Since the nomination of John Brennan to Director of Central Intelligence, the past few weeks have seen intensified debate within the United States on the American use of unmanned aerial vehicles (UAVs, also referred to as drones), both overseas and stateside. Due process, separation of powers, citizenship, use of force -- all these concepts have been pulled into the discourse as our government grapples with the rules that should govern UAVs and their various applications.
So far, whether you are on the Rand Paul or Lindsey Graham end of the spectrum, the debate on American UAV policy has been engaged with the understanding that the United States will decide these issues for itself. Up to now, the United States government has not explicitly called for binding international norms on UAV use, whether through a treaty, code of conduct, or other such vehicle.
As a matter of national security, this ought to remain the case. The question is: Will it?
This question is important in light of a recent Reuters headline: “As drone monopoly frays, Obama seeks global rules.”
The piece goes on:
President Barack Obama, who vastly expanded U.S. drone strikes against terrorism suspects overseas under the cloak of secrecy, is now openly seeking to influence global guidelines for their use as China and other countries pursue their own drone programs…
“People say what's going to happen when the Chinese and the Russians get this technology? The president is well aware of those concerns and wants to set the standard for the international community on these tools,” said Tommy Vietor, until earlier this month a White House spokesman.
As it turns out, Vietor’s comment does not really match up with the Reuters headline. It would not appear, based on this statement President Obama is seeking “global rules” for UAVs, but rather that he is attempting to stay ahead of international events in this area and establish the American standard for UAV use as the standard that other nations should follow.
Those international events are significant. UAV technology has proliferated substantially in recent years, and not just among allies like the United Kingdom, Israel and Colombia. The Project 2049 Institute recently published a critical study on China’s UAV program, detailing its architecture as well as some of the tactical innovations that the People’s Liberation Army (PLA) has in mind. The report states in part:
[A]ccording to several military-technical materials reviewed for this study, PLA operational thinkers and scientists envision attacking U.S. aircraft carrier battle groups with swarms of multi-mission UAVs in the event of conflict.… The ultimate goal of combined UAV and missile campaigns would be to penetrate otherwise robust defense networks through tightly coordinated operations planned to optimize the probability of overwhelming targets.
Meanwhile, the Iranians are experimenting with their own UAV capabilities, including through use by proxies such as Hezbollah, which last year launched a UAV into Israel. Pakistan and Turkey, rapidly exiting their pro-American orbits (such as they were), are entering this space as well: The Pakistani military last fall revealed that it is working on developing its own combat UAV, while reports from the same time period indicate that Turkey will supply its army with indigenously produced UAVs by the end of this year.
This proliferation is also forming the backdrop against which the United Nations is conducting an investigation of UAV use in counter-terrorism operations in order to determine, according to special investigator for the U.N. Human Rights Council Ben Emmerson, “whether there is a plausible allegation of unlawful killing.” The New York Times, in covering this development, conveys Emmerson’s less-than-convincing reassurances that this is not about the United States and its allies:
The immediate focus, Mr. Emmerson said in an interview, would be on 25 selected drone strikes that had been conducted in recent years in Afghanistan, Pakistan, Yemen, Somalia and the Palestinian territories. That put the panel’s spotlight on the United States, Britain and Israel, the nations that have conducted drone attacks in those areas, but Mr. Emmerson said the inquiry would not be singling out the United States or any other countries.
While it appears that Reuters’ inference -- that President Obama is seeking out an international agreement on UAVs in response to events like these -- is inaccurate, it remains plausible that he would take us down this path. Let’s not forget that President Obama has been a major supporter of multilateral agreements that limit American sovereignty, including the U.N. Law of the Sea Treaty, the Comprehensive Test Ban Treaty, the Convention on the Rights of Persons with Disabilities, and others.
If President Obama pursues global rules for UAVs, such an initiative could also have the added benefit, from his perspective, of atoning for sins committed against his far-left political base. If waging, and escalating, UAV warfare has rendered the President a disciple of Vice President Cheney in the eyes of the enraged left, volunteering to restrain our own UAV use through the creation and application of global rules might make up for the transgression.
Whatever the potential motivations for trying to codify international rules for using UAVs, such a move would be ill advised. While in theory, every nation that signs onto a treaty governing UAVs will be bound by its requirements, it is unlikely to play out this way in practice. It strains credulity to assume that China, Russia, Iran, and other non-democratic actors will not selectively apply (at best) such rules to themselves while using them as a cudgel with which to bash their rivals and score political points. The United States and its democratic allies, meanwhile, are more likely to adhere to the commitments for which they signed up. The net result: we are boxed in as far as our own self-defense, while other nations with less regard for the rule of law go use their UAVs to take out whomever, whenever, contorting said “rules” as they see fit. One need only look at China’s manipulation of the Law of the Sea Treaty to justify its vast territorial claims at the expense of its neighbors to see how this often plays out.
And who would enforce the treaty’s rules -- a third party tribunal? Would it be an apparatus of the United Nations, the same U.N. that assures us that it is not coming after the United States or its allies specifically, even as its investigation takes on as its “immediate focus” UAV operations recently conducted by those countries?
The United States already conducts warfare under the norms of centuries of practice of customary international law in areas such as military necessity and proportionality, as well as the norms to which we committed ourselves when we became party to the 1949 Geneva Conventions and the United Nations Charter. These same rules can adequately cover the use of UAVs in the international context. But if the United States were to create or agree to a separate international regime for UAVs, we would subject ourselves to new, politicized “rules” that would needlessly hold back countries that already use UAVs responsibly, while empowering those that do not.
America is in the midst of an important conversation about UAVs. President Obama should state unambiguously that we will not invite others to dictate its outcome.
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