By Brett H. McGurk –<\/p>\n
Killer mechanical robots the size of flies, giant predator drones piloted from an iPhone, together with a new mode of warfare embraced by the U.S. military and both political parties in Washington.\u00a0 That is the upshot of the recent symposium \u2013 \u201cNew Robotics and the Legality of Targeted Killings\u201d \u2013 hosted by the Harvard National Security Journal<\/em>.\u00a0 The technology is here to stay, and it is being deployed to kill designated enemies of the United States and its allies.\u00a0 What are the legal and ethical implications of this trend?\u00a0 And what rules govern killing by pilotless drones in some of the most remote regions of the world?<\/p>\n Surprisingly, we seem to have no idea.<\/p>\n As a former official overseeing national strategy in two warzones, I appreciate how law and ethics can take a back seat to new tactics that turn the tide against committed enemies.\u00a0 So long as the tactics are legally available, whatever the theory, then the tactics will be used.\u00a0 In Iraq, there have probably been more Predator drone strikes than anywhere else on earth \u2013 and with tremendous effect, degrading extremist networks and decapitating leadership cells.\u00a0 Drone attacks alone are not strategically sound, but when combined with a campaign to secure the population against common enemies, the strategic advantages are proven and empirical.\u00a0 The same strategy is now being employed in Afghanistan.<\/p>\n The Obama administration has, quite rightly in my view, also increased the targeting of al Qaida and Taliban leaders in the ungoverned tribal areas of northwestern Pakistan.\u00a0 Many of these areas at the moment are inaccessible to Pakistani security forces, but a longer-term campaign plan will see Pakistani forces deploying in force to secure its population.\u00a0 Until that can happen however, without sustained surveillance and drone strikes, we would accept a sanctuary for terrorist cells committed to killing U.S. forces in Afghanistan and threatening the stability of Pakistan (a country with 172 million people and nuclear weapons).\u00a0 Ten years ago we paid a price for leaving such a sanctuary unmolested, and no U.S. President is likely to take that risk again.\u00a0 So the drones are here, and they are here to stay.<\/p>\n But with increasing warfare there is an increasing need to explain what we are doing to the public \u2013 and how new tactics are grounded in the rule of law.\u00a0 The silence from the Obama administration in this regard is troubling and may prove to be a core weakness in an otherwise successful military program.\u00a0 Even if there is little chance that a legal challenge would shut down the drone campaign, the United States could easily lose the moral high ground, which the Obama team has worked so assiduously to retain.<\/p>\n Indeed, without a vigorous defense from the Obama administration, the vacuum is being filled by a new and respected chorus arguing that drone attacks are illegal and, perhaps, even tantamount to murder.\u00a0 Mary Ellen O\u2019Connell, a law professor at Notre Dame, argues<\/a> that drone strikes are \u201cunlawful\u201d under any purported theory of international law (she knocks down all of them).\u00a0 Philip Alston, the United Nations\u2019 Special Rapporteur on Extrajudicial Executions, concluded<\/a> that drone attacks in the Pakistan region \u201cmay well violate international humanitarian law and international human rights law.\u201d\u00a0 The Chief Prosecutor of the International Criminal Court, Luis Mereno Ocampo, has asserted jurisdiction over all NATO and U.S. forces in Afghanistan and said the court is conducting a \u201cpreliminary investigation\u201d of alleged war crimes committed in that theater.\u00a0 \u201cWhatever the gravest war crimes are that have been committed,\u201d he told the Wall Street Journal<\/em>, \u201cwe have to check.\u201d[1]<\/a><\/p>\n The Obama team needs to get ahead of this legal train.\u00a0 In warfare, nothing always goes right, and it is inevitable that a drone strike will at some point go badly awry.\u00a0 Our enemies might adapt and surround themselves with children, or live in schools, using human shields to invite public scrutiny in the event of their demise.\u00a0 And while drones with GPS or laser-guided munitions are among the most precise weapons in the history of warfare, targeting errors and loss of innocent life are certain.\u00a0 The United States should make its case now, therefore, to justify the drone program according to international legal standards.<\/p>\n