President Donald Trump's administration has shrouded its position on drone strikes with secrecy, but glimpses of a policy shift are being displayed through its counter-terrorism practice. Trump took ownership of the first Navy Seal Team 6 raid in Yemen that was signed-off over dinner. It claimed the lives of 30 civilians including, according to a detailed report, 10 children under the age of 13 and 6 women. More worryingly, disproportional targeting and questionable tactics were at play with the recent destruction of the Omar Ibn Al-Khatab Mosque attended by 300 locals in Syria – in which 40 people were killed – and the use of America's largest non-nuclear bomb – the so-called 'Mother of All Bombs' (MOAB) – in Afghanistan. Clearly, Trump's America is applying new, looser rules of engagement whilst tolerating a higher civilian casualty count.
Temporary battlefields have been created in counter-terrorism operations under Commander-in-Chief Trump; three provinces in Yemen have already been signed off as "areas of active hostilities". The US government will use this neo-classification as a tool to declare non-war zones to be temporary battlefields where looser targeting rules apply. This is a new departure for US interpretation of international law and battlefield protocols. The US is already engaged in a "global war" against Al-Qaeda and its affiliates, which has witnessed military engagements across the world under the pretext of the War on Terrorism.
Barack Obama's 2013 Presidential Policy Guidance mapped the procedure for authorising drone strikes beyond the theatre of war. A redacted version was released as a result of the American Civil Liberties Union's litigation in 2015. These strikes beyond war zones increased drastically during Obama's presidency, causing a surge in civilian casualties. The guidance put restrictions in place for strikes outside "areas of active hostilities" and allowed strikes only when there is "near certainty" that non-combatants will not be killed.
Jack Serle, of the Bureau of Investigative Journalism (BIJ), has said that US drones in Yemen have already claimed the lives of "16-27 people via 10 drone strikes with additional 78 US attacks by other military force means killing a further 49-70 people."
Trump has given the CIA authority to conduct its own targeted drone strikes, effectively reinstalling a paramilitary role in assassinating people in complete secrecy, a notion that the Obama administration eventually restricted. This puts forth greater lack of accountability and transparency for post-strike investigations and paves the way for extrajudicial killings.
Lethal force executed beyond war zones is normally governed by law enforcement rules which comply with stricter standards of international human rights law. The rules attached to human rights only allow force to be used as a last resort, when necessary to protect human life. The US government is carrying out drone strikes beyond recognised war zones and incorrectly governing the use of force with the laws of war. This provides less stringent targeting rules, which are already interpreted loosely by the US administration. In the fast-paced world of counter-terrorism, the application of the law should not be misused. Historical principles of distinction; necessity and proportionality; and laws and international conventions, should not be blurred when combating terrorism.
The legal threshold that classifies a war with armed groups is set out in the Tadic case; it requires "protracted armed violence" between state forces and organised armed groups or more. Although the Obama administration accepted this view, it had a broader view of how the test is applied geographically. In such cases, where groups such as Al-Qaeda in the Arabian Peninsula (AQAP) or Islamic State in Yemen, or Al-Shabaab in Somalia do not resemble an organised force, the US-coined "area of active hostilities" is used to replace legal requirements.
A senior administration official commented that a factor taken into consideration for "areas of active hostilities" is the "scope and intensity of the fighting", a notion in compliance with the Tadic test. However, the Obama administration held that "designated provinces are not the same as a determination that an armed conflict is taking place in the country at issue." Thus, like the Obama administration before him, Trump is using this temporary battlefield policy-label as a means to self-legitimise drones, raids and other military force in countries with which the US is not at war.
The question we should be asking is, why now? The US administration has always claimed that Yemen and Somalia are battlefronts, where the law of war is applicable to legitimise use of force against associated forces of Al-Qaeda in self-defence. Is there now an emerging understanding within the Trump White House that Yemen and Somalia are not war zones and policies thus need to be tweaked? Trump's first Yemen raid in late January may have come off the backdrop of the temporary battlefield concept, which claimed the lives of up to 30 civilians, including 8 year-old Nawal Al-Awlaki, the daughter of the Yemeni-American Anwar Al-Awlaki, who was also killed by a drone strike in September 2011. These policy shifts as seen in Yemen are a precursor to what is to come from the Trump administration.
US officials told the New York Times on condition of anonymity that parts of Somalia are under consideration for inclusion as temporary battlefields, permitting the use of force for up to 180 days. These considerations on Yemen and Somalia are nothing short of a test-run for the US targeted killing policy, to determine whether to adopt or enhance Obama's drone policy. The current Trump practice on temporary battlefield policy will undermine the War Powers Resolution 1973 which only allows US presidents as commander-in-chief to launch military force for 60 days without Congressional approval. This poses several issues for the authorisations which justify military engagement, potential prisoners of war and detention matters.
To add even more complexity to the use of force in Yemen, the war-torn country may witness an escalation of military engagement in the immediate future. In addition to clandestine US counter-terrorism activities targeting AQAP, the UAE – part of the Saudi-led coalition which has been fighting against the Houthi Iranian-backed group since 2015 – have requested the US to take part in greater military use of force in the country. US Defence Secretary Jim Mattis is keen to support the Saudi-led coalition with additional military means and logistical support to force the Houthis into negotiations.
The Middle East Monitor asked what the official US position was on Yemen and the Saudi-led coalition in Yemen. In an official response, Christopher Sherwood from the Office of the Secretary of Defence said, "Our role in the Saudi-led coalition is a non-combat role; any decision to broaden U.S military involvement will be made by the White House." As of yet, no debate has been triggered on any authorisation for the use of military force alongside the Saudi-led coalition although the secretary of defence has put forward a strong case for supporting the coalition against the Houthis and their allies.
US policy in Yemen has remained a counter-terrorism operation, where Special Forces are operating. The prospect of assisting the coalition will mean that America may enter two different potential conflicts against Al-Qaeda and the Houthi-Iranian group. On a two day trip to Riyadh, Mattis strengthened ties and commitment to the coalition's cause in Yemen, undermining Iran's foreign policy in the orchestrated Sunni-Shia fight. Mattis went on to say that it's important to "reinforce Saudi Arabia's resistance to Iran's mischief" in supporting the Houthi rebels. Although the US official holds Iran accountable for Yemen's political strife, Washington is also indirectly supporting Iran's foreign policy in Syria and Iraq by targeting non-state armed groups attempting to topple President Assad. This is exacerbating geopolitical tensions and the possible resort to war.
If Trump's targeting trend expands further, there is a risk of dismantling restrictions on the use of force as understood by the international community. At a time when drones have become the weapon of choice, it's important for states to abide by historical principles and recognised international frameworks to avert the risk of denying the fundamental human right to life.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.