THE PAPER | Drones, Jus in Bello and War Crimes under International Criminal Law

THE PAPER | Drones, Jus in Bello and War Crimes under International Criminal Law

By Rachel Alberstadt

This paper analyzes how the use of drones could constitute war crimeswhich are grave breaches of the Geneva Conventions (Gill & Fleck, 2010) within the context of Article 8 of the Rome Statute.

THE PAPER | Drones, Jus in Bello, and War Crimes under International Criminal Law

Image Attribute: Boeing X-47B in flight / Source: Wikimedia Commons

Article 8 (1) of the Rome Statute reads “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes” (Rome Statute, 1998). Thus to trigger prima facie requirements under this opening provision, the alleged crimes in question would require a plan or policy or a large scale commission of the acts, although an individual crime can also constitute a war crime (Cryer, Friman, Robinsin, & Wilmshurst, 2007). However, in its analysis of drones fulfilling war crimes criteria, this paper will restrict its evaluation to war crimes falling under Article 8 (2) (a) and 8 (2) (b). These sections specifically pertain to conflicts of an international character.

According to the Rome Statute, an additional requirement exists for an act to constitute a war crime. For there to be an act qualifying as a war crime under Article 8 there requires a nexus criteria linking the crime with an armed conflict, either an international armed conflict (IAC) or a non-international armed conflict (NIAC) (Cryer, Friman, Robinsin, & Wilmshurst, 2007). More generally, to trigger jurisdiction of the Court itself, this requires three methods outlined in Article 13 as 1) a State party refers a situation to the Court, 2) the UN Security Council refers a situation to the Court, or 3) for the Prosecutor to act propriomotu. These correspond to Articles 13, 14, and 15bis and 15ter which elaborate on these provisions (Rome Statute, 1998).

Under Article 8 (2) (a) the Statue incorporates established International Humanitarian Law (IHL) law taken from the 1949 Geneva Conventions and other relevant established international law (Cryer, Friman, Robinsin, & Wilmshurst, 2007). Core provisions of IHL ban indiscriminate targeting practices, including weaponry which are incapable of distinction (Gill & Fleck, 2010). However, this distinction holds an overall caveat in international conflicts, as in these types of conflicts there are two categories of persons: combatants and civilians. Each category are afforded aspects of protections, but under some acts, such as wilful killing, these are crimes only against non-combatants (Cryer, Friman, Robinsin, & Wilmshurst, 2007).

As IHL argues that whoever does not qualify as a combatant automatically qualifies as a civilian (Gill & Fleck, 2010) customary law and State practice exist in a current State of flux regarding non-State armed groups in international conflicts and also terrorist actors. However, this paper will explain how under existing IHL, for which violations under the Rome Statute can arise, terrorists and non-State actors continue to constitute protected civilians. Exceptions to this rule allow for legitimately targeting civilians should the civilians in question actively and directly participate in combat (Kalshoven & Zegveld, 2011). However, lawfulness of targeting these civilians pertains strictly to the duration of their active involvement.

The factual nature of drones—as an instrument capable of but not restricted to purposes of force—provides imperative evaluation for potential allegations of international core crimes, such as war crimes or crimes against humanity. States deploy drones for three interrelated reasons 1) efficiency, 2) accuracy, and 3) prevention or protection of human risk. As indicated in the previous section, these objectives also potentially implicate mens rea elements for judicial hearings. Because of the precision of drones, both from the accuracy of data procured to inform the pilot and the relative accuracy of the targeting itself, any crimes resulting from drone sorties could demonstrate either an intent to disregard the laws of war by means of recklessness or negligence, or a direct culpability for knowingly firing upon unlawful targets.

Regarding liability, actual launching of drones ultimately rests upon a leadership decision. This implicates liability under command responsibility, or liability under Article 28 of the Rome Statute, as it is the commanders who give the final authorization for the order (Air Force Operations, 2009). For example, precautions must be taken when giving orders to exercise drone strikes, thus, if the status of the target is doubted (in terms of being military or combatant), then the assumption is the target is civilian and is protected and must not be attacked (Gill & Fleck, 2010; Kalshoven & Zegveld, 2011; Military Commander, 2012; Cryer, Friman, Robinsin, & Wilmshurst, 2007).

Drones and Proportionality under the Rome Statute

While this paper has extensively analysed the lawfulness of certain targets, a related issue of lawful drone action is the resulting damage from the strikes. While it is clear that prohibitions on directly targeting civilians exists, States are also prohibited from executing strikes which would predictably or knowingly cause excessive or unnecessary civilian harm (Kalshoven & Zegveld, 2011). Thus, war crimes may result from strikes if the results failed proportionality tests.

Generally the proportionality test weighs potential harm against military benefit (Gill & Fleck, 2010). It is a test decided by the commander prior to the launched sorties and must be decided for each and every attack (Matthews & McNab, 2011). Michael Schmitt clarifies that the weapon used proves irrelevant, but rather the issue is whether “expected civilian casualties or damage were excessive relative to the military gain the attacker reasonably anticipated from the strike” (Schmitt, 2011). The evaluation of proportionality by courts results in inconsistent determinations as proportionality is assessed subjectively by the military apparatus (usually a commander giving a final “go” order) and is difficult to objectively quantify or qualify (Air Force Operations, 2009; Cryer, Friman, Robinsin, & Wilmshurst, 2007).

Proportionality is considered prior to launching an attack but is again evaluated after the fact, often by different actors than the ones considering the initial attack. As proportionality must be determined for each individual attack, and as each attack carries different factors to be weighed (such as the nature of the target, circumstances, weaponry available, etcetera), this complicates attempts at legal certainty for subjective or objective determinations of, for instance, what constitutes “excessive” under the framework of proportionality (Matthews & McNab, 2011; Cryer, Friman, Robinsin, & Wilmshurst, 2007). Harm resulting from drones does not negate its lawfulness under principles of proportionality (Matthews & McNab, 2011; Schmitt, 2011), but it is the qualification of the numbers which provides uncomfortable calculations. As such, while there are certainly more clear concepts within IHL, proportionality is not one of them. It remains an evaluation on a case-by-case basis as (Vogel, 2011) “[t]he main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied” (Final Report, 2000).

Strikes may be ordered with legitimacy in mind, but legitimacy does not equate to lawfulness—those in authority for the planning and decision making of the attacks are obligated to uphold preventative and protective measures against needless civilian harm, even if this harm would be caused incidentally (Kalshoven & Zegveld, 2011; Military Commander, 2012). That being said, drones are not flawless mechanisms of war. Humanitarian “[l]aw does not require perfection in the execution of a military attack nor does it prohibit all civilian casualties” (Matthews & McNab, 2011). Armed conflict will inevitably result in loss of life, but the parties to the conflict are under conventional and customary obligations to prevent unnecessary harm. Drones possess improved mechanisms to facilitate discrimination capacities for targeting, but war crimes could result if these capabilities are misused.

Drones, Targeted Killings, and International Criminal Law (ICL)

The use of drones to implement targeted killing policies presents a key area of drone use which affects international and non-international conflicts alike. This paper ventures that this usage of drone technology poses a plausible example of drones constituting war crimes within the meaning of Article 8 of the Rome Statute. It is acknowledged that targeted killing policies are perceived to affect NIACs more commonly than IACs. However, the increasing role of non-State actors in conflicts, in particular complication of non-sanctioned participation of civilians, demonstrates on-going concerns which pertain equally to international as well as non-international conflicts. As such, IHL (particularly Common Article 3 of the Geneva Conventions), customary international law and international human rights continue to apply to all forms of armed conflict, regardless of designation as international or internal. (This author strongly notes that IHL and international human rights law apply lexspecialis in conjunction with human rights.)

Nonetheless, international human rights law would be the applicable legal framework for drones used to fulfil targeted killings outside of armed conflicts. (This author strongly notes that IHL and international human rights are not mutually exclusive but rather, IHL applies as lexspecialis in conjunction with human rights.) While this paper will not engage with the latter, it uses this statement to point out that even absent an armed conflict, use of drones as lethal force still falls under a compatible legal framework (O’Connel, 2011). If States employ military force which falls outside the scope of armed conflicts or self-defence, then these operations are governed by the human rights paradigm; where IHL gaps exist—international human rights law fills in (Matthews & McNab, 2011).

Moreover, this paper rejects the category of unlawful combatants as this concept fails to compatibly and consistently apply to established rules of IHL. The (contested) category of unlawful combatants largely relates to counter-terrorism policies by States. These States, particularly, Russia, the US, and Israel, argue that unlawful combatants are individuals who under IHL would generally be deemed civilians, but because of their affiliation with non-State armed groups, are deemed to have active combatant roles (Gill & Fleck, 2010). As combatants are authorized by their respective States, these third category of individuals are combatants who are not sanctioned as members of armed forces, thus their participation in hostilities is rendered unlawful (Gill & Fleck, 2010).

While this category perceptively makes State policies more legitimate, outside of theory they fail to uphold legal standards. This rests upon several inter-related reasons. First, in IHL there are two categories: combatants and civilians. Second, the distinction as a combatant means that the State for which the individual(s) are fighting authorizes them to fight. With the distinction of an unlawful combatant, this is decided by third party States and not by the State of the individual’s origin or nationality.

This proves problematic for several reasons, one main reason being that the third party (for example, Russia, the US, or Israel) labels an individual as an unlawful combatant for the purposes of targeting them—which predicates largely on allegations of, for instance, terrorist membership or association with a particular organization. One example of this in practice is the characterization of an individual as fulfilling “continuous combat function”. This characterization forfeits the individual’s immunity from attack exclusively based upon group membership (Lewis, 2012). Yet without processes of verification, or objective standards, this presents a highly contested practice which, in the author’s opinion, fails to comply with the objective purpose of IHL—which is to protect those engaging and effected by conflict, and to limit the means and methods of warfare. In opposition to this, the unlawful combatant category seeks to broaden methods of warfare and allow for more inclusive methods of targeting.

Third, this author contends that the unlawful combatant category is inherently unnecessary. There already exist compatible designations allowing States to target civilians under certain circumstances without unnecessarily enlarging the scope of lawful targets. While civilians overall are entitled to protective status, they are not absolutely prohibited from being targeting under certain conditions. These conditions include direct and active engagement in combat, for which the person loses their immunity and can be lawfully targeted for the duration of this engagement (Gilll & Fleck, 2010; Lewis, 2012; Vogel, 2011; Kalshoven & Zegveld, 2011). However, this author acknowledges what constitutes “active”, “direct” and “for the duration” can prove problematic in practice, complications arising from this fail to negate the continued status of the civilian (Kalshoven & Zegveld, 2011). In 2009 the ICRC issued Interpretive Guidance on the Notion of Direct Participation in Hostilities; while useful, its authoritative force is questioned.Ultimately, civilians engaging actively and directly lose their protection in that they can be lawfully targeted during their engagement with the conflict, but this does not abolish their overall status as civilians (Gill & Fleck, 2010).

The Israeli Supreme Court provided insight into targeting restrictions as it decided upon the targeted killing issue in its evaluation of the legality of Israel’s targeted killing policy. In its conclusion the Court confirmed that the status of a target being lawful or unlawful resides on a contextual case by case basis and should be evaluated retroactively by an independent party (Targeted Killings, 2005). Indeed, Judge Rivlin stated one “cannot determine in advance that targeted killing is always illegal” (Targeted Killings, 2005). Overall, while the judgement failed to provide more broadly applicable legal analysis, it did provide clarification that the current State of international law does not recognize the category of unlawful combatants (Targeted Killings, 2005).

As such, States that employ drones to target individuals under the guise of the category of unlawful combatants usually do so under systematic elimination of these targets through the use of drones. Therefore, this systematic elimination, as a State policy, fulfils the criteria of Article 8 of the Rome Statute and results in the commission of war crimes. Under the Geneva Conventions, civilians who engage in armed conflicts are acting unlawfully as by definition they are acting without State authorization. As a result, they can be tried for illegally participating in the conflict.

However, if States target civilians who participate in conflict under the justification of labelling these actors as unlawful combatants, this denies them their civilian status under Article 8 (2) (a) (vi) which affords them the right to a fair trial (ICC Elements, 2002). In addition, these targeting policies demonstrate intentional attacks against civilians within the meaning of Article 8 (2) (b) under the provisions of (i-v) which includes intentionally directed attacks against the civilian populations or civilian objects and otherwise knowingly and intentionally attacking targets where civilian or civilian objects will be foreseeably harmed or damaged (ICC Elements, 2002).

Drones, Precautionary Measures, and ICL

While drones could be used as weaponry of heightened precision, and as such could qualify as taking precautionary measures to prevent excessive harm (Schmitt, 2011), miscalculations or disregard for on-the-ground situations could nonetheless result in war crimes (Cryer, Friman, Robinsin, & Wilmshurst, 2007). For instance, murder (Article 8 (2) (a) (i)) and otherwise causing excessive damage (Article 8 (2) (b) (iv)) constitute war crimes which could result from drone strikes. IHL requires the attacker to implement reasonable verification measures and in circumstances where the legality of the strike’s objective is dubious, requires the cancelation or suspension (as indicated in Additional Protocol I, Article 57 (2)) of the strike (Kalshoven & Zegveld, 2011; Hague Rules, 1923). This balances against the requirement to evaluate proportionality as the strike must have concrete and direct military advantage, not merely speculated or hopeful—civilian harm must be avoided (Gill & Fleck, 2010).

An example of precautionary methods available with drones is target verification using technology such as imagery and loitering capabilities, as was discussed earlier. Visual feedback of the drone’s camera allows for multiple authority figures to evaluate the data. In practice, this means that “[t]he drone’s sensors allow many sets of eyes, including those of [Judge Advocate General] lawyers trained to assess proportionality, to make a proportionality determination at the time of weapons release” (Lewis, 2012).

Civilian harm in itself does not constitute a war crime, but rather, a war crime is committed when the drones were employed with reckless or excessive attacks (Vogel, 2011). Wilful killing and murder results if the missiles are launched from drones when IHL precautions are not taken or are disregarded. Thus, unarmed drones could be used as a precautionary method if used to gather intelligence to verify targeting information, but would be employed illegally if armed drones are used when less harmful methods are available (Schmitt, 2011)—drones may carry smaller missiles, but the results are no less accountable.

An example of aerial bombings and precautionary measures used in practice is the 1999 NATO aerial bombings discussed earlier. These bombings were criticized for executing strikes with higher altitude ceilings which decreased efficiency for targeting, as flying higher complicates visibility (Amnesty International, 2000). In light of this example, evolution of drone technology could prevent this issue in the future as drones can fly at lower altitudes to gather improved targeting data with decreased risk of harm to the pilot. Flying at lower levels with minimized risk to pilot and civilians alike would allow for less risky gathering of substantial information regarding the ground situation (Matthews & McNab, 2011). This could exemplify a precautionary measure as employing drone use in this instance compares to capabilities usually unavailable for ordinary aerial bombings by larger aircraft.

Furthermore, an important precautionary measure to implement is the obligation to issue, where permissible, warnings of impending strikes as elucidated under Article 26 of the (Hague Convention II, 1899). As seen with the NATO bombings discussed above and in prior sections, a consistent criticism of the legality of drone use predicates on the failure to give prior warnings to civilian populations. Prior warning of impending attacks is a requirement under Article 57 (2) (c) of Additional Protocol I and Article 26 of the II Hague Convention. In practice, the use of drones for surprise attacks has meant that strikes are often done with no forewarning (Vogel, 2011), yet the lawfulness of these strikes would then rest upon whether effective forewarnings were available and viable options to the attacker.

Nonetheless, it is imperative to remember that any perceived precautionary measures available with drone usage or any perceived benefits to prevent collateral damage and other harm rests entirely on the quality and accuracy of intelligence received (Alston, 2010; Knoops, 2012). While drones possess camera technology to send information to the pilots itself as raw data, all too often intelligence relied upon derives from secondary sources (Knoops, 2012). Intelligence collected from the drone are not flawless either. One practical example raised is the issue of surrender and mistakenly targeting those of hors de combat status, where it would be difficult for a drone operator to alter the drone’s actions to facilitate a declaration of surrender (Vogel, 2011).

While it has been argued that drones do present mechanisms which facilitate greater discrimination features for warfare, it remains “incumbent upon a drone operator and commander to exercise judgment in determining when to conduct an attack where there are co-located civilians or where the targets themselves are difficult to identify” (Vogel, 2011; Air Force Operations, 2009). The collateral damage is lawful if proportionate, but prior to the results, it is required upon the commander and the operator to minimize, wherever possible, foreseeable harm to civilians and civilian objects (Kalshoven & Zegveld, 2011; Military Commander, 2012; Air Force Operations, 2009; Hague Rules, 1923). Targeting is inherently a responsibility of command function requiring “commander oversight and involvement to ensure proper execution” (Air Force Operations, 2009). As such, this expresses the commanders’ responsibility under Article 28 of the Rome Statute for war crimes committed using drones.

Drones and Terror under ICL

As a final example of how drones could embody violations of Article 8 war crimes, the causing of terror towards civilian populations will be briefly explored. Additional Protocol I, Article 51 (2) prohibits terrorizing civilian populations. Deficient definitions of terrorism aside, the author finds that it is understandable that the buzzing heard from drones can cause fear or terror, particularly as those who hear the drones will be unaware as to know whether the drones are armed or not. Factual uses of drones discussed earlier also could be seen to induce terror or fear into civilian populations as drones are used for reconnaissance, meaning they follow, hover over, and maintain visual connections with their targets. For family members, neighbours, and ordinary civilians, this could result in violations of personal dignity and general concern for safety and welfare. In addition, as Article XXII of The Hague Rules of Aerial Warfare expressed “Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of a military character, or of injuring non- combatants is prohibited” (Hague Rules, 1923). This demonstrates that use of aerial warfare to terrorize civilian populations continues to present an issue—and a war crime—in international conflicts.

However, violations of Article 51 (2) and Article XXII of the Hague Rules do not expressly compliment provisions under the Rome Statute as such, unless interpreted broadly under provisions of outrages upon personal dignity or inhumane treatment (Rome Statute, 1998). First, this author contends that drones could result in the effect of terrorizing civilian populations, but this would require unnecessarily broad interpretations of the Rome Statute and would perhaps more appropriately fall under crimes against humanity rather than war crimes. However, this author does acknowledge that the ICTY, particularly the Galić cases, have dealt with inducing terror amongst civilians as a war crime (Cryer, Friman, Robinsin, & Wilmshurst, 2007). Second, the prohibition of terrorizing civilian populations does not encompass incidental terrorization, meaning that to violate prohibitions the attacks would require the terrorization of civilians as a purported objective (Gill & Fleck, 2010; Cryer, Friman, Robinsin, & Wilmshurst, 2007).

However, it is briefly noted that incidental harm could relate to indiscriminate usage as non-State actors can prove difficult to distinguish by blending in with larger civilian populations. On a peripheral note, drones do not have defensive mechanisms per se, thus they are vulnerable to potential jamming frequencies which cause interference with their remote piloting feed (Lewis, 2012). In practice this means that those on the ground possess abilities to destroy drones in progress, ultimately meaning that locals are not without hypothetical defences.

Conclusion

This paper has argued that while drones are not without issues, and indeed their use could result in commission of international criminal offenses; they fit within compatible existing legal frameworks such as IHL and customary law. Essentially, it is not whether or not there are laws sufficient to govern the facilitation of drone use but whether these existing laws are compliantly followed (Vogel, 2011). While acknowledging flaws with drone use, this paper has in part sought to illuminate common areas of misconception with academics and legal scholars on the legality of drone use. While this paper has argued that drones do not represent an ungoverned phenomenon of weaponry, it will contend that use of drones by non-State actors, such as armed groups, does continue to pose a present concern. Ultimately, if the target is lawful, the weaponry platform used to deliver the attack is irrelevant (that is, unless the weapon itself is not prohibited under IHL). Just as an outbreak of war fails to result in a legal vacuum, so too does the development of new weaponry fail to result in a legal void.

About The Author:

Rachel Alberstadt, University of Leiden (Advanced MA/LLM Public International Law (Peace, Justice, and Development)), Leiden, The Netherlands

Publication Details:

Copyright © 2014 by author and Scientific Research Publishing Inc. This work is licensed under the Creative Commons Attribution International License (CC BY).http://creativecommons.org/licenses/by/4.0/

Cite This Article:

Alberstadt, R. (2014) Drones under International Law. Open Journal of Political Science, 4, 221-232. doi: 10.4236/ojps.2014.44023.

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