| by Dr. Ruwantissa Abeyratne

( August 12, 2013, Montreal, Sri Lanka Guardian) When the world was less complicated, we had simple rules...like the social contract theory. According to this theory we, the citizens, consent, either explicitly or tacitly, to surrender some of our freedoms and submit to the authority of the State in exchange for the State protecting our basic rights, the first and preeminent being our safety. Today, across the world, this has been reduced to a pipe dream.

Under any circumstances, international law prohibits the carrying out of direct attacks against civilians; as to do so intentionally is a war crime. The parties to a conflict are also required to refrain from threats or acts of violence, the primary purpose of which is to terrorize the civilian population.
Take for instance the carnage caused by drones. In technical terms called “unmanned aircraft systems, drones, or unpiloted lethal killing machines from the air have advanced video cameras that can broadcast an image of a license plate from two miles away. They are pilotless aircraft capable of flying autonomously or semi-autonomously with some pilot assistance from a remote station. The United States Department of Defense defines UA as “a powered aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and carry a lethal or non-lethal payload” .These drones armed with Hellfire missiles can detect the license plate and destroy it effortlessly. Drones, which are highly capable weapons that are easy to produce and easy to manipulate from a room. A remote control operation from a room can order a drone to blast a target (innocent or otherwise) thousands of miles away. This called a “bugsplat”. Drones are the antithesis of State protection as guaranteed by the social contract theory. They transcend borders so that the State is powerless in assuring the protection of its citizens. Drones facilitate extrajudicial and extraterritorial killings and provide an excuse for all capable countries to “fire at will” on targets that are thought evil but sometimes (more often than not, regrettably) on civilian targets.

Daniel Byman, in an article in the journal Foreign Affairs records that in the last four years the United States had signed off on over 400 drone attacks which contrasts with fewer than 50 drone attacks during the entire 8 year presidency of President George W. Bush. Byman says: “ The drones have done their job remarkably well: by killing key (terrorist) leaders and denying terrorists sanctuaries in Pakistan, Yemen, and to a lesser degree, Somalia, Drones have devastated al Qaeda and associated anti-American groups. And they have done so at little financial cost, at no risk to U.S. Forces and with fewer civilian casualties than many other alternative methods would have caused”.

Fewer civilian casualties? This is just a numbers game. The same article in Foreign Affairs states that the Bureau of Investigative Journalism reports that in 2011 alone, nearly 900 non combatants, including almost 200 children were killed by U.S. drone strikes. State Sovereignty aside, the abiding issue is the protection of innocent civilians. This is the core of the social contract theory. It is totally unacceptable for a farmer, to see a drone strike in the distance while working on his farm to see a drone a drone strike in the distance, only to rush off on his motorbike to the site of destruction to see the car in which his parents and younger sister were travelling turned upside down and totally incinerated, with the three passengers roasted alive. It is also totally unacceptable to hear villagers from far away in Yemen say that they go to bed not knowing whether the next morning their houses will be burned to cinders with them in it. These are recent BBC reports that report such instances.

In modern warfare, aerial bombardment is the most effective means of attack since, although land and water military vehicles are capable of destroying enemy targets, military aircraft are most often the first choice for use because of the speed and accuracy in which they can reach the target. Aerial targeting has always been an issue of controversy. The first instance of legislation against this threat was at the Hague Peace Conference in 1899 which peremptorily prohibited the dropping of bombs from balloons.

There are three fundamental tenets of aerial targeting. Firstly, there must be a military necessity for the use of force against a target; secondly, the use of force employed on a target must be proportional; to the military value of the target, and finally, the act of military bombardment must be consistent with principles of humanitarian law and unnecessary suffering must be prevented as a result of the bombardment. The first principle is important in that any aerial attack must have a military objective. In this sense it is arguable whether an attack on a power station which provides electricity to a civilian population has a military objective. It is also a recognized principle of military warfare that an aerial attack, which is justified on the abovementioned grounds cannot be impugned simply because of an attendant risk of incidental injury or collateral damage.

A military objective, for the purpose of an aerial attack are primarily enemy combatants or places or installations that by their nature, location and purpose make an effective contribution to military action directed against combatants who may be prompted to use aerial targeting. The targeting of an installation by military attack should result in a definite military advantage to the initiator of the aerial offensive. Some examples of military objectives are military aircraft and airfields, weapons, armour, artillery, warships, military headquarters, military fuel storage areas and any installation used to conduct or assist in military operations.

The inherent danger of aerial targeting is that air strikes invariably portend damage to third parties on the ground, whether or not the attackers would deliberately target civilians (which is rare in modern warfare). Aerial attacks, however well planned they might be in accordance with the ethics of military warfare, inevitably involve the law of unidentified consequences (collateral damage). There have been many instances in human conflict where civilians and their property have been destroyed by explosives deployed from aircraft. It is well known that during World War II, the number of civilian deaths outnumbered military deaths by 16 million (not including the Holocaust victims).

The law pertaining to warfare encompasses two fundamental tenets of international humanitarian law. They pertain to civilian immunity and the principle of distinction. Collectively, they impose a duty, at all times during the conflict, to distinguish between combatants and civilians, and to target only the former.

Under any circumstances, international law prohibits the carrying out of direct attacks against civilians; as to do so intentionally is a war crime. The parties to a conflict are also required to refrain from threats or acts of violence, the primary purpose of which is to terrorize the civilian population. They are prohibited from attacking the civilian population or civilians by way of reprisals. International humanitarian law also makes direct attacks against civilians and civilian objects a crime. Indiscriminate attacks are those that are not directed against a military objective; those that employ a method or means of combat that cannot be directed at a specific military objective; or those that employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law. In each such case, these attacks are of a nature to strike military objectives and civilians or civilian objects without distinction.

In the least, civilian deaths by drone attacks have to be compensated, although in real terms such compensation would be a mockery in relation to the loss felt by those bereaved. The long term solution to providing compensation to victims would lie in some form of international agreement or treaty between States. The reason for this is that the world's economies are inter-dependent and the worlds of insurance and reinsurance are progressively multinational and also inter-dependent, and consequences of war and terrorism should be managed by some form of partnership between States and their respective insurance/reinsurance industries, based on mutual recognition of what each does best. As was seen in the aftermath of September 2001 events in the United States, individual States have already demonstrated the support which they can give to their economies when faced with chronic terrorism. They should now collectively consider an international treaty that would clearly identify sovereign risks and provide coverage to States in a manner such that the underwriters are able to obtain reinsurance and ensure an adequate reserve for compensation.