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Drones, Donald and Distinction: Civilian Protection in Contemporary Warfare

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About The Author

Joseph Mahon (Former Regular Writer)

Originally a theology graduate from the University of Edinburgh, Joseph is currently undertaking an LLM in Public Law at UCL. His primary interests lie in three fields: public law, human rights, and international law. Outside of law, he plays football, tennis and cricket and is a die-hard supporter of Bath Rugby.

At around 18:55, on 16 March 2017, shortly before evening prayer was due to begin, an American airstrike struck a mosque in Al-Jina, a small town in northern Syria. Three hundred locals were in the building at the time and, while numbers vary slightly between outlets, Syria Civil Defence report that they recovered 38 dead bodies from the site. Scores more were injured. Among the dead were five children, the imam of the mosque, and the imam’s wife. Investigating the strike, US authorities’ findings were conclusive: one civilian, possibly a child, was killed; the strike was legal.

International Humanitarian Law (IHL) is the legal framework that regulates armed conflict worldwide. It consists of Conventional (treaty-based) and Customary (custom-based) Law and it holds, in theory at least, the guidelines within which legal analysis of attacks like the one above can begin. Yet these analyses are not simple. The provisions they are based on are lacking in crucial areas and are ambiguous in others. They are ripe for interpretation and disagreement, falling under a web of ‘policy’.

As this article examines, drones highlight these ambiguities in IHL: they demand measured assessments of two of its key tenets, proportionality and distinction, both of which are problematic in modern warfare and the ‘war on terror’. Where there are ambiguities, and where the assessments of these ambiguities are shrouded in secrecy and politics, there can be exploitation.

International Humanitarian Law and Modern War

International Humanitarian Law

The two main sources of IHL are treaties and customary law. Customary law is taken from the consistent practice of states, and is binding on both state and non-state groups. It is defined in Article 38(1)(b) of the Rome Statute as “a general practice accepted as law,” and separately as “a general and consistent practice of states followed by them from a sense of legal obligation.” It is important for a number of reasons: it is a way to interpret and inform conventional law; it applies equally to all conflicts; and it is binding on all states, even those who have not ratified it. Without the same level of codification as treaties, however, it is also interpretative in its nature.

Conventional law is treaty-based. Treaties bind only their signatories, thereby excluding those who have not or (like non-state armed groups) cannot ratify them.. Therefore, different treaties apply in different conflicts depending on the parties involved and the treaties these states have ratified.

The four Geneva Conventions have been ratified universally, but this is not true for its Additional Protocols (APs). For example, AP I – which covers International Armed Conflict (IAC) – has  been ratified by 174 states, yet several of those involved in recent international conflicts are not included in this number. The United States is a stand-out example. The same applies to AP II with regards to Non-International Armed Conflicts (NIAC), where Article 3 is often the only humanitarian treaty provision that is applicable.

It is noteworthy that AP I contains 102 substantive articles, while AP II contains a mere twenty-eight. Amongst these twenty-eight, there is little protection for civilian collateral, who instead have to rely on Customary Law. These numbers suggest a substantial disparity in regulation between international and non-international armed conflicts. With the bulk of modern warfare falling into the latter category, these numbers are concerning.

Modern War

Research shows that between 1995 and 2005, in  stark contrast to the years in which the main conventional elements of IHL were drafted, 95% of global conflicts were internal, involving non-state groups. In the modern war on terror, this trend continues. These wars are fought not on conventional battlefields, but in towns and cities – among civilians in civilian areas. The civilian population is centralised both as a source of support and as a political weapon; the war revolves around them and cannot be won through traditional martial power. Novel approaches, such as drone strikes, are thus viewed by many states as a necessary tool.

They are also often asymmetric: conflicts where one side will have far greater military strength and technological capacity than the other. The ‘war on terror’ is often categorised in this way as a conflict between regular forces of states versus irregular forces of non-state movements. Wherever such asymmetry exists, the implications for civilians can be crippling. Weaker parties make up for their inadequacies by using prohibited tactics: attacking civilians, using them as human shields, or failing to distinguish themselves from civilians, as is required by Article 44(3) of AP 1.  In a report in 2009, the Secretary General of the UN highlighted a number of conflicts—Afghanistan, Iraq, Pakistan and Somalia—where the increasingly asymmetric nature of the conflicts has had a hugely negative effect on civilians, with armed groups seeking “to overcome their military inferiority by using strategies that flagrantly violate international law, including attacks against civilians and the use of civilians to shield military objectives.”

All these trends have significantly complicated the application of IHL to contemporary warfare.

Targeted Killing and Legal Difficulties

Distinction

Nils Melzer defines targeted killing as the intentional and premeditated use of lethal force by a state against an individual who is not in their custody. The use of drones to kill combatants in countries like Pakistan, Somalia and Yemen is a prime example of this. These individuals will be scrutinised and identified by a state either as a civilian or combatant and then targeted (or not). For the fundamental jus in bello principle of distinction, however, the concern lies in how this determination is made, whether by a ‘status-based’ test, a ‘conduct-based’ test or some combination of the two. A status assessment will look at who the individual is, focusing on membership of organisations such as Al-Qaeda; a conduct assessment will look at what this individual has done, such as participate in hostilities. The problem with so many modern wars is the difficulty in making this determination. As more combatants reject the legal obligation to distinguish themselves from civilians by carrying arms, wearing uniforms etc., the more thorough the assessment must be.

These two approaches—status or conduct—tie in with two legal models, the former to the IHL model, and the latter to the traditional law enforcement model. IHL allows for the killing of enemies during armed conflict provided it is necessary and proportionate; domestic law enforcement tries those accused of crimes in a court of law. IHL will consider status—as a soldier for example—as reason for guilt; domestic law will not allow this for fear of it shading into guilt by association. This is for practical reasons: IHL requires decisions to be made in real time by the participants on the ground. Time is a luxury the military do not have. And while the law enforcement model seeks to uphold procedures such as habeus corpus, the armed conflict model might view this as insufficient to deal with terrorism. Terrorists ought to be viewed as enemy combatants whose tactics of targeting civilians violate the laws of war. Wartime principles should apply to such a threat.

As a matter of policy, the ‘continuous combat function’ (CCF) has been used by the US as rationale for the targeting of Al Qaeda. Yet this is contentious: it allows, for example, civilians to be targeted merely due to their membership of such a group. According to the US government, all members of Al Qaeda are exercising a continuous combat function; yet as a de facto status-based test, this depends entirely on the nature of the organisation in question and the reliable identification of its members. As Jens David Ohlin has pointed out, this comes down to the question of whether organisations like Al Qaeda are exclusively military organisations, or whether they are mixed organisations with civilian elements such as schooling. Even if this classification is achievable with Al-Qaeda, what about Al Shabaab or ISIS? In each case, the greater the organisation, the more confusion there will be about who can and cannot be targeted.

That an individual may become party to a conflict on the basis of the CCF is controversial, particularly given the established principle of IHL (outlined in Article 13(3) of AP II) that civilians only lose their immunity from attack “for such time as they take a direct part in hostilities”. It is not a continual assessment, but a momentary one. The function raises the risk of erroneously targeting a civilian who may, for example, have disengaged from his or her function.

One of the difficulties around targeted killings is that they seem to lie somewhere between the two models of IHL and domestic law enforcement. They follow the traditional IHL status model since they are so often directed against military leaders in the context of war, yet they are framed by policy-makers in the rhetoric of justice and from an outside perspective can seem to resemble state executions rather than war, something policy makers vehemently deny. The issue, regarding the protection of civilians, is that this ambiguous position, and the difficulties in making personal assessments, can begin to cloud the application of jus in bello.

Proportionality and Precaution

When it comes to proportionality, therefore, it is very difficult to make accurate assessments and to hold accountable those that flaunt its provisions. Proportionality, holds Article 57 of AP I, is the principle that a lawful attack must not be intentionally carried out if it can be expected to result in ‘excessive civilian harm’ compared to the ‘concrete and direct military advantage anticipated.’ While it is codified in international armed conflicts by AP I, NIACs rely on customary law, specifically Rules 14 and 15 of the International Committee of the Red Cross's (ICRC) study into customary law. Rule 14 shares almost the exact same wording as above, while Rule 15 requires:

feasible precautions [to] be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.

At first glance, it is clear that terms such as ‘excessive’ and ‘feasible’ will cause disagreement. They are subjective terms and a military lawyer’s answer would almost certainly differ to that of an aid worker. Looking at drones, there are many reasons why they can present a clearer and more distinct picture than traditional styles of attack and bombardment—on-board cameras can provide real-time feedback, for example—and these can be viewed as feasible precautions. However, this must be read with caution since, ultimately, drones still depend on the intelligence and the rationale behind the decision. In a drone program, as will be explored shortly, this rationale is too often politicised and placed in military hands without sufficient safeguards.

It is hard to make real progress here since reporting on the numbers is highly polarised. Drone programs, like that of the US , are highly secretive while  relief and humanitarian agencies spend longer counting the living than the dead. There are, however, disquieting stories of civilian collateral: The Intercept reports that during a five-month stretch of ‘Operation Haymaker’ in Afghanistan, nearly 90% of those killed were not the Americans’ direct targets. Over the course of the campaign, of the 200 killed, only 35 were ‘jackpots’.

Taliban leader Baitullah Mehsud, a top CIA target, is another example. After a mid-ranking commander was killed as ‘bait’, Mehsud was targeted at this commander’s funeral where 5000 people, including civilians, were in attendance. 83 were reportedly killed by drones at this funeral, including 45 civilians, 10 of whom were children.

Lastly consider Ayman al-Zawahiri, current head of Al-Qaeda. He was first targeted by a drone in January 2006. Unsuccessful, a second attempt was made in October of the same year. The year is now 2017: various drone strikes later, al-Zawahiri is still alive; seventy-six children and twenty-nine adults are not. When reading these stories, it is hard not to question current policies on proportionality in attack.

For IHL to be effectively applied to the proportionality problem it must return to the issue of distinction. These attacks demand transparency and the clarity of analysis that should come with state sanctioned killing. Who were the combatants, who the civilians, and who were those the military was unsure about? How was the proportionality assessment made? By clarifying the position on distinction, we can make progress assessing these figures. Grey areas in distinction must not be allowed to conceal discrepancies in proportionality. Where there is doubt, that doubt can be manipulated to favour a certain position. Where that position is dictated by political policy, those that suffer will be innocent civilians.

A Change in Mindset

While lawyers, scholars and humanitarians continue to highlight such disasters and clamour for international justice, international responses are, too often, conspicuously absent. Courts such as the ICC have convicted small numbers of war criminals, yet, as statutory instruments, they are inherently limited in their jurisdiction and they have often proved impotent when tested. They are also backward-looking, relying on a model of retrospective accountability. In the face of this, it must be emphasised that the reality of war crimes is faced by civilians in real-time. The appropriate means for redressing violations as they occur are still lacking. As written by the ICRC:

Although the contribution of the United Nations and regional bodies must not be overlooked, the reality of contemporary armed conflicts demonstrates that the issue of sufficient and effective monitoring mechanisms has not yet been resolved. 

Bodies like the ICRC can monitor certain situations, but there are intrinsic limits to what they can do as a humanitarian organisation without legally binding recommendations. It is for this reason that recent developments in international drone policy are so worrying.

In Obama’s last few years in office, he put in place a series of safeguards over the drone program and targeted killing. These safeguards required approval from the White House for drone strikes and for a ‘near certainty’ requirement that no civilians will be killed in strikes outside of the designated war zones – Yemen, Somalia and Pakistan. Since Trump has come to power, these safeguards are reportedly being rolled back. Without these safeguards, (i) the CIA would have power to conduct attacks themselves and (ii) the threshold of acceptable civilian casualties—so integral to proportionality analysis—would be significantly lowered.

On point (i), aside from the jarring image of Pentagon operatives conducting strikes on hilltops the far side of the world, this raises huge issues of accountability under IHL. If terrorist organisations are accused of violating IHL by failing to distinguish themselves as combatants by wearing visible uniform, arms and insignia, the same must surely apply to CIA operatives operating covertly.

And on point (ii), while figures from Yemen, Somalia and Pakistan are hard to come by, there is ample evidence of an exponential increase in civilian casualties across other states. Airwars, for example, a group dedicated to monitoring international airstrikes in Iraq, Syria and Libya, reports a marked increase in civilian deaths since Trump came to power. Over the five months between February and June of this year, there have been 6264 alleged civilian casualties resulting from coalition airstrikes in Iraq and Syria. Over the twelve months prior to that, going back to February 2016, the figure is 3139. There may be other factors at work—an increase in hostilities in general, a tipping point in the war against ISIS, an increase in the use of civilians as human shields by ISIS— but these figures nonetheless demand attention.

Consider this, so eloquently put by Trump, as he careered along the campaign trail in late 2015:

We’re fighting a very politically correct war. The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families.

There is a change in mind-set under the current regime: a regime that promised to “bomb the shit” out of ISIS and that seems to care little for the protections of IHL. In a field as secretive as the drone program – which sits in the centre of IHL’s most challenging ambiguities – a change of mind-set can be devastating. And, as more and more harrowing stories can bear witness, those suffering the most are the individuals on the ground.

Obama’s plan may have been criticised in certain circles for creating a bureaucratic bottleneck, slowing down a process that needs to be swift and decisive, yet it is commendable because it places due process and accountability at the centre of the targeted killing process. Civilian collateral was centralised under Obama; under Trump it is becoming an afterthought.

Conclusions

In the eyes of US officials, the attack on Omar Ibn al-Khatab mosque was legal – an effective and proportionate attack with minimal civilian collateral. Human Rights Watch, in their report, found differently. Even if there were combatants in the mosque, the risk to civilians in this case would have been disproportionate. It was prayer time, hundreds of people were inside, and the military opted to fire on those fleeing the scene – how could they confidently know whether an individual running for their life was a combatant or a local civilian? In an attack like this, with high benchmarks, there is insufficient evidence to convict the perpetrators of a war crime. Whether the military knowingly launched an indiscriminate or disproportionate attack, or whether they were criminally reckless in doing so, will frustratingly remain a matter for debate. Distinction and proportionality—the two areas whose deficiencies are underscored most clearly by drones—will continue to divide opinion.

As the drone program continues to accumulate civilian casualties, it does so shrouded in secrecy, stoked by political rhetoric. There is evidence that it creates more terrorists than it kills, that it causes psychological damage far beyond its initial effects, and that it lowers the threshold for military intervention. As David Cameron found out, people are more likely to vote for drones than for ‘boots on the ground’.

Addressing it requires three remedies. First, bodies like the UN need to take a proactive approach to regulating modern war. Non-international armed conflicts must be covered as comprehensively as international ones. There must be entities created to enforce the law in real-time, not retrospectively. Second, there must be greater clarity from those that make and interpret the law. Ambiguities such as those in distinction must be ironed out. Its complexity must never be used be used to obscure important debates in proportionality. Third, and most ambitiously, there must be accountability for those who flaunt these provisions. When political whims are allowed to bend IHL or to denigrate the protection of civilians to an afterthought, those laws have failed.

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Tagged: Anti-Terror, Armed Conflict, Drones, International Law

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