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On August 29, 2021, six US drones tracked a white Toyota as it drove through Kabul, Afghanistan. The driver made several stops throughout the day, entering various buildings and retrieving various items. Drone operators perceived this as terrorist behavior, believing the driver was collecting explosives for a future attack on the Kabul airport. Subsequently, when the Toyota pulled into and parked in a driveway, drone operators launched a Hellfire missile, a type of missile designed for precision strikes, at the vehicle. However, rather than striking a terrorist on the precipice of committing an atrocity, the missile struck a humanitarian aid worker and his family. The buildings thought by the military to be terrorist cells were in reality the office of the non-governmental organization the man worked for and the house of his boss. The items he retrieved were his boss’ computer and several gallons of water, not explosives. Rather than preventing an act of terrorism, an American mishap cost the lives of innocent civilians.
The Global War on Terror has inflicted both direct and indirect damage on civilians living in areas of conflict. These civilian casualties and other impacts of war are referred to as collateral damage. Several studies have revealed that the Global War on Terror is responsible for significant amounts of this damage. According to the Watson Institute’s Costs of War project, the War on Terror has resulted in upwards of 335,000 civilian casualties and has forced more than 38 million people to abandon their homes, resulting in an increasing level of refugees and internally displaced persons. Furthermore, according to the Bureau of Investigative Journalism, drone warfare in particular is responsible for between 910 and 2,200 civilian deaths. Of those deaths, the Bureau estimates that between 283 and 454 were children. According to a New York Times report published in December 2021, the US military has acknowledged killing 1,417 civilians in airstrikes. However, the report “found hundreds of deaths uncounted.” Furthermore, the report found “roughly 9 of every 10 cases” lacked “disciplinary action” or “full investigations” and suggested the military’s drone operations lack accountability and transparency.
Aside from direct civilian casualties, there are many “unexamined costs” of drone warfare that plague civilians. According to a report published by Columbia Law School’s Human Rights Clinic and the Center for Civilians in Conflict, drone warfare causes political instability, property loss and displacement, and takes a psychological toll on civilians.
The report said drone strikes are possibly radicalizing the populations of countries in which they are conducted and are potentially inspiring anti-US sentiment among terrorist groups who previously had a local focus. Families have been forced from their homes in terrorist held territories out of fear that they may be killed in drone strikes targetting the terrorists. Additionally, parents are reportedly apprehensive about sending their children to school, because they fear that drone strikes might inadvertently damage schools and endanger students.
Furthermore, according to the Watson Institute, 38 million people have been displaced during the Global War on Terror, including 3.7 million from Pakistan, 4.3 million from Somalia, 4.6 million from Yemen, and 5.9 million from Afghanistan, all countries where drone strikes are prevalent. Those displaced by the war suffer from “food insecurity, unemployment, homelessness, lack of adequate health care, water, electricity, and sanitation…” Additionally, drone strikes inflict psychological damage on civilians. According to an article published in World Psychiatry, studies conducted in several war-torn countries have revealed that war has a negative impact on the mental health of civilians. The article highlighted one study of Afghans above the age of 15, finding 42 percent of respondents had symptoms of PTSD and 67.7 percent had symptoms of depression. Furthermore, the Columbia Law School report found that the US’ usage of signature strikes has led many Pakistanis to have “constant fear that a family member will be unexpectedly and suddenly killed.” Yet, because drone warfare is a key tactic of America’s counterterrorism mission, drone operations continue despite the ramifications to civilians.
To understand the legality of drone warfare, it is helpful to survey the laws that apply to the conduct of war and civilians in conflicts. The Hague Conventions of 1899 and 1907 addressed a key issue: when is it acceptable to launch an attack on buildings, towns, or villages? Article 23 of the Hague Convention of 1899 said states cannot destroy the property of their enemy unless it’s “imperatively demanded by the necessities of war.” Additionally, the 1899 convention prohibited the bombardment of undefended towns and buildings, meaning it is illegal to attack towns or buildings that are not utilized by the opposing military. The Hague Convention of 1907’s “convention concerning Bombardment by Naval Forces in Time of War,” which was later applied to aerial warfare, expanded upon this topic. It said military commanders have the obligation to reduce the amount of damage done to towns. However, the convention specified that buildings serving military purposes, such as arms depots or production facilities, are not included in the prohibition on bombarding undefended towns or buildings.
A more modern set of laws governing civilians in conflict zones was instituted by Article 51 of the Geneva Conventions. Article 51 banned indiscriminate attacks, meaning it is illegal to launch an attack that is not targeted at a “specific military objective.” Furthermore, Article 51 banned attacks that would cause “excessive” damage to the civilian population. This concept is referred to as proportionality in international law.
According to a Rand Corporation report, there are several “gates” that must be passed for a drone strike to be legal according to International Human Rights Law. At the first gate, countries must ensure that they are abiding by the UN charter. Thus, countries must confirm that the right of self defense, which is the right for a state to defend themselves from attacks, applies to the situation or confirm that they have consent from the host state to conduct the strike. The second “gate” is whether armed conflict is present, meaning the threshold for intensity and duration of violence must be passed. It must also confirm that the non-state actor is “sufficiently identifiable and organized,” which is especially difficult during the war on terror due to terrorist groups not following conventional practices of war. If these two gates are passed, then countries must ensure that several other principles are followed, including the principles that civilians are not targeted, “excessive harm” is not inflicted upon civilians, collateral damage is reduced as much as possible, and the “degree of force used must not exceed what is actually necessary to accomplish a legitimate military purpose.”
The August drone strike can be evaluated based upon these laws. While an investigation conducted by the US Air Force Inspector General “found no criminal wrongdoing,” the drone strike does appear to have violated several of the laws and principles outlined above. First, this strike was conducted quickly because operators believed there was an imminent threat to US forces at the Kabul airport. This meant that thorough collateral damage estimation could not be conducted, which seems to violate the principle that collateral damage is reduced as much as possible and the Hague Convention law that commanders have a responsibility to reduce damage to civilians. Second, the August drone strike was a signature strike, meaning “the identity of the person/persons targeted is not known but their ‘pattern of life’ or behaviour indicates they are involved in terrorist activity.” This appears to violate Article 51 of the Geneva Conventions’ ban on indiscriminate attacks, because signature strikes do not confirm with complete certainty that the target is a “specific military objective.” However, whether the Geneva Conventions are violated by signature strikes requires further analysis. More specifically, the definition of “specific military objective” must be considered. According to Article 52(2) of the 1977 Additional Protocol I to the Geneva Conventions, “military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” This means that individuals that either serve in combat roles or support the enemy’s military are considered military objectives. According to an article published in the Journal of International Criminal Justice, signature strikes have to pass two tests based on the aforementioned definition of military objective. First, the signature of the individual must suggest that they are either a combatant or directly supporting the enemy military. If their signature matches this, the first hurdle is passed. Second, there must not be doubt about whether the individual is a civilian. This second hurdle seems to be the most difficult to pass due to the very nature of signature strikes: the individual is targeted based upon their behaviour, not because their identity is actually known. Therefore, it seems nearly impossible to entirely extinguish doubt about whether the individual is possibly a civilian, suggesting that in most cases signature strikes are illegal. The only two exceptions to this, according to the Journal of International Criminal Justice article, are if the individual is detected “preparing weapons” or “transporting them.”
On the other hand, US officials argue that, because operators believed there was an imminent threat, their actions were “understandable.” In fact, officials would likely argue that the operators were simply exercising the right of self defense, granted by the UN Charter, due to the perceived imminent threat. But this still ignores the legal question of whether there was a military objective, as defined by international law, in the first place.
What are the consequences and responsibilities that follow an American drone strike that results in civilian deaths or damage to civilian property? According to the Columbia Law School report, America has a practice of offering recognition and compensation to civilians killed by drone strikes. For example, America acknowledged mistakes that led to the August killings of Afghan civilians via a drone launched Hellfire missile. Officials announced that the families of the civilians killed in the drone strike would be compensated. However, the Columbia report asserts that this recognition and compensation does not always occur. If the drone strike was part of a covert operation, America generally does not recognize the attack nor compensate civilian victims. For instance, the US has not recognized or compensated civilian victims of covert drone strikes in Pakistan, Yemen, and Somalia, because the drone strikes were not associated with traditional combat operations.
In a press conference following the accidental killing of Kabul civilians, commander of United States Central Command, General Kenneth McKenzie, announced that America would update current drone methods to initiate conducting more deliberate strikes. Deliberate strikes may be defined as those “conducted at a scheduled time and after elaborate processes of collateral damage estimation and other steps to reduce the risk of harming civilians.” This provides drone operators more time to assess and determine if targets are truly a credible threat, and with greater certainty. Furthermore, it represents a shift from dynamic strikes, such as the aforementioned Kabul drone strike, in which “targeting decisions are made during a short window of time” and do not undergo the same level of collateral damage estimation as deliberate strikes. According to the New York Times report published in December 2021, dynamic strikes accounted for “an overwhelming majority of the air campaign,” meaning that General Kenneth’s McKenzie’s announcement suggests a drastic, positive change to America’s strategy of drone warfare.
Despite this positive transition to deliberate strikes, the United States simultaneously appears to be pivoting toward drone warfare as a key tactic of future war in the Middle East. As conventional practices of war are no longer available in certain areas of the Middle East, this only perpetuates America’s role in the Global War on Terror as American leaders adopt an “over-the-horizon” approach of counterterrorism that relies heavily upon the use of drones. Thus, the question of the legality and ethics surrounding drone warfare remains pertinent.