Drones, Battlefields, and Asking the Right Questions

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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.

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Jordan says

February 28, 2013

I agree with most of these points and have done so in my writings -- e.g., re: the difference between the self-defense paradigm and the law of war paradigm, the fact that the U.S. cannot be at war with al Qaeda as such but is in an international armed conflict in Afghanistan that has de facto (and de jure) migrated into parts of Pakistan (and that it is in the interest of every state to recognize that when it sends it armed forces abroad to fight there is an internationalization of any relevant armed conflict so that military personnel have combatant status and combatant immunity), that human rights law is global but outside U.S. territory those who have rights (such as freedom from "arbitrary" death) are those in the "effective control" of the U.S., that those targetable under the law of war paradigm include those who are DPH and that those targetable under the self-defense paradigm include those who are DPAA (direct participants in armed attacks), that non-state actor armed attacks trigger a right to target the non-state actors in the territory of another state without its consent or attribution (or whether or not it is "unwilling or unable" to control its territory -- although it may be logical to conclude that if attacks emanate from its territory that it is "unable"), that under the U.S. Const. there is no American exceptionalism or immunity for a U.S. national and that international law informs the meaning of what process is "due," that drone targeting has the potential of greater conformity with the principle of proportionality under both the law of war and law of self-defense, etc. see http://ssrn.com/abstract=2165278 and http://ssrn.com/abstract=1718548 -- and the major study: http://ssrn.com/abstract=1520717
Note also that drone strikes in Libya could fit under UN art. 42 and UN art. 52 (regional action).
The major problem with human rights law in this respect is that a person being killed from 14,000 feet or 4,000 meters, etc. is not within the "effective control" of the state that is targeting the individual and, although human rights law is global and applies during war, the person being targeted as a DPH has no relevant human rights protection. Moreover, the human rights standard re: "arbitrary" death is far less protecting than either the law of war or the law of self-defense (as noted in my major study).
Yes, these issues will be with us for a long time.

Ian Henderson says

March 5, 2013

Dr Lubell,

A very interesting and well written post. I look forward to reading your article. One comment in the meantime. You write:

"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."

In my view, the strike would be unlawful only vis-a-vis the other State. Vis-a-vis the targeted individual, the strike would still be lawful.

Jordan says

March 5, 2013

Actually, a strike in self-defense would not be unlawful even though there is no special consent by the state from which the non-state actor armed attacks emanate -- and all members of the UN Charter have "consented in advance" to lawful measures of self-defense under Art. 51.

Vincent says

March 7, 2013

Have any case notes in international or European legal journals appeared yet on the following 'unique' ECHR admissibility decision? http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115714

Jordan says

March 8, 2013

Vincent: sounds like the Jessup Int'l Moot Ct. problem a bit?

Vincent says

March 8, 2013

@ Jordan: perhaps a tiny little, in some respects. The Chagos saga would make an excellent case for Jessup 2014 though. For backgrounds, see http://www.chagossupport.org.uk/ Litigation is still continuing before British courts (Chagossians vs. UK) and under UNCLOS (Mauritius vs. UK).

Huma Anbreen says

March 28, 2013

It is a very interesting analysis and proper justifications for drone strikes are provided but i have some reservations.Drone strikes are said to be lawful according to two laws;
1.law of war
2. law of self-defence
To talk about the first one, drone strike may to some extent be justified in case of a belligerent state but not when a state is not at war.Even the arguments of global battlefield and consent will not help it.The biggest hindrance is the collateral damage.Moreover, how can a state consent to kill its citizens when everyone is presumed to be innocent until proven guilty.Dont you think
it amounts to extrajudicial killing.Same is the problem with the justification of law of self defence.No rule of self defence extends to the family of the specific person.It is a violation of human rights.