| by Dr. Ruwantissa Abeyratne
( October 25, 2013, Montreal, Sri Lanka Guardian) On 22 October 2013 BBC World News reported the concerns of Amnesty International that in recent times civilians in Pakistan, particularly in the North Waziristan province bordering Afghanistan, and Yemen, had suffered from United States’ drone attacks, some losing their lives. In the same month, CNN reported that 400 civilians had been killed in Pakistan by unmanned aircraft since President Obama took office in 2009. The United States responded that the drone attacks it carried out have been “surgical and contained”, a claim that is not considered credible by many. Transnational legal theory suggests that such attacks are illegal and, in 2009, the United Nations special rapporteur on extra judicial killings suggested that the use of drones by the Obama administration in Afghanistan and Pakistan was untenable and contrary to international law.
The unmanned aircraft is a pilotless aircraft capable of flying autonomously or semi-autonomously with some pilot assistance from a remote station and hence the term ‘Remotely Piloted Aircraft’ [RPA]. This type of aircraft is not a new strategy and has nearly a century-old history in aviation. First included in Jane’s All the World’s Aircraft in 1920, UAs were tested during World War I, but not used in combat during that war. Germany’s use of the simple yet deadly V-1 “flying bomb” during World War II laid the groundwork for post-war UA programs in the United States. However, it was not until the Vietnam War in the late sixties and early seventies that UAs such as the AQM-34 Firebee were used in a surveillance role (by the United States). The Firebee exemplifies the versatility of UAs. Initially flown in the 1970s, it was modified to deliver payloads and flew its first flight test as an armed UA on December 20, 2002.
The underlying concerns with regard to legal issues are state sovereignty, responsibility, and liability. One of the contentious issues would be whether unmanned aircraft flying outside their permitted areas violate state sovereignty, and if so -what can be done to prevent future UA violations of sovereignty of the airspace. Another would be, as earlier mentioned, whether the killings carried out by drones amount to extra judicial killings. . Despite the inherent advantages of this relatively new mode of aviation - such as camouflage, low cost, and the avoidance of risk to the pilot on board in drone operations - serious concerns abound, which go to the heart of the law of humanity.
The problem of drones has indeed become contentious. A compelling argument is that killing of humans, whether they fall into the category of terrorists or not, is premeditated murder. In many jurisdictions around the world premeditated murder is a crime, as it is in all fifty States of the United States. Additionally, political killings, which drone attacks often accomplish, are outlawed in the United States. The crime is made more heinous when it is committed in foreign lands without the consent of the State concerned, and with callous disregard to the sovereignty of that State. The only exception to the use of drones in a foreign land (and this does not extend to arbitrary attacks that might involve non combatants) is in authorized armed conflict such as in instances where the international community, through the United Nations Security Council, authorizes such use in battle zones.
From an international perspective, the operative law with regard to victims of war is international humanitarian law. This limb of law is also known as the law of war, the laws and customs of war or the law of armed conflict. Basically, international humanitarian law encompasses four limbs, the first being that persons who are not, or are no longer, taking part in hostilities shall be respected, protected and treated humanely. They should be given appropriate care, without any discrimination. Secondly, captured combatants and other persons whose freedom has been restricted are required to be treated humanely. They should be protected against all acts of violence, in particular against torture and if they are brought to trial they have the right to enjoy the fundamental guarantees of a regular judicial procedure. Thirdly, the right of parties to an armed conflict to choose methods or means of warfare is not unlimited. No superfluous injury or unnecessary suffering should be inflicted. Finally, in order to spare the civilian population, armed forces are required at all times to distinguish between the civilian population and civilian objects on the one hand, and military objectives on the other. Neither the civilian population as such nor individual civilians or civilian objects should be the target of military attacks.
Certain circumstances over the past decade have made the world more cautious, leading it to guide its philosophy of mutual trust along a path which is now called “the precautionary approach”. The world would no longer sit and wait, reacting only when a crisis causes massive human suffering and loss of lives. A new doctrine, propounded by a group of scholars at the behest of the United Nations Secretary General Kofi Annan in 2001 has come into being. Called “the responsibility to protect”, this doctrine embraces the principle that all member States of the United Nations have a responsibility to protect the lives, liberty and basic human rights of their citizens, and that if they fail or are unable to carry it out, the international community has a responsibility to step in.
Drones would remain the popular weapon of choice despite calls to reduce its reliance on them. This incontrovertible fact is brought to bear by the fact that the Obama administration has used more than 400 drone strikes so far as against 50 strikes sanctioned by President George W. Bush during his 8 years in office. On the positive side, drones have effectively rid the world of terrorist leaders and decimated terrorist organizations in foreign countries that are infested with terrorist activity. One commentator unreservedly states that drones remain “a necessary instrument of counter-terrorism”. One of the effective achievements of drones is their ability to cut off communications of terrorist cells and destroy their training capabilities. However, a distinct danger is that along with the advantages to States fighting terrorism with drone attacks would be the tendencies to use such attacks at whim and indiscriminately on the tenuous justification that if it is good for the United States to use drones with impunity, they should also have the license to do so.
On the other side of the coin is a compelling argument against the use of drones, that the drone programme has taken a life of its own “ to the point where tactics are driving strategy instead of the other way around” resulting in “remote controlled repression”. Another grave disadvantage of drone attacks, particularly from a strategic point of view is that it kills individuals suspected of terrorism or proven terrorists without giving States the flexibility and advantage of questioning them. Therefore drone attacks are only good when a State decides that a terrorist would have to be eliminated rather than captured. However, the most compelling and indisputable argument against drone attacks is that drones have proved to be lethal to innocent civilians whose killings go to the heart of the most important law of all brought to prominence in recent times with the growing instances of torture and killings of non-combatants in warfare and the solid grounding of international society – the law of humanity.
The use of drones brings to bear the age old maxim Inter arma enim silent leges attributed to Cicero, which translates as “In times of war, the laws are silent”. In the 21st century, this maxim, which was purported to address the growing mob violence and thuggery of Cicero’s time, has taken on a different and a more complex dimension, extending from the idealistic synergy between the executive and the judiciary in instances of civil strife, to the overall power, called “prerogative” or “discretion” of the sovereign, to act for the public good as the guardian of the rule of law.
Gerry Simpson, Law, in his book War & Crime, - War Crimes Trials and the Reinvention of International Law One said: “In recent years, international criminal lawyers have proclaimed the arrival of a new order where impunity for war criminals is extinguished or swept aside by crusading domestic prosecutors (e,g, Garzon in Spain), by national courts (e.g. the House of Lords in Pinochet), by bold legislators (e.g. the Belgian war crimes legislation in 1993 and 1999, notwithstanding subsequent amendments), and by proliferating …international tribunals”.
However, the good news is that the trend is shifting towards a preponderance of State respionsibility. Dr. Rudi Teitel, Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics, Global Governance, in her book Humanty’s Law says: “ sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics – which had prevailed until recently – to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines”.
This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of the 1995 case of Prosecutor v. Dusko Tadic said: “a state-sovereignty oriented approach has been gradually supplanted by a human being oriented approach”.
There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape and killings in circumstances of internal strife and military warfare. Let us take the chronological evolution first. After World War II, the world has, over the past 70 years or so, gone through three global political and economic stages. The first was the modernist era, where naturally, State sovereignty was considered paramount over any other consideration in the immediate and proximate aftermath of the War where nations and States were attacked. This lasted until the 1960s.
The work of the International Law Commission is directly in point. Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts provides that international responsibility of a State, which is referred to in Article 1, is attributable to that State if conduct of the State constitutes a breach of an international obligation of that State. The document also provides that the wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self defence taken in conformity with the Charter of the United Nations. The State responsible for an internationally wrongful act is under an obligation to compensate for damage caused, including reparation for financially assessable damage including loss of profits.
In addition to State responsibility for conduct attributable to that State, the International Law Commission has established that a crime against the peace and security of mankind entails individual responsibility, and is a crime of aggression. The Rome Statute of the International Criminal court, defines a war crime, inter alia, as intentionally directing attacks against civilian objects; attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objects; employing weapons, projectiles, and material and methods of warfare that cause injury The Statute also defines as a war crime, any act which is intentionally directed at buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.
The law of war categorizes justification for killing into four groups: military necessity; distinction; proportionality and humanity. The last is what applies to drone killings. Targeting of civilians and medical personnel by no means comes even close to any of these categories. That drones - which some call “assassination machines” – in their missions of targeted killings, are used contrary to Article 51 of the United Nations Charter make them clearly contrary to the principles of public international law. Drones are precision instruments which rarely miss their targets but unfortunately lack the means to distinguish between the innocent and the guilty.
Killings by drones come within the new heading under international law called the “conscience of mankind”. It is a universal law which goes as far back as 1949 when the International Court of Justice (ICJ) recognized “ Certain well recognized principles, namely elementary considerations of humanity, even more existing in peace than in war”. Again in 1951 the ICJ made a similar pronouncement which appeared once again in 1976 in the Draft Articles of the International Law Commission which recognized the existence of “international crimes”. The principle of humanity law was immutably established with no room for doubt in 1986 when the ICJ in the Nicaragua Case evolved “elementary considerations of humanity” which essentially devolved responsibility of ensuring the safety and security of humanity on the State even outside treaty law, such as the provisions contained in the 1949 Geneva Conventions on International Humanitarian Law.
Drones are no longer a science fiction and how they will shape the future of aviation. The future of UA will largely depend on how technology, regulators, and states can work in tandem. As already discussed, the status of an unmanned aircraft can be ascertained by the actual function it is performing at the given moment. Any UA on a particular journey would be considered military if it is surveying for a combat mission, other time the same UA can be considered civil if it is surveying for a humanitarian relief. Hence, the status of each flight must be pre-approved by the approved flight plan accepted by the States to be flown above and should before-hand specify the nature of the flight. As history unfolds and technology advances the future of UAVs will largely rely on the governmental funding of its research and development. The advances in technology will not only decrease the costs as the demand increases but their easy availability may raise the problems of UA getting in wrong hands. Thus, the legislatures and engineers should work hands in hands to make sure that the use of unmanned aircrafts is for the good of humanity not for its destruction.
Drones are a retaliation to mass murder and the unacceptable abuse and torture of humanity. More than 12 years have passed since the outrageous and catastrophic events of 11 September 2001. Yet, none of us can get over the outrage we felt at the dastardly terrorist acts which killed nearly 3000 people in a day. Most of the world that day felt an amalgam of concern, fear, and anger that motivated us to take precautions. Overnight, we converted ourselves from a society that was both laid back and reactive to a society that took pre-emptive and preventive action to make sure such things never happened again. For purposes of definition, Preemption is when an act, which is potentially harmful to a State and is imminent, is effectively precluded by military or other action. Prevention is when an act, which is potentially harmful to a State and is inevitable, is effectively precluded by military or other action.
Alan Dershowitz, Professor of Law at Harvard University, asserts that “There is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention, in the context of both self-defence and defense of others”. Preemption and prevention are necessary elements in today’s political and military fabric, where legal legitimacy is ascribed to actions of States which act swiftly to avoid harm and protect its citizenry. These practices, however well meant from a strategic context, inevitably give rise to the law of outrage. Referring to the Holocaust during World War II President Roosevelt said on October 7, 1942: “It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons in the commission of atrocities which have violated every tenet of the Christian faith”. The next year Roosevelt, Stalin and Churchill vowed, through the Moscow Declaration, to bring the perpetrators to justice. On 26 October 1943 the United Nations War Crimes commission composed of 15 allied nations met for the first time in London. On March 24, 1944 President Roosevelt again issued the warning: “None who participate in these acts of savagery will go unpunished. All who share in the guilt shall share the punishment”. The last sentence was reiterated in a different way by Present George W. Bush in the aftermath of the events of 9/11: “Every nation has a choice to make. In this conflict, there is no neutral ground. If any government sponsors the outlaws and killers of innocence, they have become outlaws and murderers themselves. And they will take that lonely path at their own peril”.
Although this is the ultimate justification for the eradication of the vermin of terrorism that nature ever suffered to crawl upon the surface of the world, historic responses such as drone attacks are extreme measures resonating killings of both the innocent and the guilty summarily, without arraignment or judgement . There are some societies that are terrorized by drone attacks where they occur. In instances of hooliganism and vandalism as in the London riots of 2011 the statement in Parliament of Prime Minister David Cameron during: “We will not allow a culture of fear to exist on our streets. And we will do whatever it takes to restore law and order and to rebuild our communities... anyone charged with violent disorder and other serious offences should expect to be remanded in custody not let back on the streets and anyone convicted should expect to go to jail” might resonate. But whether this philosophy can be extended to civilians of Afghanistan or Pakistan or Yemen who, while celebrating their relatives wedding at a party find a drone attack descending on them killing the bride and most of the happy relatives, is entirely another matter.