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Respect the Battlefield

Mary Ellen O'Connell holds the Robert and Marion Short Chair in Law and is Research Professor of International Dispute Resolution at the University of Notre Dame. She is currently chair of the International Law Association's Committee on the Use of Force and is a Vice President of the American Society of International Law. She is the author of International Law and the Use of Force (Foundation 2009) and The Power and Purpose of International Law (Oxford 2008).

United States armed forces are currently engaged in battle in Afghanistan at the request of Afghanistan's elected leaders. The necessity for our forces to kill their opponents in this fight is apparent. Our troops are employing lethal force, including with the aid of unmanned drones. This is lawful in the context of armed conflict. Our forces are highly trained to use these weapons--they know how the weapons work and they know against whom to use them.

Our forces know never to intentionally target civilians, and they know that in targeting military objectives to avoid the disproportionate loss of civilian lives. Indeed, General McChrystal has particularly emphasized the need to spare civilians in the sort of counter-insurgency conflict that we are waging in partnership with Afghanistan and many NATO allies.

These battlefield rules on killing are known and respected by all highly trained, disciplined fighting forces. The rules support disciplined fighting and in doing so, help to achieve success. More importantly, the rules of war help win the peace. From the first iteration of the Just War Doctrine in the 5th century, we have understood that fighting must occur with an eye on the peace if it is ever to end. Fighting forces that respect the rules gain the respect and support of the communities in which they fight. And forces that follow the rules tend to have peace of mind for themselves long after the battle is done.

Now cross the border from Afghanistan to Pakistan. In Pakistan the United States is sending wave after wave of unmanned drones to attack far from any battlefield. The persons operating the drones are CIA personnel and private contractors. The CIA does not train in the law of armed conflict. The CIA is not part of the military chain of command, key to organization and discipline of the fighting forces of this nation. The drone strikes are killing as many as 50 unintended targets for each intended one.

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The elected civilian officials of Pakistan have not requested that we use these battlefield weapons to kill in North Waziristan or other places in their country. The U.S. has coordinated some of its attacks with Pakistan's efforts to battle militants. But the vast majority of our attacks are not part of that battle, and they are unlawful. Indeed, Pakistan's president has written to President Obama demanding that we not attack certain groups allied with Pakistan. We have ignored him.

Combat drones carry missiles that may only be used in armed conflict. They are not the weapons of police. Outside of a battle zone or zone of armed conflict, human rights law demands that government officials use lethal force only when it is clearly necessary to save lives immediately. In general, this means that police must warn before shooting.

State Department Legal Adviser Harold Koh in a speech at the American Society of International Law on March 25 tried to justify the deaths by drone that we are causing far from any battlefield by saying the U.S. is in an "armed conflict with al-Qaeda, the Taliban and associated forces." He tried to distinguish this from the Bush administration's "global war on terrorism," but in effect they are the same. Just as in the Bush years, the U.S. is killing and detaining people based on their associations, not presence in the intense, organized armed fighting of an armed conflict or war.

Beyond Pakistan, the New York Times reports that President Obama has authorized the killing of a U.S. citizen in Yemen on suspicion of involvement in terrorism. Yemen, like Pakistan, is confronting insurgency and violent unrest. Unlike Pakistan, Yemen has not requested our assistance to repress this violence. We have only the right to cooperate with Yemeni authorities in using law enforcement methods to attempt to arrest, and then prosecute this suspect.

On November 3, 2002, agents of the CIA, using an unmanned Predator drone, fired a Hellfire missile against a vehicle in remote Yemen killing six men. One of those men was suspected of being a high-ranking Al Qaeda lieutenant. Another was a U.S. citizen. The U.S. Air Force, which controlled all drones at the time, refused to carry out the strike because it questioned the legality of the operation. The United Nations Special Rapporteur for Extrajudicial Killing confirmed the Air Force's concerns: It concluded that the strike in Yemen was an extra-judicial killing.

The U.S. has no more legal authority today to kill persons in Yemen than it had in 2002.

The United States needs to demonstrate its own commitment to the rule of law to support the flourishing of the rule of law and an end of lawlessness in Afghanistan, Pakistan, Yemen, Iraq and elsewhere. It needs to respect real battlefields, where killing without warning is lawful.

By Mary Ellen O'Connell
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