Drone Pilots Are War Criminals: Law Profs

By Steve Hynd

I've thought for some time now that there was a good case to be made that drone attacks on the sovereign territory of nations which the U.S. hadn't declared war against were probably war crimes by virtue of the Nuremberg decision about aggressive warfare - just like Iraq. I also believe there's a good case that drone strikes which cause collateral civilian casualties, be they ever so few, are thus doubly war crimes. But law professors giving testimony to a Congressional panel on Wednesday presented yet another case that drone attacks are war crimes - because they're not conducted by lawful combatants.

Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could � in theory � be hauled into court in the countries where the attacks occur. That�s because the CIA�s drone pilots aren�t combatants in a legal sense. �It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant�s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,� he said.

�Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,� Glazier continued. �But under the legal theories adopted by our government in prosecuting Guant�mo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.�

 The drones themselves are a lawful tool of war; �In fact, the ability of the drones to engage in a higher level of precision and to discriminate more carefully between military and civilian targets than has existed in the past actually suggests that they�re preferable to many older weapons,� Glazier added. But employing CIA personnel to carry out those armed attacks, he concluded, �clearly fall outside the scope of permissible conduct and ought to be reconsidered, particularly as the United States seeks to prosecute members of its adversaries for generally similar conduct.�

... Mary Ellen O�Connell, professor of law at the University of Notre Dame, was much more blunt in her statement. �Combat drones are battlefield weapons,� she told the panel. �They fire missiles or drop bombs capable of inflicting very serious damage. Drones are not lawful for use outside combat zones. Outside such zones, police are the proper law enforcement agents, and police are generally required to warn before using lethal force.� �Restricting drones to the battlefield is the most important single rule governing their use, O�Connell continued. �Yet, the United States is failing to follow it more often than not.�

O'Connell also agreed with Glazier:

"Only a combatant - a lawful combatant - may carry out the use of killing with combat drones," said Mary Ellen O'Connell, a professor from the University of Notre Dame law school.

"The CIA and civilian contractors have no right to do so. They do not wear uniforms, and they are not in the chain of command. And most importantly they are not trained in the law of armed conflict."

O'Connell also claimed that "we know from empirical data ... that the use of major military force in counterterrorism operations has been counterproductive." The U.S. government, she asserted, should only use force "when we can accomplish more good than harm, and that is not the case with the use of drones in places like Pakistan, Yemen and Somalia."

In Pakistan, Yemen and Somalia, drone strikes are the "only game in town" when it comes to military strikes on suspected militants. That doesn't make them right, or lawful. As we've seen time and again, the Obama administration is so scared of being labelled weak on national security that it has kept going or even escalated Bush administration unlawful programs. But "for reasons of domestic politics" is no more a legal defense than "just following orders".