Reprinted from Washington Decoded, January 2010
MADRID, 12 March 2013 (or 2017) – Former US President Barack Obama today abruptly canceled a scheduled trip to Spain after learning that he might be arrested on war crimes charges stemming from past American drone attacks on Al Qaeda leaders. The Nobel Peace Prize winner postponed his planned address to Madrid University students after judge Baltasar Garzón, acting on a request by human rights lawyers, issued arrest warrants for Obama and former CIA Director Leon Panetta under the legal doctrine known as “universal jurisdiction.” It allows for the local prosecution of grave human rights crimes regardless of where they were committed.
Amnesty International, Human Rights Watch, and the United Nations Human Rights Council (UNHRC) have all condemned US “Predator” and “Reaper” strikes on Al Qaeda and Taliban members as illegal extrajudicial executions, and have characterized collateral civilian deaths as a violation of international human rights law.
Does this scenario seem far-fetched? It’s not.
US government officials face the real possibility of future arrest and trial in Europe over Washington’s “drone war” in Pakistan—the targeted killing of Al Qaeda and Taliban leaders using missiles fired from remotely-controlled Predator and Reaper aircraft (or UCAV, for Unmanned Combat Aerial Vehicles in military jargon). And the problem underscores a fundamental deficit in US policy since 2001: an inability or unwillingness by Washington to directly confront the limitations of international law in dealing with terrorism in the post-9/11 world.
The use of drones in regions where US forces are not declared combatants represents, in a nutshell, many of the moral and legal quandaries the United States has struggled with since 9/11. If the conflict with Al Qaeda is a war without borders, then targeted killings are scarcely different than taking down a combatant in any war. But if a state of armed conflict doesn’t exist, or if targeted killings aren’t regarded as a legitimate act of self-defense, then these attacks violate current international law.
Looking at it another way, if Khalid Sheikh Mohammed (KSM), the mastermind behind 9/11, were driving in the Pakistani tribal areas in a Land Rover today, according to US policy, it would be entirely legitimate to put him in the cross-hairs of a lethal drone. Instead, he is slated to stand trial in New York where he will be presumed innocent and where the emphasis will be on proving his guilt. Theoretically at least, KSM could walk out of court a free man.
This inexplicable contradiction underscores the inability of the United States and the world community to devise new legal conventions in the wake of 9/11. An internationalist-minded president would seek to shape international law to present conditions, rather than continually bending the law until it snaps back, with unintended consequences.