Lawyers: A Predator Drone’s Achilles Heel? by Brett McGurk

(CFR) – Killer mechanical robots the size of flies, giant predator drones piloted from an iPhone, together with a new mode or warfare embraced by the U.S. military and both political parties in Washington.  That is the upshot of the recent symposium – “New Robotics and the Legality of Targeted Killings” – hosted by the Harvard National Security Law Journal.  The technology is here to stay, and it is being deployed to kill designated enemies of the United States and its allies.  What are the legal and ethical implications of this trend?  And what rules govern killing by pilotless drones in some of the most remote regions of the world?

Surprisingly, we seem to have no idea.

As a former official overseeing national strategy in two warzones, I appreciate how law and ethics can take a back seat to new tactics that turn the tide against committed enemies.


This article analyses the US’ policy of drone attacks in Pakistan. It explores the claims and counter-claims about their effectiveness and the charge that they are counterproductive. The issues regarding civilian casualties, political consequences and limitations of the policy from the human rights perspective, which outweighs any other consideration, are also examined. The US should revisit its counterterrorism tactics and work closely with other states like Pakistan as a partner in a common strategy to combat terrorism while respecting human rights and the international law.

More below the fold …


The subject of application of International Human Rights Law (IHRL) in this Pakistani context has not been touched in most of the circles. History shows that when societies trade human rights for security, most often they get neither. Sometime this trade off comes in the form of mass murder, genocide and sometime in arbitrary killings. Addressing the Security Council session on counterterrorism measures, Kofi Annan said, “We should all be clear that there is no trade-off between effective action against terrorism and protection of human rights. On the contrary, I believe that in the long term, we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism”. In the war against terrorism, human rights norms are not respected by many countries but if great powers also be the violators then it will be open doors to “unrestricted wars”.

Human Rights Watch observed, “Since September 2008, US aerial drones are believed to have carried out dozens of missile attacks on suspected militant hideouts in Pakistan’s tribal areas, killing hundreds of civilians in addition to alleged militants, and prompting allegations that the US attacks have violated the laws of war”. How these violations affect the state practice? It took fifty years for the international community to establish a “public order system” based upon universal human rights policies in the world. The promotion of human rights was intended to reinforce the pursuit of collective security. The Cold War era was not focused on upholding these values but commendable work was done in establishing the framework of IHRL. The post Cold War era witnessed the rise of liberal values and even the use of force was justified to protect these values in other states by the US on the premise of “responsibility to protect”, and the international community watched these novel steps anxiously. For the first time in history, the status of the individual and the protection of human rights were regarded as fundamental aspects of international law in the pursuit of international peace. Drone attacks are a trend in the opposite direction and will be tantamount to treading on a path leading to gross violations of established norms of human rights in the name of security and national interests. Drone attacks are depriving people of their fundamental right to life without following the due process of law. Nobody knows about the names of targeted people, their crime, and their role in any terrorist plans even after the strikes. Civilian casualties are accepted as collateral damage in this unannounced war in Pakistan.

Risse and Sikkink (Cambridge pdf) lay out a theoretical framework for norm socialization, a process whereby human rights norms become internalized in a state, “so that external pressure is no longer needed to ensure compliance. The repressive states go through a spiral of human rights violations leading to the third stage at which existence of any human rights violation is denied. It takes some time for states to translate their commitment to signing the human rights instruments into action. This period varies considerably. Democracies like Pakistan need to travel a long distance to reach the accepted standards of protection of human rights values. Power holders often present archaic arguments of multiculturalism to delay the protection of individual rights. During this journey if they are halted by as blatant a violation of human rights by the state as drones are, then it hamstrings their advancement in the right direction. Supporters of these values, mostly NGOs and sections of civil society, will take a long time to recover from such shocks. The process of internalization of norms of human rights suffers from expediency of the policies like targeted killings by drones. Although these attacks are not by thepeople’s own state, but when upholders of human rights like the US step down from the principled track, they set precedence for repressive governments to sacrifice human rights of individuals at the altar of expediency.

The use of the drones is gaining currency with each passing day and “the United States is certainly the dominant player in this field at the moment, but this position will change as the technology is patterned and becomes more broadly available. Policy-makers in Washington would be well served, therefore, to do everything they can to retain the technological and legal edge by establishing the norms and standards of drone warfare before it is established by the Ivory Tower – or worse – our adversaries”. “In fact, it would be in the best interests of the US and those of the Pakistani people, to declare a moratorium on drone strikes into Pakistan”  

"But I will not let myself be reduced to silence."

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