War in Afghanistan Isn’t Over — It’s Taking the Form of Illegal Drone Strikes

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Marjorie Cohn
09/26/2021

Three weeks after his administration launched a drone attack that killed 10 civilians in Kabul, Afghanistan, President Joe Biden addressed the United Nations General Assembly. He proudly declared, “I stand here today, for the first time in 20 years, with the United States not at war.” The day before, his administration had launched a drone strike in Syria, and three weeks earlier, the U.S. had conducted an air strike in Somalia. The commander-in-chief also apparently forgot that U.S. forces are still fighting in at least six different countries, including Iraq, Yemen, Syria, Libya, Somalia and Niger. And he promised to continue bombing Afghanistan from afar.

Unfortunately Biden’s withdrawal of U.S. troops from Afghanistan is substantially less meaningful when analyzed in light of his administration’s pledge to mount “over-the-horizon” attacks in that country from afar even though we won’t have troops on the ground.

“Our troops are not coming home. We need to be honest about that,” Rep. Tom Malinowski (D-New Jersey) said during congressional testimony by Secretary of State Antony Blinken earlier this month. “They are merely moving to other bases in the same region to conduct the same counterterrorism missions, including in Afghanistan.”

As Biden pulled U.S. forces out of Afghanistan, his administration launched a hellfire missile from a U.S. drone in Kabul that killed 10 civilians, including seven children, and then lied about it. Chairman of the Joint Chiefs of Staff Gen. Mark Milley immediately said it was a “righteous strike” to protect U.S. troops as they withdrew.

Nearly three weeks later, however, an extensive investigation conducted by The New York Times revealed that Zemari Ahmadi was a U.S. aid worker, not an ISIS operative, and the “explosives” in the Toyota that the drone strike targeted were most likely water bottles. Gen. Frank McKenzie, commander of the U.S. Central Command, then called the strike “a tragic mistake.”

This senseless killing of civilians was not a one-off event, although it received more publicity than most past drone strikes. Biden is following in the footsteps of his four predecessors, all of whom also conducted illegal drone strikes that killed myriad civilians.

The Kabul drone strike “calls into question the reliability of the intelligence that will be used to conduct the [over-the-horizon] operations,” the Times noted. Indeed, this is nothing new. The “intelligence” used to conduct drone strikes is notoriously unreliable.

For example, the Drone Papers disclosed that nearly 90 percent of those killed by drone strikes during one five-month period during January 2012 to February 2013 were not the intended targets. Daniel Hale, who revealed the documents that comprise the Drone Papers, is serving 45 months in prison for exposing evidence of U.S. war crimes.

Drone Strikes Conducted by Bush, Obama, Trump and Biden Killed Countless Civilians

Drones do not result in fewer civilian casualties than piloted bombers. A study based on classified military data, conducted by Larry Lewis from the Center for Naval Analyses and Sarah Holewinski of the Center for Civilians in Conflict, found that the use of drones in Afghanistan caused 10 times more civilian deaths than piloted fighter aircraft.

These numbers are probably low because the U.S. military considers all people killed in those operations presumptive “enemies killed in action.” George W. Bush, Barack Obama, Donald Trump and Biden all presided over drone strikes that killed countless civilians.

Bush authorized approximately 50 drone strikes that killed 296 people alleged to be “terrorists” and 195 civilians in Yemen, Somalia and Pakistan.

The Obama administration conducted 10 times more drone strikes than his predecessor. During Obama’s two terms in office, he authorized 563 strikes — largely with drones — in Somalia, Pakistan and Yemen, killing between 384 and 807 civilians, according to the Bureau of Investigative Journalism.

Trump, who relaxed Obama’s targeting rules, bombed all the countries that Obama had, according to Micah Zenko, former senior fellow at the Council on Foreign Relations. During Trump’s first two years in office, he launched 2,243 drone strikes, compared to 1,878 in Obama’s two terms in office. Since the Trump administration was less than forthcoming with accurate civilian casualty figures, it is impossible to know how many civilians were killed on his watch.

Drones hover above towns for hours, emitting a buzzing sound that terrorizes communities, especially children. They know a drone could drop a bomb on them at any moment. The CIA launches a “double tap,” deploying a drone to kill those trying to rescue the wounded. And in what should be called a “triple tap,” they often target people at funerals mourning their loved ones killed in drone attacks. Rather than making us less vulnerable to terrorism, these killings make people in other countries resent the United States even more.

Drone Strikes During the “War on Terror” Are Illegal

Drone attacks mounted during the “war on terror” are illegal. Although Biden pledged in his General Assembly speech to “apply and strengthen … the U.N. Charter” and promised “adherence to international laws and treaties,” his drone strikes, and those of his predecessors, violate both the Charter and the Geneva Conventions.

The UN Charter forbids the use of military force against another country except when acting in self-defense under Article 51. On August 29, after the U.S. drone killed 10 civilians in Kabul, the U.S. Central Command called it “a self-defense unmanned over-the-horizon airstrike.” The Central Command claimed that the strike was necessary to prevent an imminent attack on the Kabul Airport by ISIS.

But the International Court of Justice has held that countries cannot invoke Article 51 against armed attacks by non-state actors that are not attributable to another country. ISIS is at odds with the Taliban. Attacks by ISIS cannot therefore be imputed to the Taliban, which once again controls Afghanistan.

Outside areas of active hostilities, “the use of drones or other means for targeted killing is almost never likely to be legal,” Agnès Callamard, UN special rapporteur on extrajudicial, summary or arbitrary executions, tweeted. She wrote that “intentionally lethal or potentially lethal force can only be used where strictly necessary to protect against an imminent threat to life.”

Civilians can never legally be the target of military strikes. Targeted or political assassinations, also called extrajudicial executions, violate international law. Willful killing is a grave breach of the Geneva Conventions which is punishable as a war crime under the U.S. War Crimes Act. A targeted killing is only lawful if it is deemed necessary to protect life, and no other means — including capture or nonlethal incapacitation — is available to protect life.

International humanitarian law requires that when military force is used, it must comply with both the conditions of distinction and proportionality. Distinction mandates that the attack must always distinguish between combatants and civilians. Proportionality means that the attack can’t be excessive in relation to the military advantage sought.

Moreover, Philip Alston, former UN special rapporteur on extrajudicial, summary or arbitrary executions, reported, “The precision, accuracy and legality of a drone strike depend on the human intelligence upon which the targeting decision is based.”

The Drone Papers included leaked documents revealing the “kill chain” the Obama administration used to determine whom to target. Innumerable civilians were killed using “signals intelligence” — foreign communications, radar and other electronic systems — in undeclared war zones. Targeting decisions were made by tracking cell phones that might or might not be carried by suspected terrorists. Half of the intelligence used to identify potential targets in Yemen and Somalia was based on signals intelligence.

Obama’s Presidential Policy Guidance (PPG), which contained targeting rules, outlined procedures for the use of lethal force outside “areas of active hostilities.” It required that a target pose a “continuing imminent threat.” But a secret Department of Justice white paper promulgated in 2011 and leaked in 2013 sanctioned the killing of U.S. citizens even without “clear evidence that a specific attack on US persons and interests will take place in the immediate future.” The bar was presumably lower for killing non-U.S. citizens.

The PPG said there must be “near certainty that an identified HVT [high-value terrorist] or other lawful terror target” is present before lethal force could be directed against him. But the Obama administration launched “signature strikes” that didn’t target individuals, but rather men of military age present in areas of suspicious activity. The Obama administration defined combatants (non-civilians) as all men of military age present in a strike zone, “unless there is explicit intelligence posthumously proving them innocent.”

“Intelligence” upon which U.S. drone strikes are based is extremely untrustworthy. The United States has engaged in repeated violations of the UN Charter and the Geneva Conventions. And the unlawful U.S. killing with drones violates the right to life enshrined in the International Covenant on Civil and Political Rights, another treaty the U.S. has ratified. It says, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

Kabul Drone Strike: “The First Act of the Next Stage of Our War”

“That drone strike in Kabul was not the last act of our war,” Representative Malinowski said during Blinken’s congressional testimony. “It was unfortunately the first act of the next stage of our war.”

“There must be accountability,” Sen. Christopher S. Murphy (D-Connecticut), a member of the Foreign Relations Committee, wrote in a Twitter post. “If there are no consequences for a strike this disastrous, it signals to the entire drone program chain of command that killing kids and civilians will be tolerated.”

In June, 113 organizations dedicated to human rights, civil rights and civil liberties, racial, social environmental justice and veterans rights wrote a letter to Biden “to demand an end to the unlawful program of lethal strikes outside any recognized battlefield, including through the use of drones.” Olivia Alperstein from the Institute for Policy Studies tweeted that the United States should “apologize for all the drone strikes, and put an end to drone warfare once and for all.”

During the week of September 26-October 2, members of Veterans For Peace, Code Pink, Ban Killer Drones and ally organizations are taking action outside of Creech Air Force Base, north of Las Vegas, in opposition to militarized drones. Remotely controlled drones from Creech fire missiles at Afghanistan, as well as Syria, Yemen and Somalia.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. She testified before Congress about the Bush torture policy. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse.