Use of Unmanned Systems to Combat Terrorism

AuthorRaul A. 'Pete' Pedrozo
PositionAssociate Professor, International Law Department, US Naval War College
Pages217-269
IX
Use of Unmanned Systems to Combat
Terrorism
Raul A. "Pete" Pedrozo*
/. Introduction
Asthe number ofunmanned systems to support military operations has pro-
liferated over the past decade, so too have the legal issues associated with
their use in conventional warfare and the "war on terrorism." Between 2000 and
2008, the number ofunmanned aerial systems (UAS) in the US Department ofDe-
fense (DoD) inventory jumped from under fifty to over six thousand. 1By March
2010, the number had increased to over seven thousand.2In fiscal year 2009, UAS
conducted over 450,000 flight hours; the number of hours in 2010 was expected to
exceed 550,000.3To support this increasing reliance on unmanned systems, the Air
Force is expanding the number ofUAS pilots and air operations staffers from 450 to
1,100 by 20 12.4In 2009, the Air Force trained more UAS pilots than fighter pilots. 5
Today, unmanned systems are being used across the entire spectrum of opera-
tions, from their traditional role of intelligence, surveillance and reconnaissance
(ISR) to an emerging role of offensive strike operations. UAS have clearly become
the weapon of choice to target terrorists and other militants in isolated locations
within Pakistan and Yemen. In 2007, for example, there were only 5UAS attacks in
Pakistan.6The number of aerial attacks increased to 36 in 2008, and during the
first year of the Obama administration the number jumped to 53. 7During the first
*Associate Professor, International Law Department, US Naval War College.
Use of Unmanned Systems to Combat Terrorism
four months of 2010, UAS have conducted 60 attacks in Pakistan.8If the current
pace continues, the number of UAS attacks could well exceed 150 in 2010.
The importance of the relationship between the use of unmanned systems and
the law is not lost on our military and civilian leaders. At asession on unmanned
naval technologies at the Brookings Institution in November 2009, the Chief of
Naval Operations, Admiral Gary Roughead, acknowledged that "as unmanned
systems become ubiquitous on the modern battlefield in everything from targeting
to disrupting the flow of enemy information . . .,there are going to be legal issues
that come up and issues related to the law ofwar." 9Four months later, the State De-
partment Legal Adviser, Harold Koh, defended the Obama administration's use of
UAS to engage terrorist targets in Pakistan and elsewhere, indicating that "U.S. tar-
geting practices, including lethal operations conducted with the use of unmanned
aerial vehicles, comply with all applicable law, including the laws of war." 10
Not everyone agrees, however, that the use of unmanned systems to attack ter-
rorist targets outside traditional "combat zones," like Afghanistan and Iraq, is con-
sistent with international and domestic law. Some of the criticisms that will be
examined in this paper include:
The United States is not engaged in an armed conflict with al-Qaeda or any
other militant group. Terrorist attacks are criminal acts that must be addressed
with law enforcement measures, not armed attacks that give rise to the use of mili-
tary force in self-defense. The use of force in this context is governed by interna-
tional human rights law (IHRL), not international humanitarian law (IHL).
Because armed drones are warfighting, not law enforcement, tools, they may not
be used to strike terrorist targets outside the combat zone.
Targeting individual terrorist leaders constitutes an unlawful extrajudicial
killing in violation of IHRL, as well as the ban on assassination under Executive
Order (E.O.) 12333.
Conducting UAS strikes against terrorist targets within the territory of an-
other nation without the consent of that nation violates Article 2(4) of the UN
Charter, which restricts nations from using force against the territorial integrity or
political independence of any State.
Even if the right of self-defense applies, the use of UAS to attack terrorist tar-
gets outside Afghanistan and Iraq violates the IHL principles of military necessity,
proportionality and distinction.
If the United States is engaged in an armed conflict, civilian UAS operators
(e.g., Central Intelligence Agency (CIA) operatives) are unlawful combatants and
may not participate in hostilities. Only lawful combatants have aright to use force
during an armed conflict.
218
Raul A. "Pete" Pedrozo
UAS strikes may only be conducted against civilians who have taken adirect
part in hostilities. Although acts of terrorism may cause harm, most do not meet
the criteria for direct participation in hostilities (DPH). State responses to these
acts must conform to the lethal force standards applicable to self-defense and law
enforcement.
The use of advanced weapons systems in lethal operations against terrorists
is illegal under international law.
II. Armed Attack or Threat ofAttack by Non-State Actors and the
Right ofSelf-Defense
Opponents to the use ofdrones outside ofAfghanistan and Iraq argue that the "war
on terrorism" is amyth because al-Qaeda's actions and US responses thereto "have
been too sporadic and low-intensity to qualify as armed conflict." 11 They cite Pros-
ecutor v. Tadic and Additional Protocol II (AP II) to support their position. In
Tadic, the International Criminal Tribunal for the former Yugoslavia determined
that an "armed conflict exists wherever there is aresort to armed force between
States or protracted armed violence between governmental authorities and orga-
nized armed groups or between such groups within astate." 12 AP II similarly pro-
vides that armed conflicts do not include "situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence and other acts of a
similar nature." 13 These opponents further argue that an armed military response
to aterrorist attack will almost never meet the requirements for the lawful exercise
of self-defense, because "terrorist attacks are generally treated as criminal acts . . .
,
not armed attacks that can give rise to the right ofself-defense." 14 They additionally
argue that the use of military force "long after the terror act . . . loses its defensive
character and becomes unlawful reprisal." 15
These arguments are incorrect as amatter of law and are clearly not supported
by State practice. Foremost, they ignore the fact that more innocent victims have
died at the hands of terrorists since 9/11 than on the battlefields of Afghanistan
and Iraq combined. These numbers do not include the thousands of innocent civil-
ians killed by al-Qaeda, the Taliban and other militant groups in Afghanistan and
Iraq since 2002. These figures also do not take into account the fact that the num-
ber of deaths and injuries would have been much higher had several planned ter-
rorist attacks been successful. To argue that al-Qaeda's actions have been too
sporadic and low-intensity to qualify as an armed conflict is disingenuous, at best.
Al-Qaeda operatives have attacked US embassies and consulates, US naval vessels,
US military bases, the Pentagon and the US financial center in New York. With
operations in over sixty countries, al-Qaeda has trained, equipped and supported
219

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