Monday, October 10, 2011

Drone Strikes: A new international norm?

(Jeff Redfern - fired a Hellfire by mistake, became a legend*)

There's much ado about drones / UAVs / RPAs at the moment, especially as Americans are engaged in an interesting debate about whether the US Government killing American citizens without apparent due process, after the killings of Anwar Al-Awlaki and Samir Kahn in Yemen in late September. Indeed, there's an interesting piece on the leaked legal advice in today's New York Times which I'll come back to in the next couple of days. For background, this Economist piece is good.

The NYT has also published an interesting article on worldwide drone proliferation, which lists the US, the UK and Israel as the three states to date which have used drones for lethal attacks (US in at least in Iraq, Afghanistan, Pakistan and Yemen; UK in Afghanistan; Israel in Gaza and Lebanon), with many more States interested in acquiring the capability. Indeed, General Atomics Aeronautical (GA-ASI) have a nice website for all you aspiring Jeff Redferns out there...

But what caught my eye was this from Dennis M. Gormley, a senior research fellow at the University of Pittsburgh who the NYT quoted as: 

"“The problem is that we’re creating an international norm” — asserting the right to strike preemptively against those we suspect of planning attacks"

An international norm? Interesting, sounds like international law. As a claim, how does it stack up?

(The Peace Palace, home of the ICJ. It's architecturally absurd, but remarkable. Do go!) 

Sources of International Law
Article 38(1) of the Statute of the International Court of Justice is widely accepted as the authoritative statement of the sources of international law. These are:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Which is sufficiently broad to cover just about anything. However, "an international norm" clearly falls within the ambit of Art 38(1)(c), and if there's sufficient State Practice, then hey presto we've created international law.

So it that's the theory, what does this mean in this case?

Probably not much. At least, it shouldn't mean much, as what the US is doing with it's drone strikes should not be random acts of violence against its politico-military opponents, but as permissible and proportional uses of force under LOAC. Indeed, far from being random, legitimate uses of force under LOAC, will, as usual require:

 - a conflict nexus as either International Armed Conflict or Non-International Armed Conflict;
 - military necessity,
 - humanity,
 - proportionality and
 - the ability to distinguish between military targets and civilians.

None of this changes with the use of drones / UAVs / RPAs; the rules are the same as they always were.

(Preventative warfare? Not big, clever or legal.)

What speaks volumes is the second half of Gormley's quote:
"asserting the right to strike preemptively against those we suspect of planning attacks"

I'm not at all certain the Obama Administration has reverted to the notion of preventative warfare that Bush (43) Administration advanced (to near-universal opprobrium) in 2002 and 2006. If Gormley were to show that this was the case, then the US would again be out on their own (and not in a good way). As far the claim that drones allow for the preemptive use of force outside of armed conflict because they are drones, this is risible: drone attacks are governed by the existing legal framework.

Moreover, any suggestion that drone attacks absent a conflict nexus are governed by anything other than International Human Rights Law (IHRL), which demands the use of minimum force at all times, and only allows for the use of lethal force in the exceptional cases of a clear and immediate threat to the lives of others which cannot be stopped in any other way, is also simply wrong. Quite how an IHRL-compliant lethal use of force by a drone could be justified is an interesting mental exercise, but it would have to be a circumstance in which an individual was imminently threatening the lives of others, that there was no alternative to use force, and the drone was the only option. The challenge here is that how would you know that from a drone alone? Hard to see, but the best that can be said is that it can't be excluded that there could be (extreme) circumstances in which IHRL-compliant drone attacks could be legal, but the onus will be on the attacker to demonstrate that such an attack was legal.  

But let's be clear, there is no new law here - drone attacks are more than adequately governed by the existing use of force framework, and notions of "preventative war" were - and remains - illegal. 

* But only in Doonesbury.

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