Drone strikes in Somalia: On a questionable legal basis

In March and April 2016, the United States launched two major strikes in Somalia. The first strike took place on the 5th of March and hit the “Raso” training camp killing an estimated 150 Al-Shabaab fighters. The second strike killed Hassan Ali Dhoore, who was described by the Pentagon as a senior figure in Al-Shabaab. The use of such strikes, with the objective of eliminating the military leadership or foiling Al-Shabaab operations, certainly serve a clear military purpose as the United States continues to actively support the fragile Somali government. However, such strikes raise questions of legality and oversight.

President Barack Obama’s early years in the White House were marked by an attempt to disengage the United States from full-scale military operations across the globe, and especially in the Middle East. Jeffrey Goldberg noted in his cover story for the Atlantic magazine that President Obama “fit the mold ‘of a retrenchment President’ elected to scale back America’s commitments overseas and shift responsibilities to allies”. Indeed, under his administration, US forces withdrew from Iraq and the President was able to substantially scale down the United States military presence in Afghanistan. However, even though the United States military presence across the globe is lighter than it was in 2008, it has become much more dispersed under President Obama. His successor will inherit a number of on-going military operations, from an anti-Daesh coalition in Iraq and Syria, to troops in Afghanistan, “advise-and-assist” operations in Uganda and Cameroon, to drone strikes in Yemen, Pakistan and Somalia.

The scope of current US military operations reflects the President’s preference for covert Special Forces and military operations with a light footprint, compared to the full-scale interventions of the previous Bush administration. During his tenure, President Obama has embraced special operations forces as one of the key facets of his military policy. The United States Special Operations Command (SOCOM) has expanded by 25 % during his administration, growing from 33,000 personnel in 2001 to over 70,000 today. The Nation reported that ‘during the fiscal year that ended on September 30, 2014, US Special Operations forces (SOF) deployed to 133 countries’. The President’s marked preference for special operations forces is combined with a willingness to conduct air and drone strikes throughout the globe. According to data gathered by the Bureau of Investigative Journalism and presented in the Atlantic, President Obama’s administration authorised 372 drone strikes in Pakistan, 112 in Yemen and 19 in Somalia, compared to President Bush’s 51 strikes in Pakistan and only 1 in Yemen.

Somalia thus presents an excellent case study when analysing President Obama’s administration approach to military interventions. Somalia currently faces a prolonged insurgency from the Al-Qaeda linked Al-Shabaab which threatens not only the foundations of the fragile Somali state but also the security of key allies of the United States in East Africa. In order to confront the threat, the United States has taken a pro-active role in supporting AMISOM (African Union Mission in Somalia) and the Somali armed forces, through training and financial assistance, in the hope that these two entities would be able to conduct the bulk of the fighting against Al-Shabaab. Since 2007, the United States has also conducted covert operations in the country and has noticeably increased the scale of its drone strikes from 3 strikes in 2014 to 15 in 2015. This increase of US drone strikes in Somalia has however a questionable legal basis and highlights the controversy surrounding the legality of the United States’ drone policy.

There are two aspects of international law that are vital when assessing the use of American drone strikes in Somalia to target Al-Shabaab: Jus ad Bellum and Jus in Bello. Jus ad Bellum is applied to evaluate whether there is a right in and of itself to resort to the use of force (Right to War), as codified in Article 2 of the Charter of United Nations. Jus in Bello, also known as international humanitarian law, is applied with regard to the manner of conduct of the force itself, irrespective of whether or not the use of force is justified in the first place (Rights in War). This branch of law is derived from customary law, The Hague Regulations of 1899 and 1907 and the Geneva Conventions of 1949.

To understand the application of international law to American drone strikes in Somalia, it is necessary to understand the context in which these drones are deployed. American drone warfare is contingent upon the ‘War on Terror’ instigated through the September 11th attacks by Al Qaeda. To action a ‘War on Terror’ would be to resort to the use of force, thus necessitating the United States to prove that its actions are permissible under Jus ad Bellum. The right to resort to the use of force is only acceptable when a state is acting in self-defence, as per Article 51 of the UN Charter. Accordingly, resolutions from the Security Council permitted the United States’ right to self-defence against Al Qaeda, which was also codified in The Authorisation for Use of Military Force (A.U.M.F) by the United States Congress on September 14, 2001. This authorisation granted the authority to use all “necessary and appropriate force” against those whom the administration determined “planned, authorized, committed or aided” the September 11th attacks, or who harboured said persons or groups.

The first issue therefore is the fact that this authorisation has been used far beyond its initial measure despite the fact that the U.S. has never officially declared war against Somalia. In fact, the current state of affairs reflects how this authorisation for the ‘War on Terror’ has now been expanded to enable a global drone campaign, which has particularly grown in Africa. In Somalia, the drones target the terrorist group Al-Shabaab. Yet the American position on this seems highly problematic. After a series of drone strikes on March 5th, a Pentagon spokesman provided a statement suggesting that though the government was yet to categorise Al-Shabaab as an “associated force” in the Al Qaeda war, the airstrike was “authorized by the 2001 A.U.M.F.” Although the A.U.M.F was an act of self-defence against the 9/11 attacks by Al-Qaeda which Al-Shabaab had no role in whatsoever. In fact, in 2001 the entity did not even exist.

Furthermore, the Obama administration has attempted to justify the use of force against Al-Shabaab as an act of pre-emptive self-defence, claiming that the fighters on March 5th posed an ‘imminent threat’ to the United States. However, in international law, the Caroline test outlines that pre-emptive self-defence can only be used if the threat is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”. Similarly, U.S. policy stipulates that lethal force away from an active war is only permissible “against a target that poses a continuing, imminent threat to U.S. persons”. Yet the juxtaposition of the words ‘continuing’ and ‘imminent’ here seems paradoxical; a threat which is ‘continuing’ suggests it may be a long term threat as opposed to one which is ‘instant’ and ‘overwhelming’ as per the Caroline test. In a memo released in 2013, the administration’s definition of ‘imminent’ did not require the United States to have ‘clear evidence that a specific attack on U.S. persons will take place in the immediate future’.  In fact, Pentagon spokesman Captain Jeff Davis said that “there was a sense that the operational phase was about to happen”, all of which greatly brings into question the imminence of the attack and the adherence to international law.

The other lens of international law that drone strikes in general must be reviewed under is international humanitarian law (Jus in Bello). Through this lens, the United States’ right to use force is largely irrelevant. What is important is whether the force used adheres to the principles of international humanitarian law, such as the principle of distinction. To abide by the principle of distinction is a fundamental requirement in international humanitarian law that requires belligerents to at all times distinguish between combatants and civilians. The attacks on March 5th allegedly killed ‘militants’, which in this particular scenario seems permissible due to several intelligence sources confirming that the site was a training camp. However, this may not always be the case and can be misleading as the administration defines ’militants’ as “all military-aged males in a strike zone” in all of its drone strikes. This gives the Obama administration a much wider scope to claim it has ‘lawfully’ targeted and killed individuals than the principle of distinction would allow, raising questions about the drone campaign in its entirety.

In essence, the military reasoning behind drone strikes is at most times undeniable. The major issue facing the United States’ drone policy has been a lack of clear legal coherence when reconciling their policy with the principles of international law. In the context of the ‘Global War on Terror’ and a spirit of ‘Hearts & Minds’, it is vital that the United States clearly abide by its democratic values and legal principles when implementing its military policy. Failures to uphold these principles will always provide militant groups with the propaganda victories that will weaken the United States’ moral position on the world stage. It is thus vital to highlight the United States’ legal flaws in order to create the necessary dialogue.

Author Biography

Maryam Siddiqui and Alexandre Raymakers met as undergraduates at the London School of Economics (LSE). Maryam Siddiqui is a Law Graduate of the LSE and an LLM Master of Laws Graduate of University College London. Her current interests include international law, civil liberties & human rights and national security with a particular focus on South Asia and the UK. Alexandre Raymakers holds a BSc in International History and International Relations from the LSE. He has extensive personal experience on the African continent having lived in five different countries in Sub-Saharan Africa. He has previously worked for the Swiss Embassy in Kenya and in Strategic Communications in London. He currently works as a researcher for a London based Think Tank. His interests include International Security, African politics and European Affairs.

 

Cover Image On night operations with the African Union Mission in Somalia 15 under Creative Commons CC0 1.0 Universal Public Domain Dedication

 

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