matter of international law the United States believes itself to be in an armed conflict with ‘al-Qaeda and its associated forces.’ We know the United States therefore considers ‘al-Qaeda operatives’ to be targetable as ‘combatants,’ but we do not know precisely how it identifies or defines al-Qaeda operatives, agents, or members, or how it defines the term ‘combatants’ and applies it in the murky context of transnational terrorism. We also do not know precisely how the United States understands the term ‘civilian’ in the context of terrorism or the concept of ‘direct participation in hostilities.’ Finally, we do not know how the United States defines or identifies ‘associates’ or ‘co-belligerents’ of al-Qaeda.”
m. Future technology
i. Nano drones (example—“hummingbird drone” capable of flying at 11 miles per hour and perching on a window sill)
ii. Autonomous drones—identify and eliminate human target without direct human intervention
 Quoted in Shima D. Keene, Lethal and Legal? The Ethics of Drone Strikes (Carlisle, Penn.: U.S. Army War College Press, 2015), 1. Available online: http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=1304.
 Rosa Brooks, “Drones and the International Rule of Law” Ethics and International Affairs 28 (2014), 89. Available online: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2296&context=facpub&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fsearch%3Fclient%3Dsafari%26rls%3Den%26q%3Drosa%2Bbrooks%2Bdrones%2Band%2Bthe%2Binternational%2Brule%2Bof%2Blaw%26ie%3DUTF-8%26oe%3DUTF-8#search=%22rosa%20brooks%20drones%20international%20rule%20law%22
 Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004—2009” Notre Dame Law School Legal Studies Research Paper No. 09-43 (July 2010), 5-6. Available online: https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/OConnellDrones.pdf.
 Jane Mayer, “The Predator War” New Yorker (October 26, 2009). Available online: http://www.newyorker.com/magazine/2009/10/26/the-predator-war. Mary Ellen O’Connell adds this important caveat: “The two programs may not be as clearly separated as Mayer suggests, however. Many facts about the use of drones are classified, so it is difficult to get a full and accurate picture. Some evidence suggests a more complicated situation. In an interview with a former commander of the drone operation at Nellis Air Force Base in Nevada, it was clear that all drone operations are ‘joint’ operations—none is carried out by the Air Force alone.” “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004—2009” Notre Dame Law School Legal Studies Research Paper No. 09-43 (July 2010), 5-6. Available online: https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/OConnellDrones.pdf.