The International Legal Framework Regulating Armed Drones

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Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.

As the abstract of the article sets out:

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike.

The ICLQ and Cambridge University Press have kindly made the article free to access here from now until the end of April. Take a look to see what you think. As indicated by the abstract, the piece is wide-ranging and seeks to cover a lot of ground though much more can be said about each of the individual areas that we address.

In other drones related news, I have recently been appointed as a legal advisor to an Inquiry by the UK Parliament’s All Party Parliamentary Group on Drones (APPG) into the emerging technologies of drones and the ways in which the UK works with allies with regard to use of armed drones. Under its terms of reference, the inquiry will make recommendations to ensure appropriate levels of transparency and accountability with regard to the use of armed drones. The APPG on Drones inquiry aims to build on the 2016 report of Parliament’s Joint Committee on Human Rights on “The Government’s policy on the use of drones for targeted killing”. The APPG inquiry panel invites written submissions on all aspects of its terms of reference. The deadline for written submissions is next Friday 31 March 2017. Submissions may be made here.

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Muhammad Ali Nasir says

April 11, 2017

In ius ad bellum terms, the withdrawal of consent by Pakistan in 2013 to conduct drone strikes in its territory is important. However, the American-led campaign has not ended. The recent US administration has carried on this trend as well. I believe that Pakistan has a strong case to argue that the ongoing drone strikes amount to a clear violation of Article 2(4). Further, to what extent can the American administration justify drone strikes in terms of self-defense is unclear. Around 4000 individuals have been killed since 2004 because of drone attacks in Pakistan alone, including 190 children and 1000 civilians (these are the figures coming from the data of the Bureau of Investigative Journalism). Can the numbers of dead through drone attacks create a non-international armed conflict, where there was previously none?
Coming to your article. Your article was indeed a good read and thought provoking. After reading it, with due respect, I have four questions and one suggestion. First, the use of armed force in response to an attack by a non-State group whose acts were not attributable to that State is still unclear (pp. 802-3). The almost universal support given by the international community to the US attack on Afghanistan was political. I believe that the extent to which this support has been translated into legal terms with an equally strong international support is still unclear. The Taliban regime in Afghanistan, it must be added, was only recognized by Pakistan, UAE, and Saudi Arabia. When the Taliban regime was attacked by the US because it sheltered Osama bin Laden, the extent to which the Taliban regime was dealt with as a State is ambiguous. There is a weak but an arguable case to classify this as a non-international conflict (an analogous case is ISIS). However, there is too much hotchpotch here. As such, I am not sure if one can make a good precedent out of it. I believe that the State practice in the post-9/11 context has remained somewhat indifferent to the norms of public international law. To argue that law has changed because of state practice (p. 803) only gives such acts a clean-chit. Do you believe that there is indeed a firm legal basis for the use of such armed force in contrast to the decisions on Nicaragua and Israel Wall?
Second, the difference between civilians and militant is not very sharp in Pakistan’s tribal north—that has been the focus of the drone campaign. As a cohesive tribal society, it resists clear modern categorizations. Only when, for example, a noted commander is traced and targeted can an arguable case based on necessity be made. However, instead of presuming civilian status of all (p. 810), the general presumption in the drone campaign is that all able-bodied young males are militants. To know the status of a targeted individual, one needs a legal procedure (if A is a member, if A is a non-member but is hostile). However, drone attacks are judgments. Drone strikes when a target is living his daily life. I do not know of any case in which someone was targeted with drone on the battlefield. To the extent that law depends on procedure, I believe that legal justifications of an act that lacks a firm procedural basis hit a rough terrain. Perhaps, this is the problem with both the drone and the law on the use of armed force. Can surveillance based on drone for a long-time duration (p. 811) satisfy legal tests and justify killing the target? To what extent, if at all, does procedural justice apply in an ius ad bellum situation, especially in the context of a technology like drones, and in what manner can ICRC’s Interpretive Guidance be extended?
Third. Suppose, a State A aids a State B to conduct drone campaign in a State C. What is the responsibility of A towards C, in the cases where, respectively, C has given its consent only to B (and not to A) and where C has not given its consent to B. To what extent does C exercise jurisdiction over a target D killed in its territory where it has almost no control, and to what extent do A or B exercise this jurisdiction over D when they kill D? Consider the case of Mr. Noor Khan, blocked by the Court of Appeal, which challenged the role of the UK in providing intelligence to CIA’s drone campaign in Pakistan’s northwest.
Fourth, what makes drones qualitatively different from gas or chemical attacks for the one who is killed? I believe that to the extent that legal rules constrain newer technologies through their standards to minimize the loss of those developing them, they can provide tokens of legitimacy to such technologies that make the process of killing swift and ‘painless’. Do you believe that international lawyers should take a principled stance in arguing that the use of drones in so far as it does not comply with the established norms of public international law is full of intractable problems, and ensure that those powerful governments and officials who violate those norms are held accountable, or should they once again reinterpret legal norms in order to guide governments of the way they can legitimately kill abroad without facing the charge that they are violating some fundamental norms? In this sense, I fully agree with your important point that ‘drones should follow the law rather than the other way around’ (p. 826).
Finally, a suggestion. I believe that we need to situate drone attacks in the power asymmetry of global politics. Of course, producing a drone and then having the power to use it in another state’s territory is initially a matter of political capability. Think of an impossible imaginary case in which, for example, Turkey launches a drone strike on PKK militants killing 12 militants and 7 civilians in Germany. One can use legal tools, no matter how weak, to justify this act ex post facto. I believe that a holistic picture concerning the legality of drones and their use should make both the political context and the legal rules a point of analytic concern. To the extent that one dimension is ignored, the gap between facts and norms would keep on confronting us. Incidentally, the Court of Appeal struck the case of Mr. Khan because it would, among others, imperil the relations between the US and the UK.