This week, the United States released a new policy for the export of US-made drones. The policy conditions any drone sale on a pledge by the foreign buyer government that it will observe international law when deploying US drones. Bringing essential international legal restrictions directly into the export regime could be a positive step forward for the promotion of lawful weapon use internationally. Importantly, conditioning sales on the international legality of the buyer’s subsequent use sets international standards for drone use, and could help strengthen international norms against unlawful attacks and killings.
But the United States’ own legal justifications for its drone strikes have been one of the most intensely criticized aspects of its counterterrorism approach. The US has failed to adequately explain the legality of its strikes, and credible allegations of civilian deaths remain unaddressed. Its published targeted killing policies contain ambiguous restrictions, and the US has advanced interpretations of international law that many have described as dangerous, novel, and expansive.
This puts the legal restrictions in the new export policy in a different light. The new policy, while restricting force in certain important respects, may also become a vehicle through which the US exports some of its heavily criticized practices and international legal views.
The Fact Sheet for the new export policy states that the US will authorize an export only if the recipient state agrees:
- “to use these systems in accordance with international law, including international humanitarian law and international human rights law, as applicable;”
- to use drones only in “operations involving the use of force only when there is a lawful basis for use of force under international law, such as national self-defense.”
These are the basic international legal frameworks that regulate the use of inter-state force and the use of force against non-state armed actors and individuals, and they should condition the export of any weapon. But there are many serious concerns about how the US currently interprets “national self-defense,” the applicability of human rights law, and international humanitarian law restrictions on the use of force. Specific concerns include:
- How widely the US interprets “imminence” when justifying force in “national self-defense.” The US now refers to “imminent and continuing” threats, rather than actual immediate threats. (For critiques of this “strikingly broad” interpretation, see here, here, here, here, here, here, and here.)
- Insofar as international humanitarian law is the relevant framework, many doubts (see here and here) have been raised about how the US interprets “directly participating in hostilities” and how widely it assumes militant status based on association.
- The US government has been unclear about how it defines “associated forces” and thus about the characteristics an armed group must have before it can be targeted.
- The release of targeted killing policies that contain numerous unclear restrictions.
- How narrowly the US views the application of human rights law during armed conflict, as well as outside a state’s own territory.
Two other aspects of the listed restrictions also raise international law concerns. First, the policy notes that recipient states “are not to use military UAS to conduct unlawful surveillance.” Yet US government views about what kinds of surveillance are unlawful depart from the views expressed by international human rights bodies (see here, here, and here). Second, in a provision explicitly prohibiting the use of “unlawful force,” only “domestic populations” are mentioned. Foreign populations are conspicuously absent.
In addition, the Fact Sheet contains a notable gap: it does not provide clear transparency obligations for other states. Secrecy has been one of the most problematic aspects of the United States’ use of drones for targeted killings. The Fact Sheet does little to assure that other states will not adopt similarly opaque practices. An improved policy would require recipient states to publish their drone use policies, track and explain civilian harm, and make public the processes in place to mitigate, investigate, and remedy civilian harm.
The export policy is right to note that the US has an interest in other states using armed drones “lawfully and responsibility.” But the export policy’s declaration that the US wants to “shape international standards for the use of armed drones” should be treated with caution. The United States has not yet done enough to demonstrate to the international community that its extraterritorial attacks comply with the law, and its drone use practice to date has not been a model that other states should follow.