June 24, 2013

Amos Guiora is Professor of Law and Co-Director of the Center for Global Justice at the S.J. Quinney College of Law, the University of Utah

By Angie Hanawa, Visiting Fellow, Yale University

1. -What do you think is the main flaw in the policy and laws regarding drone usage?

I don't think it is predicated on a narrow enough articulation of eminence and proportionality.

2. -How much do you think lack of proper definition of terms such as imminence, militant, legitimate target, etc. is being exploited by the US?

I don't like the word exploited, I'm a bit uncomfortable with that. But a lack of a narrow definition of eminence facilitates a drone policy in the US that I'm very uncomfortable with and I think that the Department of Justice released a paper in I think February, which failed dramatically in what I like to call a narrow definition of imminence. It has a very broad definition of legitimate target and if you combine the two: broad definition of imminence and broad definition of legitimate target you end up with a policy that, from my perspective does not enable something which I think is essential, and that is a criteria-based approach to targeted killing in drone policy.

3. -So at a talk by Ambassador Ricardo Lagorio from Argentina the other day we discussed the role of drones in the overall grand strategy of the United States. He said that drones basically fulfilled the purpose of maintaining US hegemony. What is your opinion on that? Do you agree?

I don't know about that. What I know is that drones are the warfare of the future. And what is good for the goose is good for the gander. I spent an hour about a week ago live on China Radio and one of the questions other countries are facing is will other countries develop drones? Will private citizens implement drones and can bad people implement drones? And the answer is yes yes and yes. So about American hegemony, I don't know if that's the case but drones are the warfare of the future and that I think that is essential to this conversation.

4. -Another aspect we touched on during the talk was the contrast between the technology and the law that regulates that technology. Some say that the fact that we created this type of technology, which reduces the costs of an attack on the attacker to almost nothing, disrupts the fundamental balance presupposed in jus in bello and therefore is incompatible with the current laws in place. How has drone usage changed the rules of the game?

I don't know if it has changed the rules of the game. Warfare is an inherently unpleasant business, where one side just attacks the other side, and what we will see is an effort by the international community to regulate the use of drones in the context of how weapons' use is regulated. And not only will we see that with respect to drones in a military context, we will see that drones in a civilian context. For instance in the United States, the US congress, even the Federal Aviation Administration will come up with a drone policy with respect to the use of civilians drones in the US and there are all kind of questions at play: policy, surveillance, use of air space, aerospace questions, we're really only at the beginning of a long discussion about the use of drones. In a baseball paradigm, we're somewhere between the home plate and first base at best. There's so much thinking that needs to go forward in terms of who can use drones, who can make drones, etc. In the future, I hope we will have answers to these questions, because at the moment we clearly don't. We're all struggling with how to limit and implement drone use.

5. -Do you believe there is a lack of accountability when it comes to use of drones? The American government claims that they try to, within the realms of reason, exercise due process. Do you think this is true? Can you really exercise due process in the targeted killing program?

You can clearly create a process for how to implement drone policy. I would agree that I don't see a process at the moment but I think you can certainly create one and process is implementation, is tactics. What worries me is the lack of what I view and I perceive as broad, strategic thinking. The tactics are the tactics, but the strategic dilemmas are all about definition, what is it that you are seeking to achieve and that is what I think it's missing in this discussion, or rather it's not missing but it is being misinterpreted and misapplied. So in the context of accountability, if we don't have concise and narrow definition of terms, what we have is a broader definition of legitimate target and I would think that from the perspective of international law, the rule of law or process, is very worrying. And here is where the lack of due process comes full circle, thus a lack of overarching legal architecture narrowly defined and narrowly implemented is what I find most troubling here.

6. -What about the people who operate the drones? Although they are unmanned vehicles, there are people in charge of driving them to their destination are there not.

Yes, we get caught up in the technology of the thing. We forget that there is a guy with a joystick controlling the thing. In the context of accountability, I don't know about that, but at the end of the day the drone does what a human tells it to do, it's not a free-thinker, it's not independent, and the guy who is joysticking away is acting in accordance to the Department of Justice's white paper, which fails to narrowly articulate 3 terms: threat, imminence and legitimate target. This means that we have enormously broadened the scope of who is ‘dronable' in the context of accountability it means that we have a very broad range of people we can kill. It comes full circle, and that's why I'm very uncomfortable with the policy as it is implemented.

7. -There is also a lot of debate regarding the applicability of human rights law in the areas where drones are being used, saying that a State does not exercise effective control on the land in which they are acting. Does the US have extraterritorial human rights obligations and is there an applicability of human rights law in this situation?

Absolutely. I think that the question would be how laws of war play into this. Because drones are not being used in a war context but in a conflict context. Various international documents of war state that the US is violating sovereignty of God knows how many different countries on a regular basis and the question is how do we regulate that and I don't think we have very compelling answers at the moment.

8. -Obviously when talking about drones we are talking about a case of American exceptionalism since for now, the US is the only country with possession of that kind of technology. But as you said before, countries such as China might be able to get a hold of this technology and start using drones. If this happened, what do you think would be the reaction of the US? Would the US allow other countries to operate as freely as they did with regards to drones?

That is a question to which I don't think there's an answer. Let's think of a country X, let's say Argentina. Suppose there is some bad Argentinian guy in Washington DC who has somehow pissed off the Argentinian government. Could Argentina put up a drone and whack the guy in Washington DC? It's a great question, because if the US can whack a guy in Pakistan who has pissed off the United States then why can't Argentina? So I say that half kiddingly, not quite kiddingly. One might say violation of sovereignty, etc. etc. but we are violating other people's sovereignty every day anyway. So the drones are in many ways a game changer in the context of how conflict is conducted and I don't think that we have remarkably compelling answers at the moment.

9. -Would a revision of the law to make it more application to drone policy be perhaps a viable solution to this conundrum?

You could have UN Conventions, there are all kinds of things that can be done. But again I want to emphasize that we need to take baby steps here.