Unmanned Drones – Whether justified under IHL
A. Drone Attacks around the world- State Practice
The United States began using military drones in 2001, but the criticism became heated as the U.S. increasingly used drones to attack in the border area between Afghanistan and Pakistan.These attacks resulted in the deaths of hundreds of unintended victims, including children. Panetta attempted to counter the criticism, asserting that drone attacks are precise‖ and cause only limited collateral damage.
Counter-terrorism experts David Kilcullen and Andrew Exum wrote in The New York Times in March 2009, however, that drones are anything but precise‖ and the numbers of civilian casualties have not been limited. The United States Department of Defense defines an unmanned aerial vehicle (UAV) as a powered aerial vehicle that does not carry a human operator, … can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or non-lethal payload.
On November 3, 2002, the U.S. used a drone outside a combat area to fire laser-guided Hellfire missiles at a passenger vehicle traveling in a thinly populated region of Yemen. The drone was operated by CIA agents based in Djibouti. The U.S. Air Force, at that time, operated the U.S.‘s drones, but the Air Force was concerned about legal issues raised by the Yemen operation, so the CIA carried out the strike. All six passengers in the vehicle were killed. U.S. officials said one of six men was a suspected ―lieutenant‖ in al-Qaida; another was an American citizen in his early twenties.In January 2003, the United Nations Commission on Human Rights received a report on the Yemen strike from its special rapporteur on extrajudicial, summary, or arbitrary killing. The rapporteur concluded that the strike constituted ―a clear case of extrajudicial killing.
The U.S. is rapidly increasing its supply of drones. By 2009, it had about 100 Predators and 15 Reapers. The U.S. will soon have more unmanned than manned aerial vehicles in its arsenal. Other states and non-state actors are also acquiring drones, including Pakistan, Russia, Georgia, Brazil, China, Hamas, Iran, and Israel.
Clearly drones have a number of advantages for the U.S. in comparison to alternatives: First and foremost, they spare pilots‘ lives. Pilots‖ operate the unmanned‖ aerial vehicle with a joystick at a comfortable site far from the attack zone. Thus, even if a drone is shot down, there is no loss of human life. They are also relatively cheap and easy to manufacture. Drones cost less than manned military aircraft. In 2009, a Predator cost about $4.5 million, 30 times less than a fighter jet. Further, drones can be used for any battlefield operation: surveillance, reconnaissance, precision attacks, targeted killings, etc. As any other robot, a drone can be used to carry out dull, dirty or dangerous battlefield operations, referred to as the ―Three Ds.‖
The use of drones in Pakistan has resulted in a large number of persons being killed along with the intended targets. Several factors suggest why this has been the case. One problem is structural. The remote pilot of a drone is relying on cameras and sensors to transmit the information he or she needs to decide on an attack. The technology is improving, but it is still difficult to be certain about targets. Weather plays a role, as does the attitude of the ―pilot.‖ We also know there is a tendency to trust the computer in distinction to the pilot‘s own judgment. If the computer registers that a target has a gun that was recently fired, pilots have a tendency to defer to the computer.This tendency is encouraged by the multiple decisions pilots must make every day in split seconds. It is likely to increase as pilots oversee multiple drones. So while the computer is not technically ―autonomous‖ in deciding to strike, that is becoming the reality.
Even with the improvements in technology, reliable, ground-level information remains extremely important. Plenty of mistakes are being made.
B. Use of force – The argument of self defense
As in all human communities, the international community uses law to restrict the right to resort to force to emergency self-defense and to those authorized to use force for the good of the community. States may use force in self-defense or with the authorization of the United Nations Security Council. States are restricted from using military force outside these situations. They may resort to law enforcement measures in some cases. International humanitarian law further restricts the use of military force; all uses of force are also subject to human rights principles.
The law respecting when states may resort to military force is set out in the United Nations Charter, in rules of customary international law, and in general principles (collectively the ―jus ad bellum.‖) The rules on resort to force were reconfirmed by a consensus of all UN members at the 2005 World Summit in New York.
The rules on how military force may be used during an armed conflict is found in the Hague Conventions, the Geneva Conventions and their Additional Protocols, customary international law, and, again, general principles (collectively the ―jus in bello.‖) The rules on conduct of force are the subject of regular review and comment by the International Committee of the Red Cross (ICRC). Also in 2005, the ICRC published a comprehensive review of customary international humanitarian law, which had the effect of providing a handbook of international humanitarian law for the two types of armed conflicts for which there are well-developed sets of rules: international armed conflict and non-international armed conflict. It is important to also emphasize that certain human rights principles apply even during an armed conflict.
The most important rule on resort to force, and perhaps in all of international law, is Article 2(4) of the United Nations Charter that prohibits the use of force.
The Charter contains two exceptions to this general ban on virtually all uses of force: In Chapter VII, the Security Council is given authority to act in cases of threats to the peace, breaches of the peace and acts of aggression. It may order measures to maintain or restore international peace and security, including mandating or authorizing the use of force by member states.
Chapter VII also provides in Article 51 that states may respond in self-defense ―if an armed attack occurs‖ until the Security Council acts. The evident restrictions in this Article have come under some pressure, especially from academics in the United States. The International Court of Justice, however, has restated in several cases that the Charter means what it says. The International Court of Justice (ICJ) in the 1986 Nicaragua case made clear that acts triggering the right to use armed force in self-defense must themselves amount to armed attacks. In Nicaragua, the Court held that low-level shipments of weapons did not amount to an armed attack and could not be invoked as a basis for self-defense.
In the Oil Platforms case, the ICJ said, “Even taken cumulatively, and reserving, as already noted, the question of Iranian responsibility, these incidents do not seem to the Court to constitute an armed attack on the United States of the kind that the court, in the case concerning Military and Paramilitary Activities in and against Nicaragua, qualified as a ―most grave‖ form of the use of force”.
In addition to a lawful basis in the Charter, states using force must show that force is necessary to achieve a defensive purpose. If a state can make the necessity showing, it must also show that the method of force used will not result in disproportionate loss of life and destruction compared to the value of the objective. Necessity and proportionality are not expressly mentioned in the Charter, but the ICJ held in the Nuclear Weapons case ―‗there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law‘. This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.
The court described a situation that was more than crime and would seem to share important features of the textbook case on self-defense, the 1990-91 liberation of Kuwait following Iraq‘s invasion. After Iraq invaded, Kuwait had the right to use force in self-defense and other states could join it in collective self-defense in order to expel the invader.
The Kuwait case had two aspects not found in connection with most terrorist attacks. First, no one doubted who carried out the aggression: Iraq. Second, the occupation of Kuwait created a continuing wrong that could be righted, especially since the Security Council had authorized a coalition of states to liberate Kuwait.
In the case of Congo v. Uganda, Uganda sent troops into Congo after years of cross-border incursions by armed groups from Congo into Uganda. Congo, however, was not responsible for the armed groups—it did not control them. Even Congo‘s failure or inability to take action against the militants did not give rise to any right by Uganda to cross into Congo to attack the groups themselves.
During the period under consideration both anti-Ugandan and anti-Zairean rebel groups operated in this [border] area. Neither Zaire nor Uganda were in a position to put an end to their activities. However, in the light of the evidence before it, the Court cannot conclude that the absence of action by Zaire‘s Government against the rebel groups in the border area is tantamount to ―tolerating‖ or ―acquiescing‖ in their activities. Thus, the part of Uganda‘s first counter-claim alleging Congolese responsibility for tolerating the rebel groups prior to May 1997 cannot be upheld.
The Charter does not directly regulate the resort to force within states between government forces and non-state actors or between non-state actor militant groups. This is an unfortunate gap in the law as the most common form of armed conflict today is the internal armed conflict, armed conflicts mostly within the boundaries of a single state fought by groups contending for power or to secede. The tragic conflicts in Colombia, Congo, Somalia, Sri Lanka, Sudan, and the Philippines are examples. While international law does not include an express prohibition on the use of significant military force to take power within or to break away from a state, it does contain allied principles making such conduct generally unlawful. Most states make the use of force against a government a violation of domestic law, the crime of treason, but other domestic criminal law may be relevant as well, such as the crime of murder. Also, international human rights law prohibits a government from using excessive force in responding to an armed group seeking to take power or secede. A government may only resort to military force if the use of force by an opposing armed group is significant. In other cases, international human rights law restricts governments to the use of force permissible to police in responding to violent crime.
The strongest conclusion to draw under the jus ad bellum is that there was no legal right to resort to drone attacks in Pakistan. Drone attacks are uses of military force. Pakistan was not responsible for an armed attack on the United States and so there is no right to resort to military force under the law of self-defense. Pakistan has not expressly invited the United States to assist it in using force. At best there have been mixed signals from Pakistan about the U.S. strikes. Further, even with express consent, the attacks would have to be part of Pakistan‘s own military operations. Even then, drone attacks may well be counter-productive to the military objective of eliminating the challenge from Pakistani militants, and they have been responsible for the deaths of many unintended victims, leading to serious questions about whether they may be used consistently under the principle of proportionality.
# For a details of the CIA drone program, see, Jane Mayer, The Predator War, What are the Risks of the C.I.A.’s Covert Drone Program?, THE NEW YORKER, Oct. 26, 2009.
# The United States does not release official data on the drone program. A number of Websites do provide data, e.g., the drone database of the New America Foundation, which tracks strikes in Pakistan. See http://counterterrorism.newamerica.net/droneshttp://counterterrorism.newamerica.net/drones. Care must be taken with this and most sources as international legal terms of art such as ―civilian‖ and ―combatant‖ are use imprecisely.
# Mary Louise Kelly, Officials: Bin Laden Running Out of Space to Hide, June 5, 2009, NPR, http://www.npr.org/templates/story/story.php?storyId=104938490.
# David Kilcullen & Andrew McDonald Exum, Death From Above, Outrage Down Below, N.Y. TIMES, Mar. 17, 2009. See also Hearing of the House Armed Services Committee, Effective Counterinsurgency: the future of the U.S. Pakistan Military Partnership, April 23, 2009 (Testimony of David Kilcullen).
# THE DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND ASSOCIATED TERMS 579, Joint Publication 1-02, April 12, 2001 (amended Oct. 17, 2008).
# Doyle McManus, A U.S. License to Kill, a New Policy Permits the C.I.A. to Assassinate Terrorists, and Officials Say a Yemen Hit Went Perfectly. Others Worry About Next Time, L.A. TIMES, Jan. 11, 2003, at A1; Jack Kelly, U.S. Kills Al-Qaeda Suspects in Yemen; One Planned Attack on USS Cole, Officials Say, USA TODAY, Nov. 5, 2002, at A1. John J. Lumpkin, Administration Says That Bush Has, in Effect, a License to Kill; Anyone Designated by the President as an Enemy Combatant, Including U.S. Citizens Can Be Killed Outright, Officials Argue, ST. LOUIS POST-DISP., Dec. 4, 2002, at A12.
# UN Doc. E/CN.4/003/3, paras. 37 – 39. See also, Michael J. Dennis, Human Rights in 2002: The Annual Sessions of the UN Commission on Human Rights and the Economics and Social Council, 97 AM. J. INT‘L L. 364, 367, n.17 (2003). ―The United States‘ response to the … Yemen allegations has been that its actions were appropriate under the international law of armed conflict and that the Commission and its special procedures have no mandate to address the matter.‖ Id. But see the conclusion that the Yemen strike was an unlawful action because it was military force used outside of an armed conflict. Mary Ellen O‘Connell, Ad Hoc War, in KRISENSICHERUNG UND HUMANITÄRER SCHUTZ—CRISIS MANAGEMENT AND HUMANITARIAN PROTECTION 405 (Horst Fischer et al, eds., 2004).
# Christopher Drew, Drones Are Weapons of Choice in Fighting Qaeda, N.Y. TIMES, Mar. 16, 2009, available at http://www.nytimes.com/2009/03/17/business/17uav.html?_r=1&hp.
# Alex Rodriquez, Pakistan Turns to Drones of Its Own, latimes.com, Oct. 9, 2009. See also, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum, Study on Targeted Killings, UN Doc. A/HRC/14/24/Add.6, para. 27 (May 28, 2010)(40 states have drones).
# WIRED FOR WAR: THE ROBOTICS REVOLUTION AND CONFLICT IN THE 21ST CENTURY (2009). Singer
# Peter Bergen and Katherine Tiedemann indicate that the number of unintended victims is declining. See No Secrets in the Sky, N.Y. TIMES, Apr. 25, 2010, http://www.nytimes.com/2010/04/26/opinion/26bergen.html?_r=1
# Singer, Robots at War, at 39-42.
# The first two C.I.A. air strikes of the Obama Administration took place on the morning of January 23rd—the President‘s third day in office. Within hours, it was clear that the morning‘s bombings, in Pakistan, had killed an estimated twenty people. In one strike, four Arabs, all likely affiliated with Al Qaeda, died. But in the second strike a drone targeted the wrong house, hitting the residence of a pro-government tribal leader six miles outside the town of Wana, in South Waziristan. The blast killed the tribal leader‘s entire family, including three children, one of them five years old. See Eric Umansky, Dull Drone: Why Unmanned U.S. Aerial Vehicles Are A Hazard to Afghan Civilians, Mar. 13, 2002, at pg 37 available at http://www.slate.com/id/2063105/.
# NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 243 (2008)
# 2005 World Summit Outcome, UN GAOR, 60th Sess., at 22-23, U.N. Doc. A/60/L.1 (Sept. 15, 2005). Today all fully sovereign states are members of the United Nations.
# I CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 13 (Jean-Marie Henckaerts and Louise Doswald-Beck eds., 2005).
# Legality of the Threat or Use of Nuclear Weapons: ―The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, exceprt by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.‖ 1996 ICJ 226, para. 25 (Advisory Opinion of July 8).
# Article 2(4): All Members shall refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
# John Yoo, Using Force, 71 U. CHI. L. REV. 729 (2004)
# Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 195, 230 (June 27) [hereinafter Nicaragua].
# Oil Platforms (Iran v. U.S.) 2003 I.C.J. 161, 191 (Nov. 6).
# Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 245 (Jul. 8) [hereinafter Nuclear Weapons].
# Mary Ellen O'Connell, Enforcing the Prohibition on the Use of Force: The U.N.'s Response to Iraq's Invasion of Kuwait, 15 S. ILL. U. L.J. 453, 479-80 (1991).
# Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168
# Armed Activities on the Territory of the Congo (Congo v. Uganda) 2005 I.C.J. para. 301 (Dec. 19).
# International Covenant on Civil and Political Rights, UN GAOR Supp. No. 16, at 52, UN Doc. A/6316 (1966), arts. 4 & 6 (no arbitrary deprivation of life.) See also cases of the European Court of Human Rights assessing excessive force used by Russia in the Chechen conflict and Turkey in the Kurdish conflict. Isayeva, Yusopova and Bazayeva v Russia, nos. 57947/00, 57948/00 and 57949/00, ECHR 24 February 2005. Isayeva v Russia, no. 57950/00, ECHR 24 February 2005 [hereinafter Isayeva II]; and Khashiyev & Akayeva v Russia, nos. 57942/00 and 57945/00, ECHR 24 February 2005. Similarly, in Ergi v Turkey, no. 66/1997/850/1057, ECHR 28 July 1998, the ECHR considered Turkey‘s use of force to repress the Kurdish Worker‘s Party. See also, NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW xiii (2008).
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