Drones, Battlefields, and Asking the Right Questions

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.

In an article just published (A Global Battlefield? Drones and the Geographical Scope of Armed Conflict, 11 Journal of International Criminal Justice 65 2013), Nathan Derejko and I examined the geographical scope of the battlefield in relation to drone operations. Following an analysis of the geography of the battlefield in relation to non-international armed conflicts, we examined whether the law of armed conflict in and of itself – as opposed to specific substantive rules which have geographical implications – contains a geographical restriction of the battlefield. Our conclusion was that it does not, and that the relationship between applicability of LOAC and geographical scope is the other way round, i.e. that LOAC applicability follows the prevailing hostilities wherever they may spread, rather than predetermines their geographical scope. The article also demonstrated why it is conceivable that an individual might be located a significant distance away from the central battlefield, but nevertheless be considered as taking a direct part in hostilities. A distance of 1 kilometre, 10, or 100 does not necessarily change this, if the actions of the individual are the same in each case. Moreover, whether or not this distance includes the crossing of an international border is largely irrelevant as far as the applicability of LOAC is concerned, even though it may carry great weight in relation to the ius ad bellum. This is the conclusion which appears inevitable through a step by step application of LOAC.

I won’t repeat the analysis here, as that all appears in the article. Instead, I want to take the debate to the next step – does the possibility that LOAC may, in certain circumstances, be applicable to extraterritorial drone strikes away from the primary battlefield of Afghanistan, necessarily endorse the idea of a free reign for drone strikes against individuals anywhere on the globe? The answer is a resolute no, for a number of reasons – this is where some of the separate issues highlighted earlier come into play:

First, it is necessary to establish the existence of an armed conflict between the state and the group of which the individual is a member. This is far from straightforward, and many of the US strikes have occurred against individuals who do not appear to have been members of an organised armed group engaged in an armed conflict against the US. Classification of a conflict is therefore one major legal challenge to applying LOAC to drone strikes.

Second, even if an armed conflict is found to exist, it must be shown that the individual is not entitled to civilian protection.

Third, any such strike must adhere to the rules of LOAC regarding matters such as precautions in attack, identification of targets, and collateral damage. The lack of transparency and paucity of information make it difficult to judge, but reports raise questions about the adherence to these rules.

Fourth, if the drone strike occurs on the territory of another state and without its consent, then the ius ad bellum will render such strikes unlawful, unless a case can be made for self-defence. Here it must be stressed that this self-defence argument needs to satisfy the criteria of necessity and proportionality, and it cannot be assumed that the mere presence of an active individual on the territory of another state will be enough to satisfy these tests.

Fifth, in the absence of classification as an armed conflict, the only other applicable body of law that contains rules regulating the taking of life, is the law enforcement framework as found under international human rights law. In most cases human rights law is likely to consider such strikes unlawful – although in extreme circumstances human rights law can allow for lethal force in this manner. Moreover, even if LOAC does apply, there is still the need to take into account the interplay between LOAC and human rights law. The interplay between these bodies of law is still an open and controversial question, but I would suggest that the further away one gets from the centre of the battlefield, the more the influence of human rights law may become apparent.

If all of these are satisfied – and that is a big if – then extraterritorial drone strikes against individuals could occur without violation of international law. It would seem though that a significant proportion of strikes are likely to fall foul of at least one of the above.

Returning now to the opening observations, one of the difficulties with the debates over drone strikes is the lack of clarity regarding these separate issues. The concern over the global battlefield is one such example, in which a number of issues are bound together, and when unpacked the answer isn’t always as expected: Once it applies, LOAC does not itself contain the type of geographical scope restriction that some critics of drone strikes might assume. Instead, questions should be asked about its applicability in the first place, and the adherence to substantive rules on targeting when it is applied. And other bodies of law may equally contain relevant rules that might in certain cases apply and restrict these strikes. In other words, while some drone strikes might be lawful, there are plenty of reasons to question the legality of strikes, but one needs to be looking for answers in the right places.