Photograph by pbs.org
The rare admission made by the United States Africa Command in April 2020, about civilian casualties (two killed and three others injured) during its counter terrorism campaign in Somalia has once again placed the spotlight on the current U.S. policy on drone warfare. This admission came at a time when the Trump administration was already facing strong criticisms for increasing the frequency of drone strikes in places like Pakistan and Iraq. The Africa Command also disclosed that it had already carried out 63 strikes in Somalia in 2019, compared to 47 that took place in 2018.
The U.S. drone policy has always been plagued by issues of transparency and accountability but most importantly, the policy has been criticised for non-compliance with the principles of international humanitarian law. On the issue of transparency and accountability, the Obama administration released Executive Order 13732 which laid out the policy on civilian casualties resulting from U.S. operations involving the use of force in armed conflict. The executive order required the administration to investigate reports of civilian deaths as a result of U.S. action and also publish an annual report on the drone strikes and the number of casualties in those strikes. “The executive order also required that independent reporting, as well as government information, be factored into the internal reviews over whether or not a strike had, in fact, killed or harmed civilians”. But, President Trump has revoked this Obama-era policy on reporting civilian deaths in drone strikes by an executive order. Trump has also expanded the use of counter-terrorism measures (including drone strikes) outside traditional war zones which has resulted in a lot of civilian deaths.
As mentioned above, the U.S. drone policy regardless of the administration in power has always been criticised for not following the rules and principles governing the laws of armed conflict. More importantly, how the use of drones has violated the law on targeting such as indiscriminate attacks, proportionality and precaution has always been debated.
Indiscriminate attacks
Note that, Additional Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts 1977 does not define ‘indiscriminate attacks’. However, subsections (a) and (b) of the definition contained in Article 51(4) of Additional Protocol I Relating to the Protection of Victims of International Armed Conflicts 1977 are included by inference within the prohibition contained in Article 13(2) of Additional Protocol II on making the civilian population the object of attack. This is important because with regard to directing an attack against military objectives, under non-international armed conflicts (which has been the U.S. position on conducting drone strikes outside the zone of active hostilities), “it is vital on part of attacking states to clearly distinguish between specific military objectives from civilians/civilian objects”. As observed by Sivakumaran, “this distinction is important given that ‘the presence of members of an armed group in a particular area can lead to the destruction of the entire area, even in situations in which the members could be targeted in isolation and on an individual basis.” But, both the Obama and Trump administration “have conducted drone strikes on the basis of ‘signatures’ that either by itself is unlawful under the law of armed conflict or can only be lawful if interpreted in a manner inconsistent with the international legal rules”.
Proportionality
The principle of proportionality deals with the results of an attack on civilian objects and civilians with regard to the accomplishment of a military objective. Article 51(5(b)) of Additional Protocol I codifies the principle of proportionality in attack. Even though Additional Protocol II 1977 does not make an explicit mention of the principle of proportionality in attack, it has been argued that ‘it is inherent in the principle of humanity which was explicitly made applicable to the Protocol in its preamble and that as a result, the principle of proportionality cannot be ignored in the application of the Protocol.’ The U.S. administration argues that while conducting drones strikes, it takes great care to abide by the principle of proportionality in both planning and execution and to ensure that only legitimate objectives are targeted and not civilians. However, in reality, drone strikes have resulted in hundreds of civilian deaths including women and children. Further, whether or not a particular drone strike meets the requirement of principle of proportionality is done on a case to case basis which does not help much in setting a strong precedent in law in order to better regulate drone warfare.
Precaution in planning and carrying out attacks
As per the International Committee of the Red Cross (ICRC), “state practice establishes the rule of precaution as a norm of customary international law applicable in both international and non-international armed conflicts”. “As per the rule of precaution, the attacking state is required to take all feasible measures to ensure that only legitimate objectives are made targets and that precaution is taken to reduce collateral damage”. But, the discussion on assessing drone attacks on the basis of principle of precaution needs to take into consideration the shifting nature of drone attacks, i.e., an attack taking place under intense combat situations vs. an attack on a ‘suspected terrorist’ taking place far away from the zone of active hostilities. The issue here is that under intense combat situations, “the immediate need is to protect troops on ground, maintain position and defeat the enemy”. On the other hand, in situations of ‘signature strikes’, “the only risk is of missing the opportunity of killing a suspected target”. The former situation leaves little to no time for considering and taking precautionary steps than the latter. Nonetheless, the principle of precaution is applicable in both situations.
The Obama administration had been severely criticised for being opaque about the legality of its covert drone operations outside the zone of active hostilities and also for hiding behind the defence of national security. The same attitude has been adopted by the Trump administration without any hesitation which was expected by most considering the comments made by Trump on defeating the Islamic State during his election campaign.
The main issue here is that drone warfare still thrives in the abstract with attacks taking place thousands of miles away in remote territories on “faceless” targets based on often questionable surveillance with most of the process being hidden away from public scrutiny in the name of national security. Therefore, until there is a formal system of checks and balances that operates with accountability and transparency, drone strikes will continue to reign havoc on the lives of innocent civilians in remote corners of the world.
This article has been authored by Amit Anand, a PhD (Law) Research Scholar at Lancaster University, United Kingdom.
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