This blog is co-authored by SEBIN SEBASTIAN & KAVYA VEERLA from Christ University School of Law.
PICTURE TAKEN FROM WIKIPEDIA
1. Introduction
In early August US President Biden declared in a speech from the White House that the Central Intelligence Agency had through an authorized precision drone strike, eliminated Al-Qaeda leader, Ayman Al-Zawahiri, one of the terrorist masterminds behind the 9/11 attacks. While Biden emphatically claimed that justice had been delivered, the International legal community was quick to respond, with many renowned figures questioning the overall legality of a rather successful strike with no other casualties. Among other relevant questions of his status as a combatant and the current status of armed conflict in Afghanistan, other subtle questions also arose as to whether the attack should have been covered under International Humanitarian Law at all, given that the general perception was that the attack was outside a designated area of active hostilities and in such circumstances, the comparatively permissive framework of International Humanitarian law must have given way to International Human Rights law which prescribes a stricter set of circumstances to be met for lethal force to be used. The existence of active hostilities has been central to the classification as to the existence of an armed conflict under International law and International legal theorists have been largely cautious in their discussions surrounding the geographical application of IHL, especially when these hostilities may be considered by some as sporadic or may be understood as possibly not connected to the central-armed conflict. The United States, therefore having used a drone strike policy outside areas of active hostilities (PPG & PSP) since the Obama administration through the Trump and Biden administration, has been largely criticized by the Human Rights community even though the policy greatly aims to minimize the collateral damage caused and is utilized only in cases of ‘near certainty of the target; since it effectively lies outside the areas of armed conflict as per the Human Rights community, wherein IHRL takes predominance, the lethal force used would be a violation of the same (discussions of the US position on extraterritorial application of IHRL aside).
2. Approaches to the designations of "active hostilities" and ongoing conflict
The question of borders lies at the center of some fundamental concerns of international law; what, in contemporary times and methods of warfare, designates an area as actively hostile; whether such means change the way an ongoing state of warfare is viewed regardless of designation; and ergo whether the laws of armed conflict ought to be given precedence in governing such ambiguous interactions. Pertinently, the United States’ position is that insofar as Al-Qaeda and its connected associations and armed forces exist, it is in active warfare with them wherever interactions between the two occur; crucially, on an ongoing basis and hence claiming that all national operations in combat with these forces in any form is the conduct of warfare in armed conflict, and thus governed by Jus in Bello. This implication then grows to include all relevant companies where any member of such force may be, whether in terms of remote operations or physical presence, raising questions of state sovereignty and consent - particularly as this concerns non-state actors of an international organization. The Obama administration’s official designation of various such territories as active hostility areas acts as a political declaration of policy considerations with the most relevance in terms of self-defense claims on behalf of the US when justifying attacks in such zones; in legal terms, however, considerations of proportionality as discussed above as well as of defining where the laws of armed conflict strictly apply do subsist. The fact that the present drone strike took place post-US withdrawal from Afghanistan adds a layer to the question of whether an armed conflict can be said to exist there.
3. Scattered Support for the Policy and lessons from common Article 3
Some have however contended that the criticism of the Human Rights community concerning the drone strike policy is misinformed with some success, arguing that the US position is but a public policy position merely because it seems to be considered with its zeal of solemnity it should not be considered a legal position; and that as such, IHL continues to apply in such areas of drone strikes, as outside a ‘designated’ area of active hostility does not necessarily mean outside armed conflict. Persons who take this position argue that the US takes a much-restricted view than the present view surrounding common Article 3 of the Geneva Convention which accepts the concept of spillover in Non-International Armed Conflict into various areas within the same state and neighboring & adjacent states. Therefore insofar as ground realities reflect the presence of an armed conflict in a particular area that significantly threatens US interests, given the United State’s sustained position that it is in armed conflict with Al-Qaeda, IHL would apply. However, this contention is often refuted based on the very same US position that it is at present in armed conflict with the Al-Qaeda without qualifications as to the specific territory in which it is in armed conflict with the Al-Qaeda; thereby allowing it to effectively claim almost any place in the world from where members of the Al-Qaeda operate to be subject to International Humanitarian Law. This particular categorical viewpoint of the United States allowing it to target non-state actors outside areas of hostilities is therefore effectively countered given that allowing IHL to operate in such a manner would in turn have the effect of turning the world into a battlefield. While some US attacks might meet the necessary threshold of spillovers, it would not be possible to classify all such attacks as spillovers.
4. Principle of Distinction - whether preciseness justifies non-conflict area attacks
One of the four main principles of International Humanitarian Law is that of distinction, or distinguishing between combatant and non-combatant individuals as codified in Articles 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions. Per jus in Bello, only combatants may be attacked, i.e. those taking direct part in hostilities; the generally considered test assesses the threshold of harm, direct causation, and nexus. The question that thus arises, however, concerning areas of non-active hostilities or even of no hostility whatsoever, regards whether the precision of attack towards specifically identified combatants in a region of non-active hostilities then justifies such attacks, remote or otherwise, in non-conflict areas. In the strike on Al-Zawahiri, his position as a “combatant” - or rather, as a member and leader of organized armed forces - is undisputed, as is his continuous direct functioning in hostilities insofar as his undisputed leadership of Al-Qaeda. This however does not give rise to an absolute allowance for extraterritorial attacks even considering that the United States drone strike took commendable caution - likely prompted by the death of ten civilians caused by the US drone strike in Afghanistan a year prior - in observing the principle of distinction, neither attacking nor harming any other individuals in this strike. This precision decries the counter of collateral damage against the arguments for allowing such remote strikes and a looser definition for designated non-active hostility zones, though of course such exact borders of harm as the Al-Zawahiri attack cannot be assumed to apply universally or be predicted a likelihood in future strikes - and thus the same cannot apply as a general argumentation for the same, most significantly when discussing the qualifying attributes of nonactive hostility borders.
5. What lies ahead for this US Counter-Terrorism Policy
Regardless of the IHL & IHRL community’s views on this topic, this position taken by the United States is unlikely to be altered anywhere in the near future given the public support that is often associated with external threat and drone strikes. At least as far as the present US administration is concerned, experts opine that the drone strikes have actually been a masterclass in US tactical warfare and has given the Biden administration some traction in domestic politics. The problem of turning non-active conflict areas into battlefields is that these attacks go on to have effects beyond their targets, having even proven to have mental health ramifications for civilians around such areas of attack. The authors of this piece hold a view consistent with that of the ICRC, in that armed conflicts must be strictly confined to those areas of active hostilities in terms of its geographical application given the more permissive nature of IHL. In the long run however, the authors also note that any proposed framework of International law would but only be as rigid as its primary subjects, states, make it out to be.