Drone Strikes: Understanding Legal Boundaries And Implications

Drone strikes have been a highly controversial topic for years, with human rights groups and civil liberties advocates criticising their use. The US has been carrying out targeted killings with drones for over 15 years, with the rate of strikes increasing over time. The legal basis for these strikes has been a point of contention, with critics arguing that it amounts to a boundless forever war. The US justifies its actions by citing the inherent right to self-defence and compliance with the laws of armed conflict.

The US government has gradually revealed more about its legal justification for drone strikes, although much of this information has been forced out through lengthy court battles. The Authorisation for the Use of Military Force Act (AUMF), passed into law by Congress in 2001, gives the US president the power to use all necessary and appropriate force against those deemed responsible for the 9/11 attacks. This law has no time or geographical limits and empowers the president to target individuals as well as nation states.

The Obama administration claimed that AUMF gave them the power to use drones against al Qaeda, the Taliban, and associated forces, a term not explicitly mentioned in the Act. AUMF has also been used to legally justify strikes against Islamic State fighters in Iraq, Syria, and Libya, a move criticised by US lawmakers.

The use of drone strikes and the legal justification for them remains a highly debated topic, with critics arguing that the current laws enable a perpetual global war with limited oversight.

National sovereignty and territorial integrity

Any military or intelligence officials of the state concerned tolerating or even authorising such interventions without the approval or against the will of the state's representatives (especially the national parliament) cannot legitimise an attack. The only exceptions to the duty to respect national sovereignty can arise from the principle of the "responsibility to protect", as outlined in the UN Charter and international law. For example, in the fight against a terrorist group such as "IS".

The US has been carrying out targeted killings with drones around the world for over 15 years, with the rate of strikes increasing over time, along with criticism from rights groups and civil liberties advocates. The US government has gradually revealed its legal justification for these strikes, citing the Authorisation for the Use of Military Force Act (AUMF) as the basis for its war with al Qaeda and associated groups. This Act, passed into law by Congress shortly after the 9/11 attacks, gives the US President the power to "use all necessary and appropriate force" against those responsible for the attacks, with no time or geographical limits.

The broad scope of the AUMF has allowed the US to target new enemies without the usual authorisation from Congress, including groups that did not exist at the time of the 9/11 attacks, such as the Islamic State (IS). This has led to criticism, with some arguing that the US is engaging in a ""boundless forever-war". While the US claims that its actions are legal under the right to self-defence and the laws of armed conflict, others contend that the legal basis for these strikes has not been adequately scrutinised and that the executive branch has been given too much discretion in defining the scope of the conflict.

To address these concerns, legal reforms have been proposed to increase checks and balances on the use of military force and restore Congress's constitutional role in matters of war and peace. This includes amending the AUMF to narrow its scope and include time and geographical limits, as well as replacing the 1973 War Powers Resolution to constrain the executive branch's unilateral war-making powers.

International humanitarian law

IHL's applicability to drone strikes has been the subject of debate, particularly regarding the distinction between armed conflict and law enforcement. Some countries have broadened the concept of "non-international armed conflict" to include various regions as "battlefields" in the "global war on terror." This expansion blurs the line between conflict and law enforcement, undermining human rights protections.

The United States, a major user of drone strikes, has faced criticism for its broad interpretation of IHL. The Authorisation for the Use of Military Force Act (AUMF), passed after 9/11, grants the president extensive powers to use force without geographical or temporal limits. This has led to concerns about a perpetual global war, with critics arguing that the US is engaged in a "boundless forever-war."

The Obama administration claimed the authority to use drones against al-Qaeda, the Taliban, and "associated forces," a term not explicitly mentioned in the AUMF. This interpretation allowed them to target groups that did not exist at the time of the 9/11 attacks, such as ISIS and al-Shabaab.

While the US has provided some transparency regarding the legal basis for its drone strikes, critics argue that the underlying legal rules remain obscure and subject to executive interpretation, highlighting the need for greater scrutiny and constraints on the use of drone strikes to ensure compliance with IHL.

International human rights law

The use of armed drones for targeted killings raises serious questions in terms of human rights and international law. Under international human rights law, which generally applies in peacetime but whose application has permeated into situations of armed conflict, an intentional killing by state agents is only legal if it is required to protect human life and there are no other means, such as capture or non-lethal incapacitation, of preventing that threat to human life.

The European Convention on Human Rights (ETS No. 5), as interpreted by the European Court of Human Rights, states that the deprivation of the right to life can only be justified if absolutely necessary for the safeguarding of the lives of others or the protection of others from unlawful violence. The convention also requires timely, full, and effective investigations to hold accountable those responsible for any wrongdoing, and to compensate any victims of wrongful attacks or their relatives.

The US government has revealed a considerable amount about the legal basis for its strikes, and has been commended for the scope of the information it has provided, although this has not quelled the criticism. The US claims that its conflict with terrorist organisations associated with al-Qaeda and the Taliban is boundless because these groups operate worldwide, and it is legal because of the inherent right to self-defence and because the strikes comply with the laws of armed conflict. However, critics say this is tantamount to a boundless forever-war.

The 'responsibility to protect' principle

The responsibility to protect principle is an integral part of international law and international humanitarian law (IHL). It is one of the four core principles of IHL, alongside the principles of necessity, proportionality, and humanity. The responsibility to protect principle is also a part of customary international law and is considered an "intransgressible" principle of international customary law by the International Court of Justice (ICJ).

The responsibility to protect principle is closely linked to the principle of distinction, which requires parties in an armed conflict to differentiate between civilians and combatants and between civilian objects and military objectives. While combatants and military objectives can be targeted, civilians and civilian objects may not be deliberately targeted, and indiscriminate attacks are prohibited.

The use of drones for targeted killings has raised questions about the responsibility to protect principle and the principle of distinction. Drones are unmanned aerial vehicles (UAVs) controlled remotely by human pilots and are praised for their precision and accuracy in targeting combatants, which purportedly leads to fewer civilian casualties. However, the interpretation and application of the responsibility to protect principle in the context of drone strikes are complex and controversial.

One of the main issues is the distinction between the precision of the drone technology itself and the precision of the process used to weaponise the drone. The lack of government oversight and standardised processes for weaponising drones undermines the obligation to distinguish between civilians and combatants. There is also limited evidence to support the claim that drones cause fewer civilian casualties compared to other weapons.

The strategy employed by the United States, a major user of drones, involves both drone surveillance and on-the-ground informants. The US has carried out 'personality strikes', where there is a high degree of confidence in the target's identity, and 'signature strikes', where targets are selected based on behavioural patterns associated with terrorist activity. The latter has been criticised for lowering the threshold for targeting and reversing the presumption of innocence.

The use of drones has also been associated with broader military and counterterrorism operations that have resulted in civilian casualties. There is a lack of transparency and standardised methods for reporting and investigating civilian deaths from drone strikes.

Overall, while drones are presented as compliant with the responsibility to protect principle, a closer examination reveals complexities and challenges in ensuring the protection of civilians. The proliferation of drone usage and the potential for misinterpretation of the responsibility to protect principle underscore the need for robust domestic and international regulation and accountability frameworks.

The law of armed conflict

The LOAC establishes fundamental principles such as the distinction between combatants and civilians, the prohibition of indiscriminate attacks, and the requirement of proportionality. These principles apply to all parties engaged in an armed conflict, whether international or non-international.

In the context of drone strikes, the LOAC imposes several important constraints. Firstly, it requires that drone strikes be directed only towards legitimate military targets, which generally include combatants and military objectives. The principle of distinction mandates that civilians and civilian objects must not be the object of attack.

Secondly, the LOAC prohibits indiscriminate attacks, which includes those that strike military objectives but cause excessive collateral damage to civilians or civilian objects. The principle of proportionality comes into play here, requiring that the anticipated military advantage of an attack outweigh the expected harm to civilians.

Thirdly, the LOAC imposes an obligation on states to take feasible precautions to minimise harm to civilians and civilian objects. This includes conducting thorough intelligence gathering, employing precise targeting methods, and giving effective advance warnings when feasible.

The LOAC also addresses the issue of authorisation of drone strikes. It requires that states obtain valid authorisation from legitimate representatives of the target state, except in cases of self-defence or when the target state is unable or unwilling to prevent attacks emanating from its territory.

Additionally, the LOAC demands transparency and accountability in the conduct of drone strikes. States are obliged to investigate allegations of violations, hold perpetrators accountable, and provide redress to victims. The European Convention on Human Rights, for instance, requires timely, full, and effective investigations into violations of the right to life.

While the LOAC provides a crucial framework for regulating drone strikes, its application in the context of modern warfare, particularly in non-international armed conflicts, has sparked debates and controversies. The use of terms like "associated forces" and the extension of "non-international armed conflict" to include numerous regions as "battlespaces" in the "global war on terror" have blurred the lines between armed conflict and law enforcement, posing challenges to the protection of human rights.

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