One of the touchstones in the current US drones dialogue is the the legality of lethal drone strikes. Despite claiming the strikes are legally permissible, Administration officials have not yet cited any legal statute in justifying the use of drones in extraterritorial targeted killings. Critics argue that this failure to provide legal justification implicates the US in violating international legal frameworks on interstate force and national sovereignty. Furthermore, critics claim that US drone programs in Pakistan, Somalia, and Yemen set a dangerous precedent that could lead to any nation with strike-capable drones employing similar tactics in a “global drone war.”
While the international community has the right to demand that the US provide a legal foundation for drone strikes, it should be understood that the US has a strategic interest in not providing any such justification. Similarly, the argument that US drone strikes are establishing a dangerous precedent is reasonable. However, extrapolating this assertion to a scenario of global drone warfare is not only alarmist and distracting, but has no factual basis at present.
The matter of legal justification for US drone strikes is straightforward. Critics have long claimed that US drone strikes violate laws on interstate force and sovereignty in that strikes are conducted extraterritorially in non-combat zones.
While laws governing the use of interstate force bar the use of force in another nation’s territory at times of peace, under Article 51 of the United Nations Charter, a nation has “the inherent right of individual or collective self-defence [sic]” until the UN Security Council takes action. Article 51 applies if either the targeted state agrees to the use of force in its territory by another nation or the targeted state, or a group operating within its territory, was responsible for an act of aggression against the targeting state.
These conditions are mutually exclusive; only one must be satisfied to justify a unilateral extraterritorial use of force by a UN Member. In the cases of Pakistan, Somalia, and Yemen, both conditions are satisfied: all three countries have consented, explicitly or otherwise, to the US operating drones within their territories, and all three are “safe havens” for groups that have launched violent attacks against the US and US interests.
If the US is well within its right to conduct drone strikes within these nations, why, then, does it not simply invoke Article 51 as a means of justification and end the legality debate?
It is of strategic value for the US to refrain from providing justification because to acknowledge any legal framework is to implicitly agree to be bound by its terms. By remaining formally unaccountable to international frameworks, the US can operate unimpeded by the red tape of the international legal community. From any angle, such a strategy is in the best interest of US national security. It is also important to note that a lack of public justification does not mean the US is not acting in accordance with international legal frameworks.
While there is no question that the US has used drones, it is hardly alone in wielding the technology. Approximately fifty nations possess and use drones. However, Wikipedia informs us that of these nations, only twelve have lethal drones of which only three nations – China, Iran, and Russia – may be of concern.
Possessing the technology is only one part of the picture. Nations must also have the capabilities to maintain and operate these aircraft, as well as an intelligence network that informs their surveillance or strike activities. The supporting systems required to operate drones is greatly underestimated, and it is difficult to see China, Iran, or Russia having the resources or desire to launch expansive drone programs in the short- to mid-term. While the long-term picture always requires discussion, alarmist messages about impending drone wars are just that: alarming and unfounded.
The US has a legitimate reason and legal right to conduct operations using drones in Pakistan, Somalia and Yemen. While the lack of an explicit justification may not garner credibility, the US has a national security imperative to act in its best interests. Remaining disassociated from specific legal frameworks ensures a strategic flexibility that could otherwise be constrained.
Finally, the international community must be realistic about the threat of a global drone war. Such a scenario requires that nations possess the technology, the resources, and the motives to mire themselves in international conflict. Not only is this unlikely in the short- to mid-term and factually unsubstantiated, the argument distracts from a debate that should aim to design a more intelligent strategy for US drone programs. It is better that efforts be directed toward constructive efforts than at strangulating any hope for an informed dialogue.