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US enters murky legal waters as drone use increases

As US President Barack Obama ramps up drone attacks in Pakistani tribal regions, experts debate the limits international law places on drone use. The answer lies as much on where the targets are located as who they are.

The unmanned Predator B drone

US drone attacks reached a record high in September

Even before US President Barack Obama took office, he said the United States would hunt down suspected terrorists and kill or capture them wherever they could be found.

"There can be no safe haven for al-Qaeda terrorists who killed thousands of Americans and threaten our homeland today," he said while on the campaign trail in March 2008.

Pursuing that goal, the Obama administration began using unmanned aerial vehicles to conduct strikes three days into his term and has ratcheted up the frequency of drone attacks compared to his predecessor George W. Bush.

US assurances

The overall increase in drone strikes implies that Obama's lawyers feel they are on solid legal ground, according to Kirsten Ainley, a lecturer in the International Relations department at the London School of Economics.

"Harold Koh [a top legal advisor at the US State Department] has been very keen to justify the use of drones under international legal standards though he hasn't specified precisely how they meet them," Ainley told Deutsche Welle. "But he has said 'We take international law very seriously and all of US actions meet with the standards of international law.'"

US strikes in Pakistan's northwest tribal regions, which border Afghanistan, have resulted in at least 150 deaths since September 3 according to the AFP news agency. While estimates on the number of civilians killed in the strikes vary widely, a Brookings Institution study from 2009 showed 10 civilian casualities for each militant killed.

CIA director Leon Panetta, however, said drones represent "the only game in town in terms of confronting or trying to disrupt the al-Qaeda leadership."

US Predator drone flies at night during a full moon

Drones are capable of flying for hours on end

Right to self-defense

In addition to doing what it sees as necessary to destroy terror networks, the United States is working within the framework of international law when conducting drone strikes, according to Jordan Paust of the University of Houston Law Center.

While the United States is not in a legal sense "at war" with al-Qaeda, which has not been given the status even of an insurgent, he says the US can defend itself against attacks from the group, including engaging enemies in the expanded de facto theater of war into parts of Pakistan.

"We have a right of self-defense against non-state actors' armed attacks on our soldiers in Afghanistan, our country, our embassies abroad," Paust told Deutsche Welle.

"As a matter of self-defense, a state can target any non-state actor that is directly participating in ongoing armed attacks," he said, adding that al-Qaeda and the Taliban have been engaged in a process of armed attacks against US soldiers and others in Afghanistan for years.

On and off the battlefield

Other legal experts, however, disagree, saying that the scale of hostilities aimed at al-Qaeda terrorists do not fit the mould of self-defense as detailed in Article 51 of the UN Charter and that targeting individuals away from battlefields is not protected under international law.

A US Air Force officer at a drone's controls

Drones are remotely controlled far away from the places their missiles are fired

While allowing for the legal use of drones on established fields of battle, Mary Ellen O'Connell, a professor of International Law and International Dispute Resolution at Notre Dame University in the United States, said international law cannot justify the use of unmanned aerial vehicles capable of dropping bombs and firing powerful missiles outside of the battlefield.

"In cities and towns and in rural areas where there is no armed conflict going on it's not appropriate to use battlefield weapons and tactics," she told Deutsche Welle, adding that just because people at some point took part in an armed conflict, they cannot indefinitely be regarded as participants.

Inordinate response

An RQ-4 Global Hawk Unmanned Aerial Vehicle

Drones themselves do not pose a threat to international law

Even if militants return to Pakistan, a nation with which the US is not at war, after conducting attacks in Afghanistan, it's up to Pakistan - not the US or NATO troops in Afghanistan - to root out militants using its territory as a safe haven, O'Connell said.

"You can carry out countermeasures; you can certainly beef up your strength and defenses on your side of the border, but you don't get to send your own military on another sovereign state's territory because of that kind of lawlessness," she said, adding that similar cases had been heard on this issue both with US agents in Nicaragua and the conflict between Congo and Uganda.

There are times when the use of force under international law comes under scrutiny, such as the NATO bombing campaign in Kosovo in 1999, which prompted discussion about the use of force and humanitarian intervention. But Ainley said drone use is not an issue where she sees international law needing an update as there is no legal requirement that a human be close to where weapons are fired.

"What is challenging international law is how we define what the battlefield of a war is," she said.

Author: Sean Sinico

Editor: Rob Mudge

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