A couple weeks ago, President Barack Obama gave a speech at the National Defense University at Ft. McNair, Washington D.C. Addressing the United States’ role in counterterrorism and the policies that have been implemented throughout the now twelve year old war, the President tackled criticism that has been waged against the United States’ drone use policies.  The upshot of the President’s remarks is that he views the criticism as an indication that changes need to be made. Accordingly, the commander-in-chief announced that the United States will no longer implement drone strikes unless the targets pose an “imminent threat” to the United States.

This is a notable change from the former U.S. policy– which authorized the U.S. military to use drones to target alleged terrorists whenever there was a “substantial threat” to American safety.  The new imminence requirement brings the United States’ policy more in line with the long-established international law governing the use of force. The  black letter law on the use of force is provided for by  U.N. Charter articles 2.4 and 51, but there is another, perhaps more important, justification that is provided for by customary international law.

Under the Charter, the use of force is strictly limited to instances where an attack has already been committed. Therefore, under the Charter justification there can be no use of force until force has already been used. However, under the Caroline test–developed in the nineteenth century by Daniel Webster–preemptive force may be used. There are three criteria that must be met: 1) diplomatic remedies must be exhausted; 2) there must be an imminent threat of harm; and 3) the attack must be proportionate to the imminence of the purported attack. There is not doubt that this test has been crystalized into international law, and thus it provides a useful platform for U.S. policy on the use of drones. Therefore, by announcing this nuanced change in drone use policy, the President may have effectively taken the first step toward quelling some of the claims by the international community that the U.S. drone program is in violation of international law.

Of course, there are other issues that need to be addressed, such as the perceived violations of national sovereignty and the claims that civilian populations have been targeted by the U.S. However, with respect to the actual authority to wage such an attack, the U.S. may have just taken itself out of the fire–at least partially. Compound this most recent announcement with announcements in the recent past that U.S. drone strikes have declined slightly and you may find this as a turning point in the war on terror.

If the United States is no longer going to execute drone strikes based on the former “substantial threat” threshold, and is now going to use a more legally viable “imminent threat” standard, do you think that some of the criticism over the U.S. drone program will be turned down? Or do you think that it will be business as usual? Is there even a difference between the two standards? Or do you think the United States is just playing politics and is going to continue conducting its drone program the same way that it always has?

 

Source: The State Department

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