Drone strikes under International Humanitarian Law
Feb 2, 2014
Aaron Mirza
If there is an armed conflict, the legality of any drone strike must then be evaluated in accordance with IHL, including particularly the fundamental principles of distinction, proportionality, humanity, and military necessity.
Distinction is particularly challenging in Federally Administered Tribal Areas, because fighters regularly intermingle with civilians, engage in routine activities and do not wear uniforms. None­theless, militaries engaged in an armed conflict must always attempt to distinguish between legit­mate and illegitimate targets for an attack.
Generally, “the civilian population as such, as well as individuals civilians, shall not be the object of attack.” Civilians lose this protection when they “take a direct part in hostilities.” Under the formulation of the International Committee of the Red Cross (ICRC) of what constitutes direct participation in hostilities, the act committed must adversely and directly affect the opposing party in a concrete manner or lead to the loss of life or property as part of a campaign in support of one party to a conflict. This definition adopts an approach focused on specific hostile acts of a certain magnitude rather than organizational membership or more indirect forms of support. The ICRC has further distinguished between civilians who participated in specific acts and those who maintain a continuous combatant function (CCF) by virtue of involvement on a “persistently recurrent basis.” While a civilian participating in a specific act becomes a permissible target during the execution of, and, in some formulations, the preparation of and deployment to and from the particular act, a person who maintains CCF status, under the ICRC formulation, may be targeted at any time. The recognition under IHL that, at times, a civilian can become akin to a regular combatant makes it “imperative that the other constituent parts of the [ICRC’s Interpretive] Guidance [on the Notion of Direct Participation in the Hostilities Under Humanitarian Law] (threshold of harm, causation, and belligerent nexus) not be diluted.” Even when a person is deemed to be a legitimate target of an attack, the attack must also satisfy IHL’s other core requirements. At a minimum, any attack must serve a legitimate military objective, and the expected harm or risk to civilians must not outweigh the expected military objective.
IHRL permits the intentional use of lethal force only when strictly necessary and proportionate. Thus, “targeted killings” as typically understood (intentional and premeditated killings) cannot be lawful under IHRL, which allows intentional lethal force only when necessary to protect against a threat to life, and where there are “no other means, such as capture or non-lethal incapacitation, of preventing that threat to life.” There is little public evidence that many of the targeted killings carried out fulfill this strict legal test. Indeed, and as described above, many particular strikes and practices suggest breaches of the test, including: signature strikes; strikes on rescuers; the administration’s apparent definition of “militant;” the lack of evidence of imminent threat; and the practice of extensive surveillance and presence on a list before killing.

The nature and effect of the US targeted killing policy may also contravene in some instances other sections of the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty ratified by the US. Sections of the ICCPR potentially violated by US drone practice include Article 7 (prohibition on cruel, inhumane, and degrading treatment or punishment), Article 9.1 (right to liberty and security), Article 17 (right to freedom from arbitrary or unlawful interference with privacy, family, and home), Article 21 (right to peaceful assembly), and Article 22 (right to freedom of association). Thus, for example, Articles 21 and 22 might be violated where drone strike practices cause individuals to fear assembling in groups—as described by many interviewees—out of concern that they might be assumed to be engaged in suspicious activity that might result in a signature strike.
International law requires states to ensure basic transparency and accountability for wrongs. States must investigate war crimes allegations, and prosecute where appropriate. The obligation to be transparent is particularly relevant when there are civilian victims; indeed, some have argued that parties to an armed conflict are obligated to record civilian casualties. Further there is “emphasis on the obligation of states to investigate, prosecute and punish any alleged violation of the norms banning extrajudicial executions.” A proper investigation requires transparency: as the European Court of Human Rights explained, “There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts.”