Clarifying the law relating to unmanned drones and the use of force: the relationships between human rights, self-defense, armed conflict, and international humanitarian law.

AuthorMcNab, Molly
  1. INTRODUCTION

    By now it is common knowledge that the United States employs weaponized unmanned drones in its conflict with al Qaeda. Predator drones, equipped with Hellfire Missiles, were first deployed shortly after the September 11, 2001 terrorist attacks to target al Qaeda leaders in Afghanistan. (1) The first reported drone strike outside Afghanistan occurred in 2002 in Yemen. (2) The basic facts of the United States' conflict with al Qaeda are relatively well known. However, the law that governs the conflict is murky at best, and there is little consensus among the legal experts on many relevant legal issues. This article is designed to lay out the basic framework of the law and highlight the major areas of contention, providing the foundation for understanding the intricacies and nuances discussed by the eminent publicists writing in this edition of the Denver Journal of International Law & Policy.

    To explain the laws governing the use of force, applied in a modern context, this article first briefly describes in Section II the historical context in which the law surrounding the use of force developed. Then, Section III explains the basic legal paradigms that apply to an analysis concerning the legality of drones as weapons of war, including human rights, self-defense, the law of armed conflict, and international humanitarian law (IHL). A brief examination of terrorism and the background history relating to difficulties in defining terrorism follows in Section IV. Section V examines the different approaches to the jus ad bellum analysis, which is the first step in determining legality of the use of force. Finally, Section VI lays out the jus in bello assessment that governs how a State may use force when carrying out a specific campaign.

  2. BACKGROUND

    In the mid-1600's, Hugo Grotius, the Dutch scholar widely considered the father of international law, (3) recognized the paramount principle of territorial sovereignty, and that all sovereigns are perpetually either in a state of peace governed by human rights law or a state of war governed by humanitarian law. (4) These revelations were considered to be new concepts of international law designed to reflect new legal realities. (5) Such a paradigm shift is now termed a "Grotian Moment." (6) Some scholars argue that September 11th created a Grotian Moment regarding the use of force to combat terrorism, (7) while others argue the traditional bipartite legal paradigm of humanitarian law and human rights law ensconced by Grotius' original Grotian Moment prevails (8) and the fundamental principle of territorial sovereignty (9) remains inviolable. (10)

    Regardless of whether September 11th constituted a Grotian Moment, the challenge the international community faces today is applying law, which developed over the course of the last four centuries, to new situations and technologies that were previously unimaginable. While international law continuously evolves, arguing that September 11th caused total destruction to the foundational principles governing the use of force is unsupportable. Rather, use of force law may have evolved in some manners, but it did so within the confines of well-established basic principles.

    Since Grotius, significant evolution of the foundational concept of war and peace has occurred. Two of the most momentous developments emerged from the rubble of World War II. First, the United Nations (U.N.) was formed, and now, virtually all States are party to the U.N. Charter. (11) Accordingly, Article 2(4) of the U.N. Charter, which codifies a general prohibition on the use of force, is binding upon nearly every State. (12) This prohibition can only be overcome in very narrow exceptions, one of which is a State's inherent right to self-defense, laid out in Article 51 of the U.N. Charter. (13)

    The second post-World War II development was the introduction, and subsequent adoption, of the Fourth Geneva Convention, which provides for the protection of civilians during armed conflicts. (14) The Additional Protocols of 1977 to the Geneva Conventions supplemented these essential civilian protections. Additional Protocol I provides greater security for civilians, (15) and Additional Protocol II further elucidates the requirements for States engaging in conflicts against non-State actors, such as al Qaeda or other terrorist organizations. (16)

    Following the Geneva Conventions and the Additional Protocols, there have been significant changes in both the parties to war and the methods of warfare. The World Wars involved great sovereign powers marching on a foreign sovereign territory, but now the "enemy" often involves non-State actors possessing no territory, no formal military, and no official constituency. Similarly, military technology has developed greatly. In traditional warfare, tanks, planes, and well-organized battalions marched across enemy territory. Today, the means and methods of warfare are imbalanced between the parties. Non-State actors employ rudimentary technology that allows a single combatant to carry out an entire attack with a road-side improvised explosive device or suicide vest. (17) Meanwhile, developed nations use state-of-the-art unmanned drones with laser guided missiles to target military objectives located thousands of miles away from the drone operator. (18) Due to these evolutions, international law has been stretched, adapted, and sometimes contorted to fit a mode of combat unimaginable to the drafters of the U.N. Charter and the Geneva Conventions in the aftermath of World War II.

  3. THE BASIC LEGAL PARADIGMS

    The general prohibition on the use of force is codified in U.N. Charter Article 2(4), and is also well established customary international law. (19) Customary international law is universally binding and formed by widespread and consistent state practice coupled with opinio juris, (20) a State's belief that it has a legal obligation. (21) The prohibition on the use of force is so engrained in customary international law and viewed by the international community as an inherent obligation of all States that it is considered a jus cogens norm, or peremptory norm from which no derogation is permitted. (22)

    There are several limited exceptions to this prohibition. The first is a State's inherent right to use force in self-defense, either individually or collectively. (23) The second exception is for use of force upon Security Council authorization for the purposes of maintaining international peace and security. (24) Such Security Council authorization was recently given in order to protect civilian populations in Libya. (25) Finally, regional enforcement actions are permitted under Article 53 of the U.N. Charter, but the legality of such action is also predicated upon Security Council authorization. (26)

    The law governing the use of force is split into two parts: jus ad bellum dictates the conditions under which a State may resort to the use of force, (27) and jus in bello controls the means and methods of force a State may legally employ. (28) The former determines the right to use of force and the latter regulates how that right is executed.

    Within the jus ad bellum analysis, there are three possible legal paradigms in which a State may be acting. First, during times of peace, States are governed by human rights law and may only use law enforcement methods to ensure security. (29) Second, a State acting within the self-defense paradigm, under which a State confronted with violence or threatened with imminent violence, may, under U.N. Charter Article 51 and customary international law, (30) use force in self-defense so long as it is necessary and proportionate. (31) Finally, a State may use force within the context of an armed conflict, under the parameters of international humanitarian law. (32) If the State is not operating within the self-defense or armed conflict paradigms, it must be operating in the human rights paradigm. Simply put, if a State does not meet the legal criteria of self-defense or armed conflict, but uses force without Security Council authorization, it is doing so unlawfully. Thus, it becomes imperative for a State utilizing military force to justify and legitimize its actions as either a lawful right to self-defense or engagement in an armed conflict.

    Once a State finds itself in one of the two categories that permits the use of force, it must comply with jus in bello principles that govern how that force is used. (33) The primary source for jus in bello principles are the Geneva Conventions and the Additional Protocols, but virtually every principle codified in the Conventions are universally accepted as customary international law as well. (34)

  4. THE RELEVANCE OF DEFINING TERRORISM

    Combating terrorism is one of the primary purposes for the employment of armed drones by States such as Russia, Israel, and the United States. (35) The use of military action to respond to terrorism is controversial. To fully understand the debate, it is necessary to understand the essential elements of terrorism in order to properly place it as a cog within the legal clockwork relating to the use of force and drones. An ad hoc approach by States in addressing terrorism has developed due to the failure of the international community to either adopt a unified definition of terrorism or to create a binding instrument relating to the prevention or punishment of terrorism in all contexts.

    Terrorism is not a new phenomenon and States began making concerted efforts to create a legal framework for addressing terrorism well before the creation of the United Nations. (36) States notably began to address the topic of terrorism in a unified effort beginning with the League of Nations and the 1937 Convention for the Prevention and Punishment of Terrorism. (37) States involved in the drafting were unable to reach consensus on the definition of terrorism and the instrument was abandoned. (38)

    Since then, States have...

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