MUCH ADO ABOUT NOTHING: LEGAL REFLECTIONS ON THE UNITED STATES ‘DRONES PLAYBOOK’:PART I

 

drones

Photo Credit: Doran

Guest Post by: Arthad Kurlekar & Arindrajit Basu

INTRODUCTION

On August 7th of this year, the Obama Administration finally declassified its internal guidelines (referred to as Presidential Policy Guidance’ or ‘PPG’), which supposedly details the United States’ parameters on the killing or capturing of alleged terrorists around the globe. The document provides some insight into the drone war bureaucracy leading to strikes in Pakistan, Yemen, and Somalia. Despite redactions at crucial junctures in the document, it ostensibly answers many questions posed by the global community regarding the lawfulness of these clandestine programs. A closer look, however, shows that the document largely plays implicit lip-service to principles of International Law without providing concrete evidence that illustrates how this normative framework is implemented in the decision-making process. In a two-part post, we seeks to deconstruct and analyze the lacunae in this document with reference to lethal targeting by considering two key principles of International Law: (1) The Principle of Distinction and (2) Sovereign Equality. The first post deals with distinction while the analysis on sovereign equality is left for the second post. We argue that the PPG fails on two counts: first it fails to provide a nuanced classification of the targets in accordance with IHL and second, it fails to operationalise IHL principles when carrying out targeted killings.

Principle of Distinction

After the targeted killing of Anwar-Al-Awlaki in 2010, the policy of targeted killings has exposed the lacunae in international humanitarian law (IHL) and human rights law. From an interview of a drone operator to leaked policy documents, multiple strands of evidence have called into question the adherence of the targeting policy with the principle of distinction under IHL. Article 51 of the Additional Protocol I (API) to the Geneva Conventions of 1949 codifies the concept of distinction. The United States is not a party to API. However, the general principle is that “The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations”. Even if we assume that API is not applicable to targeted killings of militants or unlawful combatants, the principle has to be adhered in non-international armed conflicts (NIAC) to in light of common Article 3 to the Geneva Conventions of 1949. In the seminal decision of Al-Aulaqi v Obama  the US Supreme Court has stated that the US is engaged in an NIAC with terrorist groups such as the Al-Qaeda and therefore, the rules of IHL with respect to combatants in an NIAC must apply.

Both Additional Protocols further state that, “the civilian population as such, as well as individual civilians, shall not be the object of attack.” This obligation is often considered part of customary international humanitarian law. However, the protection afforded to civilians is conditional on them not participating in hostilities. Thus, non-combatants who breach their duty of participation become legitimate targets of war   “for such time as they take a direct part in hostilities.” With regard to terrorists, however, conflicting literature has bracketed them into one of two categories of individuals that exist during an armed conflict-(i) combatants or (ii) civilians participating in hostilities. They may also be categorised as ‘unprivileged combatants’- a classification made in the Third Geneva Convention for unlawful combatants who do not respect the laws of war. Due to the unique composition, functions, and objectives of these transnational terrorist organisations, it would be unwise to bracket them into one homogenous category for the purpose of conducting targeted killings. Each authorized strike must be guided by certain parameters that determine the status of each individual being targeted. The PPG fails to go into such nuances of IHL while delineating operations that target terrorist organizations.

IHL has always been interpreted to apply between states and since has not yet envisioned application to non-state actors such as terrorist organizations. The definition of ‘combatants’ is based on the traditional view of a state’s armed forces and militias. Combatants are defined in the Third Geneva Convention as individuals who must fulfill three core criteria: (1) Being commanded by a person who is responsible for his subordinates; (2) Carrying a fixed distinctive sign that is recognizable at a distance and (3) Carrying arms openly. Many argue that terrorists do not qualify as ‘combatants’ upon a rigid application of this definition. Thus, in the context of non-international armed conflict, the International Committee on Red Cross (ICRC) has recognized that any individual who is a member of an organization that is engaging in hostilities with the said state is said to have acquired a ‘continuous combat function,’ that gives them permanent combatant status. The rank and status of the individual in the hierarchy of the terrorist organization becomes crucial for the determination of whether he has acquired a ‘continuous combat function.’

The crux of the problem is that the PPG commences with the identification of legitimate targets. Section 3A legitimizes targeting High Value Targets (HVTs) and attempts to qualify HVTs as individuals who pose a ‘continuing, imminent threat’ to US persons without elaborating further on the threshold of what a suitable threat may be. It does not mention the position a HVT must occupy in the hierarchy of the terrorist organization, the nature of the threat he poses, or any other information that indicates the parameters that may be used in this classification.

The document does however specify in 3C the interagency review process that needs to be undertaken before a nomination for lethal action is approved. Section 4 interestingly lays down the Policy Standard for using lethal force against targets other than HVTs and a plain reading of the text with the redactions shows no difference between this threshold and the threshold for targeting HVTs, which begs the question of the objective behind qualifying certain targets as ‘HVTs’ in the first place.

The second way of classifying terrorists could be as civilians who have participated directly in hostilities. The ICRC Commentary on Protocol I states that: “direct” participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.” During participation in hostilities, an individual loses their civilian status and becomes a legitimate target under international law. The ICRC Commentary stresses a very strong causal and spatial proximity between the individual’s participation in hostilities and the resulting threat to the affected party. In the key Public Committee Against Torture in Israel (PCATI) judgment, however, President Barak of the Israeli Supreme Court adopted a more expansive, functional approach to direct participation. Any civilian performing combatant functions – which included acts relating to the planning and orchestration of a terrorist act – would be deemed to be participating in hostilities. This could include gathering military intelligence, designing and operating weapons systems, or aiding in transportation.

The definition of hostilities is also ambiguous.The ICRC Interpretative Guidance on Direct Participation in Hostilities states that an individual is engaging in hostilities when they are carrying a weapon, but carrying a weapon is not a necessary condition for them to participate in hostilities. Although, the Commentary does not explicitly say so, it would be reasonable to infer that it also covers the planning or orchestration of an attack as the commission of hostilities. Individuals who are not part of the organizational rank and file of terrorist units may still become legitimate targets of war provided the causal and spatial connection has been pre-determined. The PPG fails here yet again as it does not lay down any criteria for determining the causal and spatial connection between an individual and his participation in hostilities.

Finally, even if we were to assume that the demarcation of terrorists is in line with IHL, the PPG makes no attempt to operationalize the principle of distinction while carrying out the targeting. The dubious term ‘near certainty’ is used throughout the document and specifically in Sections 3B and 4B which specify the preconditions for the taking of lethal action. Such an ambiguous threshold used in reference to identifying the location of the terrorist and preventing civilian damage may echo standards encapsulated in Article 3. However, it fails to show how this threshold may be implemented. It does not specify the parameters to be used for this determination, which may include the radius that would constitute ‘near certainty’, the level of intelligence required to ascertain that no civilians are present, or other operational guidelines. The absence of a coherent policy determining ‘near certainty’ may be one of the key reasons for the large number of civilian casualties in drone strikes over the past decade.

Yet another ambiguity lies in Section 1F, which requires the identification of ‘reasonably available resources’ to be employed by the US Government for the identification of the target. It fails to illustrate or indicate what a ‘reasonably available resource’ may be. An article published by The Intercept indicated, on the basis of leaked reports that one of the primary methods used by US authorities in the identification of targets involved the tracking of cell phone coordinates. As this method is based on the flawed assumption that the cell phone will remain on the body of the target and not be lent or transferred to any other individual, conformity with the Article 3 threshold, which requires a strict distinction between combatants and non-combatants, is not demonstrated in the PPG.

CONCLUSION

The principle of distinction is a fundamental tenet of international humanitarian law. In order to demonstrate compliance with the objectives of a sustainable global regime that is built in line with the principles of international law, states need to spell out specific implementation measures in their domestic guidelines. While the PPG marks an attempt to do so, it fails to clarify various crucial ambiguities. It is imperative that the US authorities revise these guidelines in order to ensure that the war on terror is a morally and legally legitimate one.

 

 

Arthad Kurlekar is a BCL Candidate at Wadham College, University of Oxford, 2016-17. He holds a Diploma in Commercial Arbitration and has been a research assistant to Prof. Dr. Remy Gerbay, Prof. Dr. Reinmar Wolff and Prof. Dr. Ingeborg Schwenzer. His research interests International Dispute Settlement, International Commercial Arbitration, International Investment Law, Outer Space Law and the Laws of Armed Conflict. He may be contacted at au.kurlekar@gmail.com. His Linkedin profile may be accessed here.

Arindrajit Basu is at The West Bengal National University of Juridical Sciences, India and a  Research Assistant with the Centre for Long-Term Cybersecurity, University of California, Berkeley. His research interests include International Security, Laws of Armed Conflict, Military Ethics and the Laws of Privacy. He has previously written for Dissident Voice, The Wire and the Economic & Political Weekly. He may be contacted at basu.arindrajit@gmail.com

 

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