There was a debate yesterday in the United Kingdom’s second legislative chamber – the House of Lords – on the UK’s use of drones (see here for debate and here for previous EJIL:Talk! post on UK’s use of drones). Not much was said with respect to drones themselves (i.e. remotely piloted aircraft) which was particularly new or noteworthy. The UK government simply asserted that there is no need for any new codes of conduct and that “[the UK's] system is operated by highly trained, skilled and qualified RAF pilots in accordance with the principles of international humanitarian law.” [column 726]. What was perhaps more interesting was what was not said. First, although the government was specifically asked whether the UK uses the ICRC’s definition of combatants and civilians, the government did not respond to this question (see my previous post on this issue). Second, there was an interesting exchange with regard to autonomous weapons and the possibility of UK use of such weapons where some important matters where also left unspecified. (more…)
Noam Lubell is Reader in Law, University of Essex. He can be followed on Twitter @nlubell.
Not only is the debate over the use of unmanned aerial vehicles (drones) not going away, it appears to be consistently growing, with ever new examinations and reports. It tends to encompass – and sometimes unnecessarily conflate – a number of issues, including:
- The advantages, disadvantages and legality of the drone technology itself, e.g. should there be restrictions on remote controlled (or moving on to autonomous) methods of warfare.
- The manner in which the use of drones appears to further the concept of a ‘global battlefield’, and a ‘global war against Al-Qaida’ (or ‘war on terror’, take your pick).
- The ius ad bellum aspects in relation to drone strikes on the territory of another state.
- The adherence to the law of armed conflict – if and when it applies – in specific drone strikes, especially concerning the status of individuals killed by drone strikes, and rules on indiscriminate attacks and proportionality.
- Accountability for drone strikes and transparency over their use.
- The applicability of international human rights law to drone strikes. In the US this point has taken on an extra US-centric twist, with regard to constitutional law and powers, and the implications with regard to US citizens.
There are obvious links between these issues and they all affect each other in a myriad of ways, but any examination of the international law applicable to drone strikes must also understand that the above all need to be taken into account and given separate attention, before any attempt is made to assess the overall picture of legality. Clearly there’s no room to cover all the above in adequate detail in this one post, but I would like to briefly address the second point above, and the way it links to some of the other issues.
Last week, Ben Emmerson QC, the UN Special Rapporteur on Counter-Terrorism and Human Rights announced that he was establishing a panel which will investigate allegations that drone strikes and other forms of remote targeted killing have caused disproportionate civilian casualties. The panel is charged with making recommendations regarding the obligation of States to conduct independent and impartial investigations into such allegations with a view to securing accountability and reparations. Most of the attention regarding the use of drones for targeted killing has, been focused on the United’s States drone programme. This is understandable as the vast majority of drone operations for targeted killing have been carried out by the US. However, it is implicit in Ben Emmerson’s statement that he also intends to examine the use of drones by other countries, and particularly by Israel and by the United Kingdom (see report by the Guardian). This is because he mentions the use of drones in the “State of Palestine” and also refers to co-operation he has received from the government of the UK.
It is not well known that the UK also uses drones or Unmanned Aerial Vehicles (UAVs) for targeted killing and there has been little analysis of casualties arising from UK drone strikes. A recent report by the UK House of Commons Library provides an overview of the:
“The strengths and weaknesses of UAVs, the different types of UAVs in use by the UK Armed Forces in Afghanistan, rules of engagement and highlights some of the points raised by those concerned about their development and use.”
The report points out that:
“Reaper is the only armed remotely piloted aircraft system used by the UK. It is only deployed in Afghanistan. Defence Minister Andrew Robathan has confirmed the UK does not use armed UAVs against terrorist suspects outside Afghanistan. Defence Minister Philip Dunne has confirmed it has not been used in Pakistan or Somalia. The MOD has not made a decision as to whether to retain Reaper once combat operations end in Afghanistan. As of 1 November 2012, 297 Hellfire precision guided missiles and 52 laser guided bombs have been employed by Reaper since operations began in Afghanistan. Reaper deployed to Afghanistan in 2007 but only had the capability to deploy air-to-ground weapons since May 2008.” (p. 11)
Civilian Casualties from UK Drones
One of the criticisms of the US drone programme is the US claim that few or indeed no civilians are harmed by drone strikes. This is a claim that has been disputed by journalists and others (see for example, the Bureau of Investigative Journalism). The UK makes a similar claim in relation to its programme. (more…)
Readers might be interested in two very good recent articles on drones and President Obama’s direct involvement in targeted killing decisions: in the Boston Review, David Luban examines Obama’s alleged reliance on just war theory in deciding on targeted killing policies, while Paul Daly on his new blog looks at the issue from an administrative law standpoint. Reactions are of course welcome.
Yesterday, lawyers acting for the son of a man killed by a US drone in Pakistan issued legal proceedings in the English High Court against the UK Foreign Secretary claiming that the UK is acting unlawfully in providing assistance to the US drones program (see here and here). The allegation is that the General Communications Headquarters (“GCHQ”), a UK intelligence agencies under the control of the Foreign Secretary, provides information to the CIA on the whereabouts of alleged militants. According to the lawyers acting for the claimant:
“The legal challenge states that the only persons entitled to immunity from ordinary criminal law in respect of armed attacks are those regarded under international law as “lawful combatants” participating in an “international armed conflict”.
As CIA and GCHQ employees, are civilians and not “combatants” they are not entitled to the benefit of immunity from ordinary criminal law. Even if they were there is also no “international armed conflict” in Pakistan. Indeed, there is no “armed conflict” of any sort.
GCHQ employees who assist CIA employees to direct armed attacks in Pakistan are in principle liable under domestic criminal law as secondary parties to murder and that any policy which involves passing locational intelligence to the CIA for use in drone strikes in Pakistan is unlawful.
Evidence suggests that drone strikes in Pakistan are being carried out in violation of international humanitarian law, because the individuals who are being targeted are not directly participating in hostilities and/or because the force used is neither necessary nor proportionate.
This suggests that there is also a significant risk that GCHQ officers may be guilty of conduct ancillary to crimes against humanity and/or war crimes, both of which are statutory offences under the International Criminal Court Act 2001″
To the extent that the claim raises issues of British complicity with violations of international law by the US, this case will be similar to those cases in which it is alleged that UK officials are complicit in torture committed by foreign States (see previous posts here, here and here). Claims that drone strikes amount to crimes against humanity seem a bit far fetched. Whether or not the drone strikes violate international humanitarian law and amount war crimes will depend on some of the issues raised in my post of last month on targeting practices employed in drones strikes in Pakistan. Readers will no doubt spot the contradiction in the present claim. It is said that not only is there no international armed conflict in Pakistan, there is actually no armed conflict of any sort. Nonetheless it is claimed that the drone strikes are carried out in violation of international humanitarian law and that there is a significant risk of UK personnel being guilty of war crimes. Without an armed conflict, IHL does not apply and there can be no war crimes!
The first part of the claim seems to take a completely different approach to the claims made at the end. The suggestion there is that even if the drone strikes are not themselves contrary to international law, the involvement of CIA and GCHQ personnel in those strikes is unlawful because those persons do not have combatants immunity under international law. First of all, it should be pointed out that absence of combatants immunity for acts in war does not mean that a person who does those acts is acting in violation of international law (as long as the acts don’t violate IHL). (more…)
A week ago, the Bureau for Investigative Journalism (BIJ), in conjunction with the Sunday Times (of London) published a report into US drone tactics in Pakistan. The report states that since Barak Obama came into office US drone strikes in Pakistan killed between 282 and 535 civilians. The core of the recent report was that some of these civilians were killed in follow-up strikes which delibaretely targeted those who had gone to help victims of previous strikes or were killed in deliberate strikes on funerals and mourners. In a separate piece, “A Question of Legality“, the BIJ examines whether this US tactis is lawful under international humanitarian law (and international human rights law). In that piece I am quoted as follows:
Professor Dapo Akande, who heads Oxford University’s Institute for Ethics, Law and Armed Conflict, believes that under LOAC the killing of civilian rescuers is problematic: ‘The question is, can rescuing be regarded as taking part in hostilities, to which for me the answer is clearly “No”. That rescuing is not taking part in hostilities.’
The BIJ piece (and my quote) has generated a keen debate on other international law blogs as to legality of the (alleged) US tactic of attacking rescuers and funeral goers. Bobby Chesney, at Lawfare agrees with what I say on direct participation in hostilities but argues that this only matters “if we assume that a person must be directly participating in hostilities in order to be targeted lawfully in that context.”. He explains that if one agrees with the position taken by the ICRC in its Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law, then a member of an organized armed group who has a continuous combat function is not a civilian and can be targeted at any time (i.e on the basis of his status alone), subject to questions of proportionality. That person does not need to be taking a direct part in hostilities to have no immunity from attack.
I agree with Bobby Chesney’s assessment. He is right that the first question is whether the people who have been targeted are civilians. It is only if the answer to that question is in the affirmative that one gets to the question of direct participation in hostilities. I did make this point to the BIJ in my interview with them but I think the quote they chose to go with was one which they felt made the point about the illegality of killing civilian rescuers most strongly. I have gone over the transcript of my interview with BIJ and this is what I said on this point:
On the one hand, if we’re talking about people who are known to be militants (and this is the big question, whether they are and how the US knows and all of that) then you can say, well, these people under LOAC can be targeted just because they are militants. That would be fine. On the other hand, it can be argued that the law says that if you’re a civilian and you take a direct part in hostilities, then you can also be targeted. So you’re not a militant, you’re just a local, but you take a direct part.
So then the question is, can rescuing be regarded as taking part in hostilities, to which to me the answer is clearly ‘No.’ That rescuing is not taking a direct part in hostilities. And so if a person is not a militant, the fact that they are coming to recue and help, that’s not taking a direct part in hostilities.
The first para above was intended to make, in simple terms, the point that members of organized armed groups can be the object of an attack (even in a funeral or a rescue situation) on the basis of that status alone. However, that would only be stage one of the analysis as all that would have been satisfied is the principle of distinction (which requires those conducting attacks to distinguish between civilians and combatants). If the attack causes civilian casualities or damage to civilian objects, one would then proceed to analyse whether the principle of proportionality is satisfied.
Kevin Jon Heller in a post on Opinio Juris takes a different view and has argued that the principle of distinction does not permit the U.S. to intentionally attack one member of an organized armed group who is attending a funeral along with a number of civilians. In his view such an attack is a clear violation of the principle which states that the civilian population as such shall not be the object of attack (Art. 51(2) Additional Protocol I, 1977). Kevin notes Article 50(3) of API which states that the “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”
I disagree with Kevin that an attack which has as its object the killing of a member of an organised armed group (lets call him “combatant” for short) fails to respect the principle of distinction because the combatant is in the company of civilians. The attack may well be unlawful because of disproportionate civilian casualties or loss but that is a different point. (more…)
First off, some personal news – I am very happy to report that I will be taking up a lectureship at the University of Nottingham School of Law starting this September. It’s a truly excellent school, with some wonderful colleagues, and I do look forward to working there. Now, on to business:
The whole Gaza flotilla affair has occupied so much public attention and legal commentary that there has been little response so far to the publication of Prof. Philip Alston’s report to the Human Rights Council on targeted killings. The report is on any view a valuable contribution to the debate. Over at Opinio Juris, Ken Anderson has published a short ‘not-yet-response’ to the report, and I’d like to add a few thoughts of my own, mostly with regard to the relevance of self-defense.
The independent self-defense justification for targeted killings
As readers are aware, Ken has in the past argued for self-defense as an independent justification for (some) targeted killings. He has done so (and I am in full agreement with him on that point) because the justification offered by the Bush administration at the time, that it is engaged in some amorphous, global armed conflict with Al Qaeda and that it can kill combatants in that conflict, cannot justify the whole of the US targeted killings policy even if stretched to its utmost limit. In other words, even if we accept that there is such a thing as a global non-international armed conflict, the US has killed people, and thinks it needs to kill people, who have no connection whatsoever to that conflict. And there, says Ken, self-defense comes in.
Today, of course, Ken is not alone in so arguing – recently, at the last ASIL meeting, the legal adviser of the State Department, Prof. Harold Koh, has offered the same justification.
In a prior post, I argued that it is doubtful that self-defense can do all that Ken wants it to do. In particular, I argued that if the person being targeted has rights under human rights law, self-defense cannot preclude the wrongfulness of the killing. Rather, the killing would have to be justified within the human rights framework. If, on the other hand, human rights treaties did not apply, then there would be little need for self-defense.
Ken has responded to my critique by saying the following:
Meaning, Marko starts from two points – one is extraterritorial application of the ICCPR. I don’t buy that, the US doesn’t buy it – and I don’t think its position unprincipled or ungrounded. If one disagrees not just as to the view, but also as to whether it is a principled position or not, it seems hard to have traction in the rest of the discussion, with all admiration and respect to Marko. Marko’s second point (really the first) went to self-defense as being about the state whose sovereignty is being violated, not the terrorists. I truly think we – and the US – and Marko are on different, irreconcilable pages here; I can’t imagine the US thinking that the act of self-defense is anything other than aimed at the terrorists, and the violation of sovereignty of the local state is collateral to that. It is a violation of that state’s sovereignty, but territorial integrity is not everything, as Sofaer said in his 1989 speech and Koh essentially reiterated. But I think I must not understand Marko well, because I couldn’t understand how he meant self-defense.
Now I’d like to offer a rejoinder – in part because of a real disagreement between us, and in part to clarify what I think is, or may be, a misunderstanding, either linguistic or semantic, or perhaps legal and conceptual.
(Warning! long post — but hopefully not a boring one!)
Ken Anderson has an excellent, very interesting post regarding the US strategy of using drones for targeted killings of suspected terrorists in Pakistan and elsewhere (a topic we’ve addressed at the blog before). He argues that, as a matter of both law and policy, the current justification of the US government for its targeted killing practices is insufficient, because it relies far too much on IHL concepts like ‘combatant’ and IHL rules on targeting which are dependent on such concepts.
Such a justification is of course deeply problematic because IHL applies only in armed conflict, while the position taken by the Bush administration that the ‘war on terror’, or the US struggle again Al-Qaeda, is some sort of armed conflict unlimited in time and space to which IHL applies, is not very tenable. Unfortunately, the Obama administration has also used IHL in this way, if with some adjustments, while in Hamdan the US Supreme Court ruled that Common Article 3 was applicable and that the US is in some sort of global, amorphous non-international armed conflict with Al-Qaeda. (The Hamdan judgment is however quite unclear, and would bear other readings as well, such as that there is a non-international armed conflict between the US and Al-Qaeda in Afghanistan).
There has long been a consensus outside the US legal academia that IHL is inappropriate to regulate the fight against terrorism, outside specific situations where armed hostilities actually occur and have a certain level of intensity, as in Iraq or Afghanistan. For God’s sake, just how absurd would it be to look at the most recent Christmas/Underwear Bomber as some sort of ‘unlawful combatant’ in a global armed conflict?
Ken has thus valiantly argued on several occasions that the US government should desist from invoking IHL in this unconvincing manner, and that it should rely instead on its customary right of self-defense to justify the targeted killings of suspected terrorists:
That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied. And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves. That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense — if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.
Now, assuming that targeted killings of certain suspected terrorists are desirable in at least some cases as a matter of policy, is Ken’s self-defense argument for justifying them sufficiently persuasive? I respectfully submit that it’s not.
Editors Note: We feature below a discussion between a group of leading United States academics on the US’s targeting of Taliban and Al Qaeda targets in Pakistan. Each of the discussants is a leading writer on international law, and on the use of force in particular. We are delighted to post this discussion on EJIL:Talk! As usual, readers are invited to post their comments below.
The discussion kicks off with remarks by Professor Jordan J. Paust , Mike and Teresa Baker Center Professor at the University of Houston Law Center. His initial remarks were originally prepared in response to a request from the media for clarification regarding certain issues arising from US use of drones in Pakistan. The other discussants are Professor Mary Ellen O’Connell (Notre Dame Law School); Professor Leila Sadat (Washington University School of Law, St. Louis); Professor Tony D’Amato (Northwestern University School of Law); Professor Geoffrey Corn (South Texas College of Law); Professor Ken Anderson (American University, Washington College of Law); and Professor Timothy Waters (Indiana University at Bloomington).
This week, leading academics and practitioners from the US, UK, continental Europe, and Israel will gather at the University of Oxford to discuss a range of IHL-related issues – from addressing violations of the rules of war to military ops that go beyond the traditional battlefield. The two-day roundtable discussion will focus on transatlantic issues relating to international humanitarian law (IHL). Civilian and military participants from Canada, the United States, the United Kingdom, continental Europe and Israel will address a variety of IHL issues of concern to their own States, as well as relating to cooperation between States. The idea is to share ideas across borders in order to exchange approaches to various IHL and national security issues and advance the dialogue on these issues. The roundtable is organized by the International Committee of the Red Cross’ delegations in Washington, D.C. and London, the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations , the Robert S. Strauss Center for International Security and Law at the University of Texas, and the South Texas College of Law.
Participants will discuss the following topics:
- Updates in the overlap between IHL and IHRL
What have the major updates in the interplay between IHL and International Human Rights Law (IHRL) been over the past year? Has IHRL gone too far into influencing IHL? What are the effects of this interplay?
- Accountability for violations of IHL