A Split View on How to Pin Liability and Spare Drone Strikes

Mary Ellen O'Connell

(Los Angeles Times)

Mary Ellen O’Connell is a Notre Dame law professor, who has criticized U.S. drone attacks outside of war zones and insists that the U.S. is violating international law. O’Connell argues that we would not stand by while another country acted in a similar manner, and yet we are taking such action based on evidence that is being kept from the public. President Obama explained that drone strikes are only ordered upon a serious threat, where we are unable to capture certain individuals before they move forward on a plot against the United States. Under President Obama, the U.S. has launched 284 drone strikes in Pakistan, with others in Yemen and Somalia. Under President Bush, only 46 drone strikes were ordered.

Former State Department lawyer Sean Murphy claims that O’Connell’s minority views (among legal scholars) are taken very seriously, and that “she’s on the leading edge of this argument.” O’Connell’s views stem from several reports of ‘double tap’ drone strikes in Pakistani tribal areas. Such strikes are when a second missile is fired at people coming to aid those injured by the first missile, and UN representatives have claimed that such action could constitute a war crime.

O’Connell is not a pacifist. Her husband is a former Army interrogator who served in the first Gulf War, who she met while she was working for the Defense Department. She supports the U.S. war in Afghanistan and also praises the Navy SEAL mission that caused the death of Osama Bin Laden. She even supports drone strikes, as long as they are aimed at enemy combatants in Afghanistan. “I do think drones can be a more accurate weapon, and I’m all in favor of saving our troops’ lives.”

Professor O’Connell compares her position on drone strikes to abortion. She feels abortion is immoral, but does not label those who have abortions as murderers. She does not consider President Obama a murderer either, but her opinion is that targeted killings outside of war zones need to stop.

Is Professor O’Connell’s interpretation of modern international law too naïve? While she accepts drone strikes in Afghanistan, she lobbies against such strikes elsewhere in the Middle East and Africa. What about the stateless terrorist organizations that exist across the Middle East? Do you agree or disagree with Professor O’Connell? Is the U.S. simply violating international law, to the point where these attacks should stop completely, or should we trust that our government is making these difficult decisions to launch attacks only when absolutely necessary? Is Professor O’Connell being naïve, or is she being rational?

Source: LATimes

3 comments

  1. Mr. Dowdle brings up a number of just fantastic points and interesting questions that seem to bowl right to the heart of the legal frame-work. I believe it is important though to make clear two arguments for the lack of illegality of these drone strikes so as not to end up in the gutter with arguing irrelevant legal points. I believe that one of the main international laws that Professor O’Connell is claiming the United States is violating is Article 2(4) of the United Nations Charter. Article 2(4) requires that “all members refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” (United Nations Charter Art. 2(4)).

    The main argument is that the United States’ actions do not amount to the definition of “force” intended in Article 2(4) because an attack against only members of a State does not affect the “territorial integrity or political independence” of that State. (See European Union’s Independent International Fact-Finding Mission on the Conflict in Georgia). None of these drone strikes are going to affect the territorial integrity or political independence of Pakistan and so it is not prohibited by Article 2(4).

    The other argument is that the U.S. is violating the principle of non-intervention. Yet the U.S. claims that it has tacit consent because when the U.S. informs Pakistan over what areas the drone strikes will occur, there is no response; even more to this point, Pakistan’s only response after receiving this information is clearing its airspace for the drone attacks to be executed without obstacle. (Adam Etous, U.S. Unease Over Drone Strikes, Wall St. J., Sept. 26, 2012 at A1). This being the case, the U.S. has interpreted this as consent and is therefore not violating the principle of non-intervention as consent is an exception to this rule.

    The last point made as to the legality of double tapping the targets with multiple drone strikes I leave to my colleagues. My questions are, is this illegal and if so why and what do you expect to happen? The United States has not consented to the jurisdiction of the International Court of Justice so that is out. Will the International Criminal Court prosecute President Obama? The ICC only has jurisdiction over three types of crimes: genocide, war crimes, and crimes against humanity. (Rome Statute Art. 13). What argument would you make that these drone strikes fall under any of these three categories?

  2. I think Mr. Rivera has placed an interesting spin on things and has done a great job illustrating that Professor O’Connell has gone over the line in her criticism of the United States drone attacks and claiming that the United States has violated International law. This issue relating to drone strikes is now a question that now strikes at the heart of foreign policy issues. I believe that Professor O’Connell’s first point that these attacks are based on evidence that is being concealed from the public is a flawed one. While I understand the point that she makes in that how can we justify these attacks when we are not aware exactly why they are being conducted, there are many military actions that are done without the knowledge of the public. I believe that we must give the military the benefit of the doubt when it comes to scenarios such as this. We must trust that the military is making the decision to launch these attacks because they are absolutely necessary. However, it is intriguing that the amount of drone strikes has increased dramatically under President Obama and it would be interesting to see exactly why these numbers have spiked so dramatically.

  3. I understand where Professor O’Connell is coming from. Killing innocent people outside a war zone is obviously a bad thing, and “double tapping” is especially inhumane, if that is what is actually going on. However, Mr. Rivera is correct that it is speculative at best whether or not the United States is violating any specific laws, especially if Pakistan gives tacit permission. Mr. Naber is also correct in that it is impossible to judge acts when we cannot determine when or where they occur due to the information being classified.
    However, I disagree that we should blindly trust the United States military on matters of international concern. Just because our country is “at war” with terrorist organizations does not give them license to kill whoever they feel like, wherever they feel like, in the name of national security. Can anyone else imagine the military forces of other countries entering U.S. soil to capture or murder suspected terrorist? I believe that America needs to protect itself from terrorism, but I do not believe that their military should have free reign in other countries because of classified missions.

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