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Pandora's box? Drone strikes under jus ad bellum, jus in bello, and international human rights law

Published online by Cambridge University Press:  23 April 2013

Stuart Casey-Maslen
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Abstract

Armed drones pose a major threat to the general prohibition on the inter-state use of force and to respect for human rights. On the battlefield, in a situation of armed conflict, the use of armed drones may be able to satisfy the fundamental international humanitarian law rules of distinction and proportionality (although attributing international criminal responsibility for their unlawful use may prove a significant challenge). Away from the battlefield, the use of drone strikes will often amount to a violation of fundamental human rights. Greater clarity on the applicable legal regime along with restraints to prevent the further proliferation of drone technology are urgently needed.

Keywords

armed conflictdirect participation in hostilitiesdronehuman rightsinternational humanitarian lawlaw enforcementtargeted killingunmanned aerial vehicle
Type
New Technologies and the Law
Information
International Review of the Red Cross , Volume 94 , Issue 886: New Technologies and Warfare , June 2012 , pp. 597 - 625
Copyright
Copyright © International Committee of the Red Cross 2013 

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References

1 Speech to the Northwestern University School of Law, Chicago, 5 March 2012, available at: http://www.lawfareblog.com/2012/03/text-of-the-attorney-generals-national-security-speech/.

2 According to US Federal legislation adopted in 2012, the term ‘unmanned aircraft’ means ‘an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft’. Section 331(8), FAA Modernization and Reform Act of 2012, signed into law by the US President on 14 February 2012.

3 US Department of Defence, ‘US unmanned systems integrated roadmap (fiscal years 2009–2034)’, Washington, DC, 2009, p. 2, available at: http://www.acq.osd.mil/psa/docs/UMSIntegratedRoadmap2009.pdf. Presumably no pun was intended.

4 Peter Bergen and Katherine Tiedemann, ‘Hidden war, there were more drone strikes – and far fewer civilians killed’, in New America Foundation, 22 December 2010, available at: http://newamerica.net/node/41927.

5 W. J. Hennigan, ‘New drone has no pilot anywhere, so who's accountable?’, in Los Angeles Times, 26 January 2012, available at: http://www.latimes.com/business/la-fi-auto-drone-20120126,0,740306.story. A similar percentage of drones to piloted aircraft is expected within twenty years in the British Royal Air Force (RAF). Nick Hopkins, ‘Afghan civilians killed by RAF drone’, in The Guardian, 5 July 2011, available at: http://www.guardian.co.uk/uk/2011/jul/05/afghanistan-raf-drone-civilian-deaths. General N. A. Schwartz, the US Air Force Chief of Staff, has reportedly deemed it ‘conceivable’ that drone pilots in the Air Force would outnumber those in cockpits in the foreseeable future, although he predicted that the US Air Force would have traditional pilots for at least thirty more years. Elisabeth Bumiller, ‘A day job waiting for a kill shot a world away’, in The New York Times, 29 July 2012, available at: http://www.nytimes.com/2012/07/30/us/drone-pilots-waiting-for-a-kill-shot-7000-miles-away.html?pagewanted=all.

6 See, e.g., ‘Groups concerned over arming of domestic drones’, in CBSDC, Washington, DC, 23 May 2012, available at: http://washington.cbslocal.com/2012/05/23/groups-concerned-over-arming-of-domestic-drones/; Vincent Kearney, ‘Police in Northern Ireland consider using mini drones’, in BBC, 16 November 2011, available at: http://www.bbc.co.uk/news/uk-northern-ireland-15759537; BBC, ‘Forces considering drone aircraft’, 26 November 2009, available at: http://news.bbc.co.uk/2/hi/uk_news/england/8380796.stm; Ted Thornhill, ‘New work rotor: helicopter drones to be deployed by US police forces for the first time (and it won't be long before the paparazzi use them, too)’, in Daily Mail, 23 March 2012, available at: http://www.dailymail.co.uk/sciencetech/article-2119225/Helicopter-drones-deployed-U-S-police-forces-time-wont-long-paparazzi-use-too.html. The US Federal Aviation Authority Modernization and Reform Act of 2012 grants increased powers to local police forces across the USA to use their own drones.

7 According to the Oxford English Dictionary, the pertinent definition of a drone is ‘a remote-controlled pilotless aircraft or missile’, the etymology being the Old English word for a male bee. In Pakistan, the drones, which make a buzzing noise, are nicknamed machay (wasps) by the Pashtuns. Jane Meyer, ‘The Predator war’, in The New Yorker, 26 October 2009, http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer.

8 David Cenciotti, ‘The dawn of the robot age: US Air Force testing air-launched UCAVs capable to fire Maverick and Shrike missiles in 1972’, in The Aviationist (weblog), 14 March 2012, available at: http://theaviationist.com/2012/03/14/the-dawn-of-the-robot-age/.

9 ‘Predator drones and unmanned aerial vehicles (UAVs)’, in The New York Times, updated 5 March 2012, available at: http://topics.nytimes.com/top/reference/timestopics/subjects/u/unmanned_aerial_vehicles/index.html.

10 ‘Syrian forces use drone in attack on rebel city’, in ABC News, 12 June 2012, available at: http://www.abc.net.au/news/2012-06-12/52-killed-in-syria-as-troops-pound-rebels-strongholds/4064990.

11 According to Alston, a targeted killing is ‘the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator’. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum, Study on targeted killings, Report to the Human Rights Council, UN Doc. A/HRC/14/24/Add.6, 28 May 2010, para. 1, available at: http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf (hereinafter, 2010 Study on Targeted Killings). Melzer affirms that a targeted killing has five cumulative elements: use of lethal force; intent, premeditation, and deliberation to kill; targeting of individually selected persons; lack of physical custody; and the attributability of the killing to a subject of international law. Melzer, Nils, Targeted Killings in International Law, Oxford Monographs in International Law, Oxford University Press, Oxford, 2008, pp. 3–4.CrossRefGoogle Scholar

12 J. Meyer, above note 7.

13 Elisabeth Bumiller and Thom Shanker, ‘War evolves with drones, some tiny as bugs’, in The New York Times, 19 June 2011, available at: http://www.nytimes.com/2011/06/20/world/20drones.html?pagewanted=1&_r=1&ref=unmannedaerialvehicles.

14 W. J. Hennigan, ‘New drone has no pilot anywhere, so who's accountable?’, in Los Angeles Times, 26 January 2012, http://www.latimes.com/business/la-fi-auto-drone-20120126,0,740306.story.

15 Emma Slater, ‘UK to spend half a billion on lethal drones by 2015’, The Bureau of Investigative Journalism, 21 November 2011, available at: http://www.thebureauinvestigates.com/2011/11/21/britains-growing-fleet-of-deadly-drones/.

16 Development, Concepts and Doctrine Centre, The UK Approach to Unmanned Aircraft Systems, Joint Doctrine Note 2/11, Ministry of Defence, 2011, p. 5–2, para. 503. The report further stated that: ‘Estimates of when artificial intelligence will be achieved (as opposed to complex and clever automated systems) vary, but the consensus seems to lie between more than 5 years and less than 15 years, with some outliers far later than this.’ Ibid., p. 5–4, para. 508.

17 US Department of Defence, above note 3, p. 10.

18 See E. Bumiller and T. Shanker, above note 13. According to the US Department of Defense, ‘Unmanned systems will continue to have a central role in [the US's] diverse security needs, especially in the War on Terrorism’. US Department of Defence, above note 3, p. iii.

19 Afsheen John Radsan, ‘Loftier standards for the CIA's remote-control killing’, Statement for the House Subcommittee on National Security & Foreign Affairs, in Legal Studies Research Paper Series, Accepted Paper No. 2010–11, William Mitchell College of Law, St Paul, Minnesota, May 2010, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604745.

20 Other aspects of the use of drones, such as surveillance and reconnaissance, will not be assessed in this article.

21 Somewhat surprisingly, the International Committee of the Red Cross (ICRC)'s study of customary IHL published in 2005 did not find that Article 36 was part of the corpus of customary law, seemingly due to a lack of positive state practice. Notwithstanding this lacuna, it is hard to understand how customary obligations prohibiting the use of indiscriminate weapons or of weapons of a nature to cause superfluous injury or unnecessary suffering (respectively Rules 71 and 70 of the ICRC study) can be respected unless a weapon's capabilities are first tested by legal analysis to ensure that they comply with the law. See Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, ICRC and Cambridge University Press, 2005CrossRefGoogle Scholar. The USA, for instance, not a state party to the Protocol, conducts detailed reviews of weapons prior to their deployment. See, e.g., US Department of Defence, above note 3, p. 42.

22 See, e.g., Peter Bergen and Jennifer Rowland (New America Foundation), ‘A dangerous new world of drones’, in CNN, 1 October 2012, available at: http://newamerica.net/node/72125. Indeed, it was only in early 2012, ten years after the first drone strike, that the US administration formally acknowledged the existence of its covert programme for the use of armed drones. In an online Google+ and YouTube chat on 31 January 2012, President Obama said the strikes targeted ‘people who are on a list of active terrorists’. See, e.g., www.youtube.com/watch?v=2TASeH7gBfQ, posted by Al Jazeera on 31 January 2012.

23 Thus, as Lubell observes, the jus ad bellum framework is not designed to restrict the use of force within a state's own borders. Lubell, Noam, Extraterritorial Use of Force against Non-State Actors, Oxford Monographs in International Law, Oxford University Press, Oxford, 2011Google Scholar, p. 8.

24 Cryer, Robert, Friman, Hakan, Robinson, Darryl and Wilmshurst, Elizabeth, An Introduction to International Criminal Law and Procedure, 2nd edn, Cambridge University Press, Cambridge, 2010CrossRefGoogle Scholar, p. 322.

25 UN Charter, Art. 51. Aside from self-defence and use of force authorized by the UN Security Council, it is only lawful to use force in another state with that state's consent.

26 International Court of Justice (ICJ), Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, para. 195.

27 See, e.g., Cassese, Antonio, International Law, 2nd edn, Oxford University Press, Oxford, 2005, pp. 357–363Google Scholar.

28 For details of the conditions for the lawful granting of consent, see, e.g., ibid., pp. 370–371.

29 See, e.g., ibid., pp. 158–159.

30 UN General Assembly Resolution 3314 (XXIX) of 14 December 1974, Annex, Art. 3(b).

31 UN Security Council Resolution 611 (1988), adopted on 25 April 1988 by fourteen votes with one abstention (USA).

32 An act of aggression is generally defined as the use of armed force by one state against another state without the justification of self-defence or authorization by the UN Security Council. The actions qualifying as acts of aggression are explicitly influenced by UN General Assembly Resolution 3314 (XXIX) of 14 December 1974. Under Article 8 bis of the 1998 Rome Statute of the International Criminal Court, as adopted by the First Review Conference in Kampala in 2010, the individual crime of aggression is the planning, preparation, initiation, or execution by a person in a leadership position of an act of aggression. Such an act must constitute a ‘manifest violation’ of the UN Charter (Article 8 bis, para. 1).

33 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para. 139.

34 The Court (para. 139) refers to UN Security Council resolutions 1368 (2001) and 1373 (2001), passed in the aftermath of the 11 September 2001 attacks against the USA, noting that ‘Israel exercises control in the Occupied Palestinian Territory and that, as Israel itself states, the threat which it regards as justifying the construction of the wall originates within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those resolutions in support of its claim to be exercising a right of self-defence’. In both instances, a preambular paragraph to the respective resolution recognises ‘the inherent right of individual or collective self-defence in accordance with the Charter’.

35 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 19 December 2005, para. 147.

36 Ibid., Separate Opinion of Judge Kooijmans, para. 29.

37 See in this regard, Christopher Greenwood, ‘International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq’, in San Diego International Law Journal, Vol. 4, 2003, p. 17; and N. Lubell, above note 23, p. 35; and Clapham, Andrew, Brierly's Law of Nations, 7th edn, Oxford University Press, Oxford, 2008, pp. 468–469Google Scholar.

38 Letter dated 27 July 1842 from Mr Webster, US Department of State, Washington, DC, to Lord Ashburton.

39 See, e.g., A. Clapham, above note 37, pp. 469–470.

40 ‘As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), there is a ‘specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’. The Court noted that this dual condition ‘applies equally to Article 51 of the Charter, whatever the means of force employed’. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 41.

41 ‘Addendum – Eighth report on State responsibility by Mr Roberto Ago, Special Rapporteur – the internationally wrongful act of the State, source of international responsibility (part 1)’, Extract from the Yearbook of the International Law Commission 1980, Vol. II(1), UN Doc. A/CN.4/318/Add.5-7, para. 120.

42 Ibid., para. 121.

43 See, e.g., Elizabeth Wilmshurst, ‘Principles of international law on the use of force by states in self-defence’, Chatham House Working Paper, October 2005, esp. pp. 7–8, 10, available at: http://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/ilpforce.doc.

44 ICJ, Case Concerning Oil Platforms, Islamic Republic of Iran v. United States of America, Judgment of 6 November 2003, para. 77.

45 Including with respect to claims of a right to self-defence that arises from low-level, cumulative attacks by non-state actors. See in this regard, Special Rapporteur ‘2010 study on targeted killings’, above note 11, para. 41.

46 As Alston has asserted, ‘it will only be in very rare circumstances that a non-state actor whose activities do not engage the responsibility of any State will be able to conduct the kind of armed attack that would give rise to the right to use extraterritorial force’. Special Rapporteur ‘2010 study on targeted killings’, above note 11, para. 40.

47 ‘Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council’. Alston goes further, arguing that the UN Charter would require that Security Council approval should be sought. Ibid., para. 40.

48 Moreover, even when operating in a state that appears on the facts – and despite regular public pronouncements to the contrary – to implicitly at least acquiesce to the use of drones on its territory, the fact of using drones to target ‘terrorists’ is certainly not popular. In an interview with Voice of America (VOA) on 31 January 2012, a Pakistani Foreign Ministry spokesman called the US missile strikes ‘illegal, counterproductive and unacceptable, and in violation of Pakistan's sovereignty’ even though it is asserted that they are carried out with the help of Pakistani intelligence. ‘Obama's drone strikes remark stirs controversy’, in VOA, 31 January 2012, available at: http://www.voanews.com/content/pakistan-repeats-condemnation-of-drone-strikes-138417439/151386.html.

49 US drones have been actively deployed in Afghanistan since 2001; it has been claimed that the first-ever drone strike occurred during the November 2001 invasion, targeting a high-level Al Qaeda meeting in Kabul. See, e.g., John Yoo, ‘Assassination or targeted killings after 9/11’, in New York Law School Law Review, Vol. 56, 2011/12, p. 58, citing also James Risen, ‘A nation challenged: Al Qaeda; Bin Laden aide reported killed by US bombs’, in The New York Times, 17 November 2001, p. A1, available at: http://www.nytimes.com/2001/11/17/world/a-nationchallenged-al-qaeda-bin-laden-aide-reported-killed-by-us-bombs.html. From April 2011, drone strikes were also used in the armed conflict in Libya where they famously struck the convoy carrying the deposed leader Muammar al-Gaddafi out of Sirte in October of the same year.

50 ‘2010 study on targeted killings’, above note 11, para. 10.

51 Thus, acts that are unlawful under jus in bello would not necessarily constitute disproportionate responses for the purposes of determining the legality of actions taken in self-defence under jus ad bellum.

52 ICRC's Study on customary international humanitarian law, above note 21, Rule 15.

53 1977 Additional Protocol (AP) I, Art. 57(2)(a)(ii).

54 In contrast, an unnamed former White House counterterrorism official has reportedly asserted that ‘“there are so many drones” in the air over Pakistan that arguments have erupted over which remote operators can claim which targets, provoking “command-and-control issues”’. See J. Meyer, above note 7.

55 According to one US defence industry website, the AGM-114N variant of the Hellfire uses a thermobaric (metal augmented charge) warhead that can suck the air out of a cave, collapse a building, or produce ‘an astoundingly large blast radius out in the open’. ‘US Hellfire missile orders, FY 2011-2014’, in Defense Industry Daily, 10 January 2012, available at: http://www.defenseindustrydaily.com/US-Hellfire-Missile-Orders-FY-2011-2014-07019/.

56 Though, note the caution expressed in this regard by Alston: ‘Drones’ proponents argue that since drones have greater surveillance capability and afford greater precision than other weapons, they can better prevent collateral civilian casualties and injuries. This may well be true to an extent, but it presents an incomplete picture. The precision, accuracy and legality of a drone strike depend on the human intelligence upon which the targeting decision is based’. ‘2010 study on targeted killings’, above note 11, para. 81. Indeed, as Daniel Byman has argued: ‘To reduce casualties, superb intelligence is necessary. Operators must know not only where the terrorists are, but also who is with them and who might be within the blast radius. This level of surveillance may often be lacking, and terrorists' deliberate use of children and other civilians as shields make civilian deaths even more likely’. Daniel L. Byman, ‘Do targeted killings work?’, in Brookings Institution, 14 July 2009, available at: http://www.brookings.edu/opinions/2009/0714_targeted_killings_byman.aspx.

57 ‘First drone friendly fire deaths’, in RT, 12 April 2011, available at: http://rt.com/usa/news/first-drone-friendly-fire/. In October 2011, the US Department of Defense concluded that a number of miscommunication errors between military personnel had led to a drone strike the previous April, a strike that mistakenly killed two US troops in Afghanistan. ‘Drone strike killed Americans’, in RT, 17 October 2011, available at: http://rt.com/usa/news/drone-american-military-report-057/.

58 Dexter Filkins, ‘Operators of drones are faulted in Afghan deaths’, in The New York Times, 29 May 2010, available at: http://www.nytimes.com/2010/05/30/world/asia/30drone.html. The report, signed by Major-General T. P. McHale, found that the Predator operators in Nevada and ‘poorly functioning command posts’ in the area failed to provide the ground commander with evidence that there were civilians in the trucks. According to military officials in Washington and Afghanistan, who spoke on the condition of anonymity, intelligence analysts who were monitoring the drone's video feed sent computer messages twice, warning the drone operators and ground command posts that children were visible.

59 Ibid.

60 See, e.g., Chris Woods, ‘Analysis: CNN expert's civilian drone death numbers don't add up’, in The Bureau of Investigative Journalism, 17 July 2012, available at: http://www.thebureauinvestigates.com/2012/07/17/analysis-cnn-experts-civilian-drone-death-numbers-dont-add-up/.

61 Jo Becker and Scott Shane, ‘Secret “kill list” proves a test of Obama's principles and will’, in The New York Times, 29 May 2012, available at: http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?_r=1&pagewanted=all.

62 ‘The Bureau of Investigative Journalism, which monitors the toll, counted “credible media accounts” of between 63 and 127 non-militant deaths in 2011, and a recent Associated Press investigation found evidence that at least 56 villagers and tribal police had been killed in the 10 largest strikes since August 2010. But analysts, American officials and even many tribesmen agree the drones are increasingly precise. Of 10 strikes this year, the local news media have alleged civilian deaths in one case. The remainder of those killed – 58 people, by conservative estimates – were militants’. Declan Walsh, Eric Schmitt and Ihsanullah T. Mehsud, ‘Drones at issue as US rebuilds ties to Pakistan’, in The New York Times, 18 March 2012, available at: http://www.nytimes.com/2012/03/19/world/asia/drones-at-issue-as-pakistan-tries-to-mend-us-ties.html?pagewanted=all. For a robust defence of drone strikes and claims that the number of civilian casualties is greatly exaggerated, see, e.g., McNeal, Gregory S., ‘Are targeted killings unlawful? A case study in empirical claims without empirical evidence’, in Finkelstein, C., Ohlin, J. D. and Altmann, A. (eds), Targeted Killings, Law and Morality in an Asymmetrical World, Oxford University Press, Oxford, 2012, pp. 326–346CrossRefGoogle Scholar.

63 In the view of the author, the combat with Al Qaeda in Afghanistan since 2001 is best classified as a separate, non-international armed conflict.

64 The conflict against the Taliban changed in character as a result of the Loya Jirga that in June 2002 elected President Hamid Karzai. With respect to the qualification of the armed conflicts in Afghanistan, see, e.g., Geiß, Robin and Siegrist, Michael, ‘Has the armed conflict in Afghanistan affected the rules on the conduct of hostilities?’, in International Review of the Red Cross, Vol. 93, No. 881, March 2011, especially. pp. 13 ffCrossRefGoogle Scholar.

65 See, e.g., ‘Unmanned aerial vehicles (UAVs)’, in GlobalSecurity.org, last modified 28 July 2011, available at: http://www.globalsecurity.org/intell/systems/uav-intro.htm.

66 Australia and Canada are believed to use unarmed Heron drones. See, e.g., ‘Canada, Australia contract for Heron UAVs’, in Defense Industry Daily, 17 July 2011, available at: http://www.defenseindustrydaily.com/Canada-Contracts-for-Heron-UAVs-05024/.

67 See, e.g., ‘US drone strike kills “16” in Pakistan’, in BBC, 24 August 2012, http://www.bbc.co.uk/news/world-asia-19368433.

68 The first drone strike against al-Shabaab forces is believed to have taken place in late June 2011. Walsh, Declan, ‘US begins drone strikes on Somalia militants’, in The Guardian, 1 July 2011, p. 18Google Scholar.

69 See, e.g., Ahmed Al Haj, ‘Khaled Batis dead: US drone strike in Yemen reportedly kills top Al Qaeda militant’, in Huffington Post, 2 September 2012, available at: http://www.huffingtonpost.com/2012/09/02/khaled-batis-dead_n_1850773.html; and Hakim Almasmari, ‘Suspected US drone strike kills civilians in Yemen, officials say’, in CNN, 4 September 2012, available at: http://edition.cnn.com/2012/09/03/world/meast/yemen-drone-strike/index.html.

70 Eric Schmitt and Michael S. Schmidt, ‘US drones patrolling its skies provoke outrage in Iraq’, in The New York Times, 29 January 2012, available at: http://www.nytimes.com/2012/01/30/world/middleeast/iraq-is-angered-by-us-drones-patrolling-its-skies.html?pagewanted=all.

71 J. Meyer, above note 7.

72 Nishit Dholabhai, ‘Scanner in sky gives fillip to Maoist hunt’, in The Telegraph (India), Calcutta, 16 January 2012, available at: http://www.telegraphindia.com/1120117/jsp/nation/story_15015539.jsp.

73 The USA is not a State Party to the Protocol, although Afghanistan is. Even were the USA to adhere to the Protocol, it might argue that based on Article 1 of the Protocol this instrument would apply only to Afghanistan and/or would exclude its extraterritorial application to attacks in Pakistan. This is because under its Article 1, the Protocol applies ‘to all armed conflicts … which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.’ For a better view on the applicability of the Protocol in Afghanistan to, at least, all states parties to that instrument, see, e.g., the Rule of Law in Armed Conflicts (RULAC) project, Australia profile, Qualification of Armed Conflicts section, especially note 2, available at: http://www.geneva-academy.ch/RULAC/applicable_international_law.php?id_state=16.

74 See Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, ICRC, Geneva, 2009, pp. 30–31Google Scholar (hereinafter, ICRC Interpretive Guidance).

75 See ibid., pp. 27–28. ‘The term organized armed group … refers exclusively to the armed or military wing of a non-State party: its armed forces in a functional sense’. Ibid., p. 32.

76 ‘2010 study on targeted killings’, above note 11, paras. 65–66.

77 ICRC Interpretive Guidance, above note 74, p. 33. According to Melzer, continuous combat function ‘may also be identified based on conclusive behaviour, for example where a person has repeatedly directly participated in hostilities in support of an organized armed group in circumstances indicating that such conduct constitutes a continuous function rather than a spontaneous, sporadic, or temporary role assumed for the duration of a particular operation’. Ibid., p. 35; and see Melzer, N., ‘Keeping the balance between military necessity and humanity: a response to four critiques of the ICRC's Interpretive Guidance on the Notion of Direct Participation In Hostilities’, in New York University Journal of International Law and Politics, Vol. 42, 2010, p. 890Google Scholar (hereinafter, ‘Keeping the balance’).

78 In contrast, Brigadier-General Watkin proposes to significantly widen the category of those who would fall within the definition, notably including persons assuming exclusively ‘combat service support’ functions, including cooks and administrative personnel. Kenneth Watkin, ‘Opportunity lost: organized armed groups and the ICRC “Direct Participation in the Hostilities” Interpretive Guidance’, in New York University Journal of International Law and Politics, Vol. 42, 2010, p. 692, available at: http://www.law.nyu.edu/ecm_dlv1/groups/public/@nyu_law_website__journals__journal_of_international_law_and_politics/documents/documents/ecm_pro_065932.pdf. See N. Melzer, ‘Keeping the balance’, above note 77, pp. 848–849.

79 According to Recommendation VIII of the ICRC's Interpretive Guidance: ‘All feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that civilian is directly participating in hostilities. In case of doubt, the person must be presumed to be protected against direct attack’. ICRC Interpretive Guidance, above note 74, pp. 75–76. See also N. Melzer, ‘Keeping the balance’, above note 77, especially pp. 874–877. Radsan asserts that: ‘Except in extraordinary circumstances, the agency may strike only if it is satisfied beyond a reasonable doubt that its target is a functional combatant of al Qaeda or a similar terrorist group. Drone strikes, in effect, are executions without any realistic chance for appeal to the courts through habeas corpus or other procedures’. A. J. Radsan, above note 19, p. 3. Regrettably, he later claims that: ‘There are, of course, exceptions to my general rule for CIA targeting. I summarize these exceptions under the label of extraordinary circumstances. The target, for example, may play an irreplaceable role in al Qaeda. A drone operator may see a person on the screen who is probably Bin Laden – but not Bin Laden beyond any doubt. Even so, the military advantage of killing Bin Laden, compared to a mid-level terrorist, may justify the additional risk of mistakenly harming a peaceful civilian’. (Ibid., p. 5.)

80 In this regard, Melzer notes the USA's understanding, declared in the context of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, that ‘the phrase “direct part in hostilities”: (i) means immediate and actual action on the battlefield likely to cause harm to the enemy because there is a direct causal relationship between the activity engaged in and the harm done to the enemy; and (ii) does not mean indirect participation in hostilities, such as gathering and transmitting military information, transporting weapons, munitions, or other supplies, or forward deployment’. See N. Melzer, ‘Keeping the balance’, above note 77, p. 888, and note 226.

81 In this regard, claims that numerous CIA drone strikes have targeted funerals or those rescuing the victims of drone strikes are extremely disquieting. According to a report by the Bureau of Investigative Journalism: ‘A three-month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners’. Chris Woods and Christina Lamb, ‘Obama terror drones: CIA tactics in Pakistan include targeting rescuers and funerals’, in Bureau of Investigative Journalism, 4 February 2012, available at: http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/.

82 ‘GCHQ staff could be at risk of prosecution for war crimes’, in Gloucester Echo, 13 March 2012, available at: http://www.thisisgloucestershire.co.uk/GCHQ-staff-risk-prosecution-war-crimes/story-15505982-detail/story.html.

83 J. Meyer, above note 7.

84 See, in this regard, ‘2010 study on targeted killings’, above note 11, para. 68.

85 See 1977 AP I, Art. 51(5)(b) and Art. 57(2)(a)(iii).

86 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987Google Scholar, paras. 1979–1980.

87 N. Hopkins, above note 5.

88 Ibid.

89 Ibid.

90 C. Woods and C. Lamb, above note 81. According to Meyer, the CIA conducted sixteen missile strikes with the deaths of up to 321 people before they managed to kill Baitullah Mehsud. See J. Meyer, above note 7.

91 See the ICRC's study of customary IHL, above note 21, Rules 70 and 71.

92 Given that drone strikes often occur in populated areas, were the blast radius of missiles used to increase in size there would be greater concerns about compliance with the prohibition on indiscriminate attacks.

93 Thermobaric weapons are described as ‘among the most horrific weapons in any army's collection: the thermobaric bomb, a fearsome explosive that sets fire to the air above its target, then sucks the oxygen out of anyone unfortunate enough to have lived through the initial blast’. Noah Shachtman, ‘When a gun is more than a gun’, in Wired, 20 March 2003, available at: http://www.wired.com/politics/law/news/2003/03/58094 (last visited on 20 February 2012, but page no longer online).

94 Where, in contrast, Pakistani or Afghani Taliban members are planning and conducting cross-border raids into Afghanistan, or the USA is conducting drone strikes in support of Pakistan's non-international armed conflict against the Pakistan Taliban (TTP), these are clearly related to a specific armed conflict.

95 The CIA drones are said to be controlled from a suburban facility near the Agency's headquarters in Langley, Virginia. See D. Walsh, above note 68.

96 See, e.g., ‘Obama discusses US use of drones in online Q&A – video’, in The Guardian, 31 January 2012, available at: http://www.guardian.co.uk/world/video/2012/jan/31/obama-us-drones-video.

97 See, e.g., N. Lubell, above note 23, pp. 113, especially note 5, and 114.

98 N. Melzer, ‘Keeping the balance’, above note 77, p. 841; see also N. Melzer, above note 11, p. 427.

99 The notion of ‘associated forces’ needs clarification. The USA would be on firmer legal ground if it publicly narrowed its list designated for killing to members of the Al Qaeda leadership, not anyone who publicly or privately supports their objectives or sympathizes with their methods.

100 ‘Attorney General Eric Holder defends killing of American terror suspects’, in Daily Telegraph, 6 March 2012, available at: http://www.telegraph.co.uk/news/worldnews/al-qaeda/9125038/Attorney-General-Eric-Holder-defends-killing-of-American-terror-suspects.html.

101 As Radsan notes: ‘If non-American lives are just as important as American lives, then one model of due process (or “precaution” to use an IHL term), should apply across the board. In negative terms, if the controls are not good enough for killing Americans, then they are not good enough for killing Pakistanis, Afghans, or Yemenis’. See A. J. Radsan, above note 19, p. 10.

102 See, e.g., UN, ‘A more secure world: Our shared responsibility, Report of the High-level Panel on Threats, Challenges and Change’, New York, 2004 (UN High Level Panel), paras. 159–161.

103 US Supreme Court, Hamdan v. Rumsfeld, 29 June 2006, pp. 67–69.

104 See, e.g., M. E. O'Connell, ‘Seductive drones: learning from a decade of lethal operations’, Notre Dame Legal Studies Paper No. 11-35, in Notre Dame Law School Journal of Law, Information & Science, August 2011; and as cited by Carrie Johnson, ‘Holder spells out why drones target US citizens’, in NPR, 6 March 2012, http://www.npr.org/2012/03/06/148000630/holder-gives-rationale-for-drone-strikes-on-citizens.

105 See N. Melzer, above note 11, p. 3; ‘Sources: US kills Cole suspect’, in CNN, 4 November 2002, available at: http://articles.cnn.com/2002-11-04/world/yemen.blast_1_cia-drone-marib-international-killers?_s=PM:WORLD.

106 The AGM-114 Hellfire is an air-to-surface missile developed primarily for anti-armour use, which can be launched from air, sea, or ground platforms. See, e.g., Lockheed Martin, ‘HELLFIRE II Missile’, in Lockheed Martin website, undated, available at: http://www.lockheedmartin.com/us/products/HellfireII.html (last visited 20 March 2012). The name of the missile, the first guided launch of which occurred in 1978, comes from its original conception as a helicopter-launched ‘fire-and-forget’ weapon (HELicopter Launched FIRE-and-forget). ‘AGM-114A HELLFIRE missile’, in Boeing, available at: http://www.boeing.com/history/bna/hellfire.htm.

107 See, e.g., ‘CIA “killed al-Qaeda suspects” in Yemen’, in BBC, 5 November 2002; and ‘US Predator kills 6 Al Qaeda suspects’, in ABC News, 4 November 2002, available at: http://abcnews.go.com/WNT/story?id=130027&page=1. According to the ABC news report, all that remained of the car ‘was rubble in the desert’.

108 Israeli forces have conducted targeted killings of Palestinians using drones. See, e.g., ‘Three killed in Israeli airstrike’, in CNN, 1 April 2011, available at: http://articles.cnn.com/keyword/gaza-strip; ‘Gaza truce gets off to a shaky start’, in CNN, 23 June 2012, available at: http://articles.cnn.com/2012-06-23/middleeast/world_meast_israel-gaza-violence_1_gaza-truce-popular-resistance-committees-palestinian-medical-officials?_s=PM:MIDDLEEAST.

109 ‘Predator drones and unmanned aerial vehicles (UAVs)’, in The New York Times, updated 5 March 2012.

110 ‘Obituary: Anwar al-Awlaki’, in BBC, 30 September 2011, available at: http://www.bbc.co.uk/news/world-middle-east-11658920.

111 ‘2010 study on targeted killings’, above note 11, para. 32. As Melzer has noted, under the law enforcement ‘paradigm’, the ‘proportionality test asks not whether the use of potentially lethal force is “necessary” to remove a concrete threat, but whether it is “justified” in view of the nature and scale of that threat’. N. Melzer, above note 11, p. 115.

112 According to Principle 9 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (emphasis added): ‘Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives’.

113 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. The USA did not participate in this meeting, but a UN General Assembly resolution adopted the same year welcomed the Basic Principles and invited governments ‘to respect them and to take them into account within the framework of their national legislation and practice’. UN General Assembly Resolution 45/166, A/45/PV.69, adopted without a vote on 18 December 1990, Operative Paragraph 4.

114 Principle 8 provides that: ‘Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles’.

115 The Commission appears, however, to confuse the situations in which firearms may be used (imminent threat of death or serious injury) with those in which intentional lethal force may be employed. Indeed, in claiming that the use of lethal force by law enforcement officials is lawful also to protect themselves or other persons from imminent threat of serious injury, it cites Basic Principle 9, which as we have seen limits the intentional use of lethal force to where it is strictly unavoidable in order to protect life. Certain leading authors seem to have committed similar errors. See, e.g., N. Melzer, ‘Keeping the balance’, above note 77, p. 903; N. Melzer, , above note 11, pp. 62, 197; and N. Lubell, above note 23, p. 238.

116 Tennessee v. Garner, 471 US 1, Appeal from the US Court of Appeals for the Sixth Circuit, No. 83-1035 (27 March 1985). The case involved the fatal shooting by a police officer of an unarmed 15-year-old boy. The suspect, who was shot in the back of the head with a .38-calibre pistol loaded with hollow point bullets, was fleeing a suspected burglary. On his person was found money and jewellery worth $10 that he had allegedly taken from the house.

117 The Court cited with approval the model penal code whereby: ‘The use of deadly force is not justifiable … unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed’. American Law Institute, Model Penal Code, Section 3.07(2)(b) (proposed Official Draft 1962), cited in Tennessee v. Garner, ibid., para. 166, note 7.

118 See, e.g., ‘De Menezes police “told to shoot to kill”’, in Daily Telegraph, 3 October 2007, available at: http://www.telegraph.co.uk/news/uknews/1564965/De-Menezes-police-told-to-shoot-to-kill.html. This incident shows the potential for fatal mistakes to be made even when round-the-clock, direct and indirect surveillance is maintained on a terrorist suspect.

119 The policy, codenamed Operation Kratos, was named after the Greek demi-god Kratos, meaning strength or power in ancient Greek.

120 Reportedly Russia and Sri Lanka.

121 ‘Debate rages over “shoot-to-kill”’, in BBC, 24 July 2005, available at: http://news.bbc.co.uk/1/hi/uk/4711769.stm. Lord Stevens said: ‘We are living in unique times of unique evil, at war with an enemy of unspeakable brutality, and I have no doubt that now, more than ever, the principle is right despite the chance, tragically, of error. … And it would be a huge mistake for anyone to even consider rescinding it’.

122 The use of ‘less-lethal’ weapons, such as the Taser conducted electrical weapon, is also not recommended for fear it might detonate the explosives. See, e.g., Memorandum entitled ‘Counter Suicide Terrorism’ from the Clerk to the Metropolitan Police Authority to the Members of the MPA, London, 8 August 2005.

123 See ‘2010 study on targeted killings’, above note 11, para. 20. There is also an obvious risk that targeted killings are seen as lethal retribution for past crimes. See, e.g., in Pakistan, N. Melzer, above note 11, p. 178.

124 Speech by Harold Hongju Koh, Legal Adviser, US Department of State, to the Annual Meeting of the American Society of International Law, Washington, DC, 25 March 2010 (emphasis added), available at: http://www.state.gov/s/l/releases/remarks/139119.htm.

125 J. Becker and S. Shane, above note 61.

126 ‘2010 study on targeted killings’, above note 11, paras. 85, 86.

127 N. Lubell, above note 23, pp. 106, 177, 254–255.

128 Human Rights Committee, ‘General Comment 29: States of Emergency (Article 4)’, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001.

129 ‘General Comment No. 6: The right to life (Article 6)’, 30 April 1982.

130 ICJ, Nuclear Weapons Advisory Opinion, 8 July 1996, para. 25.

131 Though for the position of Israel and the US, see, e.g., Melzer, above note 11, pp. 79–80. With respect to the American Convention on Human Rights, the Inter-American Commission on Human Rights has specified that ‘the contours of the right to life may change in the context of an armed conflict, but … the prohibition on arbitrary deprivation of life remains absolute. The Convention clearly establishes that the right to life may not be suspended under any circumstances, including armed conflicts and legitimate states of emergency’. Inter-American Commission on Human Rights, ‘Report on Terrorism and Human Rights’, Doc. OEA/Ser.L/V/II.116 (doc. 5 rev. 1 corr.), 22 October 2002, para. 86.

132 For a discussion of the application of the principle, see, e.g., Nancie Prud'homme, ‘Lex specialis: oversimplifying a more complex and multifaceted relationship?’, in Israel Law Review, Vol. 40, No. 2, 2007.

133 Tomuschat, Christian, ‘The right to life – legal and political foundations’, in Tomuschat, C., Lagrange, E. and Oeter, S. (eds), The Right to Life, Brill, The Netherlands, 2010Google Scholar, p. 11.

134 Schabas describes it as ‘clumsy at best’. See Schabas, William A., ‘The right to life’, in Clapham, A. and Gaeta, P. (eds), Oxford Handbook of International Law in Armed Conflict, Oxford University PressGoogle Scholar, forthcoming. Lubell is even harsher on the Court, calling it ‘perhaps an inept approach’. N. Lubell, above note 23, p. 240. Milanović calls for lex specialis to be ‘abandoned as a sort of magical, two-word explanation of the relationship between IHL and IHRL, as it confuses far more than it clarifies’. Milanović, M., ‘Norm conflicts, international humanitarian law and human rights law’, in Ben-Naftali, Orna (ed.), Human Rights and International Humanitarian Law, Collected Courses of the Academy of European Law, Vol. XIX/1, Oxford University Press, Oxford, 2010, p. 6Google Scholar.

135 Ibid., para. 105.

136 See also in this regard Sir Daniel Bethlehem, ‘The relationship between international humanitarian law and international human rights law and the application of international human rights law in armed conflict’, unpublished paper, undated but 2012, para. 39.

137 Ibid. As set out in para. 106: ‘As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.’

138 ICJ, Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment of 19 December 2005, para. 216.

139 ‘2010 study on targeted killings’, above note 11, para. 29.

140 M. Milanović, above note 134, p. 6.

141 M. Milanović, ‘When to kill and when to capture?’, in EJIL Talk!, 6 May 2011, available at: http://www.ejiltalk.org/when-to-kill-and-when-to-capture/.

142 Thus, in para. 42 of its Advisory Opinion, the Court referred to the ‘requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law’. The law applicable in armed conflict do [sic] indeed comprise in particular the principles and rules of humanitarian law, but they are not so limited, comprising elements of international human rights and (‘humanitarian’) disarmament law. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 42.

143 Nowak, Manfred, U.N. Covenant on Civil and Political Rights, CCPR Commentary, N. P. Engel, Kehl, 1993, p. 111Google Scholar. See also N. Melzer, above note 11, p. 93.

144 N. Lubell, above note 23, p. 242.

145 Another way of looking at states' attitude after the 9/11 attacks is to apply IHL rules to situations where human rights applicable to law enforcement operations should be applied.

146 Benjamin, Daniel and Simon, Steven, The Age of Sacred Terror, Random House, New York, 2002, p. 345Google Scholar.

147 The Corfu Channel case resulted from two British Royal Navy ships in the Corfu Strait hitting and detonating sea mines (forty-five British officers and sailors lost their lives and forty-two others were wounded) and subsequent mine clearance operations by the Royal Navy in the Strait, but in Albanian territorial waters. The ICJ held Albania responsible for the explosions and awarded damages to the UK but judged that the clearance operations had violated Albania's sovereignty.

148 ICJ, Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania), (Merits) Judgment of 9 April 1949, p. 35.

149 N. Melzer, above note 11, p. 435.

150 A. J. Radsan, above note 19, p. 8. A study 2011 UK Ministry of Defence study stated that: ‘It is essential that, before unmanned systems become ubiquitous (if it is not already too late) that we consider this issue and ensure that, by removing some of the horror, or at least keeping it at a distance, that we do not risk losing our controlling humanity and make war more likely’. The UK Approach to Unmanned Aircraft Systems, Development, Concepts and Doctrine Centre, Joint Doctrine Note 2/11, Ministry of Defence, 2011, pp. 5–9. See also Richard Norton-Taylor and Rob Evans, ‘The terminators: drone strikes prompt MoD to ponder ethics of killer robots’, in The Guardian, 17 April 2011, available at: http://www.guardian.co.uk/world/2011/apr/17/terminators-drone-strikes-mod-ethics.

151 According to a 2010 US Air Force report: ‘Growth in military use of remotely piloted vehicles has been rapid as forces around the world explore increasingly wider uses for them, including surveillance, strike, electronic warfare, and others. These will include fixed-wing and rotary-wing systems, airships, hybrid aircraft, and other approaches. They will have increasingly autonomous capabilities allowing remote pilots to declare their overall mission intent but permit these systems to adapt autonomously in the local environment to best meet those objectives. … Although humans will retain control over strike decisions for the foreseeable future, far greater levels of autonomy will become possible by advanced technologies. These, in turn, can be confidently exploited as appropriate V&V [verification and validation] methods are developed along with technical standards to allow their use in certifying such highly autonomous systems’. US Air Force Chief Scientist, ‘Report on technology horizons, a vision for Air Force science & technology during 2010–2030’, Doc. AF/ST-TR-10-01-PR, Vol. I, May 2010, pp. 24, 42. See also, Tom Malinowski, Human Rights Watch, ‘A dangerous future of killer robots’, in Washington Post, 22 November 2012, available at: http://www.hrw.org/news/2012/11/22/dangerous-future-killer-robots.

152 In October 2012, the leader of Hezbollah claimed that his group was behind the launch of a drone shot down over Israel by the Israeli Defence Forces on 6 October. Sheikh Hassan Nasrallah asserted that the drone was made in Iran and had flown over ‘sensitive sites’ in Israel. BBC, ‘Hezbollah admits launching drone over Israel’, 11 October 2012, available at: http://www.bbc.co.uk/news/world-middle-east-19914441.

153 In June 2012, US researchers took control of a flying drone by ‘hacking’ into its GPS system, acting on a $1,000 (£640) dare from the US Department of Homeland Security (DHS). A University of Texas at Austin team used ‘spoofing’, a technique where the drone mistakes the signal from hackers for the one sent from GPS satellites. The same method may have been used to bring down a US drone in Iran in 2011. ‘Researchers use spoofing to “hack” into a flying drone’, in BBC, 29 June 2012, available at: http://www.bbc.com/news/technology-18643134.

154 Villasenor, John, ‘Cyber-physical attacks and drone strikes: the next homeland security threat’, The Brookings Institution, 5 July 2011Google Scholar, available at: http://www.brookings.edu/papers/2011/0705_drones_villasenor.aspx.