FREDRIK LOGEVALL: Good afternoon, ladies and gentlemen. I want to welcome each and every one of you to this very special event. My name is Fred Logevall. I am the director of the Mario Einaudi Center here at Cornell. I am also Vice Provost for International Affairs and a member of the faculty in the Department of History.
I'm delighted to have an opportunity to first welcome all of you, to welcome our distinguished guests, and to just say a few words-- and I mean a few words-- before we launch in. Today's debate is a Lund Critical Debate, one in a series of these that we've had now for several years. We're very proud of this debate series at the Einaudi Center. It is part of a foreign policy initiative that has been under way at Einaudi for several years and which tries to bring together, first on campus, those faculty members, graduate students, and others who have an interest in and an expertise in foreign policy broadly conceived, but also then to bring in outside speakers, experts in academia, in business, in government, in journalism, who can also contribute to the debate, to the discussion about where the world is, where it's going, and with a particular focus on foreign policy.
And we have a number of people, as I say, on campus who are in this general field. We have also a current events class which I want to draw to your attention, those of you who are students, a current events class for undergraduates. We also provide startup funding, other kinds of resources for faculty and graduate students who want to work in this general area.
We have a new post-doctoral fellowship program which I'm quite proud of. Our first two postdocs are here this year in the Einaudi Center, again, on this general theme. And we have a distinguished foreign policy speaker series which brings in outside speakers on a regular basis. I know many of you have been to our distinguished speaker series. And we will have several more next semester. I urge you to keep your eye out for those.
Today, however, we are here for the sixth annual Lund Critical Debate. And today's subject, as you all know, is deaths by drone. We are extremely grateful at the center to Judith Lund Biggs, class of 1957, for her generosity, her foresight, the vision that she brings to this enterprise, and of course, for making all of this possible.
She has, I think, through this generosity and through this particular debate series, enhanced what we're able to do at Cornell in bringing people together to discuss issues of importance in international affairs. And we're very grateful, and in particular, because it involves not just faculty or graduate students, but also undergraduates in various ways. Judith Lund Biggs is a 1957 Cornell graduate who majored in American studies and government. She earned a master's degree in foreign affairs from the University of Virginia and has maintained a lifelong interest in issues relating to international affairs.
She serves on the board of the Foreign Policy Association, a nonprofit organization dedicated to increasing public awareness on matters relating to foreign policy. We are so pleased and so honored that Judith is able to be here this evening, together with her grandson Nick Biggs-Chiropolos, who is a student here at Cornell. And on behalf of the university, I want to thank Judy for establishing this critical debate series, for providing our community with these stimulating and much discussed series, topics, and events. And if I could ask Judy Biggs to stand just for a moment, I would be very grateful. Here she is, ladies and gentlemen. Thank you Judy.
What I want to do now is introduce Matthew Evangelista, who is moderating today's debate and who will introduce our two distinguished guests, professors Michael Lewis and Mary Ellen O'Connell, as well as our discussant Jens David Ohlin. Matt Evangelista is President White Professor of history and political science in Cornell's Department of Government. He is the author of numerous books, including Law, Ethics, and the War on Terror, published in 2008.
He has also written articles that have appeared in many, many scholarly journals as well as magazines, such as The Nation and Harper's. He has served on the editorial board of Cornell University Press, as well as journals, including World Politics, an international organization. He has a PhD, Professor Evangelista, from Cornell's government department and has an undergraduate degree from Harvard College.
I also want to say that Matt is-- one of the things that I really appreciate about Matt is that he has, in his approach, but also in his work, a capacity to bring interdisciplinary interests and expertise to the table, hence his title professor of history as well as government. A real historical focus in terms of his work in political science, which I think is rare and is much appreciated, certainly by me. I'm delighted that he has joined us today and has agreed to moderate this debate. And I ask you now to join me in welcoming Matthew Evangelista.
MATTHEW EVANGELISTA: Thank you, Fred. So my task is to introduce our topic and then the participants. Let me start with the title of the debate, "Deaths by Drone. Are They Illegal?" Some of you may have found the wording a little unusual. Are we debating the legality of drones? No, we're not.
Why not? The systems we colloquially call drones are more formally known as unmanned aerial vehicles or remotely piloted aerial vehicles. They're not illegal. Used as weapons, they have been around in more primitive form since the beginning of modern air power about a century ago.
During World War II, the United States experimented with using old B-17 and B-24 bombers as radio guided drones-- they used the word then-- to attack German targets. The idea was to load the planes with bombs, fly them for short distances, then the pilots would parachute out and the planes would continue on their way. The experiments were dangerous and not very successful and resulted in the deaths of several US test pilots.
One of them was Joseph P Kennedy, Jr, the older brother of John F Kennedy, whose own death we commemorate tomorrow on its 50th anniversary. So drones as weapons are not illegal per se. There are no international treaties banning them, such as we have with land mines or cluster munitions, for example. They have been used extensively in war, especially by the United States in Vietnam and by Israel since the 1973 Yom Kippur War.
The other point worth stressing is that most drones are not weapons. The vast majority of the 20,000 drones in service are used for reconnaissance and surveillance. Advances in computer technology and miniaturization have made it possible for these systems to loiter in the air with high tech cameras and sensors transmitting real-time information for hours on end.
The main advantage of drones, from the US perspective, is that there's no risk to the operators. They can be located thousands of miles from the target area. The US operates drone bases at home and abroad. There are some 64 bases in the United States, including three in New York state.
Worldwide, there are now about 800 different models of drones in use. If you want your own, you have a choice of about 18 on amazon.com alone. Some 87 countries have drone programs, although only a fraction of that number uses them as weapons so far. Some non-state actors have drones too-- Hezbollah, for example.
The main drones that the United States uses as weapons are known as the Predator and the Reaper. Technically, they are not weapons themselves, despite their scary names, but weapons platforms. The weapons they typically carry are Hellfire air to surface missiles with an explosive yield of 100 pounds, but the latest models of the MQ-9 Reaper can also carry bombs with yields of 500 pounds or even 2,000 pounds.
So what is the controversy about and why are we having a debate? The controversy is mainly over a practice that has become known as targeted killing. It does not refer to soldiers killing other soldiers on a battlefield in a recognized armed conflict. The people targeted are typically not soldiers as traditionally defined, or located on a conventional battlefield, or participating in the kind of armed conflict for which the laws of war were developed.
The people carrying out the killing from the US side have often included members of the regular armed forces, US Air Force pilots, for example, but sometimes not. There is considerable controversy over whether the US Central Intelligence Agency, or even private contractors hired by the CIA, should be engaged in such killing. And they have been.
Just in these three questions-- who is a legitimate target, where can people be targeted for drone strikes, and who can legally carry out the killing, we have plenty of material for a lively debate among legal specialists. Our focus today will be mainly on the first two questions. One factor that has hindered productive debate on this topic is that the basic facts about the drone policy and its effects are poorly known or in dispute.
As far as we know, the administration of George W Bush set the precedent for targeted killing by drone in November 2002. A CIA Predator drone based in Djibouti attacked an SUV on a highway in Yemen, killing six al-Qaeda suspects, including one US citizen from Buffalo, New York. Drone strikes increasingly drew public attention during the first Obama administration because of reports of attacks in countries such as Pakistan, Yemen, and Somalia that caused civilian casualties.
One cause of concern was the impression that the Obama administration had dramatically stepped up the numbers of drone attacks compared to its predecessor. Annual drone strikes in Pakistan, for example, numbered in the single digits through 2007, in the 30s in 2008, in the 50s in 2009, and then over 100 in 2010, back down to the 70s in 2011, the 50s in 2012, and lower still, this year, although there was one attack reported this morning in Pakistan.
Reports of people killed by attack drones in Pakistan in the period 2004 to 2012 range from a low of around 1,600 to a high of twice that. There is controversy over how many of those people killed were civilians. Again, the range is broad. In June 2011, John Brennan, at the time President Obama's chief counterterrorism advisor, announced that quote, "there haven't been a single collateral death"-- that's death of a civilian-- "in Pakistan in the previous 10 months." So that would be a low estimate.
Others counted civilian deaths in the teens during the same period. For the entire period 2004 to 2012, the estimates vary from the hundreds to the thousands. Why such uncertainty in the numbers of attacks and in the numbers of civilian casualties?
Two points bear emphasis here. First, the drone program is secret. Only in the past couple of years has the US government even acknowledged that a program run by the CIA to carry out targeted killings by drone even existed. Second, there is disagreement over who counts as a civilian, or perhaps we should say who does not count as a civilian.
Among the terms we come across in various investigative reports and daily media stories are terrorist, militant, or enemy. These are not legal terms. These are not the terms found in the various treaties governing warfare, such as the Geneva Conventions.
What are the relevant legal instruments and what do they say about who may be targeted by drones? We anticipate that our debaters will disagree on these points. What about the questions of where the strikes take place? How does what one analyst called the legal geography of war affect our judgment about which drone strikes are legal and which illegal?
Implicit in our participant's answers to these questions will be some notion of what US drone policy should be. In response to increasing criticism of his administration's policy, President Obama addressed the issue of drone strikes for the first time in detail just last May in a speech to the National Defense University. And he described what he considered the appropriate precautions to prevent unintended civilian harm.
We're curious what our debate participants think about the administration's criteria, and whether they would be willing to propose something different. In his speech, President Obama acknowledged public concern about civilian casualties and what he called the wide gap between US assessments of such casualties and non-governmental reports. He also acknowledged his own personal regret about civilian deaths, pointing out that, quote, "for the families of those civilians, no words or legal construct can justify their loss." Those deaths, he said, "will haunt us long as we live, just as we are haunted by the civilian casualties that have occurred throughout conventional fighting in Afghanistan and Iraq."
I'd like to take a minute to highlight this last point. We have organized this debate around the legality of targeted killings by drones. But even at the highest estimates, these weapons have killed far fewer civilians than the other military practices that have characterized the wars in Iraq, Afghanistan, and the border areas of Pakistan. Again, the estimates vary, but it is certain that hundreds of thousands of people have died as a consequence of the wars launched in the aftermath of the September 2001 terrorist attacks, with tens of thousands of violent civilian deaths directly attributable to military action.
So I just want to acknowledge that even though we might be focusing on seemingly narrow issues of legality of drone strikes, we are doing so in a context of wars that have wrought a tremendous toll on soldiers and civilians alike. That context is part of what drives the interest in debating drones. Finally, it is not likely that our debate will be confined to the narrowest legal issues, certainly not in the discussion period that follows.
It is natural to want to bring into our analysis such questions as, is there a tension between legality and the pragmatic goals of undermining terrorist plots? What are the possible counterproductive consequences of drone strikes in unstable areas? Are they indeed serving as recruiting tools for terrorism, as some have argued? Or are they destroying terrorist networks, as others have maintained? Is there something morally objectionable about killing at such a distance that only the targeted suspect, not the drone operator, faces risk of death?
Now that President Obama has finally acknowledged the existence of a program of targeted killing by drones, what is the appropriate role of public opinion at home and abroad, and of public debate of the kind that we're having today? To help us address some of these questions, we have the privilege of hearing three of the foremost legal authorities on the subject of targeted killing by drones-- two visitors and one member of our own law faculty.
Let me introduce them to you now. Mary Ellen O'Connell is the Robert and Marion Short Professor of Law and is research professor of international dispute resolution at the Kroc Institute at the University of Notre Dame. Her research is in the areas of general international law, international law on the use of force, and international legal theory. She's the author and editor of numerous books and articles on these subjects.
I hope you'll forgive me if I only mention one of them, and also for the choice of which one. It's a chapter called "Banning Autonomous Killing," in a book published by Cornell University Press forthcoming called The American Way of Bombing, edited by Henry Shue and me. And our editor's in the audience, so I promised him I would make that plug.
Professor O'Connell earned her AB in history at Northwestern with highest honors. She won a Marshall Scholarship for graduate study in the UK, where she earned a master's in international relations at the London School of Economics, an LLB at Cambridge University. She holds a JD from Columbia Law School where she won the Berger Prize for International Law, and a PhD from Cambridge University.
She was vice president of the American Society of International Law. She chaired the Use of Force Committee of the International Law Association, and is a member of the German Society for International Law, and the International Institute of Humanitarian Law in Sanremo. She's also been a faculty member at the Ohio State University, the Johns Hopkins University School of Advanced International Studies, Bologna Center, and Indiana University.
In the late 1990s, she was a professional military educator for the US Department of Defense in Garmisch-Partenkirchen, Germany. And prior to joining the academy, she practiced law with the Washington, DC based international firm Covington & Burling.
Michael W Lewis is a professor of law at Ohio Northern University School of Law. He has written extensively on various aspects of the laws of war and the conflict between the US and al-Qaeda, and has been cited by the Ninth, Seventh and Eleventh Circuit Courts of Appeals. He's testified before Congress on the legality of drone strikes in Pakistan and Yemen, and on the civil liberties tradeoffs associated with trying some al-Qaeda members or terrorist suspects before military commissions.
He earned his JD from Harvard Law School cum laude in 1998. Prior to entering law school, he served in the US Navy from 1987 to 1995, where he flew F-14s from the aircraft carrier, USS Independence. He participated in Operation Desert Shield and Operation Desert Storm. He graduated from the Navy's Top Gun Fighter Weapons School in 1992. I promised him I would also plug his book, Laws of War and the War on Terror, coming out in the second edition soon.
Jens David Ohlin is professor of law here at Cornell. He specializes in international law and all aspects of criminal law. His latest work concentrates on the topic of our debate, legal implications of remotely piloted drone attacks. And he is co-editor of a collected volume entitled, Targeted Killings, Law and Morality in an Asymmetric World, out from Oxford University Press.
Professor Ohlin's current research also focuses on the normative application of criminal law concepts in international criminal law, especially in regard to genocide, torture, joint criminal enterprise, and co-perpetration as well as the philosophical foundations of collective criminal action. His work has been cited by judges and litigants at several international tribunals, including the International Criminal tribunal for former Yugoslavia and the International Criminal Court. And he blogs. www.liebercode.org.
I'm delighted to have all three participants here in our debate. The format for the debate is as follows. By mutual agreement, Professor O'Connell will make the first remarks and Professor Lewis will respond. Then Professor Ohlin will pose questions of clarification, to which the debaters will make brief responses, the main goal being to identify key elements of disagreements.
After professor Ohlin summarizes the state of the debate, we'll open up for questions and comments from the floor directed to all three panelists. And then we'll offer the debaters an opportunity for brief concluding remarks. Thank you. OK, Professor O'Connell.
MARY ELLEN O'CONNELL: We've decided we'll stay here because of the long walk over to the podium. We'll save our energy for the discussion. Let me start with some more about that very first US targeted killing by drone in Yemen. It occurred on November 4, 2002.
The CIA carried out a missile attack that ended up killing, as Matt said, six people in the impoverished nation of Yemen. The agents responsible were not in Yemen. They were in Djibouti on Africa's east coast. They used a remotely piloted Predator drone to launch two Hellfire missiles at a passenger vehicle traveling on a rural road.
The six passengers were killed. The 23-year-old American's name was Kamal Derwish. He was from near Buffalo, New York. After the attack, the CIA was able to send a helicopter to the scene, where agents went to the ground, collected DNA samples from the bodies of the victims, and flew away.
It was the CIA carrying out that attack and not the US Air Force, which at that time generally had control of the drone fleet because the US Air Force, according to the Los Angeles Times, had legal concerns with carrying out such an attack. Apparently, the CIA had no such concerns, but they should have. The Air Force was right.
In January 2003, the UN Special Rapporteur for Extrajudicial Killing, Asma Jahangir, a Pakistani human rights lawyer who has won awards for her work, issued her legal assessment of those killings in Yemen. They constituted unlawful executions. I concluded the same in a book chapter published one year later.
That chapter was edited by three of Germany's leading international law specialists on resort to armed force. None of us had any doubt. Using military force outside of an armed conflict zone or a battle zone is unlawful under international law, unless there is a right to attack with military force under one of three narrow exceptions under international law. None of those exceptions applied in Yemen in November 2002, nor have those exceptions generally applied to the vast majority of US drone strikes in Yemen, Pakistan, and Somalia since 2002, and continuing, as Matt said, until this morning.
In 11 years, in three countries, drone strikes have claimed the lives of no fewer than 2,500 people, but probably much closer to the high estimate of over 4,000. And among those persons killed, as many as 205 have been children. Any discussion of the use of military force, which clearly includes the Hellfire missile fired from Predator and Reaper drones, must start with the core principle of our world post World War II.
And that's Article 24 of the United Nations Charter. The Charter is a multilateral treaty, principally drafted by the United States and binding on the United States. Indeed, the United States argued before the International Court of Justice in 1984-- and that was during the Reagan administration-- that Article 24, this general prohibition on resort to military force, is no mere treaty rule, but is a peremptory, or jus cogens, norm of international law-- a higher norm that may not be changed through adopting a new treaty rule or through contrary state practice. And this is because of its essential fundamental moral character.
The International Court of Justice has emphasized in a number of cases that Article 24 is indeed a general prohibition on resort to force, and further, that any lawful resort to force must be within one of the exceptions to Article 24. There are only two exceptions in the Charter.
Under Article 51 of the Charter, a state that is a victim of an armed attack that has already occurred or is occurring may respond in individual or collective self-defense until the Security Council acts. The International Court of Justice has further clarified that the armed attack that triggers this right of self-defense in Article 51 must be a significant armed attack, and any military force undertaken by the defending state may only be used against a state and on its territory that is itself responsible for that initial armed attack.
Before a defending state releases its force in self-defense, its counter-attack, it must make an assessment that a use of military force against another state is necessary to accomplish the purpose of defense, is a last resort, and will succeed in accomplishing that defense. The statements also make an assessment that its use of force, even if necessary, will not cause disproportionate harm to the defense that it seeks-- disproportionate harm in terms of the lives lost, the lives injured, the property damaged, and the human environment or the natural environment destroyed.
If a state wants to resort to military force in situations where there is no armed attack or where the use of force will not accomplish the defensive purpose, or not accomplish it disproportionately-- in other words, if it wants to use military force outside the rules of self-defense, the UN charter provides for that state to go to the Security Council and to get authorization, as the United States did in 2011 when we wanted to use military force in Libya.
There is one more narrow exception to the general ban on resort to military force. States seem to accept that if a government in control of a state is facing an armed rebellion, a civil war on its territory, that government may invite assistance onto the territory to suppress that civil war. Today, the United States use of force in Afghanistan is justified on this basis on the fact that there's a civil war in Afghanistan.
The United States and other countries are fighting to keep Hamid Karzai as the government of Afghanistan. Today, the loya jirga in Afghanistan is debating about on what basis the US future presence will go forward, but it will not be, the United States has made clear, as a combat party. The new draft status of forces agreement also says that the US will not attack other countries from Afghanistan's territory.
But before that, from mid-2002 until today, any assistance and fighting in Afghanistan has been in a civil war. These three legal justifications are the only lawful bases for resort to military force under international law. And there is virtually no evidence that any of them apply to the waves of drone attacks in Yemen that began in 2002, in Pakistan that began in 2004, or in Somalia that began in 2006.
The Bush administration, which initiated these attacks, has refused to discuss them and certainly did not tell us what the legal basis were that they asserted for the defense. By contrast, the Obama administration has made numerous speeches and we've seen leaked documents about their legal argument. In none of these has the administration ever denied that the US is bound by the UN charter rules on the use of force.
These speeches regularly reference the right of self-defense, but the only place where the US can make a legal case for self-defense was Afghanistan. Before October 7, 2001, and the start of the US and the United Kingdom armed conflict in Afghanistan, both countries sent a letter to the Security Council reporting that the war there was justified under Article 51 of the UN Charter.
It was an international armed conflict whose aim was to achieve the defensive purpose of responding to the 9/11 attacks. And that purpose was achieved by December 2001 when the Taliban fell and left Kabul. By June 2002 when Hamid Karzai took over leadership, it had become a civil war where the US and UK were fighting alongside Afghanistan.
In one of his publications, Professor Lewis takes the position that in a civil war, there are geographic limits to the amount of actual force one may use. You are restricted to the actual hostilities within the country. And I agree with that.
Where we disagree is whether there are similar types of geographic limits in an international armed conflict. This disagreement between us is hardly relevant at the moment because the United States is not fighting in any international armed conflicts. However, if we had chosen to use-- and note that that November 2002 date is significant because the civil war began in June 2002. So we were not, as of that first drone strike, entering into any international armed conflicts. But if we had attacked outside of Afghanistan, it would have been equally unlawful, even during that international armed conflict because international law does impose limits on the geographic space of conflict.
Professor Lewis says that there's no legal authority for the position that I take. That's not true. I've just explained to you that Article 24 and Article 51 put very clear limits on the amount of force and where that force can be undertaken.
The international court's judge, Sir Christopher Greenwood, who was my teacher in Cambridge University, has said this about international law's limits on resort to military force in international armed conflicts. Military operations will not normally be conducted throughout the area of war. The area in which operations are actually taking place at any given time is known as the area of operations or the theater of war. The extent to which a belligerent today is justified in expanding the area of operations will depend upon whether it is necessary for him to do so in order to exercise his right of self-defense. While a state cannot be expected always to defend itself solely on the ground of the aggressor's choosing, any expansion of the area of operations may not go beyond what constitutes a necessary and proportionate measure of self-defense. In particular, it cannot be assumed, as in the past, that a state engaged in armed conflict is free to attack its adversary anywhere in the area of war.
Professor Lewis attempts to ground his asserted right of unlimited war on the case of the liberation of Kuwait, but this is the most important precedent for the position I take. Everyone in this audience will know that the decision was made after Kuwait was liberated from the Iraqi army not to go all the way to Baghdad and to throw out the regime of Saddam Hussein, despite the views of the Department of Defense Secretary of Defense Mr. Cheney. And I heard that bell.
So this is a case in which the United States and the coalition fighting with it absolutely made clear that we would not expand that war, that international armed conflict beyond what was necessary to liberate Kuwait and create a security zone on the border between the two countries. Dealing with al-Qaeda and terrorist suspects on the territories of other states that have had no legal responsibility for a significant armed attack on the United States is forbidden by international law. Rather, international law says that the obligation is to use law enforcement measures outside those areas where a country is actually attacked the United States.
And I would just briefly in conclusion invoke the profound words of my friend and colleague Professor Leila Sadat of Washington University in St. Louis. She says, these drone strikes by the United States in Yemen, Pakistan, Somalia show that the administration's approach is starting from a position where targeted killing of individuals living outside the United States are being used as a remedy for US insecurity about future terrorist attacks. The US is pursuing a war paradigm which takes killing as a given, not a peace paradigm which takes the protection of life as the most fundamental duty of the state. International law has traditionally drawn a bright line clearly distinguishing between war and peace, and always giving preference to the measures of peace.
MATTHEW EVANGELISTA: Thank you very much.
And I do apologize for the ring. I didn't-- my first time using this gadget at the time.
MICHAEL LEWIS: It's OK. I expect a similar one, actually.
MATTHEW EVANGELISTA: Very good. Professor Lewis.
MICHAEL LEWIS: I'd like to thank the Einaudi Center for putting this event on. I'd like to thank Judith Lund Biggs for making this all possible, and all of you for taking the time to come out and hear this discussion. One of the things we heard at the beginning in the introduction that Professor Evangelista gave us was that one of the primary reasons or the primary advantages of drones to the United States is that it protects us or protects our operators. They're 8,000 miles away. They are at no risk while they are conducting strikes against enemies.
But that's not the main reason. In fact, it's not even one of the top two or three reasons why drones are viewed advantageously by the United States. The reasons why they are most important is because they are, as the introduction has indicated, very effective at minimizing civilian casualties. They allow commanders, lawyers, intelligence officers, and others to take one last look before a trigger is pulled, which is impossible in any other war-like situation.
You can't be on the ground next to the private with a rifle, that special forces individual, going into a compound, but you can be literally looking over the shoulder of the drone operator before he pushes the button. And that makes a tremendous difference in your ability to assess the legality and the effectiveness of each strike that is taking place.
In addition, drones, as we heard, the Hellfire missile is the primary weapon that drones use. The Hellfire missile weighs 100 pounds. It carries a warhead of 20 pounds. You compare that to the warheads on most manned aircraft-- 500, 1,000, 2,000 pound bombs with warheads of about half that size in each case. So you're talking about 10% of the payload of the smallest available bomb otherwise.
So this allows you to conduct such attacks with a much, much lower footprint, much lower possibility of causing collateral damage. It doesn't mean collateral damage won't happen. But it's done because it will make that as small as possible.
And we have heard also about the questions about civilian casualties. Are civilian casualties as significant as some people say? The US says zero, or at least Brennan said zero at one point. Others are saying hundreds or even thousands or more than that.
But the one thing that is indisputable, if you go to any side of this debate, go to the Bureau of Investigative Journalism-- their website is one of the best trackers of drone strikes around the world and one of the most critical of drones. It always has the highest estimate of the three websites out there of the numbers of civilian casualties caused. And there's no question that in the last two to three years, because of measures that the US has taken to reduce civilian casualties, those numbers have gotten almost infinitesimally small, even according to the Bureau of Investigative Journalism.
We're talking about 1%, 2%, 3%, 5% of the people killed being civilians. You compare those numbers to the other ways that wars have been fought recently-- asymmetric wars in which the enemy hides amongst the civilian population, doesn't wear uniforms, doesn't carry arms openly-- all requirements of the laws of war. Those wars have been characterized by civilian casualties of 50%, 60%, 70%, even 90% of those killed in such wars have been civilians, in places like Sri Lanka and Chechnya and the West Bank and Gaza.
And so when you're talking about single digit civilian casualties as a percentage, that is a truly remarkable achievement that can only be achieved by drones. But let's move on to the question of then legality. Are we able to and allowed to use drones in places like Yemen and the FATA regions of Pakistan? Professor O'Connell has made it clear that she believes the answer to that is no, that it is illegal to cross borders to strike individuals, unless there is self-defense or unless there is a war going on there.
Well, in Yemen, the answer is that there is a war going on there and there has been a war going on there for several years now between Ansar al-Sharia, which is the domestic arm of al-Qaeda in the Arabian Peninsula, and AQAP, those two groups combined, against the Yemeni government. That's been going on for several years. They have been successful enough on the battlefield at times to control up to a quarter of the country.
They've imposed Sharia law on over 1.3 million people for over a year in the southeast corner of the country. And only with the assistance of US drones and air power have the Yemeni army been able to push Ansar al-Sharia and al-Qaeda in the Arabian Peninsula out of those population centers and regain control of the country. So in Yemen, for the vast majority of the strikes involved, there has been permission from the Yemeni government. There has been an ongoing civil war occurring inside the country that the US is allowed to participate in, with the permission of the Yemeni government.
We are clearly at common cause in that AQAP is also a threat to the United States, to the extent that they were involved in the attempted bombing over Detroit on Christmas Day several years ago, the toner cartridges bombs that were sent to Chicago, the liquid explosive attempts that has been made on airliners over the Atlantic. There are a number of-- it's clear that AQAP still intends to and continues to attempt to inflict damage on US soil to the extent they can.
So that's Yemen and that's the reason for the continued drone strikes in Yemen because there's a war going on there. And Philip Alston, who was the next Rapporteur on Extradition Judicial Killing-- I believe Professor O'Connell cited an earlier one. Professor Alston, when asked about whether there is a war going on in Yemen about six months ago, said, yes, that there's no doubt that there is an armed conflict going on in Yemen. Members of the ICRC, asked the same question, come to the same personal evaluation of that. There's an armed conflict going on there, which means the laws of armed conflict apply to that conflict and allow for the use of force, like drones.
What about Pakistan? That's a harder question. There's no question about that because Pakistan is not clearly consenting to all drone strikes there and there is not clearly a civil war going on in Pakistan. So you can't use the co-belligerency argument that you would use in Yemen to justify drone strikes in Pakistan.
So how do you do that? How does the United States do that? Through the law of self-defense. Professor O'Connell has said that every nation has responsibilities to Article 24 to the UN charter. They also have responsibilities to prevent their territory from being used by others to conduct attacks on other nations. That is clearly a responsibility of all nations. And it grows out of and is a continuation of the law of neutrality that existed prior to the UN charter being created.
During war time, in traditional wars-- and you got to remember, the Geneva Conventions written in 1949 did not contemplate-- and no one would argue they did-- the kinds of conflicts that we see today with non-state actors crossing international boundaries to fight wars against states. But their conception of war was the traditional international armed conflict between nations, France versus Germany, for example. And if you had such a war and you were a French soldier, you could not escape from the German army by crossing into Belgium because Belgium would not allow you to.
Belgium was neutral. And Belgium had a responsibility to keep you from crossing into Belgium and then using that as a sanctuary, as a safe haven from which you could then come back in to Germany or into France to reengage in the fight. You're not allowed to do that. Belgium has to prevent you from doing it and you are not, as a combatant, allowed to do that.
If you cross into Belgium, you are supposed to be interred for the balance of the war. And that is what happened when combatants went into neutral territory. That's what happened to the crew of the Graf Spee, the German pocket battleship that was scuttled in Uruguay, Montevideo Harbor. The Uruguayans who are neutral interred that crew for the balance of the war because that's what you were supposed to do as a neutral.
Now we're talking about a situation in which there is a war going on in Afghanistan. Everybody agrees with that. One of the participants in the war in Afghanistan are the Taliban and al-Qaeda based in Pakistan. They come across the border. They conduct attacks against Afghan-US coalition forces and then they come back across the border in an attempt to gain sanctuary.
Pakistan has a responsibility to prevent that from happening. To the extent that they are either unable or unwilling to do so, the United States or others can, in self-defense, cross the border to prevent such attacks from continuing. And the United States is not the only country that has made that claim. In fact, every nation that has been involved in asymmetric armed conflicts with irregular armed forces over the last 20 or 30 years has made a similar claim and done similar things.
That would be Turkey crossing into Iraq to go after the PKK. That would be Colombia crossing into Ecuador to go after the FARC. That would be Iran crossing into Iraq in the past few years to go after the MEK. That would be Israel crossing into Lebanon to go after Hezbollah and the United States crossing over into Pakistan to go after the Taliban and al-Qaeda. This is what states do. And this is what all states, confronted with such situations, have done over the past couple of decades.
And that is, arguably, customary law, to the extent that you would say what do states do when presented with these situations. They put a burden on the other nation, the host nation. There's no argument that Pakistan is directing these attacks. And our attacks on Pakistan are not against the Pakistani army or against the Pakistani government.
These are against al-Qaeda and Taliban forces that are coming across the border and attacking United States forces and Afghan forces in Afghanistan. And those attacks can be forestalled if Pakistan were to live up to its international obligation to prevent them. They do not have to arrest those individuals. They do not have to hand them over to the United States. They merely have to get them off of their territory.
Pakistan cannot harbor organizations and participants in an armed conflict indefinitely. We have to give them an opportunity to do something about that. That opportunity has been given on a number of occasions and they have proven both unable, in some cases, and unwilling in other cases, to do anything about it. The most famous unwilling case would be Osama bin Laden.
You live a mile from the Pakistani Military College. And it's clear that for seven years, Pakistan was unwilling to do anything about that. And the operation to get bin Laden was a military operation using the tools of armed conflict. It was not a law enforcement operation designed to capture bin Laden. And so to the extent that operation was justified by the laws we are talking about, so are other similar operations against forces that are trying to cross the border and do harm to Afghan and US forces. Thank you.
MATTHEW EVANGELISTA: Thank you.
You remember our format. Even though I'm sure she'd be eager to do it, we're not allowing our first debater to respond to those remarks, in the interest of trying to have time for the audience to participate. But we are asking Professor Ohlin to help us understand. Clearly, we see a disagreement here. But what is the core of the disagreement and how will you characterize where we stand so far?
JENS OHLIN: Thank you. I'd like to thank the speakers for their excellent presentations. I have two questions. The first is designed to excavate in more explicit terms what I take to be one of the core tensions between your positions. And the second asks you to extend the analysis to an area that I think neither of you covered.
So the first question pertains to the concept of armed conflict. Everyone understands that war is a military event that has a colloquial understanding. Everyone knows, in a kind of vague sense, when a war is going on. But as both of you know, armed conflict is also a legal event. It's meant to structure the consequences of the legal analysis.
And clearly, there are some disagreements between the two of you over the application of the concept of an armed conflict. But I was wondering if you could perhaps explain in more explicit terms what exactly is an armed conflict? What are the standards for determining whether or not there is an armed conflict? Who can be a party to an armed conflict? Can a non-state actor be a party to an armed conflict?
All of this is leading to this sort of central question of application. Is the United States in an armed conflict with al-Qaeda? That seems to be what we're getting at and what we're disagreeing with here. Or is the United States involved in an armed conflict with the affiliates of al-Qaeda which are operating under the banner or the language or the name of al-Qaeda?
And if this is an armed conflict, what type of armed conflict is it? Is this a transnational armed conflict? Is this an international armed conflict? Is this some sort of hybrid armed conflict for which we do not even have a label? So how do we understand the current conflict within the traditional categories that have up until now structured the law of war?
So that's the first question which I hope will help excavate the disagreement between the two of you. And the second question, which I take it that neither of you addressed, but which I think is central to understanding a lot of the anxiety regarding targeted killings specifically in the United States here. I'm not so much talking about the anxiety and complaints internationally, but the anxiety within this country regarding targeted killings. And that is the question, what difference does citizenship make to the analysis, if any?
In that 2003 drone strike that was referenced in both of your presentations and in Professor Evangelista's introduction--
MARY ELLEN O'CONNELL: 2002.
JENS OHLIN: --there was in fact a US citizen who was one of the victims of the attack, although it's not clear whether or not he was actually a target of the attack, but there was an American citizen. And then famously, in the case of Anwar al-Awlaki, as both of you know, he was specifically targeted, despite the fact he was an American citizen. And the question is whether or not the citizenship of the target, in particular, the American citizenship of the target, changes the analysis. Does it produce an extra level of due process protection that non-citizens do not receive in targeting decisions?
There were decisions by members of the administration recently which seem to suggest that there was a kind of due process analysis that was triggered when Americans were potentially triggered by a drone strike. So those are the questions that I would like to have both of our learned speakers address.
MICHAEL LEWIS: And remember, our responses have to be brief.
MATTHEW EVANGELISTA: No, those are great clarifying questions. So what does an armed conflict--
MARY ELLEN O'CONNELL: Do I get to start?
MICHAEL LEWIS: It's up to you.
MARY ELLEN O'CONNELL: Thank you. Thank you. Yeah, I guess we'll just keep the order. Since Professor Lewis gets the last word, so don't anyone think this is going to be unfair that I am starting again. I'd like to answer both of these questions together-- basically, what is an armed conflict and does US citizenship matter-- by reflecting on Professor Lewis's presentation. And I note that he did not attempt to defend this concept that has been promoted since 9/11 that the US is in a worldwide armed conflict against al-Qaeda.
He has written, and I reflected on some of his writings, that suggests there is some kind of worldwide armed conflict all over the place on territories where the country has never attacked the United States, but he didn't defend that position today. Instead, he looked at the particular facts of Yemen, of Pakistan. He left out Somalia. And I think that is the appropriate way to look at this. Are there facts that can justify the military force represented by Hellfire missiles with regard to the US attacks in Yemen or Pakistan?
He gave you a set of facts and analyses that I don't think bear up under scrutiny. So here's the question, what is an armed conflict? Well, there was no armed conflict in Yemen in November 2002 when the US unleashed its first drone attack. Because the facts are, international law determines what an armed conflict is and the right to use the heightened amount of military force in an armed conflict when there are real facts of fighting on the ground.
I chaired a committee for five years of 18 of the best international lawyers in the world from 15 countries, five continents. We did five years of study of over 300 armed conflicts and violent incidents. And we were able to conclude that under international law, there is not an armed conflict unless there is intense fighting between organized, armed groups. That was not the case in Yemen in 2002 and probably was not the case until 2011 when the Arab Spring came to Yemen and students, in particular, finally protested and pushed out their dictator who had been doing the US's bidding.
And there was a period of chaos followed by elections and then a new person who has come in. And we are very unclear about the facts in Yemen today. We heard testimony from Yemenis last weekend in Washington, DC that, in fact, the Yemenis may be making things easy for the US to continue to carry out military strikes by setting up situations to look like armed conflict that are not really armed conflict.
But this is, for the most part, the fighting that has occurred in Yemen has not involved the US. We're not interested in who actually has power in Yemen. We have been just going after particular people and doing this targeted killing of individuals, which is inappropriate in armed conflict. We have not been invited to be part of any civil war in Yemen.
And the basis for Pakistan, as Professor Lewis says, there has not been this organized armed violence between armed groups in Pakistan, no armed conflict. And you don't get to use military force on the territory of a country because they have failed to carry out their due diligence in keeping criminality at bay. We can do cooperative policing with Pakistan, yes.
But notice, for the major thing that they failed in, which was bringing Osama bin Laden to justice, we didn't use a drone. We used something much closer to law enforcement methods. And that's how we should have been carrying out every action in Pakistan with regard to people we suspected to be terrorists, better that we do it in cooperation with Pakistani authorities and stop going over the heads of the elected people in Pakistan to shady figures in the ISI or the military who are giving us all this consent to use military force in a country not engaged in armed conflict.
And does the US citizenship matter? Of course not. I mean, one of the real indicators that this is a fictional war that the United States says that it's engaged in is when Eric Holder, the attorney general, gave a letter to Senator Rand Paul on the floor of the Senate and said, if there is a worldwide war in which we're allowed to use drones, we will not use those drones. We have no legal right to use drones against Americans in the United States. Well, either it's a worldwide war in which these persons who are associated with al-Qaeda or other terrorist groups pose an actual armed challenge to the United States for which we are lawfully allowed to use military force, then we should be able to do it in this country too-- we're part of the world-- or not.
And the very fact that Attorney General Holder said we have no legal right is just more indication that this is a fictional war. The only place where there is a real war going on today that the United States is involved in is in Afghanistan, and that is with the permission of the elected president. That is with the invitation of the elected president.
MATTHEW EVANGELISTA: Thank you. Professor Lewis.
MICHAEL LEWIS: I don't think that Holder said that there is no legal right. I think that--
MARY ELLEN O'CONNELL: Yes, he did.
MICHAEL LEWIS: He said there is no legal right?
MARY ELLEN O'CONNELL: There's no legal right. He says, there is no legal right. I just checked the language before our debate today. No legal right.
MICHAEL LEWIS: I am not aware of anyone that regarded the bin Laden operation as a law enforcement operation. And anyone that talks about the instructions that the individuals were given there knows that the only way that bin Laden comes out of that alive is if he surrendered. Surrender is a law of armed conflict concept.
You cannot kill someone that is surrendering or is hors de combat. If it's law enforcement, you can't kill someone until you have given them the opportunity to surrender, or if they are posing an imminent threat. And yet, in all of the discussion of what went on there, there is no evidence that bin Laden was armed, that he took shots at anyone, or that there was an opportunity offered to surrender. That was not a law enforcement operation. It was a military operation in time of war.
And if that is a military operation in time of war, the legal justification for that is identical to the legal justification for any other use of military force in the same area in the same circumstances. We are targeting members of al-Qaeda and the Taliban in Pakistan. Now to turn to the question of who can be a party to an armed conflict, you can have armed groups in an armed conflict that are not state actors.
The problem with the way that the laws of war were written-- and this is just a conceptual problem at the time-- was that there were two types of wars. There were international armed conflicts, France versus Germany, as I said before, the traditional wars which we don't have anymore. And then there were non-international armed conflicts, NIACs.
And that's the term that was used. And we have an additional protocol too that describes them. We have Common Article III that talks about them in the Geneva Conventions. So these were understood to be a kind of war that was out there. They were also understood to be civil wars. That's what everybody understood a NIAC to be until 2001.
And then suddenly there was this situation in which you have a non-international armed conflict-- because it's not between two nations-- but it's not internal to one nation. This is not a civil war. This is not AQAP versus the Yemeni government. This is not the FARC against Colombia. But any armed group can be a participant in a non-international armed conflict.
It's just that until 2001, those were always internal to one country. Now I think you use the term, Professor Ohlin, of a transnational armed conflict. Transnational armed conflict, I don't believe, is officially a legally recognized term, but it's something that gets at the idea of some kind of hybrid between traditional non-international armed conflicts, that would be civil wars, and international armed conflicts between two states. We're now talking about a conflict between a state actor and a non-state actor that crosses international boundaries. That's a transnational armed conflict.
What are the laws applicable to that? Do we have some kind of hybrid? And I think that most scholars in the field believe that some form of hybridization is appropriate. And, in fact, you see that on both sides of the debate. You see people that are more aggressive and more interested in a wider scope for the laws of war using targeting rules from AP1, which is designed to be an international armed conflict treaty.
But at the same time, when you have a non-international armed conflict, you see human rights members, people who are interested particularly in the rights of Guantanamo detainees and their due process considerations, trying to use the same thing, saying protocol 1 international armed conflict rules ought to apply to how we treat Guantanamo detainees. And that idea has also been accepted by the US Supreme Court and others.
So you have a bleedover between the laws that govern international armed conflicts and laws that govern non-international armed conflicts being applied to this conflict between al-Qaeda and the United States. And I agree that US citizenship does not matter ultimately in who you target. I'd go back to [INAUDIBLE] and others like that, but we don't have time for that now.
MATTHEW EVANGELISTA: OK, thanks. So just a couple of words from Professor Ohlin, where we stand, and then we open it up for the audience.
JENS OHLIN: So I want to keep my own views carefully guarded here and instead provide some background explanation to, I think, provide some structure to this disagreement that I've witnessed between the two of you. And I think it might be helpful primarily for the non-lawyers in the audience. When lawyers and philosophers talk about the legality of warfare, they usually are discussing two related questions, which both lawyers and philosophers like to keep separate, but which the public will often discuss in tandem.
Now, what are these two aspects of justice? In order to sort of keep out non-specialists, both lawyers and philosophers love to use jargon. They're obsessed with jargon. And this situation is no different. And the two spheres of justice, when you talk about war, go by Latin terms-- jus ad bellum and jus in bello.
Well, very fancy Latin words, but they have a very simple meaning. Jus ad bellum refers to justice in the decision to go to war. Did you have a just cause for launching your military force? That's one type of justice to discuss. The other type of justice to discuss is jus in bello, which means justice in the conduct of war. Was your conduct in the manner in which you pursued the armed conflict just?
Were you using the right types of weapons? Were you using the right type of methods? Were you attacking the right type of people? Were you conducting war crimes?
Now, the interesting thing about the two spheres of justice is that lawyers keep these two completely separate because there are different laws and principles that govern each. And they are so separate that the analysis on the jus ad bellum side regarding justice in the decision to go to war is completely separate from the rules regarding how you conduct the war. So that in World War II, the general view was both Germany and the United States were subject to the same rules of warfare, jus in bello, regardless of who was the aggressor and who was the victim on the jus ad bellum side.
So the two analyses are kept separate. And what struck me during the debate here was that there were wide-ranging debates that were flowing in and out of this divide between jus ad bellum and jus in bello. Not collapsing them, but there's so much disagreement that I think it structures or spreads across both parts of the divide.
So as to jus ad bellum, the analysis from Professor O'Connell, I think, concentrates very tightly on the provisions of the UN Charter, which explained that there is a prohibition against using military force in Article 2. And then the UN Charter says that there are exceptions for a Security Council authorization or for self-defense. And the operations conducted by the United States, in the view of Professor O'Connell, failed to live up to the self-defense standards expressed in the UN Charter. And that's the kind of focus of her jus ad bellum complaints regarding the US targeted killings program.
Whereas when you hear from Professor Lewis, he's inclined to concentrate on the partnerships between the United States and the various countries in which the targeted killings are conducted. And so, for example, I think from Professor Lewis's perspective, there is no problem regarding self-defense, or jus ad bellum, in Yemen because the United States is operating with the consent of the Yemeni government. So there's no violation of sovereignty when the US operates in Yemen because they're operating at the invitation of the Yemeni government. So there's no violation in justice in the decision to go to war when there's the consent of the government.
And then on the other side of the spectrum, there's a question of, well, how far do the rules of armed conflict, the ability to attack a combatant wherever they're located, how widely or how narrowly is that permission applicable? Is it something that follows the combatants or the terrorists wherever they may go under the armed conflict? I don't think anyone expressed that exact sort of very wide theory.
But is it something that's narrowly constrained to a battlefield traditionally defined with an intense amount of fighting? Or is it a slightly wider understanding that's not so constrained by the kind of conventional understanding of a battlefield that we saw in World War II? So these are the debates that I see lots of disagreement and not a lot of common ground. But I thank you very much for both of your very intelligent discussions.
MICHAEL LEWIS: Thank you very much.
MATTHEW EVANGELISTA: We have just about 15 minutes, so I'm going to make an executive decision to revise the program slightly. And here's what I have in mind, in the interest of generating as many questions and comments from the audience as we can. First, when you pose your question, could you please indicate to whom you are posing it. And all three of the panelists are fair game.
And then what I would like our panelists to do is collect those questions and then address them in their final comments. So basically we're doing away with those concluding remarks and folding them into the answers to the questions and comments. So we have a microphone here and a microphone there. So please.
AUDIENCE: This will end with a question for Professor Lewis, but I just-- since you, Professor Ohlin, brought up jus ad bellum and jus in bello. I'm familiar with those as part of the Christian just war theory. They were first, I think, Saint Ambrose was the first one to write a just war theory. And you don't, in my understanding, as a Catholic, you don't get to talk about jus in bello until you meet the jus ad bellum standards.
So that brings up the question of are these wars that we've been in just wars or not? Clearly, popes have said they are not. They're immoral, unjust, and illegal wars that we're part of, that we've been participating in for at least 22 years. And so my question, though, for Professor Lewis is, you mentioned the small percentage now of collateral damage, or civilians killed, in more recent times. But I wonder how you would feel if it were your family being killed by drones? I think you can fool yourself with numbers, but when it comes down to your own loved ones, that feels much different.
MATTHEW EVANGELISTA: Thank you. Another question, please, on this side.
AUDIENCE: Yeah. Since time immemorial, the ability to surrender has been enshrined. I'm not a lawyer, but you can always wave the white flag. And I understand that's part of the UN Charter. Perhaps not. But anyways, we could always do that.
And now, for the first time, how do you do that with a drone? How do you surrender to the guy 8,000 miles away in a computer screen who's deciding, who's about to press the button? And you, the target has no idea that you are being targeted. You're driving in your vehicle, going about your thing. And you have been nailed by either the White House, or in a signature strike which hasn't been discussed tonight, this afternoon, by the drone operator themselves or their immediate commander. So how do you surrender to a drone?
MATTHEW EVANGELISTA: Good.
AUDIENCE: Tell me.
MATTHEW EVANGELISTA: Thank you.
AUDIENCE: Thank you this evening for being here. I have a questions, I guess, maybe for Mike Lewis. So the Irish were trying to get rid of the British for 600 years, 800 years, OK, whatever it is. It was a long time. And there was armed conflict there in that country.
And we know that many of the Irish came here to the United States. And we know that sometimes in cities like in Boston and in New York City, there was a little bit of a hotbed of radical, what may be considered radical people who were raising money for arms. And they were raising money. And they were maybe buying arms here. And would it be justified for the British, if that was the case right now, would the British be justified to send drones into Boston or to New York City? So that's my question.
MATTHEW EVANGELISTA: Good. Thank you. Please.
AUDIENCE: Yes, this is for Professor O'Connell because Professor Lewis has already said that he's essentially OK with the drone strikes that are going on right now. Do you see the laws of war evolving in the future to legalize drone strikes? Because a lot of the time, the laws of war do change as new technologies are added to the game. I remember there was a time when the highest legal authority in Western Europe, who was the Pope, tried to ban the crossbow because it was very much like the drone. It minimized the risk to the person using it. So in the future, do you see this becoming legal if it's illegal now?
MATTHEW EVANGELISTA: Thank you. Please.
AUDIENCE: Hi. Thank you both for the whole gathering here. And thank you too for sponsoring this event. My question is, if we look at who it is who are in the leadership positions in Afghanistan and Yemen, and who has notoriously been put in positions of power that is giving us, the US, permission to use drones, could you both speak on that, in terms of is it from the ground up that the permission is being given that drones be used. And also, the issue of collateral damage, from my understanding, having watched the film, Unmanned, America's Drone Wars, the fact that the drones go in and do a second strike within 10 minutes, killing those that are the loved ones that come out to carry away the victims and then they are killed, can you speak to how that affects the numbers? Anyway, thank you.
MATTHEW EVANGELISTA: Thank you. Please.
AUDIENCE: Hi there. My question is directed to Mr. Lewis. You mentioned that citizenship does not play a role in the legality of drone strikes. But as far as I know, the Boston bombings were carried out by two brothers who had US nationality and who had had no contact with al-Qaeda, or any extremist group, for that matter. Don't you think that gives another dimension to the idea of legality of drones? This sort of becomes a question of they're being influenced by an extremist ideology and not exactly like the al-Qaeda. How do you think that justifies the question of US using drone strikes in countries such as Pakistan and Yemen when the perpetrators of that attack were in fact Americans? Thank you.
MATTHEW EVANGELISTA: Great. So we'll take one more question. I'm sorry. Are you in line for it? Sure. OK. We'll take two more questions then.
AUDIENCE: OK. Mr. Lewis and Mr. Ohlin are both sort of starting with a paradigm that war is a norm. And Ms. O'Connell, you're one of my heroes for your strong stance that what we're talking about here is peace, creating peace. And that's what I think is most important, especially to the young people here and in the world.
And I guess I'd like you both to-- I'm not sure whether it's just an intellectual exercise or maybe a little bit deeper-- but to try to envision a world where war is not a norm. And maybe talk to that. I guess that's a question. I'd like to hear from Ms O'Connell too on that subject.
MATTHEW EVANGELISTA: Might be a nice subject for a future event too, so our last question please.
AUDIENCE: This is for both presenters. My classmate James kind of beat me to the punch. But sort of adding in, like the Boston Marathon bombing-- I'm from Boston. And the younger bomber was a high school wrestler, like he was like 17, 19 years old, just like we are. My question is, now with like people saying, oh, that's leaderless jihad, the ability that they can make that kind of attack without any AQAP influence, with these kinds of attacks and like drone attacks, is there a possibility that the paradigms and the artifices that you mentioned, Professor O'Connell, as to the United Nations Charter and how that's a violation with the modern kind of warfare, if we see far less state versus state war, is there a possibility that those kinds of rules of war, rules of just war and all that Latin stuff may not matter maybe within five, 10 years?
MARY ELLEN O'CONNELL: Good question.
MATTHEW EVANGELISTA: OK. I'm going to let our speakers respond. But first I want to thank you for such concise and probing questions. I'm proud of my town.
MARY ELLEN O'CONNELL: We got no [INAUDIBLE] speeches. So you get the last word, so I go again?
MICHAEL LEWIS: That's fine with me. Either way.
MARY ELLEN O'CONNELL: Or do you want to switch?
MICHAEL LEWIS: I don't care.
MARY ELLEN O'CONNELL: Let's go back to those fancy Latin words that we started with because I want it to be very clear. As the first questioner stated, the focus that I brought to my remarks is on illegal war, on when you do not resort to this military force of drones. And I never even got into the way a lawful armed conflict should be conducted in terms of the rules in bello.
Because if you're not waging war, if you're using military force unlawfully, you don't even get to the question of collateral damage. Everyone you killed has been killed unlawfully. Everyone counts. So this business of drones being more precise, it doesn't matter if it's JSOC, if it's done with the drone. If you're using military force and you don't have the legal right to do so, then everyone you killed counts. And you don't say that some people count and some people don't.
Our law enforcement officials-- and this is why law enforcement is the proper paradigm for dealing with these important problems, these tough problems of terrorist violence-- because the police are not allowed to kill collaterally. They must restrict their resort to lethal force to preventing the taking of another human life or of violence to themselves. It is a much narrower view.
And they cannot take the risk of killing innocent bystanders. And that's why it's really the better paradigm for our time. We are in a time of peace. We have been moving progressively to ending all war. I am just so shocked that after 9/11, instead of working through law enforcement, as this country had successfully done before, we moved and changed our whole policy and our history and went forward trying to deal with terrorism as a war fighting problem. And frankly, it just has not worked out.
11 years, and we're still attacking and attacking with drones. And we're spreading this view-- and this is my answer to the Boston Marathon-- that violence is the right way to deal with your societal problems. We have regularized and we are risking regularizing and normalizing the use of this kind of major violence. We need to be setting an example of peace. We need to be setting an example of how to resolve our disputes without violence.
That's the kind of shift we need to make an example we have to be. And really, the rest of the world is there. There's shock around the world that the United States is pursuing these drone strikes. There's only one other country that really accepts this use of military force outside of armed conflict zones, and that's Israel. And even Israel, my good colleague from Israel who is a long-time military lawyer for the IDF, even he was quoted in Al Jazeera today as saying that until there are changes made, the existing legal framework binds the United States, and they're not acting in accordance with it now.
Well, now, he wants to see the law changed because he says these drone strikes are not consistent with current international law. But it's really only a few lawyers in the US and Israel and the UK who are pushing for a change in the law. But they don't agree with Professor Lewis that the law currently permits this level of killing outside of the rules in the UN Charter.
In answer to the question about whether the laws governing conduct on the battlefield have to change because of the technology, there really is no appetite for this. The view around the world is so critical of the US's drone attacks. And the conclusion about what the US has gained-- hatred in Pakistan, lack of cooperation throughout the Islamic world because of the way we treat people in those countries, because of the differential we put between our own citizens and the citizens of other countries-- this is not the appropriate way. And there's not going to be a relaxing or changing of the rules in order to accommodate this US practice and legalize it after the fact.
If the lines are blurring-- and I'm not sure that that's factually true. There have been plenty of international armed conflicts. The US invasion of Iraq was an international armed conflict. The US use of force in Afghanistan until December 2001 was an international armed conflict. So I'm not sure that that's factually correct.
But the way we should be moving as a humanity is toward ever-less use of that much violence. We should be using our technologies so that we can limit how much violence even our police use. The great concern about the UN rapporteurs-- and now we've had four separate reports all criticizing US drone use-- is that this should never become normalized. We should not become inured, desensitized to this level of killing.
We have ways-- if we would use these same resources that we have put into using military force in a country like Yemen-- if we had helped rebuild their police structure, their criminal justice system, if we had helped build political parties so that they could have elections and could have the kind of society that can build jobs so that young people aren't lured into these kinds of terrorist organizations-- and believe me. In Yemen, the level of violence that's going on there now is traced by experts to the US's use of drones there.
This has been counterproductive. And so many experts have told us that. Where we need to go and what this technology being so pervasive means is that we have to build the norm against that level of violence, against war, and use technology for the good of all humanity, a peaceful world, a prosperous world, a world that has high respect for human dignity.
MATTHEW EVANGELISTA: OK, thank you.
Since we are technically out of time, I'm going to do something with Professor Logevall's permission that they do in those high stakes international negotiations when they agree to stop at a certain time. I'm going to push the hand of the clock back just long enough for Professor Lewis to address the questions that were posed to him.
MICHAEL LEWIS: I will try to get through them quickly. I think that the civil war going on in Yemen happened before the US drone strikes increased in number, that there were a handful-- and I'm talking single digits-- drone strikes in Yemen before the civil war in Yemen got going, before the government was kicked out, before the instability was happening. So to claim that the violence in Yemen is a result of US drone strikes is hard to square with the facts on the ground there.
Asked about my own family killed by drones, of course any civilian casualty, any death anywhere is a tragedy. But let's be very clear about what is going on in places like the FATA regions of Pakistan. And read Christine Fair of Georgetown. She has taken on a number of the studies that have been done recently talking about the effects of drones in Pakistan. And someone who has studied that area very intently says you don't get all that's happening there.
There may not be an official civil war going on between the Taliban and the Pakistani army, but there have been ongoing conflicts there. The vast majority of bombs dropped, the vast majority of explosives going off in the FATA regions have been fired by the Pakistani army and the Pakistani Air Force, not by US drones. You're talking about hundreds of drone attacks over the last nine years.
You're talking about the thousands of Pakistani Air Force attacks in just the last couple of years. Very different order of magnitude. And yet, there's an assumption that every person that dies in Pakistan as the result of an armed conflict, or a drone, or a bomb is the responsibility of the United States. That's just not factually true.
How do you surrender to a drone? You don't. Don't surrender to a drone just like you don't surrender to an artillery shell. You don't surrender to a bomber. You don't surrender to a manned aircraft or a helicopter, all of which are capable of killing you during wartime.
You can't surrender to everything that might possibly put you at risk. However, you can surrender to an enemy any time you want to. You're driving along in your car and you were struck by a drone. Yes. Could you have surrendered the moment before that? Probably not. You didn't see it coming. You didn't know you were about to be targeted in that moment, clearly.
But that didn't prevent you. Rather than building bombs, rather than placing IEDs, rather than blowing up police stations and shooting at the British Ambassador or attacking the US embassy, rather than engaging in those behaviors or encouraging and leading and directing others to be engaged in those behaviors, if you've been doing other things, then you wouldn't have been targeted in the first place. And if you decide, you know, I shouldn't have been doing those things and now I'm at risk because people are getting blown up for doing those things, you can walk into a police station-- if they have police stations in Yemen-- at any time and surrender.
And this goes to the next point. Do they have police stations in Yemen? Of course they do. Somewhat. But the ability of law enforcement to prevent these kinds of behaviors and to stop the kinds of conflicts we're talking about in ungoverned spaces-- in Somalia, in parts of Yemen, in parts of Pakistan-- you can't say, well, law enforcement is going to fix that, at least not today or tomorrow, at least not this year or next year.
I fully agree with the idea that the long-term economic development and the democratization of these countries would be a good thing. It would bring greater stability and hopefully a greater chance for peace, which is something that everybody should want. There's no question about that. But on the other hand, to say that that is going to be the solution for tomorrow is impossible. It is a fantasy to say that tomorrow there will be effective law enforcement in FATA or in Somalia.
And to say that while we are waiting for effective law enforcement to come into place we have to allow terrorists, or whatever term you want to use-- insurgents, militants, whatever you want to call members of al-Qaeda and the Taliban-- we have to allow them a sanctuary there to continue to come after us, to try to blow up airliners, to try to kill Afghan and US troops across the border, and we have to continue to allow that to happen because we're waiting for law enforcement to work, that does not, in my view, it is not legally required.
The Irish in the US. Could Britain come into the US and go after the Irish because they were helping? It depends on how they're helping. If they were just raising money, no. And we don't go after financiers. If they were running guns, it depends.
If they were actually conducting military training in Boston and New York and then sending people back over to Ireland to fight the British, the British would be justified in coming to us in the same way as we have gone to Pakistan and say stop them. They're on your territory. They are fighting a war against us in Ireland. You need to stop them using your territory as a base of operations.
And if you don't, we'll do something about it. And we have a responsibility, after being told that, to do something about it, as does Pakistan. Pakistan is unable to govern the FATA regions. They've tried. They have sent the Pakistani military in there in large numbers and they have not succeeded, let alone with law enforcement.
Follow-on strikes. So there was a question about the idea that you fire a missile and then another missile comes in two minutes later, five minutes later, and hits rescuers. Part of the reason that happened four and five years ago was because of the nature of the way that the drones were constructed and the way the targeting worked. And that's something that they have figured out and changed.
So what used to happen is that you were focused on single target, a legitimate target, a guy on a motorcycle and you're trying to hit him. And as you're doing that, the drone's camera is going to focus in on that because you have to aim very precisely. You're using a very small missile, 20 pound warhead. If you miss by more than a few feet, you're not going to kill your target.
So you have to be very precise in what you're trying to hit. And so the field of view narrows down to a straw. You're looking through a soda straw essentially. And the strike hits. And guess what? It missed the target or it knocked him off the motorcycle, but he's still alive or whatever else.
And so the question is, do you follow-on and hit again? And at the time, you're looking through a soda straw and saying that didn't do the job. Am I going to fire a second missile? And if you fire a second missile without first backing up and trying to see whether there are civilians coming into the area or not, then there is a chance that you do end up hitting rescuers who are coming in after the first strike happened.
And after it became apparent that that's what was going on, that practice was discontinued. The only exception to that would be if you were in an area in which all of the people are members of the al-Qaeda and the Taliban. You have an al-Qaeda training base in which they are conducting weapons training and they are in barracks. And if you hit a part of that, the rescuers that are coming are members of the Taliban or al-Qaeda that are at the training base.
And so they would be legitimate targets. But the idea of targeting follow-on rescuers in Pakistan now is not happening, or at least it's my understanding that that has ceased as of several years ago once we figured out that's what was happening. I think that's all. Thank you.
MATTHEW EVANGELISTA: All right. I want to thank all of you and thank our participants and sponsors once more.
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Matthew Evangelista, the President White Professor of History and Political Science, moderated the 2013 Lund Critical Debate on drone attacks and international law Nov. 21.
Debaters Michael W. Lewis, professor of law at Ohio Northern University, and Mary Ellen O'Connell, professor of law and international dispute resolution at the University of Notre Dame, focused on the issues and controversies surrounding the use of drone technology for "targeted killings." Jens Ohlin, professor of law in the Cornell Law School, joined the debate as a discussant.
The Lund Critical Debates Series is part of the Einaudi Center's Foreign Policy Initiative and brings to campus speakers of prominence in international affairs who can address topical issues from a variety of perspectives.