- - Tuesday, July 31, 2012

ANALYSIS/OPINION:

Human rights lawyers have become modern-day Luddites. Against all evidence that drone strikes offer unparalleled precision and minimize the loss of life, they insist that utopia would be restored if only we could return to the conventional artillery barrage.

Such distaste for innovation disregards the history of warfare, which is marked by an unending quest to engage the enemy beyond the range of his weaponry. It also misconstrues the legal underpinnings of the fight against al Qaeda.

The hallmark of transnational terrorist networks is seeking safe havens under the umbrella of weak or sympathetic governments, and then using that territory as a launching ground to imperil the citizens of other states. This behavior challenges the paradigm of interstate conflicts and civil wars — the twin frameworks upon which the international laws of war are built.

Nations possess an inherent right of self-defense, as recognized by Article 51 of the United Nations Charter. Transnational terrorists throw a wrench into this scheme because exercising self-defense against their attacks necessarily involves breaching the sovereignty of the state that is harboring them, whether by virtue of its hapless condition or complicity.

The answer is not, as some commentators would have it, for accountable nations either to throw up their hands in despair or to launch a full-scale invasion. The former would be derelict, the latter disproportionate.

Instead, the United States reasonably invokes a corollary of the self-defense principle, which posits that one state may unilaterally employ force against non-state actors within another country that is either “unwilling or unable” to do so itself. This position rests upon the presumption that, as one commentator puts it, “respect for sovereignty is subject to the responsibility of sovereignty.”

This doctrine did not arise with the advent of armed drones, and has deeper roots than critics of U.S. counterterrorism efforts care to admit. In a 1989 speech, the State Department’s legal adviser affirmed “the legality of a nation attacking a terrorist base from which attacks on its citizens are being launched, if the host country is either unwilling or unable to stop the terrorists from using its territory for that purpose.”

Going back much further, the British felt justified in 1837 to enter U.S. territory and set fire to the SS Caroline, which had been utilized by American sympathizers to aid Canadian rebels in their fight against the crown. Indeed, St. Augustine wrote in the early 5th century that a just war could be waged against a nation that “has neglected to punish a wrong committed by its citizens.”

When aggrieved nations pursue terrorists into states that are either “unwilling or unable” to confront them, they are obliged to conduct such operations in accordance with the standards applicable to military force. This law of armed conflict, although a sacred and time-tested tool for alleviating some of war’s worst horrors, is necessarily more permissive than the rules governing everyday activities.

In a nutshell, the law requires armed forces to distinguish between military and civilian targets and only attack the former, while balancing the unintended consequences to the latter (collateral damage) against the legitimate value of the mission. Thus, the rules for soldiers differ substantially from police officers, for whom lethal force is a last resort and apprehension remains the overarching goal.

Human rights advocates, in turn, fret that an inevitable “war-creep” in the pursuit of terrorists will convert the entire world into a combat zone. They insist upon a “legal geography of war,” whereby states must apply a law enforcement (rather than armed conflict) model to any hostilities conducted outside of universally recognized “hot battlefields” like Afghanistan.

This solution is, of course, untenable to threatened nations, who refuse to countenance safe havens for roving terrorist bands. It is also unworkable because police authority assumes control on the ground and establishing such control would first demand a wide-ranging military assault — along with ensuing casualties on both sides.

Holding a drone operator, fighter pilot or sailor directing ordnance at an overseas terrorist hideout to the same detain-first, shoot-last standards as a Metro police officer would negate the very purpose of the weapons system, which is precisely the goal of some activists. Sadly, such technophobia cloaked in the language of human rights law would actually cost more lives by neutering the most effective and precise tool in our counterterrorism arsenal.

Drones, by virtue of their geographic reach, enable advanced states to take the fight to transnational terrorists as never before. Their proper use does not violate international law. That distinction belongs to the transnational terrorists themselves.

Charles G. Kels is a major in the Air Force Reserve and an attorney for the Department of Homeland Security.

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