Drone Warfare-Target Killing: In The Perspective Of International Law

Drone Warfare-Target Killing: In The Perspective Of International Law

Written By : Bakhtiar Hakeem
  1. Introduction: It is an academic study undertaken as part of the curricula of M Phil IR, under the discipline of International Law (Intl Law). The scope will cover the drone warfare, with focus on target killing in AfPak, since 2001. The canvass would be its being Just in Cause and Just in Conduct, under the International Law. The sub-heads of the Study are:-
    1. The Significance
    2. Unmanned Aerial Vehicle (UAV)-Unmanned Aerial System (UAS).
    3. The American Legality and Justification
    4. Laws of War: Divined, Historical and Modern Sources
      1. UN Charter
      2. Geneva Convention
    5. Conclusion
  2. The Significance and the Scope: It is a human issue; it pertains to some fundamental rights, and the fundamental responsibilities. It is at the roots of global peace and prosperity. It also covers the divined dictates on how to fight the wars. The Creator’s will and mega design gives every human being the status of being His best creature (Quran 95:4). From here we move to the laws and principles of war, but before that the Drones.
  3. UAV to UAS: As the name suggests, UAV is an aerial machine, flying much like an aircraft but, without a pilot, or an operator, or even a passenger. Thus it has become something very special. It is popularly called drone. “The US fleet has grown over forty times from 2002 to 2010”.i This was exactly the time of Iraq war followed by Afghanistan war. US led NATO forces used drones extensively to target and hit precise targets, mostly individuals. “They have been used – most notoriously as tools for assassination …a fundamental public suspicion towards the idea of robotised warfare”.ii Today more than seventy countries own drones; of some kind and are being used for multiple purposes. The UAV has been now developed into a well-integrated system, of warfare. For definition and a brief explanation, see the end noteiii. UAS, now essentially comprises a ground based operator, one or more UAV, linked by satellite and the drone borne weapon systemiv. The drone can do all what a manned aircraft can do with same kind of missions and same kind of weapon system. The profound separation of operator from the target, the UAS removes the risk of retaliation from the target. Though UAS makes it a one-sided war, with almost no risk to the operator, it has added and aggravated to the problem it had purported to solve. “A former deputy chief of the US mission in Yemen , Nabeel Khoury, said that "the US generates roughly 40 to 60 new enemies for every Al Qaida in Arabian Peninsula operative it kills in Yemen"v.
    1. Under the current operational arrangements, on Afpak borders; the operator sitting at Creech Air Force Base, Nevada i.e., roughly 7,500 miles, can hit the target within 30 seconds. It includes picking up the target and missile (mostly Hellfire) hitting the target vi. The safety in which operator languishes, makes it a highly unequal fight.
    2. We now move onwards to the US interpretation of legality to conduct such warfare. The killing of an individual or a mass of non-combatants through drone or carpet bombing remains to be illegal. Of course drone, for its accuracy tends to reduce the collateral damage, but it is only in relation to other weapon systems.
  4. The American Legality and Justification: Mulla Mansoor Akhtar was hit, moving in a car, along with his driver on May 21st, 2016. Read a detailed study on US drone warfare against Taliban and its ramifications.vii Rousseau said war is between things – states, political communities and individuals fighting them are there as combatants…viii.they are representatives of the cause being fought over… After 9/11 the US invoked its right of self-defence. Thereby finding a legal cover to use its armed forces against Al Qaida, in Afghanistan. “UN legal experts argue that UN Resolution did not in fact authorise the use of armed forces and that the mechanisms provided by criminal justice were sufficient because Al Qaida had committed criminal acts of terrorism rather than acts of war”ix “However, three days after 9/11, the Congress authorised the President to use necessary and appropriate force against nations, organisations, or persons he determines planned, authorised, committed or aided these terrorists attacks.”x This implied, US Congress authorising the US President to be at war with any country he deems fit to pick as enemy. It implied there is no war zone, no combatants and no courts of law to apportion blame and no executioner to administer the punishment. It was all in one, the President of the USA. “In April 2012 CIA director, John Brennan offered the US’s views: there is nothing in international law that prohibits us from using lethal force against our enemies outside an active battlefield, at least when the country involved consents or is unable to or unwilling to take action the threat.”xi Yet another analogy, is it legal for a state to let or abet another state to kill its citizen or native on its land? We will see Intl Law, Geneva Convention, Human Rights and other such international codifications which govern and guide the conduct of war, with focus on Drone Warfare.
  5. Laws of War: Divined and Historical: Just the references here; The divined rules on conduct of war are as old as Torah (Old Testament).xii So is in Mahabharta.xiii And Quran.xiv I close it here with reference to the Conquest of Mecca, by His last Prophet.xv
  6. Laws of War Modern Sources: It is heartening to see that humanity as it developed and, so called, out of the influence of Church, it did not forget the messages of the Creator of the universe. “In the history of the early Christian church, many Christian writers considered that Christians could not be soldiers or fight wars.”xvi The list of intl declarations and agreements run from 1856 to 2008. Before moving over to the UN Charter, Geneva Convention, and International Humanitarian Law, here are some essential terms, used in the modern laws. Starting with, "…two distinct ways of looking at war—the reasons you fight and how you fight."xvii
    1. Jus ad bellum: It concerns the legality of the threat or use of military force.
    2. Jus in bello or Lus in bello: International humanitarian law only applies in an armed conflict….it regulates both the conduct of war and the protection of the destitute and victims. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun.
    3. Combatants: Combatants are all members of the armed forces of a party to the conflict except medical and religious personnel. Members of a levée en masse are also regarded as combatants. Combatants cannot be punished for their hostile acts and if captured can only be held as POWs until the end of hostilities.
    4. Civilian Immunity: The meaning given in Additional Protocol I of 1977. While a number of States have not ratified Protocol I, the obligation to uphold the principle of distinction is also valid as customary law. The civilian population enjoys immunity so far as it shall "enjoy general protection against dangers arising from military operations" and "shall not be the object of attack."
    5. Geneva Convention and International Humanitarian Law (IHL).xviii Very briefly; it covers:
      1. Protection of persons who are not or who are no longer participating in hostilities and it restricts the means and methods of warfare.
      2. Providing specific rules to safeguard combatants, or members of the armed forces, who are wounded, sick or ship-wrecked, prisoners of war, and civilians, as well as medical personnel...and civilian support workers of the military.
      3. IHL and Red Cross: The Red Cross and the Geneva Conventions were born when Henry Dunant witnessed the devastating consequences of war at a battlefield in Italy. In the aftermath of that battle, Dunant argued successfully for the creation of a civilian relief corps to respond to human suffering during conflict.
    6. UN Charter: The world recognizes UN to be the supreme central authority, with UN Security Council and its General Assembly to be the most effective structures. The Charter was signed on 26June 1945 at Fan Francisco.xix
  7. Conclusion: Paragraph 4 ante covers how US Administrations have interpreted right of self-determination. And how do they wish to conduct war, especially drone-warfare; flouting UN Charter, Geneva Conventions, all treaties and agreements. Paragraph 6 ante encompasses the world of laws. ‘Jus’ is the riding clause both for reason of war and conduct of war. Here is the gist of preceding discussion.
    1. Use of drone for reconnaissance, surveillance, and as UAS is violation of sovereignty, of the two countries under focus. Drone in foreign airspace would be UFO, and can be shot down.
    2. No human-being who is not in a distinctive uniform, i.e., not part of warring faction, is not carrying a weapon to fight or has not trespassed intentionally a marked and reserved premises cannot be a target. Drone attack violates it.
    3. Anyone put under cross-hair, needs to be given a warning to put down the weapon or choosing to flee the war zone. Drones violate it.
    4. There has to be a declaration of warxx and a declared war zone. So that belligerents can make a decision to fight, go for negotiations, reaching for truce or to leave the war zone. Drone warfare violates it.
  8. The values of justice, equality and abiding the laws, conventions, charters and agreements shall live.






References


1: Federal Department of Foreign Affairs, ABC of International Law.

i ACM S Kaleem, Drones Usage and its Legal and Moral Aspects, Published in Better Morrow Issue 28, Islamabad, June 2015.
ii Ann Rogers and Job Hill, Unmanned Drone Warfare and Global Security, Between the Lines, Toronto, 2014.
iii http://www.uavs.org/index.php?page=what_is, retrieved on 31 Oct 2016. It is perhaps this definition that is the most important. However within these extensions there is one very important word, Autonomous. UAVs or UAS will in the future become fully autonomous. Like advanced artificial intelligence these systems will be able to sense where they are, what they are doing, what they should be doing, where they should go to complete the pre-programmed task and how they can complete that task most efficiently and effectively and with a certain degree of luck return to base. In the future the UAS rather than the UAV pilot will be the biggest decision-maker during a mission with the UAV pilot just monitoring what the vehicle is doing.
iv Extracted from ibid, p4.
v Op. cit., iv
vi ibid
vii Brig Haroon A, Mullah Mansour’s Reported Death, Published in Better Morrow Issue 34, Islamabad, June 2016.
viii Extracted from, http://oll.libertyfund.org/pages/rousseau-on-war. Retrieved on 31 Oct 2016.
ix Op. cit., v
x Op. cit., iv
xi ibid
xii Torah Deuteronomy 20:19–20, 20:10–12, 21:10–14
xiii “One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him ... War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him.”
xiv Sura Al-Baqara 2:190-193 of the Koran requires that in combat Muslims are only allowed to strike back in self-defence against those who strike against them, but, on the other hand, once the enemies cease to attack, Muslims are then commanded to stop attacking.
xv Mubarakpuri S R., Al Raheeq al Makhtoom, Al Maktaba Al Salfia, Lahore, 1985, pp 535-560
xvi https://en.wikipedia.org/wiki/Law_of_war. Retrieved on 31 Oct 2016.
xvii http://www.crimesofwar.org/a-z-guide/jus-ad-bellum-jus-in-bello/
xviii Geneva Convention, Article Lawful conduct of belligerent actors. Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, such as wearing distinctive uniform or other distinctive signs visible at a distance, carrying weapons openly, and conducting operations in accordance with the laws and customs of war. Impersonating enemy combatants by wearing the enemy’s uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.
Combatants also must be commanded by a responsible officer. That is, a commander can be held liable in a court of law for the improper actions of his or her subordinates. There is an exception to this if the war came on so suddenly that there was no time to organize a resistance, e.g. as a result of a foreign occupation. https://en.wikipedia.org/wiki/Law_of_war retrieved on 27 Oct 2016.
xix UN Charter http://www.un.org/en/sections/un-charter/chapter-xiv/index.html. “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and….”
The scourge and atrocities of two World Wars had shaken the world to the hilt. The desire for international peace, codification and respect for human rights and to be able to dispense justice led all efforts to forge such a charter, set of laws and constitute bodies to honour these goals. Chapter VI and VII, precise dealt with Settlement of Disputes and Actions with Respect to Threats to Peace…and Acts of Aggression. Article 35, 36, 37, 39, 44 all deal with the nature of dispute, member’s right to approach UN, role of arbitration, permission and use of appropriate force, and the role and responsibility of Security Council to intervene and make arrangement to resolve the dispute. Article 51 deals with the right of self-defence by individual or a collective effort. Article 92 lays down that International Court of Justice shall be the principle judicial organ. Retrieved on 26 Oct. 16
xx Hague Convention 1907.