Drones were set out to be a means to avoid collateral damage, but their practical use shows otherwise. While drone strikes are effective in eliminating targets, too many drone attacks without reprieve can incite several political repercussions: by actually making as many terrorists as they kill and by altering perceptions towards the United States – which is increasingly rubbing the people of Pakistan and Yemen (among others) on the wrong side – in the process risking the creation of more enemies. There is also an increasingly alarming reliance vested in technology – as opposed to time-tested measures of human intelligence. Having become embroiled in the use of drones, the US is deeply entrenched. On the one hand, in Yemen, the United States is backing a very weak government that has to contend with a local affiliate of the Al-Qaeda. On the other hand, the Pakistani military supports US strikes against its enemies while decrying strikes against extremists.

While these drone attacks have succeeded in hitting their targets, there is evidence to show that its very purpose of avoiding unnecessary civilian casualty and collateral damage has been side-stepped. The number of people killed by the strikes, which no doubt includes al-Qaida terrorists and local militants in its fold, inevitably includes some civilians. While estimates vary widely, as many as 3,000 people have died in both countries combined.

The deployment of “signature strikes” or strikes against guerrillas in Pakistan or Yemen appearing to be members of al-Qaida Affiliate groups but who have not been identified individually is detrimental to the fabric of international law. That the US uses force and intervenes in these countries is an open secret, but a dangerous precedent that side-steps Article 2(4) of the UN Charter.

The use of drones is a contentious issue in International Law. Though in principle there is no basis for the acceptance of the use of drones, much less the deployment for targeted killings itself, the US viewpoint has offered up a couple of arguments justifying their conduct.

Depending on the setting against which the targeted killing itself occurs, namely, wartime or peacetime, humanitarian law or human rights law will apply. What is patently obvious is irrespective of the setting, law is flagrantly violated. The only possible exception to the prohibition on the use of force is Article 51 of the UN Charter, but even that sliver of a legal justification does not authorize or legitimize targeted killings.

Targeted killing refers to premeditated, intentional and deliberate deployment of lethal force as a tactic, by a State, its representatives under its authorization or an armed group in the course of an armed conflict, in order to target a specific individual, who is not in the custodial repository of the perpetrator entity itself.

The purported contention backing the use of such a technique, quite simply, is that the Global War on Terror justifies the use of force to target and kill suspected terrorists wherever they may be. With this as a “justification” offered to their conduct, one might be led to evaluate the said conduct against the principles of humanitarian law. However, that cannot be the right course of action since the United States is not in a state of war. An armed conflict as defined under the Geneva Conventions of 1949 among other things includes all cases of declared war or of any armed conflict that may arise between two or more high contracting parties even if a state of war is not recognized. These “parties” are states. The requisite precondition for humanitarian law to apply in a global context is that there should be an international armed conflict between states. The drone attacks that single out terrorists and kills them is not against the backdrop of war.

The United States lays claim to pursuing its right of self-defence under the ambit of international law. This contention, however, fails. Self-defence can only be indulged in response to an armed attack, with specific reference to the necessity quotient and adherence to proportionality. Self-defence cannot be taken up without informing the UN Security Council. In most instances of the US drone attacks, these essentials have not been adhered to.

 

 

Views: 213

Tags: Drones, Force, International, Law, Remote-control, Use, of, warfare

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Comment by Kirthi Jayakumar on March 22, 2013 at 2:57pm

Thanks a ton!!

Comment by Neha Bhat on March 22, 2013 at 2:53pm

this article may also be of interest as it looks into the issue of sovereignty of states http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232682

Comment by Neha Bhat on March 22, 2013 at 11:59am

and last, you both may also want to look at the work of the Special Tribunal for Lebanon, that's the only Intl. tribunal that has jurisdiction over the crime of terrorism and it has some fascinating jurisprudence in this regard. The work of Prof. Ben Saul has been particularly related to the examination of the work the Spl. Tribunal

Comment by Neha Bhat on March 22, 2013 at 11:35am

Prof. Alston was the Spl. Rapporteur for Extra judicial Killings, not on drones/ human rights or counter terrorism- his work on drone strikes is therefore from a more human rights framework. There is a report/ statement issued by Ben Emerson, the current Spl. Rapporteur on Human Rights and Counter Terrorism just 3-4 days back on the illegality of US drone strikes in Pakistan. 

Comment by Kirthi Jayakumar on March 22, 2013 at 11:30am

Thanks so much, Neha! This is GOLD!

Comment by Neha Bhat on March 22, 2013 at 11:29am

you might want to check the website of the Centre for Human Rights and Global Justice at NYU where Prof. Alston is based. If you are interested, you could also get in touch with them. They are very, very helpful over at the Centre

Comment by Neha Bhat on March 22, 2013 at 11:26am

Alston's work should be available in public domain since he was the Spl. Rapporteur a while back. you could also look up www.ssrn.com where a lot of the academic work of Ben Saul is available. Prof. Goldman has worked with the Intl. Commission of Jurists extensively on this issue and they have a fantastic, much recommended counter terrorism bulletin. But even Prof. Goldman's reports should be available in public domain- he wrote the first report on the linkages between Human Rights and Terrorism in 2005, if i am not wrong. 

Comment by Neha Bhat on March 22, 2013 at 11:23am

also, if it helps understanding the complexity of the situation better, terrorism as a crime has not bee defined anywhere under international law, much less the laws of wars. financing terrorism is something which has been discussed, debated and perhaps defined to some degree of certainty but the Geneva Conventions or provisions on War Crimes, Crimes Against Humanity etc. do not reference terrorism's components anywhere-- therefore how can a war on terrorism (which in many jurisdictions is a "political crime") has fallen under the law of war paradigm is still, after more than a decade of the Long War, a hotly debated issue. You might want to take a look at the work of Ben Saul, Philip Alston, Robert Goldman among others on this issue. Also, if you are particularly looking for references on how terrorism was justified under the Laws of War, I would highly recommend the Presidential Order issued by Bush in re. this as also the academic and other work of Prof. John Yoo, all of which is readily available in the public domain. 

Comment by Kirthi Jayakumar on March 22, 2013 at 11:19am

Neha, thank you for putting that so neatly. It helped me understand better.

Would you perhaps have any reports/articles by Philip Alston with you? I've been reading a lot of Robert Goldman, and this interesting book by Medea Benjamin that beautifully aligns with exactly what you are saying. Kenneth Anderson offers an interesting perspective on the other side - but somehow, I only got to read one of Philip Alston's articles.

Comment by Neha Bhat on March 22, 2013 at 11:15am

Kevin, NIAC as understood the laws of wars or the Geneva Conventions is limited to the situation where the government of "X" state is engaged in armed conflict with armed groups within the territorial boundaries of the state- no international party can be party to such a conflict-- the situation of NIAC is particularly demonstrated by the situation in Burma/ Myanmar where the Thein Sein government is engaged in an armed conflict with Kachin rebels or prior to the US invasion of Afghanistan in 2001, the conflict which existed between the different armed groups in Afghanistan. The moment an external party- whether it be a State or an armed group, outside of the territorial boundaries of the State "X" gets involved, the categorization of the conflict becomes an IAC. The "falsehood" of the Long War/ War on Terror is that the US does not designate Al Qaeda and affiliates as "armed groups" as understood under the Geneva Conventions- they are "irregular" combatants and therefore protected neither under the laws of war framework not under the law enforcement framework (this argument is the fundamental basis of much work which has happened in the field of war on terrorism and human rights- ref. Robert Goldman, Philip Alston) in addition to the same, the legality of drones is an issue much beyond the laws of war as well-- because given the imprecision in the use of drones, 'targeted killings' could be arbitrary deprivation of life etc. under the human rights framework. Additionally, the rules of 'targeted killings' under IHL principles is very very strict and the drone policy, i think there exists a staunch support for this PoV, violates all these principles. FYI ref Human Rights Watch primer on targeted killings here: http://www.hrw.org/news/2011/12/19/q-us-targeted-killings-and-inter...

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