The Silent Killer: Drone Strikes in International Law

Intro

Unmanned aerial vehicles (UAV’s) or drones as they are popularly known are aircrafts that do not have a human pilot on board and are controlled by an external operator with a remote or control pad similar to gaming joysticks. These UAV’s were primarily designed for military use but have recently gained popularity among civilians for use in private security outfits, specific industries and more recently for delivery of products by online companies like Amazon and Ali Baba. I will be discussing the use of UAV’s in this piece in a purely military context. UAV’s are increasingly being used by different militaries that can buy or manufacture them for “precision airstrikes” and also for surveillance purposes. Their use is on the rise primarily because they provide militaries with a quasi air force that does not directly put the lives of human pilots at risk, as those pilots fly and operate UAV’s from a control room or bunker at a safe distance away from the location of hostilities. Before I continue, it is important to differentiate UAV’s from guided/cruise missiles; UAV’s can either fly autonomously or be controlled remotely, they are re-usable and can carry lethal or non lethal payloads as opposed to missiles that can only be used once, always have a lethal payload and are either heat-seeking, location locking or remotely guided. Drone Wars

UAV’s as a means of warfare have been famously used by the United States of America to carry out “precision airstrikes” against terrorists and other targets in Pakistan, Afghanistan and Somalia. The use of UAV’s especially in Pakistan by the U.S is more significant as it has been going on for a while and there is no foreseeable end to its use as a means of warfare by the U.S. The Reaper Presidency

 

The Law of Armed Conflict & Drone Strikes

The use of UAV’s is highly controversial as the U.S uses them in its so-called “global war on terror” i.e. the U.S uses UAV’s as a lethal force against identified terrorists or individuals suspected of engaging in terrorist activities. The UN principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions (under principle 1) clearly prohibit any extra-judicial killings by states in any context, and where such deliberate killings occur a state has the responsibility of proving its legality and family members of the victim(s) have the right to an investigation and subsequent judicial process. The U.S does not abide by this principle in its “precision airstrikes” as it targets civilian targets that are non military objectives or normal armed belligerents and is thus guilty of extra-judicial executions under international law.

Also, the use of UAV’s in “precision airstrikes” by the U.S against known or suspected terrorists also breaches Article 6(1) of the ICCPR which is clearly against the arbitrary deprivation of one’s life in any context without criminal trial under international humanitarian law.

The LOAC clearly governs the use of intentional lethal force in conflicts by states; subsequently, the use of UAV’s by the U.S can be considered to be extra-judicial executions as they are deliberate, indiscriminate and not governed by any tenet of international law. The LOAC has specific principles which govern armed conflict whether internationally or domestically: (1) it seeks to limit unnecessary harm & destruction of humanity (2) there has to be a distinction between enemy combatants and non-combatants and also between certified military objectives [i.e. an objective that effectively contributes to military action] and civilian objectives (3) use of lethal force must be proportionate and not excessive (4) use of lethal force must be out of military necessity [advantage] and (5) unnecessary injury & suffering pertaining to the use of illegal means & methods of warfare is strictly prohibited. The use of UAV’s in “precision airstrikes” in some cases violates all these principles as civilians are indiscriminately targeted or are victims of “collateral damage”, civilian homes and places of worship are also destroyed without regard or sound military objective. Based on the violations of the above principles of international humanitarian law, I strongly believe that the use of UAV’s in “precision airstrikes” has no basis in international law and hence all policies, actions and decisions arising from their use are de facto illegal in international law.

 

Killing ARISWA Slowly

The use of force is primarily prohibited by the UN Charter under Article 2(4), which explicitly prohibits the use of force against a state’s territorial integrity and political independence. I believe a “precision airstrike” launched from a UAV controlled remotely is a grave breach of states airspace and thus its territorial integrity, unless that state clearly consents to the strike. An airstrike without consent is an offensive military action that by definition is an infringement of the airspace of a state that is protected under the UN Charter, customary international law and the International Convention on Civil Aviation (Chicago Convention). It is intriguingly surprising that Musharraf admitted to authorizing drone strikes by the US a few times when Pakistan was sure that the targets were critical, isolated and the risk of civilian collateral damage was zero or at bare minimum after years of openly protesting against such “precision airstrikes”. The Drone Delusion

A drone strike, in the absence of consent by the territorial state, is therefore an internationally wrongful act that is considered under ARISWA (which reflects customary international law) as a breach of an international obligation of a state. The legal repercussions of this act should be de jure the cessation of the act, guarantees of non repetition, reparation and a formal apology from the responsible state, but what happens on the ground is the opposite as the US continues its “precision airstrikes” with live coverage straight to the White House with absolute latitude and total disregard for civilian life, property and international law. This has devastating effects for the state that is at the receiving end of such airstrikes.

Article 51 of the UN Charter is regularly invoked by the US as it claims that its “precision airstrikes” are in accordance with the right to self-defense, this is very controversial as the US targets terrorists & suspected terrorists not on the basis of direct retaliations for attacks but on the basis of “preemptive/anticipatory” self defense.

All in all, the use of UAV’s to carry out “precision airstrikes” against terrorists or suspected terrorists is illegal under international law because of violations of the UN Charter, the LOAC, the customary international law, the law of State Responsibility (ARISWA) and the Chicago Convention (the convention of international civil aviation). What needs to happen on the part of the US is the repudiation of the so-called “global war on terror”, adherence to international law, respect for the life & security of non-US citizens; access & provision of the free flow of critical information and last but not the least, the on-ground implementation of international customs & laws on justice and human-rights.