Why Obama’s Drone War Is Illegal

Eric Posner weighs in.
Oct. 8 2012 3:32 AM

Obama’s Drone Dilemma

The killings probably aren’t legal—not that they’ll stop.

Pakistani security personnel examine a crashed American surveillance drone.
Pakistani security personnel examine a crashed American surveillance drone in Pakistan on Aug. 25, 2011

Photo by Asghar Achakzai/AFP/Getty Images.

The Wall Street Journal recently reported on debates within the Obama administration about the legality of the drone war in Pakistan. State Department legal adviser Harold Koh, the former dean of Yale Law School and even more former darling of the left for his criticisms of the Bush administration’s aggressive theories of executive power, plays a prominent role in them. Koh apparently concluded that the drone war “veers near the edge” of illegality but does not quite tumble over it.

That is a questionable judgment. The U.N. Charter permits countries to use military force abroad only with the approval of the U.N. Security Council, in self-defense, or with the permission of the country in which military force is to be used. The U.N. Security Council never authorized the drone war in Pakistan. Self-defense, traditionally defined to mean the use of force against an “imminent” armed attack by a nation-state, does not apply either, because no one thinks that Pakistan plans to invade the United States. That leaves consent as the only possible legal theory.

But Pakistan has never consented to the drone war. Publicly and officially the country has opposed it. Before the raid that killed Osama bin Laden in May 2011, the CIA sent a fax every month to Pakistan’s Inter-Services Intelligence agency that would identify the airspace in which drones would be sent. The ISI would send back an acknowledgment that it had received the fax, and the U.S. government inferred consent on the basis of the acknowledgments. But after the raid, the ISI stopped sending back the acknowledgments.

Now what to do? The administration argues that consent can still be inferred despite the unanswered faxes. The reason is that “the Pakistani military continues to clear airspace for drones and doesn’t interfere physically with the unpiloted aircraft in flight”—meaning that Pakistan does not shoot down the drones or permit private aircraft to collide with them.

We might call this “coerced consent.” Consider it this way: You walk into a jewelry store and the proprietor announces that he will deem you to have consented to the purchase of a diamond tiara for $10,000, despite all your protests to the contrary, unless you use physical force to stop him as he removes your wallet from your pocket. Imagine further that he’s 7 feet tall and weighs 400 pounds. This is what a Pakistani official meant when he told the Wall Street Journal that shooting down a drone would be “needlessly provocative.” He meant that such an action would risk provoking retaliation from the United States, a risk that Pakistan cannot afford to take. Because Pakistan lies prostrate and endures the pummeling rather than makes a futile effort to stop it, it is deemed to consent to the bombing of its own territory.

But don’t blame government lawyers like Koh for devising this theory. International law lacks the resources for constraining the U.S. government. Koh knows this now if he did not before. Since he built his academic career on the claim that international law can and should be used to control nation-states and harshly criticized the Bush administration for violating international law, this must have been a bitter pill to swallow. (Though he has swallowed so many bitter pills that perhaps he has lost his sense of taste: The man who told the Senate at the end of the Bush administration that the United States must “unambiguously reassert our historic commitments to human rights and the rule of law as a major source of our moral authority” has backed away from his earlier opposition to expansive war powers, targeted killing, military commissions, and military detention.)

The weakness of international law governing the use of military force goes back to the signing of the U.N. Charter in 1945. The founders understood that a simple rule prohibiting the use of military force except in self-defense, or with the consent of another state, would not be adequate for regulating war. But they could not draft a code complex enough to anticipate all the contingencies that might justify war. Instead they set up the Security Council and reasoned that this body could determine when war might be justified for purposes other than self-defense. But the Security Council was frozen first by the Cold War rivalry between the United States and the Soviet Union, and then the cold peace rivalries between the United States, Russia, and China. It has authorized only two wars since its inception (the Korean War and the first Iraq War; it also retroactively approved the U.S. invasion of Afghanistan in 2001).

Needless to say, there have been dozens of wars since 1945. Participants have included countries as diverse as China, the Soviet Union, India, Pakistan, the United Kingdom, Vietnam, Iran, Iraq, Egypt, Israel, and Argentina. Even the supposedly pacific European countries participated via NATO in several of these wars. The United States has on several occasions justified wars (for example, in Kosovo in 1999, Libya in 2011) as humanitarian interventions—a principle that can be found nowhere in the U.N. Charter but enjoys some international support. In other cases, including current drone operations in Pakistan, the United States has invoked a new idea of the “unable or unwilling” country, one that outside powers can invade because that country cannot prevent terrorists located on its territory from launching attacks across its borders. But most U.S. wars can be fit into these two categories only with difficulty. Those wars are undertaken to shut down a destabilizing or dangerous regime, one that typically has used violence to keep itself in power. One can put the second Iraq War in this category, as well as the Panama intervention in 1990, the interventions in Yugoslavia in the 1990s, and the intervention in Granada in 1983. During the Cold War, the United States also often evaded the U.N. prohibition on interstate war by funding and training a domestic insurgency.

The U.N. Charter does not permit states to use military force to unilaterally address long-term threats in this way. It is too easy for states to characterize other states as long-term threats regardless of whether they are. And yet this omission rendered the charter unworkable, because all states must take long-term threats seriously, whether or not the members of the Security Council can be persuaded or bribed to agree with them.

Government lawyers like Koh must scramble to revise their interpretation of international law so as to keep up with the new events that justify, in the eyes of the president, a military intervention.  The “coerced consent” doctrine, the “unable and unwilling” doctrine, and the exception for humanitarian intervention all whittle away at whatever part of the law on United Nations use of force blocks U.S. goals. If the United States ever decides to invade Iran in order to prevent it from acquiring nuclear weapons, expect a new doctrine to take shape, perhaps one that emphasizes the unique dangers of nuclear weapons and Iran’s declared hostility toward a nearby country.

It is curious that there is not a global outcry about the illegality of the wars in Pakistan or Libya, as there was about the illegality of the recent war in Iraq, which the Bush administration dubiously justified on the basis of Iraq’s violations of earlier U.N. resolutions that had suspended hostilities after the first Iraq War. Maybe the world doesn’t care as much about Pakistan, which has no oil. Or maybe people have finally realized that the United States, which has been almost continuously at war since the collapse of the Soviet Union, will not be swayed by legal arguments. A powerful army is too useful not to use, whether you are a Republican president or a Democratic one.

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