The future of US drone policy: A conversation with International Law Professor Mary Ellen O’Connell

Author: Shannon Roddel

ND Experts

Mary Ellen O'Connell

Mary Ellen O'Connell

Notre Dame Law School

On Oct. 7, President Joe Biden signed a long-awaited policy tightening the rules for the CIA and Pentagon to conduct drone strikes outside of traditional war zones. The new policy requires the president’s approval before a lethal drone strike or commando raid can be launched.

The policy focuses on countries that are not conventional war zones, including Somalia, Yemen and Afghanistan, but where the United States continues to carry out counterterrorism strikes. It signals that the U.S. will limit drone strikes, which have been criticized for killing civilians. However, it allows the president to waive certain requirements of the new policy at his discretion.

Mary Ellen O’Connell, the University of Notre Dame’s Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution in the Kroc Institute for International Peace Studies, is a longtime outspoken critic of drone strikes, calling them a grave violation of international law.  

O’Connell is the author of “Forever Air Wars and the Lawful Purpose of Self-Defence,” “The Crisis in Ukraine” and “Seductive Drones: Learning from a Decade of Lethal Operations,” co-author of “Self-Defence Against Non-State Actors” and editor of “What is War?” She has served as a professional military educator for the U.S. Department of Defense and chair of the International Law Association’s Committee on the Use of Force.

With the approaching 20th anniversary (Nov. 2) of the first targeted killing with a drone, O’Connell discusses Biden’s new policy, along with the history and future of U.S. drone policy.

Explain President Biden’s new policy on counterterrorism and your thoughts on it.

We do not know exactly what the policy is because much of it is classified. That fact alone should concern us. Solid, lawful policies are public. For example, NATO’s central policy is that an attack on one member state will be treated as an attack on all. NATO’s policy is fully in compliance with international law. There is no need to hide it.

From the hints about the new policy in the media, it is indeed unlawful because it continues to permit drone-launched missile attacks beyond areas of armed conflict hostilities. President Biden will apparently authorize some strikes, which may cut back on the number of unlawful attacks. That is, of course, a good thing, but no individual national leader can legalize what global law renders unlawful. The law requires an end to drone strikes outside combat zones.

You have long been a critic of U.S.-authorized drone strikes in countries including Iraq, Pakistan, Afghanistan, Somalia and Yemen. Why do you consider them to be illegal?

International law prohibits the use of armed force unless authorized by the United Nations Security Council or when needed in self-defense to an occurring armed attack. These principles are found in the U.N. Charter. They are being cited every day against Russia and in support of Ukraine. Yet, since 2002, the U.S. has been violating them when drones are used to attack terrorist suspects in the territory of a country that has not attacked the U.S. 

The Obama administration tried to carve out a new legal right to use force to legalize drone strikes. This is not possible in international law, but the Biden administration is continuing to cite the purported rule, which holds that when a sovereign state is “unwilling or unable” to assist the U.S. with respect to terrorist suspects, the U.S. has legal justification to attack with military force. The attempt defies common sense, let alone legal sense. How could one country have the right to use force against another on the basis of subjective assessment of counterterrorism efforts? President Biden would be the first to reject any attempt by Russia or China to assert such a rule. International law is universal. It applies equally to Russia, China and the U.S.

Why do you believe officials have ignored the death toll from drone strikes on fellow Americans, civilians and children?

I believe the death toll is ignored for the same reason that international law is being ignored. During the Obama administration, one official said that “drones are the only game in town” against terrorism. Officials in Washington are convinced that states maintain a leading position through their willingness to use military force and to maintain technological advantages in weapons development. They have been willing to sacrifice the law protecting peace and human rights to maintain these positions. A thin veneer of legal justification is enough to maintain the claim that the U.S. is committed to the international rule of law.

Yet the policy favoring force and high-tech weapons has failed in counterterrorism. Drone strikes are not only unlawful and therefore immoral, they are counterproductive in suppressing terrorism. After 20 years, the Biden administration is still launching missile strikes on al-Qaida members. Tragically, the belief in weapons and war seems to be stronger among Washington officials than belief in facts, law and moral principles that would put an end today to drone strikes.

Some officials accept that too many people are killed by the U.S. who are not intended targets. They accept that these unintended deaths lead to serious negative consequences. I favor anything that will limit any deaths by drone. But saying the U.S. will be more precise in its attacks does not make the attacks lawful. All intentional killing — killing not for the purpose of saving a life immediately — that is outside a combat zone is unlawful. Those suffering attacks in areas not at war understand this. They understand that no one should die in these circumstances and resentment builds.

How does President Biden’s new policy compare with previous administrations’ approaches to counterterrorism?

Again, we do not have access to the full policy, but it seems to follow the Obama administration on the purported law. Obama’s lawyers introduced the “unable or unwilling” concept. They also produced a notorious re-interpretation of the right of self-defense, arguing that the armed attack occurring need not be immediate or even truly imminent. Biden seems to be continuing to rely on these erroneous arguments. The New York Times has reported in several stories that President Biden may even permit more attacks than Obama.

The new policy may be a major departure from the Trump administration, which in 2020 launched 60 drone strikes against Somalia. President Trump did not apparently authorize who was placed on the targeted killing list as Biden plans to do. Trump did apparently authorize the most destructive and potentially dangerous attack — the targeted killing of Iranian Gen. Qasem Soleimani along with 10 unintended victims. That was in January 2020.

Obama had tried to depart from the Bush administration. Bush had authorized drone strikes under his umbrella claim that all the world was a battlefield in the global war on terror. It was not, of course, and Obama tried a narrow concept that attempted to expand the law of self-defense beyond recognition. He also authorized twice the drone strikes in Pakistan as Bush ever did.

How should the U.S. legally approach counterterrorism? No drones at all?

The United States should adopt effective, lawful and ethical policies. All studies indicate that the only way to have success suppressing terrorism is to engage persons drawn to this form of criminality with lawful means of political change. The first step is by respecting the human rights of all people, whether engaged in terrorism or not. Terrorism is a crime, not war. Successful counterterrorism involves law enforcement methods. The U.S. firmly held this position until 9/11. Yes, the U.S. was the victim of a terrible crime that day. But the law did not change. The seriousness of the crime did not turn it from crime to war. Even some who supported going to war in Afghanistan very much regret 20 years of fighting that led to such failure. 9/11 was an intelligence failure. Instead of improving intelligence, it turned the CIA into a paramilitary force with drones. We are still reaping the cost of that error, which the Biden administration is only perpetuating with its new policy.

Nov. 2 is the 20th anniversary of the first targeted killing with a drone. You say 20 years of targeted killing has contributed to Russia’s invasion of Ukraine. Why is that?

No one doubted the illegality of that first drone strike beyond a combat zone. It was in Yemen. President Bush authorized a clandestine killing conducted by the CIA. The Air Force would not participate in an execution. Six men died — the intended target and five others, including a 23-year-old American citizen.

Drone attacks are hard to keep secret. The U.N. investigated and declared it an unlawful, extrajudicial killing. Instead of complying with the law, the U.S. persisted, giving multiple attempts at legal justification. Other governments stopped protesting. Journalists stopped raising questions, except about the unintended deaths, in particular when children were involved.

For almost 20 years, Russia and China have protested about the U.S. taking positions above the law against the use of force — in counterterrorism, in the invasion of Iraq in 2003, in the excessive use of force in Libya in 2011 and in disregarding the sovereign rights of Syria since 2014. With the U.S. no longer honoring this law, Russia, in particular, plainly sees no reason to comply either. It has adopted the logic of force and taken the ultimate step in law violation — attempting to conquer another sovereign state member of the United Nations.

The fact that the U.S. has done nothing as serious is no excuse for having played fast and loose with the law on the use of force to suit policy preferences. This is how norms die. When the state that was founded under the rule of law and whose president — Franklin Roosevelt — drafted the Charter provisions on the use of force does not honor the law, it can be no surprise when adversary nations do so as well.

Russia’s invasion of Ukraine is only the second attempt by a member of the U.N. to use military force to conquer another. The first was Iraq’s invasion of Kuwait. Now, defending the victim state is so much harder, in part because the law against the use of force has been so seriously diluted. President Biden cannot be persuasive demanding Russian compliance with the U.N. Charter, while violating it with his new drone policy.

Contact: Mary Ellen O’Connell, 574-631-4197,