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.

Anwar Al-Awlaki is killed

(Anwar Al-Awlaki in happier times...)

At least according to the Guardian. It's interesting that the particular point made about Awlaki is his US citizenship, as if this exempted him from targeting as a leading member of Al Qaeda in the Arabian Penninsula (AQAP).

Interesting. I'll scribble some more when more is known.

"Targeted Killings" Legal Considerations: Part One Armed Conflict

 (MQ-9 Reaper: Radio controlled model airplanes were never this much fun in high school.)

“Targeted Killing” is a strange term. On one hand, it is a technocratic phrase used by commentators to describe what is described by the US Joint Special Operations Command (JSOC) in Professor Philip Alston's excellent essay on targeted killings as “kinetic counter-terrorist operations”* – evoking images of robotic planes blowing up terrorists / bad guys / evil doers in precision ("clinical") strikes, or Special Forces kicking in doors at night and "taking down" the aforementioned terrorists / bad guys / evil doers (T/BG/EDs, I suppose).  

On the other hand, “Targeted Killing” is an Orwellian obfuscation of language to camouflage the violent – and sometimes apparently random – deaths of large numbers in zones of conflict worldwide. Thus, Targeted Killings as a term can cover many things, ranging from the legitimate killing of enemy combatants through assassination of opponents to the murder of innocent civilians.

Finally, “Targeted Killing” is curious as a grammatical description – to define some killings as “targeted” immediately implies a differentiation from others that are “untargeted”, and therefore, (presumably) indiscriminate. Indiscriminate attacks run the serious risk of killing or injuring those who are not legitimate targets - which is a war crime. As this blog has covered in the past, under the Law of Armed Conflict (LOAC) the legal use of force is always targeted - so the very notion of a "targeted" - as opposed to an "untargeted" killing is somewhat confusing.

It is also emotive; killing is not a warm fuzzy word, and therefore, arguably the whole term is pejorative - and in the process we run the risk of missing the legal point. Fundamentally, how do "Targeted Killings" differ from any other combatant deaths? 

Let's look at the law.

(Professor Philip Alston, NYU; a good lawyer, who also writes beautifully.)

Conflict Nexus

The most important question is "what is the controlling law?" There are three possible answers:

- LOAC, when there is an International Armed Conflict (IAC), with the IAC rules;

- LOAC, when there is a non-International Armed Conflict (NIAC), with the NIAC rules;

- International Human Rights Law (IHRL), where there is no armed conflict (ie, any disturbances / riots are below the level for conflict), based on the 1948 UDHR subsequent international instruments (e.g. the ICCPR, CEDAW) and the regional charters (e.g. ECHR / ACHPR);

The key here is that under LOAC, "targeted killings" against combatants (IAC) or those taking an active part in hostilities (NIAC), are, subject to the proportionality and military advantage rules, legal. Under the peacetime policing rules of IHRL, the test for the use of lethal force is much tougher - is acceptable if it the only way to protect others from an immediate threat. 

Fundamentally, the legal problem under LOAC comes down to combatant status - or not - and with it, identification. If you successfully target and kill a senior enemy combatant, then you may well gain a measurable military advantage - similarly, if you were able to target individuals with specific high-demand skills (e.g. Yahya "The Engineer" Ayyaash, killed by the Israelis in January 1996), then you'll gain a disproportionate military advantage. 

But to achieve these disproportionate results, you need excellent intelligence, a precise understanding of the weapon's explosive effect - which as long ago as 2003 was detailed in the Seattle Times - and a judgement based on the likely number of civilian deaths (Collateral Damage) versus the military advantage to determine legality.

(T/BG/EDs? Pashtun civilians? Stag do? Hollywood extras? How can you tell?)

Role of Intelligence 
This is where things become difficult, in that the information used to conduct the target identification is likely to be highly classified intelligence, which by its' nature is unlikely to be released - and if material is occasionally declassified or leaked, then the manner in which it was collected and analysed will remain unclear, making an external assessment of its veracity difficult. After all, intelligence agencies rightly want to protect their sources and methods, for fear of losing access to a source or method in future.

Within these rules the challenge - as Alston's article details - is to ensure that the legal requirements are met, and that there is an appropriate level of oversight; ironically (in light of the Nicaragua Case) Ronald Reagan's notion of "trust but verify" is ever more important. The problem, of course, is that if the intelligence files are not openly available, then it is difficult or impossible to assess the targeting decision. Moreover, as the enquiries and cynicism predictably coalesce around those strikes that have gone wrong, (either because of a technical, intelligence or judgement error), then the lack of the intelligence basis for the targeting decision makes accurate ex-post assessment of the decision-making virtually impossible: all you'll see is the human - and civilian - toll. 

So "Targeted Killings" - if we must use the term - of combatants in IACs and NIACs are much less legally problematic than some would have us believe. But establishing oversight to ensure that the analytical framework behind these attacks is credible and produces legal strikes is critical - and that's where Professor Alston's essay is so useful.

I'll return to specifics later, along with the IHRL implications.

* Alston, p. 47