The transformation of international law and the rise of drones series, part I

This post is the first in a series (well, hopefully a series, but let’s face it, PhD ≠ free time) that I am going to do on the way in which international law is being or may be transformed by the increased use of armed drones by states. It is, in large part, an exercise for me to order my own thoughts on the matter, but I also hope that it will provide some food for thought among those with interests in international law, politics and technology, about what drones might mean for the future. So here goes…

It has been a theory of mine, since before I began my research into drones and international law, that the rise of these remotely piloted weapons might have the result of promoting, within states, a desire to interpret the law in a way that is more permissive of the use of force.

The logic behind the theory runs like this: Until now, states' desires to use force have been restrained by both concrete practical and abstract legal impediments. Drones make the extraterritorial use of force a much more ‘simple’ endeavour, as they remove much that has previously presented a physical, concrete barrier to such actions, at least for those with the infrastructure to fly them. As a result of the removal of concrete barriers to uses of force, states become restrained solely by abstract barriers. International law, and its symbiotic relation (or perhaps its alter-ego) international politics, represents the most instantly present of these abstract barriers, manifesting in such things as the prohibition on the use of force under Article 2(4) of the United Nations Charter. When concrete impediments are overcome and law remains the only barrier, not only is there is an incentive to change the way that law operates, but it is likely to occur as a necessary consequence as practice expands to fill its new horizons, sort of like an international law version of Parkinson’s law. Areas of international law representing the principle barrier(s) to uses of force become focal points, either by design or accident, which are put under stress by practices that occur at the limits of its flexibility, which may ultimately change its shape, like an elastic band which loses its elasticity, or a much-loved sock which just ends up looking sad and tired... Maybe there is a better analogy. Nope, that'll do.

The change in the law produced by drone use is not an overturning of that law, but a blurring of it through interpretation. There is not a concerted and overt campaign to change the law, but rather a constant stress placed upon those areas which represent barriers. There is no chance, for instance, that the use of drones will signal the end of the prohibition on the use of force under Article 2(4) of the UN Charter. But it may result in an increased permeability of that rule, as the exceptions to it—principally self-defence—are gradually widened. And it is these sites of the law being ‘widened’, or made more permissive of uses of force that I would like to focus on over the coming months.

I have argued previously that the growth of drones is likely to speed up the transformation of the ‘armed attack’ requirement of Article 51 of the UN Charter form a state-against-state mechanism to one which focuses on attacks by non-state actors. But I believe that there are many other areas of international law which are potentially at risk of interpretive transformation as a result of this new technology. I intend to consider a number of these within this blog, and to set out my argument as to why drones present a possible ‘challenge’ to the current state of the law (I put the word challenge in inverted commas as, of course, some might see this as a welcome opportunity to expand international law in a way that will enable states to defend themselves more efficiently. Needless to say, perhaps, I don’t share this view!).

The key areas (in addition to the armed attack requirement) I have identified as being most susceptible to change are:

-       The gravity requirement within self-defence

-       The unable and unwilling test within self-defence

-       The law governing the consent of states to third state interventions

-       The law governing the existence of non-international armed conflicts

It will be noted that these areas of law are, for the most part, the gateways to uses of force, rather than aspects of international law that govern conduct in the use of force. I suppose that this is a result of the fact that drones are being viewed from the perspective of technology that enables the use of force, so it follows that the areas of law they impact upon are those involved in the enabling/disenabling of uses of force. These are the abstract barriers. It is pure coincidence that these areas of law coincide with those so far covered in my PhD thesis on drones and international law!

So, hopefully I will have a chance to post the first substantive piece in the series within the coming weeks. I look forward to writing it and I hope you enjoy reading it!

‘…otherwise targetable…’: the curious case of the US and its expansive targeting practices

Within the last few days, the US government has released figures detailing its estimate of the number of civilians and combatants killed by drone strikes ‘outside areas of active hostilities’ (presumably Pakistan, Yemen and Somalia). While much commentary has focused upon the veracity of the figures given (many outlets estimate far higher numbers of civilian fatalities, for instance the Bureau of Investigative Journalism) I would like to draw attention to a rather curious phrase which features not in the White House’s statement itself, but in the document produced by the Office of the Director of National Intelligence which contains the figures.  The passage in question goes like this:

‘The U.S. Government draws on all available information (including sensitive intelligence) to determine whether an individual is part of a belligerent party fighting against the United States in an armed conflict; taking a direct part in hostilities against the United States; or otherwise targetable in the exercise of national self-defense.’

This sentence seems to detail the US understanding of the way individuals may be targeted lawfully, according to international law.  It envisages three categories; the first two are unremarkable, but the third is, to my mind, pretty peculiar.  The US asserts that there exists a category of persons ‘otherwise targetable in the exercise of national self-defense’.  As will be shown, this does not fit with established law on who may and may not be targeted during an armed conflict.

The law which governs when a state may kill an individual during an armed conflict is known, prosaically, as… the law of armed conflict (LOAC) (or more poetically as the jus in bello; or more humanistically as international humanitarian law (IHL)).  Within the LOAC, there are clear rules detailing who may be targeted during an armed conflict (okay, they’re not always that clear, but they are if you ignore the vagueness... for our purposes they’re clear, alright?).  In the case of US drone strikes, the situation is a ‘non-international armed conflict’ (NIAC), in accordance with common Article 3 of the Geneva Conventions and relevant case law (see the Tadić case, Decision on Jurisdiction) as the fighting does not take place between two states.  In such a conflict, individuals may be targeted when they are: members of dissident armed forces (a category which does not apply in the areas in which drones are used); members of organised armed groups; or individuals directly participating in hostilities.  These categories arise out of treaty and customary law.  None of these categories resemble the notion of those ‘otherwise targetable’ posited in the DNI document.  So immediately it seems that the DNI document has revealed a method of targeting that operates outside of the legal framework.

The DNI document links those ‘otherwise targetable’ with ‘the exercise of national self-defense’, which suggests a cross-pollination from another area of law governing force.

It is axiomatic to those who study international law that there is a distinction between the LOAC and the law which governs the use of force in self-defence (jus ad bellum).  Indeed, they are two entirely separate areas of law.  The jus ad bellum provides criteria under which force may be resorted to—it governs the lawfulness of the resort rather than the specifics of the way force is used.  Generally, force is prohibited under Article 2(4) of the UN Charter but will be lawful if undertaken in self-defence, according to Article 51 of the Charter (or customary law).  This Article requires that, for self-defence to be lawful, there must have been an armed attack (itself a contentious concept) and that the use of force is necessary and proportionate to that attack.  It is the gateway which must be passed through before a state may use any force.  It is clear that the law of self-defence has no bearing whatsoever on who may be targeted; that is entirely within the purview of the LOAC.

So, is the US using a standard that governs the resort to force to determine a question of on-going force, to establish who may be targeted by armed drones?  It seems like it may be.  If so this would greatly expand the scope for targeting and allow the US to conduct strikes and call them legal if they were undertaken as part of an operation which was lawful under the jus ad bellum.  But, as we know, the jus ad bellum does not relate to the specifics of force—its remit ceases once force has been resorted to, at which point the LOAC takes over.  Taken to the extreme, the ‘otherwise targetable’ doctrine would mean that once force began in self-defence, any individual killed as part of the action would have been targeted lawfully.  To my mind, it recalls the concept of ‘naked self-defence’, proposed by Ken Anderson, in which lawful self-defence allows uses of military force but in the absence of an armed conflict (I reject this notion entirely: the use of military force outside of an armed conflict is almost certain to be illegal, regardless of whether the original resort was legal under jus ad bellum).  The idea that individuals (and let’s be honest here, we’re talking about civilians) are ‘otherwise targetable in the exercise of national self-defense’ appears to be an attempt by the US to create an extra-legal space in which actions may be justified as not unlawful by virtue of the fact that norms of international law have been bypassed.  It is hallmarked by broad categories (‘otherwise targetable’, how broad is that?!) and confusion.  It represents the fostering of uncertainty in a clear drive to influence the discourse surrounding extraterritorial drone strikes in a way that makes them appear generally legal. 

I am surprised that this phrase has not caused more of a storm, it’s incongruity on the legal landscape is stark.  It is no wonder that the US has managed to produce civilian casualty statistics so different from those proffered by NGOs: its categorisation of those who are lawfully targetable by drones is vast.

The implications of the inclusion of this phrase within the US targeting policy are very dire indeed.  Drones will continue to be used, as long as the enemies of the US reside in hard to reach areas.  Meanwhile the legal frameworks in place to protect civilians and mitigate the consequences of war are gradually eroded, to be replaced by a soup of interpretations in which (borderline) unlawful, indiscriminate and trigger-happy uses of force can be relabelled as precise, clinical and neatly legal.  I am alarmed; I wonder if others agree? 

A fairly accurate depiction of the present author's feelings on US targeting policy