A predator drone soars over Afghanistan. / Todd Huffman (cc)
The Obama administrations increasing reliance on drones for targeted killings, especially in countries far removed from active combat (e.g. Yemen, Somalia, Ethiopia, Pakistan), has raised legal controversies regarding national sovereignty and the limits on permissible forms of warfare. The policy has produced unintended deaths of civilians who are mistakenly targeted or in the vicinity of the target at the wrong time (collateral damage). There are also contested reports of follow-up drone attacks at sites of earlier targeted killing, which seem to be directed at those who mount rescue operations or arrange funerals for prior victims.
Military planners imagine a future with drone swarms, squadrons of drones re-targeting after an attack without needing to return to base, and covert surveillance and attacks using micro-drones. These musings are not science fiction. The technologies are well financed and being developed at a rapid pace. Access to drone technology by other countries as well as private-sector actors is certain to expand. Already some 50 nations reportedly possess drones, mainly adapted to surveillance. With the prospects of a dystopian future dominated by such devices, it is imperative that we create the appropriate legal framework to impose limits, if not prohibitions, on their uses.
As with the Bush torture debate, Washingtons political leadership has turned to government lawyers to justify the use of drones. They have responded by developing legal briefs redolent of the notorious John Yoo torture memos. There are, however, significant differences between the two contexts that make torture a poor basis for comparison. First, torture has a long history, and its prohibition is enshrined in the International Torture Convention of 1984. Torture is also enumerated as one of the Crimes Against Humanity in the statute of the International Criminal Court. Drone technology adapted for the battlefield is, by contrast, of extremely recent origin. There is nothing in international law regarding drone attacks that is comparable to the legal repudiation of torture.
Second, although there are serious loopholes involving extraordinary rendition and secret CIA-operated black sites, torture as an acceptable tactic of interrogation has been credibly prohibited by President Obama. Beyond this, there is international consensus on what constitutes torture; we dont have to rely on the narrow conception insisted upon by Bush-era legalists. By contrast, the U.S. military feels unconstrained in making drones central to its operational planning for future undertakings, with sharply escalating appropriations for more and different varieties of them. Some of this revolutionary development is already evident: military missions free of casualties for ones own forces; subversion of territorial sovereignty; absence of transparency and accountability; further weakening of political constraints on recourse to war.
There is a more pertinent, yet discouraging, analogy for creating a legal framework for drones: nuclear weapons. As with nuclear weaponry, the United States and other leading political actors are unlikely to agree to comprehensive prohibitions on the use of weaponized drones, since the demonstrated usefulness of the technology is too enticing to resist. At the same time, the likely result of a failure to prohibit will be a nightmare scenario of rampant proliferation that might prompt a one-sided, ineffectual counter-proliferation regime imposed on the world by the small number of elite, drone-armed states.
After the atomic bombs were dropped on Hiroshima and Nagasaki, and the colossal scale of the devastation disclosed, there was a momentary embrace of sanity by world leaders and cultural commentators. They realized that living with such weaponry promised a precarious future at best, or, more likely, an appointment with unprecedented human catastrophe, if not apocalypse. This dark foreboding did produce some gestures toward nuclear disarmament: the United States proposed getting rid of the weapons for the present, but retaining the materials, the technology, and the experience needed to dominate any nuclear rearmament race. In other words, it offered the world a Faustian bargain that demanded trust in the dominant geopolitical actor on the global stage and depended crucially on Soviet willingness to accept these terms, an option that never seriously tempted the Stalinist regime.
It should not seem surprising, then or now, that that this kind of one-sided deal failed at ridding the world of nuclear weaponry. Even states closely allied with the United States in World War IIthe United Kingdom and Francewere unwilling to forego the status and security benefits of becoming second-tier nuclear states. And of course, Americas rivals, first, the Soviet Union and later China, didnt hesitate to develop their own nuclear capability, interpreting security and global stature through the universal geopolitical prism of countervailing hard powerthat is, maximal military capability by which to defend and attack. Thus disarmament faded into the obscurity of wishful thinking, and in its place a costly and unstable nuclear arms race ensued, bringing several close calls with nuclear holocaust. That this worst of all nightmares never materialized provides little reassurance about the future, especially if public and elite complacency about the risks persists.
For most of the world the shadow of drone technology threatens a terrifying vulnerability.
What is less appreciated than this failure to eliminate nuclear weapons is the adoption of a plan B. The United States pushed for the negotiations that led to the 1968 Nuclear Nonproliferation Treaty, which was successfully marketed to most states in the world. The NPT represented another one-sided bargain in which non-nuclear states agreed to abandon the nuclear option in exchange for two commitments by nuclear states: first, to share fully the non-military benefits of nuclear technology, especially the production of energy that was expected to be clean, cheap, and safe; and second, to undertake good-faith efforts toward nuclear disarmament at the earliest possible time, and even to work toward the negotiation of general and complete disarmament.
This nonproliferation agreement, although considered a success by some in Western governmental circles, has experienced a number of discrediting setbacks over the years. A few countries with nuclear ambitions stayed outside the treaty and managed to acquire nuclear weapons without adverse consequences to themselves (India, Pakistan, Israel), while others (Iraq, Iran) have been attacked or threatened because they were suspected of seeking nuclear weapons. There has been a failure of will to seek nuclear disarmament despite a unanimous International Court of Justice reaffirmation of NPT disarmament obligations in 1996. There has also been a discriminatory pattern in the geopolitical management of the NPT, most notably in ignoring Israels nuclear weapons program while treating Irans alleged pursuit of the weaponry as possible justification of preventive war.
This nonproliferation approach has been accompanied by three massive forms of deception that continue to mislead public opinion and discourage serious debate about the benefits of nuclear disarmament, even at this late stage. First, there is the fallacy that the states that do not possess nuclear weapons are currently more dangerous for world peace than the states that possess, develop, and deploy them. Second, periodic managerial moves among nuclear-weapons states, in the name of arms control, are portrayed as steps in the direction of nuclear disarmament, but nothing could be further from the truth. Arms control aims to save money and stabilize reliance on nuclear weaponry by way of deterrence and has nothing to do with getting rid of the weaponry. Third, obtaining a world without nuclear weapons is affirmed as an ultimate goal but is not considered a political project that can be achieved in real time by a nuclear disarmament treaty. President Obama endorsed this evasion in his 2009 Prague speech. There actually is no genuine obstacle to phasing out these weapons over the course of a decade or so. The only thing that blocks the elimination of nuclear weapons is the refusal of the nine states with nuclear weapons to abandon the weaponry.
A drone launches from the U.S.S. Lassen. / U.S. Navy (cc)
The perversity of our nuclear nonproliferation policy also becomes clear when we compare it to the approach taken to other weapons of mass destruction. In other cases, the weapon either is prohibited altogether or allowed if used in a manner consistent with the principles of international law regarding warfareproportionality, discrimination, necessity, and humanity. We unconditionally prohibit biological and chemical weapons, and the main global geopolitical actors, at least outwardly, respect this ban. Why are nuclear weapons different? The atom bombs dropped on Japan were legitimized to a degree because they were used by the prevailing power, which argued that they provided the most efficient way to procure victory in what was perceived as a just war. This contrasts with the prohibition of chemical weapons widely used in World War I by the Germans, the side that lost and was blamed for precipitating a disastrous war. This inconsistent legal treatment of different categories of weapons of mass destruction illustrates the role of geopolitically dominant political actors in imposing their will in shaping international law, especially in the security domain.
As with nuclear weapons, the United States and other leading political actors have so far proven reluctant to embrace any restrictions, other than those self-imposed, on the use of drones for lethal purposes. The technological momentum behind drones is probably too strong to be challenged politically and is likely to grow stronger. The military applications are too attractive, the technology too cutting-edge and fantastical, the economic incentives too irresistible, and the political appeal of war with minimum human risk too great. At the same time, for most of the world the shadow of drone technology threatens a terrifying vulnerability. At present, there seems to be no way to insulate societies from intrusive and perpetual surveillance, let alone remotely targeted devastation.
If my proposed comparison between nuclear proliferation and the growing popularity of drones is generally sound, there are two likely futures for attack drones: an unregulated dispersion of the weaponry to public and private actors, undermining traditional limits of international law on warfare; or a nonproliferation regime that permits all states to possess and use surveillance drones within sovereign space and allows a self-chosen few to make discretionary use of drones globally and for attack purposes, until a set of constraining regulations can finally be agreed upon by a sub-group of elite states. That is, drone technology will perpetuate the two-tiered world order that has taken shape in relation to nuclear weapons and will reproduce the consensus that both disarmament and unrestricted proliferation are unacceptable. Under this scenario, a counter-proliferation regime for drones seems at present to be a lesser evil, but still an evil.
Critics might contend that such an indictment exaggerates the novelty of drones. Hasnt the world survived decades with weapons of mass destruction possessed by a small number of non-accountable governments and deliverable anywhere on the planet in a matter of minutes? The point is superficially true, and frightening enough, but the catastrophic power of nuclear weapons and the prospect of releasing atmospheric radioactivity to some extent inhibit their use. By contrast, drones are inexpensive and non-apocalyptic, making it much easier for nations to drift complacently into an unanticipated day of reckoning.
It is not too late to act responsibly, though we will not have such an opportunity much longer. Part of the challenge is structural. For most purposes, global governance depends on cooperation among sovereign states, but in matters of war and peace the world order remains resolutely vertical and under the control of a small number of geopolitical actors, perhaps as few as one. These global powers are unwilling to restrict their military activities to rules constraining national sovereignty, but claim a prerogative to manage security coercively for the entire planet. When it comes to drones, the fate of humanity is squeezed between the bygone logic of sovereign states looking out for their own national security and the paternalistic schemes for global security overseen by the United States and NATO.
Richard Falk is Professor of International Law Emeritus at Princeton University, Research Professor of Global Studies at the University of California, Santa Barbara, and co-author of The Path to Zero: Dialogues on Nuclear Dangers.