Drones keep a constant watch over the Korean Peninsula, Iran, Syria, and Northern Africa, and are poised to strike at human targets in Afghanistan, Yemen, Somalia, and Pakistan. The CIA and the Pentagon maintain separate drone operations. The Pentagon alone operates 61 continuous combat air patrols over foreign soil with drones. How does international law look at this tendency of increased and unbarring surveillance and engagement? International lawyer and academic Dr Robert Barnidge Jr – an associate professor and executive director of Centre for International Legal Studies at OP Jindal University in India – has been widely involved in the legal debate on the issue of drone around the world. A book that he edited, The Legal Ways of War, came out in August. In this book, legal experts and academics explored how international humanitarian law and the problems posed by the territorial characters of war interact with each other in the post 9/11 world.
President Barack Obama’s use of unmanned armed drones that kill suspected insurgents, terrorists and, inevitably thousands of innocent bystanders, has raised a furor in Pakistan as well as in the US. Many debate the loss of innocent lives in exchange of fewer and by many claims ‘irrelevant numbers’ of militants. Does international humanitarian law take into account the ratio of innocent lives lost to militant targets when deciding the legality of these strikes?
International humanitarian law does not as such require that a particular ratio be adhered to with respect to innocent lives lost and militant targets hit when it comes to assessing the lawfulness of particular drone attacks. In paragraph 78 of its advisory opinion in Legality of the Threat or Use of Nuclear Weapons (1996), however, the International Court of Justice put forth the “cardinal principles” of international humanitarian law. Two of the most important of these are the principles of distinction and proportionality. Distinction requires that attacks be limited to military objectives and not be directed at civilian objects. Proportionality is a balancing test that requires the fighter to ensure that the risk to civilians is not excessive in relation to the concrete and direct military advantage anticipated. Each drone attack must be rigorously assessed on the merits of its particular facts and circumstances against a backdrop standard of reasonability.
It should be noted that the various studies of innocents and militants who have been killed in the United States’ drone campaign in Pakistan have arrived at different figures, which begs the question of the methodological credibility and rigor of these studies.
[quote]The drone technology is unique, but the legal questions that surround it are not. What is novel, in my view, is the propaganda war about drones[/quote]
It seems challenging to find clarity and/or agreement in the current legal discourse on drones. Considering the issue is unique in its dynamics – including the operational procedure, territorial debate and the discussion on sovereignty – do you think the current international legal framework is sufficient to declare permissibility or impermissibility?
The drone technology is unique, but the legal questions that surround it are not. What is novel, in my view, is the propaganda war that is taking place about drones using modern information technologies and media sources. There is also the intractable question of what precisely it means from the standpoint of law for a civilian to be directly participating in hostilities. In situations of armed conflict, such persons can be lawfully targeted for such time as they do so. What this means in practice is controversial and has been the subject of intense debate among scholars and practitioners.
During his recent visit to Pakistan, United Nations Secretary-General Ban Ki-moon said US drones, “like any other weapon, should be subject to long-standing international law, including international humanitarian law”. What are your thoughts about this statement from a political and legal perspective?
Politically, this statement is unobjectionable and says very little. From a legal perspective, it is vacuous and question-begging. Arguments can be made for and against the desirability of drone attacks both from a political perspective and from a legal perspective. The more interesting questions are: What law applies? Who, or what, will interpret, and apply, the law? On the basis of what authority? What are the law’s contours? And what are the facts? The answers to these questions are far from clear.
[quote]’In situations of armed conflict, civilians directly participating in hostilities can be lawfully targeted for such time as they do so'[/quote]
In the argument that allows drone attacks in armed conflict zones, is there any premise to the limit allowed to failed targets? For example, the reason innocent civilians get killed in collateral damage is either by mistake or by their presence very close to the target’s location. But does international law take into account the exceeding possibilities of civilians being targeted at the hand of inaccuracies? So, essentially, to avoid limitless civilian casualty, is there any bar on how many civilians are allowed to be killed for one militant target on the kill list.
International humanitarian law does not per se set a particular ratio or quantum of risk to civilian objects, in the form of “collateral damage,” for a single militant killed, though it is unlawful to launch an attack if the risk to civilians would be excessive in relation to the concrete and direct military advantage anticipated. It is worth noting that United States President Barack Obama’s Presidential Policy Guidance states that there must be, inter alia,“[n]ear certainty that non-combatants will not be injured or killed” before lethal action abroad will be taken and that “[m]ales of military age may be non-combatants; it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants.”
Kiran Nazish reports from conflict areas on issues of humanitarian interest. She can be followed @kirannazish
Dr Barnidge can be followed @rpbarnidgejr
Photograph by Samarpit Gupta
