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Despite Obama’s new executive order, U.S. drone policy may still violate international law

A U.S. airman guides a U.S. Air Force MQ-9 Reaper drone as it taxis to the runway at Kandahar Airfield, Afghanistan, on March 9. (Josh Smith/Reuters)

On July 1, the White House announced three main changes to how the United States will use drone strikes against terrorist suspects.

In 2013, President Obama promised to bring greater transparency to U.S. drone policy, as well as stronger safeguards for preventing civilian casualties. The July 1 executive order and report on strikes between 2009 and 2015 address some of these concerns — but not all.

Since 2001, the U.S. has used drone strikes for targeted killings. As president, Obama expanded the program. Roughly 10 times more drone strikes have occurred during Obama’s tenure than during the Bush administration.

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The use of drones, particularly outside of conflict zones, has long been controversial. Until July 1, Obama’s drone policy was very similar to the Bush policy: The number of strikes and resulting casualties were kept secret, as were the specific policies governing strikes.

The new policies aim to add transparency and safeguards

Obama’s executive order on drone strikes outlines three main policies designed to add greater transparency and safeguards:

1. Implement measures to reduce the risk of civilian casualties (e.g., train personnel and develop more accurate reconnaissance and weapons systems)

2. Acknowledge U.S. responsibility for civilians killed by strikes and provide payments to civilians injured and families of civilians killed

3. Release an annual report from the Director of National Intelligence on the number of strikes in areas outside of active hostilities, the number of combatant and noncombatant casualties, and the reasons for any discrepancies between noncombatant drone casualty estimates by nongovernmental organizations and the U.S. government.

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These policies apply both to strikes in conflict zones (e.g., Iraq during the Iraq War) and strikes outside of conflict zones (e.g., Yemen and Pakistan). The executive order specifically aims to address concerns with non-conflict zone strikes by requiring specific reporting on these strikes. Under either scenario, drone strikes can violate international law.

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Are drone strikes part of an armed conflict or police action?

Here’s what international law says about the use of drones. In a conflict zone, a drone strike must be in accordance with the law of armed conflict, which requires proportionality (the foreseen harms of force do not outweigh the military objective it aims to achieve) and distinction (only military objectives are legitimate targets).

So using an armed drone in a clearly defined conflict zone is not radically different than using, say, a cruise missile. It requires applying the law of armed conflict to a new technology in a familiar context.

There’s greater ambiguity about using drones outside of active conflict zones. These strikes do not take place in a context where the law of armed conflict obviously holds, so it is not clear which rules apply. So are these strikes a police action or part of an armed conflict?

Much hinges on this debate. U.S. and international law place far greater restrictions on the use of force in law enforcement than in armed conflict. Targeted killings are permissible in law enforcement only when nonlethal means are unavailable to stop an imminent threat to human life. An example would be a police sniper shooting someone about to kill a hostage.

In an armed conflict, under international law, the use of force must be limited to military targets, but these targets need not present an imminent threat to life at the time of the strike.

Some scholars argue that many U.S. drone strikes aren’t part of an armed conflict

Obama administration officials have argued that the less-restrictive laws governing force in armed conflict apply to drone strikes — even in areas without active hostilities. Specifically, officials understand these strikes as part of a non-international armed conflict against al-Qaeda and its affiliates (“non-international” meaning the armed conflict is against non-state actors rather than another state).

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Obama’s executive order affirms this position, emphasizing that U.S. drone strikes meet policy standards that go beyond those required by the law of armed conflict.

Such assurances, though, will not satisfy legal scholars and just war theorists who argue that the law of armed conflict is the wrong standard for judging strikes outside areas of active hostilities. Their claim is that the U.S. wrongly applies the law of armed conflict to areas characterized by relative peace — where the rules of law enforcement should govern the use of force. An added concern is that following a less restrictive standard on the use of force means there is an increased risk of civilian casualties.

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Whether or not one accepts the Obama administration’s drone policy rationale, it has important implications for civilians. Because the U.S. sees itself in an armed conflict against terrorist groups — not conventional armies — throughout the world, there are no clear geographic limits to this conflict, or the civilian populations affected by it. The conflict is wherever al-Qaeda or its affiliated groups are and capture is deemed unfeasible. The conditions of war can follow terrorists as they move, even into areas without active hostilities.

U.S. drone strikes have resulted in civilian injuries, deaths and trauma. Obama’s executive order perhaps mitigates these risks — but does not eliminate them. At the end of the day, the U.S. government chooses to accept a certain level of risk to civilian lives when conducting drone strikes against suspected terrorists.

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It’s not clear the casualty numbers are correct

Concerns over the drone program’s transparency also persist after Obama’s executive order and accompanying report. Instead of estimates for individual strikes, the report provides only an overall estimate of civilian casualties in recent years, with lower numbers than those recorded by nongovernmental groups. And the administration has yet to provide the actual drone strike guidelines for areas where there are not active hostilities, though the White House says it eventually will release a redacted version.

There is little doubt after the July 1 executive order that the president hopes to bolster the legitimacy of U.S. drone policy before he leaves office. But the new requirements may have a limited effect. Obama inherited a drone program that was secretive, expansive in scope and a risk to civilian lives. Eliminating these aspects of the program has proven difficult. Institutionalizing and normalizing one of the most controversial policies of the Bush administration ultimately may be Obama’s legacy on drones.

Ben Jones has a PhD in political science from Yale University and teaches at the University of Kansas. His research on U.S. drone policy is featured in “Preventive Force: Drones, Targeted Killing, and the Transformation of Contemporary Warfare,” recently released by New York University Press.