Translated version of "Über Recht und Moral des Drohnenkriegs"
Killing from a distance generally carries an element of perfidy. The target in the crosshairs is small and seen from a bird's eye view when American drone operators push the fire button. They have nothing to fear from their position. The enemy, however, is perfectly clueless that he is about to become the subject of an attack. It hits him as surprisingly as it does the bystander in the rocket's blast radius – both stand no chance of defending their lives or walking out of harm's way.
From the outset the debate over this kind of remote-controlled war is charged with moral judgement, the implicit accusation of cowardly murder always resonating. Even more so since the information and legal arguments behind the United States' kill list of suspected terrorists remain secret in the interest of national security.
To avoid this distorted view one has to consider the various dimensions of the drone programme individually. Barack Obama's spokesman Jay Carney only recently pointed out which dimensions these are when he defended them as "legal", "ethical" and "wise".
Separating ethics and law is a particularly difficult task here. Asking "Should it be allowed?" actually comes down to two separate questions: "Is it in line with our moral values?" and "Is it lawful?"
Drones are only weapons
The latter refers to legal stipulations. They ideally represent what society considers to be good and right or are at least interpreted on this basis. But sometimes there might be a clear gap between the letter of the law and the moral debate. The use of drones could be such a case: there are few rules but numerous sentiments.
To free the legal reasoning from the hysteria that occassionally accompanies the debate it helps to be clear about one thing: drones are only weapons. It would be an ethical consideration whether they should be banned for some reason – so far they are not. So when the legality of their use is questioned these days it is really about the act, not about the means. And the act is no different from sending a combat helicopter or a special command to liquidate a terrorist.
The established term of extrajudicial killings already hints at how difficult it is to approach this act from a legal perspective. The rule of law is only strong where it can limit power. Here it is truly the power to decide over life or death and it is enacted outside the borders – literally as well as figuratively.
What is an imminent threat?
The U.S. government – for all we know about its reasoning so far – considers the targeted assassinations on foreign territory legal and does not see them as executions without trial. The argument breaks down to having declared war on the terrorist organization al-Qaeda and its affiliated groups and it not limited to a traditional battlefield.
The government therefore believes it can attack these groups' members wherever they pose a (vague and broadly defined) imminent threat to the United States. The principles of sovereignty and neutrality would also not be violated if the respective states either consented to the strikes or if they were not willing or not able to act. This is laid out in the recently discovered white paper of the U.S. Department of Justice.
The DoJ's legal argument is vulnerable on many fronts. The law of armed conflict to date fails to provide a suitable legal framework for the transnational war on terror, against non-state actors. But even if the primary assumption was right and this indeed could be considered a declared war, still the U.S. are arriving at a much too simple conclusion. The respective states may tolerate the drone attacks, but none of them has stated any formal agreement, especially with regard to the scope and goals of the programme. Take Yemen, for example: the U.S. military's drone missions are approved of by the Yemeni government, but the CIA does not even seek permission each time they conduct a strike.