Protecting Individuals:
A Legal Assessment of the Lawfulness
of US Drone Strikes in Pakistan and
Yemen
University of Amsterdam │Faculty of Law │Department of International and European Law LL.M. International and European Law | Track Public International Law (2013-2014) Master Thesis (final version)| Submitted 25-08-2014
By: Tubba Rana| studentnumber 5709202 Supervised by: dhr. prof. dr. T.D. Gill
Protecting Individuals:
A Legal Assessment of the Lawfulness of US
Drone Strikes in Pakistan and Yemen
By Tubba Rana| Amsterdam, 25 August 2014
University of Amsterdam │Faculty of Law │Department of International and European Law LL.M. International and European Law| Track Public International Law (2013-2014)
Master Thesis (final version)| Submitted 25-08-2014 Supervised by dhr. prof. dr. T.D. Gill By Tubba Rana| studentnumber 5709202
Protecting Individuals
A Legal Assessment of the Lawfulness of US Drone
Strikes in Pakistan and Yemen
Contents
1 Introduction ... 1
2 Overview of Current Practice ... 4
2.1 Targeted killing operations ... 4
2.2 US targeted killings in Pakistan ... 5
2.3 US targeted killings in Yemen ... 7
3 International Legal Framework ... 7
3.1.1 “Armed Conflict” ... 9
3.1.2 Absence of an armed conflict ... 10
3.1.3 Extra-territorial application ... 11
3.2 UN Charter and the Use of Inter-State Force ... 13
3.2.1 Self defence ... 14
3.2.2 Consent ... 16
3.3 International Humanitarian Law ... 17
3.3.1 “Civilian immunity” and “distinction” ... 18
3.3.2 Precaution ... 20
3.3.3 Proportionality ... 21
3.3.4 Persons hors de combat ... 23
3.4.1 Applicability of the right to life during armed conflict... 26
3.4.2 Operation of the right to life ... 27
3.4.3 Other human rights obligations ... 28
3.5 International Responsibility ... 29
3.5.1 State responsibility and agency ... 29
3.5.2 Accountability and transparency ... 31
3.5.3 Reparation ... 32
4 US Policy and Legislation ... 33
4.1 Policy on targeted killing ... 34
4.2 Legislative basis for targeted killing ... 35
5 Conclusions ... 36
Bibliography………...39
List of Abbreviations
ACHPR African Charter on Human and Peoples’ Rights
ACHR American Convention on Human Rights
ARSIWA Articles on the Responsibility of States for Wrongful Acts
AQAP Al-Qaeda in the Arabian Peninsula
AUMF Authorization to Use Military Force
CIA Central Intelligence Agency
ECHR European Convention for Human Rights
ECiHR European Commission for Human Rights
ECtHR European Court for Human Rights
FATA Federally Administered Tribal Areas(Pakistan)
GC I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
GC II Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
GC III Geneva Convention relative to the Treatment of Prisoners of War
GC IV Geneva Convention relative to the Protection of Civilian Persons in Time of War
GC X All 4 Geneva Conventions (concerns Articles common to all GCs)
IACiHR Inter-American Council for Human Rights
IACtHR Inter-American Court for Human Rights
ICC International Criminal Court
ICCPR International Convention on Civil and Political Rights
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ILC International Law Commission
OAG Organised Armed Group
Protocol I Protocol Additional to the Geneva Conventions (relating to the Protection of Victims of International Armed Conflicts)
Protocol II Protocol Additional to the Geneva Conventions II (relating to the Protection of Victims of Non-International Armed Conflicts)
TBIJ The Bureau of Investigative Journalism
TTP Tehrik-i-Taliban (Pakistan)
UAV Unmanned Aerial Vehicle (“drone”)
UN United Nations
UNGA UN General Assembly
UNSC UN Security Council
UNHRC UN Human Rights Council
UNOHCHR UN Office of the High Commissioner for Human Rights UNWCC United Nations War Crimes Commission
1 Introduction
“ On Dec. 12, 2013, shortly before the sun dipped behind the mountains and left a handful of modest stone-built homes and grazing goats in a fading silhouette, the ground shook. Across the valley, black smoke billowed into the sky. In the moments it took for the repeated explosions to echo from beyond the dry riverbed, the lives of scores of men, women and children in the Yemeni village of Jishm were shattered. Four missiles fired from a U.S. drone hit a wedding convoy near the town of Radda’ in the central province of al-Baydah, killing 12 men. The line of 11 vehicles were en route to the village of al-Abusereema, carrying out the tradition of bringing the bride to the family home of the groom… But along the country’s remote highlands, broken up by dry riverbeds, the convoy had paused. The terrain was so harsh that they crawled along at less than 10 mph, up stony hillsides and down into the gravel base of a dried out river. And at some point, further back along the winding, sandy trail, one of the cars had broken down. The party divided as some stopped to help, and then re-grouped in a dip, in the shadow of a ragged hillside. A few men in the procession then noticed something unusual. The sound of a drone has been an ever-present backdrop to daily life in this province over the past two years. But it suddenly changed. The pilotless plane paused overhead, as if waiting with them. Driving at the front of the convoy in his Toyota Land Cruiser with seven passengers, Fatah Salem looked up. The first missile exploded into [an] empty HiLux. Three more quickly followed, pounding into the ground around the vehicle, which burst into flames, and between other cars in the convoy, as if trying to hit the fleeing passengers… In the tightly packed group of four-wheel drives, flying pieces of hot metal from the splintering missiles sliced through car doors and windows. Shrapnel cut into flesh as three more cars filled with wedding guests caught fire.”1
Fatah Salem witnessed all of his four passengers lose their lives in the drone strike, only a bloody indent in the ground remains as evidence that life existed moments before it was created by the missile.
1 What really happened when a U.S. drone hit a Yemeni wedding convoy, Aljazeerah America, 20
January 2014 (<
america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2014/1/17/what-really-happenedwhenausdronehitayemeniweddingconvoy>), visited 10 August 2014.
The use of drones2 as a means of warfare goes back to the Second World War (and even before), but has become increasingly significant in the past few decades.3 While initially military drones were used primarily for aerial surveillance, their functions gradually expanded to areas such as search and rescue, suppression of hostile air defence and direct attacks against selected targets.4 Peter Singer, a robotics warfare expert has said “Al Qaeda leader Osama Bin Laden’s compound was watched overhead by a stealthy unmanned aerial vehicle, the RQ-170, before Navy SEALs raided the residence”.5 While accurate and reliable statistics are not available, by 2012 the US Department of Defense was reported to have deployed around 7,000 drones,6 flying roughly 20,000 sorties per year, with a total of 1 million hours of engagement (to 2010).7
The use of drones is not limited to the United States,8 and some other States, including Israel, the United Kingdom, Australia and Germany are already known to have conducted or contributed to armed drone attacks.9 However, it is the US programme of using drones to carry out targeted killings of suspected terrorists that has attracted the most political, legal and humanitarian attention. The practice raises some very serious, and very complex, legal questions in relation to which – it is fair to say – the United States frequently (but not universally) finds itself positioned against
2
A “drone” is a specific type of unmanned robot, usually referred to as an unmanned aerial vehicle (UAV).
3 States known to have used drones for military purposes include the US in Vietnam (1965-1975), the
First Gulf War (1991), Bosnia (1995) and Kosovo (1999); Israel in its conflict with Lebanon (1982); and Iran in its conflict with Iraq (1980-88).
4 US Department of Defense, Unmanned Systems Integrated Roadmap FY2013-2036, 2013, at 21
(available at <www.defense.gov/pubs/DOD-USRM-2013.pdf> accessed 15 August 2014).
5 ‘Drones soar in U.S. plans’, CNN, 10 June 2011 < security.blogs.cnn.com/2011/06/10/drones-soar-in-us-plans>
6 International Human Rights and Conflict Resolution Clinic (Stanford University) and Global Justice
Clinic (New York University), Living under Drones – Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan, September 2012, at 8 (available at <www.livingunderdrones.org/download-report> accessed 15 August 2014; hereafter Living under Drones).
7 US Department of Defense, op. cit. n. 4, at 22.
8 P. Alston, ‘The CIA and Targeted Killings Beyond Borders’ (2011) Harvard National Security
Journal 283.
9 It is estimated that at least 50 States currently either possess or are in the process of developing or
acquiring drones for purposes of reconnaissance, intelligence-gathering and targeting: International Institute for Strategic Studies, ‘The Drones of War’ Strategic Comments Vol. 15/04, May 2009; ‘Drones by country: who has all the UAVs?’ The Guardian, 3 August 2012, at <www.theguardian.com/news/datablog/2012/aug/03/drone-stocks-by-country> accessed 15 August 2014.
the weight of legal opinion. The UN special rapporteur on extrajudicial killings, summary or arbitrary executions, for example, has stated that the drone strikes “threaten 50 years of international law”,10 while (as will be seen) various human rights bodies and processes have expressed concern or criticism.
The primary question this thesis will examine is whether US drone strikes are
lawful under international law as it applies to protect individuals. This involves
questions primarily of international humanitarian law and international human rights law, although the analysis cannot be completed without some wider consideration of international law and US law. The thesis will address the legal questions systematically. First, this involves the question what legal frameworks apply? This involves consideration of the circumstances in which the various potential legal frameworks – primarily international humanitarian and human rights law – are engaged (i.e. in what circumstances does humanitarian law or human rights law,
or both, apply?). Having established the applicability of the various legal
frameworks, consideration will then be given to the primary question of whether (at all) there is any right to use of force against or in the territory of another. From a legal perspective, this is not a matter for humanitarian or human rights law, but for the UN Charter and the laws on the use of (inter-State) force. However, the analysis addresses various matters of concern for the laws that apply to protect individuals. The analysis will then address separately the substantive operation of international humanitarian and human rights law, and will specifically address within these questions the contexts of Pakistan and Yemen – i.e. are the operations, as carried
out in Pakistan and Yemen, compatible with the substantive requirements of (1) humanitarian law and (2) human rights law. Following on from this, the thesis will
also address the implications in terms of the law on State responsibility. Finally, the thesis will briefly review the US position (policy and legislation) on the drone strikes.
10 See comments of the UN Special Rapporteur, reported in O. Bowcott, ‘Drone strikes threaten 50
years of international law, says UN rapporteur’ The Guardian, 21 June 2012 <www.theguardian.com/world/2012/jun/21/drone-strikes-international-law-un> accessed 15 August 2014.
2 Overview of Current Practice
2.1 Targeted killing operations
This thesis is concerned with targeted killing by drones. The term “targeted killing” is not defined in international law, although the term is widely used.11 Academically, targeted killing has been defined as having five cumulative elements12:
A method of employing lethal force, regardless of the means used.
Intent, premeditation and deliberation (as opposed to accidentally, negligently or recklessly causing the death of a person).
Targeting of a specific individual (as opposed to the anonymous killing of enemy soldiers during armed conflict).
Absence of physical custody at the time of killing (to distinguish between a targeted killing and extra-judicial executions).
The killing must be attributable to a State or its agents.
Targeted killings have been carried out for many years,13 but usually in the past by special forces or air strikes. But since the early 2000s (and, specifically, the 9/11 attacks) armed drones have increasingly been used for such operations. Technologically, all currently operational drones depend on real-time remote control by a human operator, and specifically depend on human intervention in the weapon command and control chain.14 However, while drone technologies are advocated as a “clinical” military method, possessing “highly accurate, low collateral damage… capabilities”,15 there are some specific concerns about their operation. These include software limitations which have produced “locations inaccurate up to 13 meters”16
11 See UNHRC, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions:
Study on Targeted Killings, 28 May 2010, UN Doc. A/HRC/14/24 Add.6 (hereafter Study on Targeted Killings) at 4.
12
N. Melzer, Targeted Killing in International Law (Oxford University Press, Oxford 2009), 3-5 (hereafter Melzer).
13 See Melzer, 436-444, for a summary of 20 known cases of targeted killings in the past (1988-2006). 14
UK Ministry of Defence, The UK Approach to Unmanned Aircraft Systems, March 2011, at 2-5 (available at < www.gov.uk/government/publications/jdn-2-11-the-uk-approach-to-unmanned-aircraft-systems> accessed 15 August 2014); US Department of Defense, op. cit. n. 4, at 17.
15 See, e.g., the US Air Force fact sheet on the MQ-9 Reaper type drone (at
<www.af.mil/AboutUs/FactSheets/Display/tabid/224/Article/104470/mq-9-reaper.aspx> accessed 15 August 2014).
16 Living under Drones, 9.
and a video feed latency from the drone (meaning the actual situation could have changed at the moment the pilot decides to fire, for example, the target has moved away and/or an innocent bystander could have walked into the target zone).17 Even when they successfully hit the target, collateral mortality and damage can occur (and be significant) – the detonation radius from a Hellfire missile (the weapon ordinarily used in US drone strikes) can extend anywhere from 15-20 metres.18 In these circumstances, international laws to protect individuals address not only the lawfulness of killing targeted individuals, but also the collateral mortality of other (non-targeted) persons and the collateral damage to the property and other (social, economic and cultural) assets of such persons.
2.2 US targeted killings in Pakistan
The US Government is known to have undertaken targeted killing operations, using drones, in Pakistan since 2004. Most of these attacks have been undertaken in the semi-autonomous Federally Administered Tribal Areas (FATA), in the north western area of Pakistan along the border with Afghanistan. According to the US administration, nearly all of those targeted are linked to Al-Qaeda and associated forces19 and pose a threat to US national security.20
Accurate and reliable data on the drone strikes is difficult to obtain, partly because of a lack of limited official information surrounding the strikes, and partly due to obstacles to independent investigation in the region. The most commonly used public aggregate data is provided by a UK non-governmental organization, The Bureau of Investigative Journalism (TBIJ). TBIJ reports that 389 drone strikes have been carried out since 2004 (to July 2014) resulting in mortality of between 2300 and 3800
17 Ibid, 9-10.
18 T. Gillespie, K. Laygo, N. Rayo, E. Garcia, ‘Drone Bombings in the Federally Administered Tribal
Areas: Public Remote Sensing Applications for Security Monitoring’ (2012) 4 Journal of Geographic Information System 136, 139.
19 The armed non- state groups reportedly operating in the region include Al Qaeda; the Quetta Shura;
the Haqqani Network; the Tehrik-i-Taliban, Pakistan (TTP); and Tehrik-i-Nifaz-i-Shariat-i- Muhammadi: see, for a general overview, Living with Drones, 17-20.
20 See e.g., J. Brennan, ‘The Ethics and Efficacy of the President’s Counterterrorism Strategy’, Address
at the Woodrow Wilson International Center for Scholars, 30 April 2012 (at <www.lawfareblog.com/2012/04/brennanspeech> accessed 15 August 2014); and H. K. Koh, ‘The Obama Administration and International Law’, Address at the Annual Meeting of the American Society of International Law, 25 March 2010 (at <www.state.gov/s/l/releases/remarks/139119.htm>, accessed 15 August 2014).
individuals, of which an estimated 416-957 were considered to be civilians and 168-202 were reported to be children.21 (Other estimates of civilian mortality differ substantially, ranging from 20 per cent to as much as 90 per cent22).
Estimates provided by the US administration differ substantially. For example, the CIA appeared to consider that, between May 2010 and June 2011, no civilians were killed in drone strikes that successfully targeted 600 militants.23 Civilian casualties are not usually reported by the US administration, and when they are the estimates are often very low (in the “single digits”).24 In addition, no official account appears to be taken of non-fatal damage in the drone operations. Various evidence points both to high numbers of injuries to civilians and significant physical damage to civilian objects. The drone strikes are known to have economic, social and cultural impacts on communities and broad impacts on daily life, education and mental health.25
Recently, the US administration has stated that there is clearly defined timeline for ending drone strikes in Pakistan26 and data do seem to indicate a de-escalation in drone strikes.27 The cessation in strikes appears to coincide with peace initiatives being pursued between Pakistan and TTP.28
21 TBIJ, ‘July 2014 Update: US covert actions in Pakistan, Yemen and Somalia’, 1 August 2014 (at
< www.thebureauinvestigates.com/2014/08/01/july-2014-update-us-covert-actions-in-pakistan-yemen-and-somalia> accessed 15 August 2014). For a comprehensive review of the reports and other evidence to 2012, see Living with Drones, Chapter 2.
22 J. Beswick, ‘The Drone Wars and Pakistan’s Conflict Casualties’, Oxford Research Working Group
Working Paper, 1 May 2011, at <oxfordresearchgroup.org.uk/publications/briefing_papers _and_reports/working_paper_drone_wars_and_pakistan%E2%80%99s_conflict_casualties> accessed 15 August 2014, 6-7.
23 See C. Woods, ‘US Claims of ‘No Civilian Deaths’ are Untrue’, The Bureau of Investigative
Journalism, 18 July 2011 (at < www.thebureauinvestigates.com/2011/07/18/washingtons-untrue-claims-no-civilian-deaths-inpakistan-drone-strikes> accessed 15 August 2014).
24
J. Becker, S. Shane, ‘Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will’, New York Times, 29 May 2012 (at < www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-alqaeda.html?pagewanted=all> accessed 15 August 2014).
25
See Living with Drones, Chapter 3.
26 See ‘John Kerry says Pakistan drone strikes could end as bilateral talks resume’, The Guardian, 1
August 2013 at <www.theguardian.com/world/2013/aug/01/john-kerry-us-pakistan-talks-drones> .
27 See UNHRC, Report of the Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Ben Emmerson, 10 March 2014, UN Doc. A/HRC/25/59 (hereafter Countering Terrorism Report) at 6; cf. TBIJ, op. cit n. 21.
28 Ibid.
2.3 US targeted killings in Yemen
The US is known to have carried out its first targeted killing in Yemen in 2002, although appears to have been engaged regularly in Yemen only since 2009, after designating AQAP (Al-Qaeda in the Arabian Peninsula) as a terrorist organization.29 As with the Pakistan strikes, a lack of official information and a lack of access to the attack areas, most of which are too dangerous for international media and investigators to visit, make it extremely difficult to obtain accurate and verifiable data. To July 2014, TBIJ reports that there have been between 65-77 confirmed drone strikes, with a possible 96-155 further drone strikes suspected. The strikes are reported to have killed somewhere between 339 and 1006 individuals, with the majority of those killed is believed to have been individuals with a “continuous combat function” in Yemeni internal armed conflicts.30 However, media monitoring organizations report various levels of collateral mortality. TBIJ, for example, estimates that up to 130 civilians and 55 children have been killed.31
Recent reports indicate (on contrast to Pakistan) that there is no reduction in the frequency of strikes in Yemen.32
3 International Legal Framework
The first legal question that needs to be examined is: what is the international law that actually applies? Thus, the legality of US drone strikes depends in part on the applicable international law, which is not necessarily easy to determine. Strictly speaking, each strike should be assessed individually, since the applicable law is determined by the context in which the individual attack takes place. In many cases, no or limited data or evidence is present on key matters, including – for example – the combatant, organizational and strategic status of those targeted, the military
29 For a detailed review, to 2013, see Human Rights Watch, “Between a Drone and Al-Qaeda” The
Civilian Cost of US Targeted Killings in Yemen (Human Rights Watch, 2013, at <www.hrw.org/reports/2013/10/22/between-drone-and-al-qaeda-0> accessed 15 August 2014) 17-28 (hereafter Between a Drone and Al-Qaeda). See also G. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press, Cambridge 2010) 538–47.
30
Countering Terrorism Report, 7.
31 Supra, n. 21.
32 Countering Terrorism Report, 7.
objectives sought by the strike, the presence of consent by the host State, etc. In many cases, therefore, only a broad analysis – based in part on evidential assumptions – is possible.
When examining the conduct of armed hostilities, two areas of international law are principally engaged.33 International humanitarian law is applicable whenever there is an “armed conflict” including both conflicts between States and between a State and a non-State armed group. International human rights law is applicable at all times (subject to only limited exemptions). The significance of the distinction is that the protections in human rights law (which apply outside of an armed conflict) are regarded as setting a higher standard than those in humanitarian law (which necessarily recognises rights to engage in hostile activities).
From a legal perspective, however, the question of whether there is any right in the first place to use of force against or in the territory of another State (the rules on the prevention and territorial confinement of armed conflicts) is not a matter for humanitarian or human rights law, but for the UN Charter and the rules on inter-State force. Humanitarian law applies to govern the relations between belligerents when and where armed hostilities do occur (as a matter of fact, irrespective of whether or not there is a legal right to use force). From a policy perspective, therefore, humanitarian law is not designed to prevent armed conflicts or to confine them territorially but rather to regulate them whenever and wherever they occur.
As this thesis is concerned primarily with the application of international humanitarian and human rights law to the conduct of armed hostilities that are as a
matter of fact occurring, a full analysis of the question of whether the use of force per se is lawful is beyond its scope (and in some respects not relevant). However, given
the central importance of this question, a brief review is provided below (see section 3.2).
33 This thesis does not cover a number of other elements of the international legal regime that may be
relevant in specific circumstances, including international criminal law, international weapons law and (in detail) the laws on law enforcement operations (which apply when the actions take place outside of “armed conflict”).
3.1.1 “Armed Conflict”
The most important prerequisite for the applicability of international humanitarian law is the existence of an “armed conflict”. Although a long-standing and central concept in the Geneva Conventions, the meaning and scope of this term has become the subject of renewed consideration in the context of the “global war on terror” against Al-Qaeda and associated groups (and specifically whether the US counter-terrorist campaign is an “armed conflict” for the purposes of humanitarian law). The existence of an armed conflict for the purposes of humanitarian law depends on objective criteria, which differ depending on whether the armed conflict is of international or non-international character.34 International armed conflicts exist whenever there is resort to armed force between two or more States, while
non-international armed conflicts are confrontations occurring between governmental
forces and organized armed groups (OAGs), or between such groups. Although throughout the history of US drone strikes various questions have emerged concerning the existence of international armed conflicts, the key questions have tended to surround the characterisation of US counter-terrorism activities as a non-international armed conflict and, in particular, the extent to which Al-Qaeda and affiliate groups constitute a coherent and sufficiently identifiable “organized armed group” and the intensity and duration of the hostilities.
It is recognized in principle that the concept of non-international armed conflict is wide enough to include sustained hostilities between a State and a transnational non-state actor, such as an organized armed group involved in terrorist attacks. The hostilities must reach a minimum level of intensity and duration and the hostile parties must show a minimum level of organization.35 (There needs to be a differentiation from “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature”, which do not amount to
34 ICRC, ‘How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?’ Opinion
Paper, March 2008 <www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf> accessed 15 August 2014. See also S. Vité, ‘Typology of Armed Conflicts in International Law: Legal Concepts and Actual Situations’ (2009) 91 International Review of the Red Cross 69 (noting, at 72, the Geneva Conventions specified that humanitarian law was “no longer based solely on the subjectivity inherent in the recognition of the state of war, but was to depend on verifiable facts in accordance with objective criteria”).
35 N. Melzer, ‘Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare’
European Parliament Study EXPO/B/DROI/2012/12, May 2013, at 20.
armed conflicts36). Typically, the requirements imply the presence of organized non-state actors operating under some form of recognizable command structure and using sustained armed violence which requires a military response (as opposed to civilian law enforcement mechanisms).
The US administration has on various occasions asserted that its drone programme is subject to and in full accordance with international humanitarian law,37 although has not publicly established that the requisite threshold for its application has been met. Various commentators have cast doubt on this question, however, given the lack of centralization and organization within some non-state groups, and the existence of only sporadic and isolated attacks by some groups.38 In practice, the question needs to be examined on a case by case basis. It seems likely that at least some of the conflict situations meet the requirements of “armed conflict” for the purposes of international humanitarian law.
3.1.2 Absence of an armed conflict
In the absence of an “armed conflict” within the meaning of humanitarian law, international law requires forces in operations against terrorist suspects to act in accordance with the higher threshold for the use of force in international human rights law (which falls within the sphere of law enforcement standards).39 Human rights law is directed at the State and provides protections for individuals against the exercise of power by the State.40 Law enforcement standards apply whenever the State exercises authority and control over individuals to impose public security, law and order. As will be seen these standards do not prohibit the use of lethal force, but in general limit it to situations in which there is an imminent and/or grave threat to human life and alternative means, such as capture or incapacitation, are insufficient.
36
Art. 1(2) Protocol II.
37 See for example, J. Johnson, ‘National Security Law, Lawyers and Lawyering in the Obama
Administration’, Yale Law School, 22 February 2012 < www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448> accessed 15 August 2014.
38 See T.D. Gill, ‘Self-Defence’, in T.D. Gill and D. Fleck (eds), The Handbook of International Law of
Military Operations (Oxford University Press, Oxford 2012), 188.
39
Melzer, 86-88.
40 J. Kleffner, ‘Human Rights and International Humanitarian Law: General Issues’ in Gill and Fleck,
op. cit. n. 38, 67.
3.1.3 Extra-territorial application
A separate question to the applicability of human rights law during armed conflict is the question of its extraterritorial applicability. Although both conventional and customary human rights law continue to apply during armed conflicts, their application is generally limited to individuals subject to the “jurisdiction” of a State (party).41 When examining the human rights implications of drone attacks occurring in the territory of another State, it must therefore first be clarified to what extent such operations are capable of bringing the affected persons within the jurisdiction of the operating State.
For the purposes of human rights law, the notion of “jurisdiction” has both a territorial and a personal dimension. Thus, all persons finding themselves within the national borders of a State are presumed to come within its (territorial) jurisdiction.42 The territorial jurisdiction of a State extends beyond its national borders where, through effective control of the relevant territory and its inhabitants, it exercises all or some of the public powers normally reserved to the territorial State government, whether as a consequence of military occupation, or through the consent or acquiescence of the territorial State.43 Accordingly, any use of force carried out within territory under the de facto control of the outside State (however administered) brings the affected persons within the jurisdiction and therefore the human rights protection of that State.44 The possibility that US action in Pakistan and Yemen takes place through the consent or acquiescence of the territorial State is considered below (see section 3.2.2). Even if there is no territorial jurisdiction, States remain bound by human rights law to the extent that their agents in fact exercise physical power, authority or control over
41
See: Arts 2(1) ICCPR; 1(1) ACHR; and 1 ECHR. This is recognized as a rule of general application in human rights law: see, e.g., Melzer, 88.
42 See, for example, ECtHR, Al-Skeini Case, para. 131; ECtHR, Ilaşcu Case, para. 312. This
presumption may be (exceptionally) disproved where a State is unable to exercise its authority over all or part of its territory, most notably due to alien occupation or internal strife (see, e.g. Ilascu Case, paras. 312 ff.) but arguably also based on local self-governance arrangements such as those applicable in FATA.
43 ICJ, Legal Consequences of a Wall Opinion, paras. 111 and 113; ICJ, Congo Case, para. 216;
UNHRC, General Comment No. 31 (2004), para. 10.
44 Where a State invites, tolerates or consents to the use of force by a third State within its territory,
such operations would also engage the human rights obligations of the territorial State.
individuals.45 It is clear that this applies in the case of individuals arrested, abducted or otherwise detained in physical custody are under the jurisdiction of the detaining State, regardless of territorial considerations.46 It is much less clear, however, whether jurisdiction extends to individuals affected by the use of military force involving neither territorial control nor personal custody (which is arguably the case for drone strike operations).
There is no generally recognized human rights doctrine in this respect. However, there are a number of arguments that indicate that human rights law should and does apply in the circumstances under consideration. At a general level, human rights courts appear to take the view that human rights rules “cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory.”47
Furthermore, consideration in at least one partly analogous case supports this view. In the Alejandre case, the Inter-American Commission took the view that Cuba retained its human rights obligations towards individuals affected by its use of military force in international airspace even though, at the time of attack, they were neither within the physical custody nor within the territorial control of the Cuban State.48 It should be noted that a different view was taken (in a less closely analogous case) by the European Court of Human Rights. In the Bankovic case, the Court took the view that, in the absence of effective control over the territory of Yugoslavia, NATO’s limited air space control was not sufficient to give rise to “jurisdiction” for the purposes of human rights law.49 It is arguable, however, that the different conclusions in these cases could lie in the different nature of the respective air operations (Alejandre concerned the shooting down of two small private airplanes, whereas Bankovic concerned a large scale aerial bombardment) rather than in a fundamental divergence of views. And, if so, it is more likely that individualized operations, such as targeted
45 UNHRC, Burgos Case, para. 12.2 and 12.3; IACiHR, Coard Case, para. 37; IACiHR, Alejandre
Case, para. 23; ECtHR, Al-Skeini Case, para. 136; ECtHR, Issa Case para. 71.
46 UNHRC, Burgos Case, paras. 12.1.ff.; UNHRC, General Comment No. 31 (2004), para. 10; IACiHR,
Guantanamo Detainees Case (Precautionary Measures); ECtHR, Issa Case para. 77.
47 ECtHR, Issa Case paras. 69 and 71; UNHRC, Burgos Case, para. 12.3; UNHRC, Celiberti Case,
para. 10.3.
48 IACiHR, Alejandre Case, paras. 37 and 45. 49 ECtHR, Bankovic Case, paras. 74-76.
killing via drone attacks, would be considered to bring the affected persons within the jurisdiction of the operating State.
Finally, it has also been argued that the international law prohibition on murder and extrajudicial killings can safely be regarded as part of customary law, or even as a general principle of law, binding upon all States at all times and in all places.50 In such circumstances, the need to examine territorial or personal jurisdiction would be displaced.
While it must be recognized that this question has not yet been determined clearly, on balance, and particularly in light of the attitude the courts have taken, it might be stated that it is more likely than not that the practice of US drone strikes give rise to human rights obligations towards the individuals affected. It should also be recalled that the question here concerns jurisdiction, or applicability,51 and does not affect the substantive analysis of the conduct concerned. And as a matter of policy, there is generally a desire to be seen to apply internationally accepted standards – and it is notable, in this regard, that the policy of the US administration (such that it has been articulated) does appear to be increasingly mindful of human rights requirements (see section 4.1).
3.2 UN Charter and the Use of Inter-State Force
The UN Charter in general, and strictly, prohibits any transboundary use of military force (the threat or use of force carried out by one State, in the territory of another).52 In the absence of UN authorization for armed attacks, there are only two exceptions to the prohibition on the use of force: (1) when the use of force is carried out with the consent of the host state;53 and (2) when the use of force is in self-defence in response
50 See Melzer, 135-139.
51 The jurisdictional questions have been considered specifically in the context of applicability of the
treaty concerned, although equivalent consideration applies in customary human rights law.
52 UN Charter, Art. 2(4).
53 See, e.g., G.A. Res. 36/103, UN Doc A/RES/36/103 (Dec. 9, 1981) (further identifying the “duty of a
State to refrain from economic, political, or military activity in the territory of another State without its consent.”); Study on Targeted Killings, supra, at para. 35; and E. Lieblich, ‘Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements’ (2011) 29 Boston University International Law Journal 337.
to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action.54
While the US has not presented its full reasoning of the legal justifications, it appears to consider in principle that the acts are justified on the basis of self-defence,55 but in practice (apparent) consent of the host State is a more probable (but not unambiguous) analysis.
3.2.1 Self-defence
The self-defence argument has some difficulty, both in principle and as applied to the specific rationale for US drone strikes.56 First, there is doubt concerning how (and to an extent whether) the right to use force in another State on the ground of self-defence applies to the use of force against non-State actors. The argument against the right existing at all rests partly on interpretation of Article 51 of the UN Charter,57 and partly on judicial consideration of it,58 but the weight of argument now appears to support that the right does apply in principle. In particular, most States appear to have accepted such a right (as reflected, for example, in UN Security Council Resolutions 1368 and 1373 of 2001, adopted following the 9/11 attacks).
However, the parameters and application of the right are subject to a considerable lack of clarity in several circumstances including, for example, when there are successive attacks or threats of attack against a State, where attacks or threats of
54
UN Charter, Art. 51. See also Special Rapporteur, Study on Targeted Killings, supra, 45.
55 See, for example, the comments by Johnson, op. cit n. 37.
56 For a recent analysis of the principles concerned, see ‘Report on Aggression and the Use of Force’,
Report of the International Law Association Committee on the Use of Force, 2014.
57
Various commentators, for example, have pointed to the fact that in the French version of the UN Charter (all language versions being equally authoritative) the same terminology is used in Article 39, dealing with UN Security Council determination of the existence of threats to the peace, etc. as is used in Article 51 (in Article 39, aggression armée is used, while aggression is the term in Article 51). The argument is not persuasive, however, since the English, Chinese and Spanish texts of the Charter use different terms for Articles 39 and 51 (in the English version, aggression and armed attacks, respectively). Moreover, the French Government accepted during the debates on the definition of aggression that aggression in Article 39 was not the same concept as aggression armée in Article 51.
58
See, e.g., ICJ, Legal Consequences of a Wall Opinion, at 194 (holding that Article 51 had “no relevance” to attacks not “imputable to a foreign state”). See also O. Schachter, International Law in Theory and Practice (Nijhoff, The Hague 1991), 165 (expressing “substantial doubts” about whether Article 51 sanctions the use of force against terrorist groups when no state has been “guilty of an armed attack” or has “directed or controlled the terrorists in question). Cf. Separate Opinion of Judge Higgins in the Legal Consequences case, at 215 (“There is, with respect, nothing in the text of Article 51 that thus stipulates that self-defense is available only when an armed attack is made by a state.”).
attack emanate from more than one territorial jurisdiction, and where the attacks emanate from a non-State actor operating either as a distinct entity or in affiliation with a larger non-State movement (all of which apply to the practice of US drone strikes).59 Moreover, while defensive measures may be taken against non-State actors, they may not be taken against the host State (or in a manner so as to run against the territorial integrity of that State). The consent of the host State may in any case required, unless possibly due to the particular circumstances of imminence and necessity it is not possible to obtain such consent in advance.60
In these circumstances, other components of the application of the right to self-defence are also significant and are inter-twined. Thus the right can only be triggered by an actual or imminent armed attack61 and its exercise is conditioned by the requirements of necessity and proportionality. Again, however, there is no consensus (academically, judicially or in State practice) on the principles underpinning these requirements in the types of circumstances described above, and the ability to rely on the right to self-defence will ultimately depend on where the lines are drawn.62
What may be stated, however, is that the practice of US drone strikes if within the right at all must be at the outer limit of what is considered to be within the right to self-defence. And for many commenters, there is insufficient evidence to support a claim that the US drone strikes meet the conditions set out in international law.63 As will be seen below, in the context of international humanitarian law, there are significant doubts in practice concerning the requirements of necessity and
59 ‘Report on Aggression and the Use of Force’, supra, part B.2.c.
60 For a discussion of this issue, see ‘Report on Aggression and the Use of Force’, ibid. See also C.
Rogers, ‘Legality of US Drone Strikes in Pakistan’ (2010) < crss.pk/downloads/Reports/Special-Posts/Legality-of-US-Drone-Strikes-in-Pakistan.pdf> accessed 15 August 2014.
61 The required gravity threshold for determining an event as an armed attack is, arguably, higher in the
context of triggering a right to self-defence against non-State actors: see C. Kress, ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’ (2010) 15 Journal of Conflict & Security Law 243, 249.
62 One leading commentator observes that the scholarship faces “significant challenges” when it comes
to shaping the operational thinking of governments making decisions in response to significant terrorist threats: D. Bethlehem ‘Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors’ (2012) 106 AJIL 768, 772. (“There is little intersection between the academic debate and the operational realities… The reality of the threats, the consequences of inaction, and the challenges of both strategic appreciation and operational decision making in the face of such threats frequently trump a doctrinal debate that has yet to produce a clear set of principles that effectively address the specific operational circumstances faced by States”).
63 For a concise discussion of this argument, see Living with Drones, 105-108.
proportionality. Additionally, there are doubts concerning how “imminent” the threats being addressed are, and various commentators have questioned whether killings carried out currently can be justified as in response to events in 2001.64
3.2.2 Consent
If a State gives its consent to another State to use force on its territory, the use of such force does not run against the territorial integrity of the host State and no breach of international law occurs. The only critical requirement is that consent has to be given freely by the recognized government of the host State and the State using force much act within the scope of that consent.65
It is probable, at least until recently, that Pakistan and Yemen tacitly supported drone strikes and consented to them being carried out in their territories. Perhaps most significantly, neither country has made any formal complaint about the activities to any international organization or through any other diplomatic means (which might be argued specifically to demonstrate consent). There is also some leaked and anecdotal evidence that indicates that, at least at some point, both Pakistan and Yemen tacitly supported drone strikes and have even facilitated them in a number of ways, including the sharing of relevant intelligence.66
It is not known whether either country continues to consent to the operations. Various public statements by Pakistani officials, which have intensified since 2012, have stated that US strikes are illegal, counter-productive and violate Pakistani sovereignty.67 While these statements may be directed more towards national public
64 See, for example, comments of the UN Special Rapporteur, reported in O. Bowcott, “Drone strikes
threaten 50 years of international law, says UN rapporteur”, The Guardian, 21 June 2012 (at <www.theguardian.com/world/2012/jun/21/drone-strikes-international-law-un>, accessed 15 August 2014).
65 See T. D. Gill, ‘Military Intervention at the Invitation of a Government’, in Gill and Fleck, op. cit. n.
38, 229-233.
66
Concerning Pakistan, see T. Lester, ‘WikiLeaks: Pakistan Quietly Approved Drone Attacks, US Special Units’, CNN, 1 December 2010 < articles.cnn.com/2010-12-01/us/wikileaks.pakistan.drones_1_drone-attacks-predator-strikes-interior-minister-rehman-malik> accessed 15 August 2014); Living with Drones, loc. cit. n. 63. Concerning Yemen, see Between a Drone and Al-Qaeda, 83-84.
67 See, for example, ‘President Zardari Asks US to End Drone Strikes, Remove Mistrust’, Dawn, 16
September 2012 < dawn.com/2012/09/16/president-zardari-urges-us-to-immediately-cease-drone-strikes>); ‘Pakistan Condemns ‘Illegal’ US Drone Strikes’, Reuters, 4 June 2012 <tribune.com.pk/story/388730/pakistan-condemns-illegal-us-drone-strikes>; and ‘Pakistan Says US Not Listening: Drone Strikes Must Stop’, Reuters, 26 April 2012
opinion and politics, they do cast doubt on whether Pakistan consents to the operations.
The situation in Yemen is also obscure.68 The Government of Yemen has in the past informed the United Nations that the US routinely seeks prior consent, on a case-by-case basis, for drone strikes, and that where consent is not given, a strike will not proceed. However, other reports appear to show some inconsistency, and in January 2014, the Government informed a UN Working Group that a resolution had been passed by the Yemeni House of Representatives calling for a ban on the use of armed drones in Yemen, and insisting that measures to fight terrorism should not harm civilians and should be based on human rights standards.
While firm conclusions are difficult to draw, it is reasonable to state that whilst in principle the use of force against individuals in the territory of another State can be justified legally, certainly with the consent of the host State and (in some views, at least) under the exception for self-defence. However, it has not been established clearly, by the US administration or otherwise, that the necessary conditions have been fulfilled, and there is some doubt amongst commentators. It is important to understand, however, that these uncertainties do not affect the application in principle of humanitarian law (or, for that matter, human rights law), which as has been noted applies whenever there is in fact an armed conflict (whether lawful or not).
3.3 International Humanitarian Law
The rules of international humanitarian law are found primarily in the Geneva Conventions of 1949,69 their Protocols70, the 1907 Hague Regulations,71 and <www.reuters.com/article/2012/04/26/us-pakistan-minister-drones-idUSBRE83P0AM20120426> (all accessed 15 August 2014).
68
See Countering Terrorism Report, 7.
69
1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I); 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II); 1949 Geneva Convention relative to the Treatment of Prisoners of War (GC III); 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (GC IV). The four Conventions entered into force on 21 October 1950.
70 Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I), June 8, 1977; Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977. There is a third Protocol (Protocol additional to the Geneva
customary international law (which is of course binding on all belligerent parties irrespective of applicable treaty law). The United States is one of a small number of States not to have ratified the First and Second Protocols to the Geneva Conventions,72 but is a party to the other instruments.
Targeted killings are not explicitly mentioned in international humanitarian law, but they are regulated by a number of key principles that are generally regarded as customary international law in both international and non-international armed conflict. 3.3.1 “Civilian immunity” and “distinction”
The fundamental blocks of humanitarian law are “civilian immunity” and “distinction.” Hostile parties are required to distinguish at all times between combatants and civilians, and to direct attacks only against combatants and other military targets. Deliberate attacks on civilians and civilian objects are strictly prohibited.73 Attacks that cannot or do not discriminate between combatants and civilians are also prohibited,74 as are attacks in which the expected loss of civilian life or property is disproportionate to the anticipated military gain of the attack.75 Therefore, attacks that cause civilian deaths do not necessarily violate humanitarian law, but do so if they target civilians, are indiscriminate or cause disproportionate civilian loss.
In practice, the determination of whether a targeted person represents a legitimate military target can be extremely difficult. Formally, a person is considered a combatant if they are directly participating in hostilities. The criterion can be difficult to determine, however – for example, it would include individuals actively planning
Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005) but that is not considered in this thesis.
71
Hague Convention IV, respecting the Laws and Customs of War on Land, adopted 18 October 1907, in force 26 January 1910, 205 CTS 277.
72 The US Administration recommended ratification of Protocol II in 2011, but it has not yet occurred:
see ‘Press Release, White House Office of the Press Secretary, Fact Sheet: New Actions on Guantanamo and Detainee Policy’ 7 March 2011, available at < www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guant-namo-and-detainee-policy>, accessed 15 August 2014.
73 Arts 51(3) Protocol I; 13(3) Protocol II; J. Henckaerts and L. Doswald-Beck, International
Customary Humanitarian Law (ICRC, Cambridge 2009; hereafter, “ICRC, Customary International Humanitarian Law”), Rule 6.
74 ICRC, Customary International Humanitarian Law, Chapter 3, citing Protocol I, Art. 51(4). 75 ICRC, Customary International Humanitarian Law, Chapter 4, citing Protocol I, Art. 57.
or directing future aggressive activities, but not recruiters or propagandists who have no operational role. Combatants also regularly and deliberately intermingle with civilians, engage in routine activities, do not wear uniforms and – particularly in places such as FATA and the Yemeni communities – there may be various degrees of support or affiliation with such groups that do not necessarily amount to direct participation in hostilities and, therefore, do not entail loss of civilian protection against the military force. Moreover, exceptionally, civilians may become legitimate military targets, when and for “such time as they directly participate in hostilities”.76 According to the ICRC, direct participation in hostilities means the act committed must adversely and directly affect the opposing party in a concrete manner or lead to the loss of life or property as part of a campaign in support of one party to a conflict.77 The reported practice of the United States appears to raise serious concerns about the compliance of particular strikes with the principle of distinction, particularly in three respects:
1) The so-called practice of “signature strikes” where targeting is not based on individual intelligence but on unidentified individuals who, based on their personal behaviour, contacts or other characteristics are suspected of being “terrorists”, “militants” or “jihadists” – legally undefined notions which are strictly irrelevant for lawful targeting.
2) A number of reported strikes which have been targeted at or close to locations where large numbers of civilians are present (including mosques, funerals, schools, or meetings of community elders).78 The presence of large numbers of non-combatants in a targeted location may make the strike disproportionate, even if legitimate military targets are also taken.
3) The so-called “double-tap” tactic, under which follow-up strikes are made after the primary strike, frequently resulting in strikes on rescuers and first responders (see further on this, section 3.3.4, below). The practice raises questions as to
76
Arts 51(3) Protocol I; 13(3) Protocol II; ICRC, Customary International Humanitarian Law, Rule 6.
77 ICRC, Interpretative Guidance on the Notion of Direct Participation in the Hostilities under
Humanitarian Law (ICRC, 2009), 44.
78 See, in respect of Pakistan, Living with Drones, 55-73 and C. Woods and C. Lamb, ‘Obama Terror
Drones: CIA Tactics in Pakistan Include Targeting Rescuers and Funerals’, The Bureau of Investigative Journalism, 4 February 2012 < www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals> accessed 15 August 2014).
whether civilian rescuers are being deliberately targeted, and – given the lack of time between first and second strikes – further raises questions as to how the status (to be legitimately targeted as a combatant) of any individual present can be determined. According to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions if “civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: those strikes are a war crime.”
Such policies not only undermine the fundamental requirement of distinction, but also fall short of the precautions and presumptions that must be applied in situations of doubt.
3.3.2 Precaution
In conducting military activities, parties must attempt to spare civilians (and civilian objects) from the effects of hostilities. They are required to take all feasible precautionary measures with a view to avoiding, and in any event minimizing, incidental civilian mortalities or injury and damage to civilian objects.79 “Feasible” precautions are defined as “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”80 and include: doing everything feasible to verify that the objects to be attacked are military objectives and not civilians or civilian objects81; taking all feasible precautions in the choice of means and methods of warfare to minimize loss of civilian life82; and doing everything feasible to cancel or suspend an attack if it becomes apparent that a target is not a military objective or would result in disproportionate civilian loss.83
It has been argued that the context of targeted killing through drone attacks allows – and therefore also requires – a particularly high level of precaution.84 Reasons for this include the fact that, compared to many types of more traditional military operations, decisions to carry out a drone attack are not typically taken under significant time
79
Melzer, op. cit. n. 35, 23-24.See also Arts 57(2)(a)(i)-(iii) and 57(2)(b) Protocol I; ICRC, Customary International Humanitarian Law, Rules 16-19.
80 See ICRC, Customary International Humanitarian Law, Rule 15.
81 ICRC, Customary International Humanitarian Law, Rule 16, citing Protocol I, Art. 57(2)(a). 82
Ibid., Rule 17, citing Protocol I, Art. 57(2)(a).
83 Ibid., Rule 18, citing Protocol I, Art. 57(2)(b). 84 Melzer, op. cit. n. 35, 23-24.
pressure but also that they have very little tolerance for improvisation, and even minor unexpected events may lead to failure, errors or excessive incidental harm.
Nevertheless, international law accepts in the circumstances of armed conflict (including it may be assumed, drone attacks) that there should be a degree of tolerance for errors made “within the limits of honest judgment on the basis of the conditions prevailing at the time”.85 However, it is very difficult to reason, however, that this permits the targeting of individuals based on the mere suspicion that they may qualify as a legitimate military target, such as appears to be the case with the current US policy of “signature strikes”.
3.3.3 Proportionality
The principle of proportionality in humanitarian law prohibits attacks against legitimate military targets if the expected incidental harm on protected persons and objects (“collateral damage”) is excessive in relation to the military advantage anticipated. In principle, the higher the military advantage (which, in individual targeting cases, might involve a “high value” target) the more incidental harm international law will accept as justified.
Although drone attacks are often portrayed as a method of “surgical” warfare, the potential for considerable incidental damage exists, and reports show that, in practice, drone attacks regularly result in some level of incidental mortality, injury and damage. It is therefore reasonable to assume that they are neither inherently disproportionate nor inherently proportionate and must be assessed on a case by case basis.
At least in terms of numbers, it is somewhat difficult to assess the proportionality of the drone strikes because there is no official recording of civilian casualties or any proper investigation after the attack (see further on these points, section 3.5.2) and there is wide variation in the figures that are available. Nevertheless, as was noted at the beginning of this thesis,86 anecdotal evidence supported by statistics collected by non-governmental sources appear to indicate significant numbers of civil casualties, which have raised questions about the proportionality of the attacks, particularly in
85 UNWCC, Wilhelm List (Hostages) case, at 69. 86 See section 2.2 for Pakistan and 2.3 for Yemen.
light of questions also over the “value” of many of the military targets and the overall military objectives that are being pursued and achieved.87
The widely held view of most analysts is that the US administration significantly underestimates the extent and impact of incidental loss and damage. The findings of the UN Special Rapporteur on Counter-Terrorism (which sought specifically to assess the credibility of the available evidence) also support this view, with respect both to Pakistan and Yemen.88
More specifically, it appears the assessment criteria used for civilian casualties automatically presume that all males of fighting age present in the area of a planned attack are combatants, unless intelligence collected after the attack proves otherwise. Not only are these criteria inadmissible for the distinction between civilians and combatants, this approach also circumvents the precautions and presumptions to be applied in situations of doubt and, thus, effectively removes all meaningful safeguards provided by humanitarian law against excessive incidental harm to civilians.
Closely related to the principle of proportionality (and part of the assessment) is the principle of military necessity. Humanitarian law requires a State using military force to demonstrate that such action is necessary to achieve a legitimate purpose,89 the purpose of the conduct of hostilities being to defeat the enemy “at the earliest possible moment with the minimum expenditure of life and resources”.90 The military necessity-test comprises a number of components: there must be no alternative for the killing in order to achieve a concrete and direct military advantage (qualitative necessity); there are no less destructive alternatives (quantitative aspect); and the targeted killing must be both qualitatively and quantitatively necessary at the moment it takes place (temporal necessity).91
87 See, e.g., ‘US Drone Strikes ‘Raise Questions’- UN’s Navi Pillay’, BBC News, 8 June 2012 (at
<www.bbc.co.uk/news/world-asia-18363003> accessed 15 August 2014), quoting the UN High Commissioner for Human Rights as stating that “drone attacks do raise serious questions about compliance with international law, in particular the principle of distinction and proportionality”.
88 Countering Terrorism Report, 12-16.
89 See Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict
(Cambridge University Press, Cambridge 2004) 16-18; and Melzer, 285.
90 Dinstein, ibid., 89. 91 Melzer, 296 and 398.
There are serious questions, however, as to the role of the drone strikes in the US administration’s long-term counter-terrorism strategy. For example, analysis (including, it is reported, that of the White House) indicates that the vast majority of those killed in drone strikes in have been low-level alleged “militants.”92Perhaps even more significantly, however, there are doubts that the military strategy is having any effect at all (or might even by counter-productive to the intended objectives). It is clear that US strikes in Pakistan and Yemen generate anti-American attitudes and undermine US credibility in the region. There is also evidence to suggest that drone strikes have facilitated recruitment to violent non-State armed groups, motivate terrorist activity and are prolonging and exacerbating the conflict.93
In light of the principle of military necessity, States employing drone attacks on a regular basis should accommodate the fact that the targeted killing of an enemy is not an end in itself, but should only be undertaken with a view to advancing military objectives. And in relation to the principle of proportionality, long-term strategies designed to contain a conflict with a low level of intensity while exposing the civilian population to the constant threat and on-going occurrence of incidental death, injury and destruction is difficult to reconcile with the careful balance underlying the principle.
3.3.4 Persons hors de combat
The objective of military hostilities is not to kill combatants, per se, but to bring the enemy to submission, albeit that this will almost always necessitate the killing of
92 For Pakistan, see Living with Drones, 30-31; for Yemen, see Between a Drone and Al-Qaeda, 19,
38-42. According to one report, of the 500 “militants” the CIA believed it had killed between 2008-2010, only 14 were “top-tier militant targets,” and 25 were “mid-to-high level organizers” of Al Qaeda, the Taliban, or other hostile groups: A. Entous, ‘Special Report: How the White House Learned to Love the Drone’, Reuters, 18 May 2010 (at < www.reuters.com/article/2010/05/18/us-pakistan-drones-idUSTRE64H5SL20100518> accessed 15 August 2014). On the other hand, documents recovered from Osama bin Laden's home after his death in 2011 reportedly expressed frustration with the drone strikes in Pakistan because they were killing al Qaeda operatives faster than they could be replaced: ‘Bin Laden was trying to rebuild drone-decimated terror network’, Japan Times, 3 July 2011 and ‘Bin Laden Files Show Al-Qaeda Under Pressure’, Washington Post, 2 July 2011.
93 In relation to Pakistan, see Living with Drones, 131-137. In relation to Yemen, see S. Raghavan, ‘In
Yemen, US Airstrikes Breed Anger, and Sympathy for al-Qaeda’, Washington Post, 30 May 2012 (at < www.washingtonpost.com/world/middle_east/in-yemen-us-airstrikes-breed-anger-andsympathy-for-al-qaeda/2012/05/29/gJQAUmKI0U_story.html> accessed 15 August 2014), noting that “hundreds of tribesmen have joined AQAP in the fight against the US-backed Yemeni government” and that strikes are “angering powerful tribes that could prevent AQAP from gaining strength”. See also I. Mothana, ‘How Drones Help Al Qaeda’ New York Times, 13 June 2012 (at <www.nytimes.com/2012/06/14/opinion/how-drones-help-al-qaeda.html> accessed 15 August 2014).
combatants. Accordingly, it is prohibited to conduct hostilities on the basis that there be “no survivors”, to refuse to accept the other party’s surrender or to attack those who are hors de combat, i.e. those who are taken outside of combat due to injury, sickness, capture, surrender or for any other reason. The law (as expressly contained within the Hague Resolutions but as a matter also of customary international law) is absolutely clear that persons hors de combat are not legitimate military targets, regardless of their previous combative status and regardless also of whether or not they can be captured or evacuated.94 Specific rules cover the protection of medical personnel and others trying to collect the dead and care for the wounded,95 but directing attacks against any persons hors de combat, or against non-combatants engaged in their rescue, constitutes an unlawful act.
A difficulty with US drone strikes, in both Pakistan and Yemen, is the so-called “double-strike” or “double-tap” tactic, outlined above. According to an increasing number of reports, these secondary strikes have killed and injured medical personnel, or other civilian responders, coming to the rescue of those injured in the first strike.96 It is difficult to reconcile this practice with the unambiguous rules concerning persons
hors de combat. Even if in individual cases other operational factors may exist
(although the US has not generally asserted any), ordering a targeted killing without permitting the option of suspending the attack when a targeted person falls hors de
combat is unlawful.97
3.4 International Human Rights Law
International human rights law can be found in global and regional treaties such as the International Covenant on Civil and Political Rights98 and the American and
94 Art. 23(1)(c) Hague Regulations. See also Melzer, 367-71. 95
For medical personnel, see: Art. 24 GC I, Art. 36 GC II; Arts 12(1) and 20, Protocol I; Arts 9(1) and 11, Protocol II; and ICRC, Customary International Humanitarian Law, Rules 25, 28-30.
96 See Living under Drones, 74-76; and C. Woods, ‘Get the Data: Obama’s Terror Drones’, The Bureau
of Investigative Journalism, 4 February 2012, < www.thebureauinvestigates.com/2012/02/04/get-the-data-obamas-terror-drones> accessed 15 August 2014; C. Woods, ‘Drone strikes in Pakistan: Bureau investigation finds fresh evidence of CIA drone strikes on rescuer’, The Bureau of Investigative Journalism, 1 August 2013 < www.thebureauinvestigates.com/2013/08/01/bureau-investigation-finds-fresh-evidence-of-cia-drone-strikes-on-rescuers> accessed 6 August 2014.
97
It is specifically recognized to be a war crime under the ICC Statute, Art. 8(2)(b)(xii).
98 International Covenant on Civil and Political Rights (adopted by UN General Assembly Resolution
2200A (XXI) of 16 December 1966, in force 23 March 1976) 999 UNTS 171.
