A leading firm of UK lawyers has today published a 52-page opinion on the legality of the use of armed drones by UK forces in Afghanistan. In what is sure to cause consternation in Whitehall, Public Interest Lawyers (PIL) argue that
“it is highly likely that the UK’s current use of drones is unlawful. There is a strong probability that the UK has misdirected itself as to the requirements of the International Humanitarian Law (IHL) principles of proportionality, distinction and humanity and as to its human rights obligation to protect human life and to investigate all deaths (civilians and combatants alike) arguably caused in breach of that obligation.”
In addition, the legal opinion also strongly argues that International Human Rights Law (IHRL) may apply to the situation in Afghanistan, pointing to a number of precedent cases. They argue this would place “a significant restriction on drone use” particularly in relation to the European Convention on Human Rights (ECHR)
“Provided that UK jurisdiction for the purposes of the ECHR is established, then the application of the ECHR would limit the use of drones solely to situations in which there is an immediate threat to life. This prevents the carrying out of ‘targeted killings’ and narrowly circumscribes their use even on ‘the battlefield’.”
However it is primarily under International Humanitarian Law (sometimes called the Laws of Armed Conflict) that the legal opinion challenges the UK’s use of drones. The opinion makes compelling arguments under each of the four principle elements: necessity, humanity, proportionality and distinction and I will attempt to summarise their points in this post, but I emphasise that the original opinion should be read in full for a complete picture.
With regard to necessity, the opinion makes the point that “this principle is not one of mere generality; the test must be satisfied in respect of each individual drone attack. This requires knowledge of the drone strikes carried out by the UK, information that is not currently available.”
However the authors also argue that drone strikes may in fact be counter-productive in that they increase support for the insurgency and “it is therefore debatable that the use of drones are a military ‘own goal’, which, properly evaluated, fall foul of the requirement of military necessity.”
With regard to the principle of humanity, the authors argue that:
“Applied to drones, we take this principle to prohibit killing a combatant with a drone when it is possible to disable or arrest the combatant, or if the combatant would wish to surrender. When troops are on the ground in Afghanistan, this principle, applied properly, should significantly curtail the use of drone strikes. Without its application, there is a significant risk that as increasing reliance is placed on drones, humanitarian options for detaining personnel cease to appeal to military planners.”
In addition, under this principle, the authors argue that the traumatic effect of drones constantly flying over civilian populations may breech the humanity principle:
“Recent reports have also highlighted the effect on civilian populations of being monitored by armed drones. They have noted severe psychological effects, particularly in children, of an awareness of being monitored and the constant risk of attack. Such effects also fall to be considered under the principle of humanity. Arguably, they would require, at the very least, the monitoring of such effects, limiting drone use in population areas, and a limiting of the number of strikes.”
Perhaps the most important principle of IHL is that of distinguishing between combatants and civilians, known as ‘distinction’. The authors of the opinion argue that
“the principle of distinction can and must be interpreted to require higher standards of distinction for the use of drones than, say, apply to artillery shells… If drones are capable of what the drones lobby claim, then certainty should be possible. A higher standard should apply to weapons that claim discernment.”
Another significant issue here is, as Drone Wars UK has pointed out previously, the vast majority of those engaged in the insurgency in Afghanistan, are not members of an armed force as defined under international law but as civilians directly participating in hostilities. This limits when drone strikes may take place. As the opinion states:
“Drone operators must accurately ascertain whether potential targets are either armed commanded groups or civilians taking a direct part in hostilities. Unless the answer is a clear one, then IHL prohibits the carrying out of a drone strike.”
In addition, the opinion again calls for must greater transparency on this issue, stating :
“What constitutes ‘taking a direct part in hostilities’ is therefore a critical question, which affects the legality of a great number of UK drone attacks. But…we do not know what rules the UK applies to this question. Afghan civilians are entitled to know; since they would wish to avoid engaging in conduct that may appear to drones overhead that they are ‘taking an active part in hostilities’.”
In addition, with the UK government’s refusal to monitor casualty figures, relying on others instead to report them, the opinion states:
“This policy does not appear to be enough to satisfy the above concerns, as it is reliant on the reporting of a possible civilian casualty. If an assumption of ‘combatant’ has already been made pre-strike, then it is unlikely that this assumption will change post-strike, save in the most obvious cases of collateral damage. Close scrutiny of the UK’s definition of ‘direct participation in hostilities’ is required.
It goes on to say
“Clearly, there is a strong incentive for the UK to class all casualties as ‘insurgents’/’combatants’ ex-post facto, and not as civilians. Certainly, in the absence of adequate post-strike investigations (and again, the UK’s approach to such a critical matter is unknown) it is easy to see how an assumption of “‘combatant’ unless there is clear evidence to the contrary”, could develop. In light of the evidence – hundreds of drone strikes and only 2 [in fact, 4 ] deemed civilian deaths – we posit that the UK has misdirected itself as to who may be a civilian under IHL and the extent of its duties to investigate and ascertain.”
The final principle, that of proportionality, means balancing the effects of any attack against that of any supposed military advantage. In other words, the ends must justify the means and the means must not be excessive.
With regard to the use of drones, the authors quote Laurie Blank in his essay After ‘Top Gun': How Drone Strikes Impact the Law of War as suggesting that the claimed superiority of drones with regard to finding targets should mean higher standards so that any civilian casualties can be seen as disproportionate:
“proportionality in the context of UAV strikes is being, or could soon be, reconfigured, that we are seeing a recalibration of the relationship between military advantage and civilian casualties – away from ‘excessive’ and towards ‘none’.
Again, I must emphasise that this is only a brief summary and the whole opinion needs to read in full.
I will leave the final words to Phil Shiner and Dan Carey, authors of the opinion:
“International humanitarian lawyers must interpret the IHL principles proactively to form a bulwark against the prolific use of drones and the advent of autonomous weaponry. IHL should not be a form of self-regulation, in which victims have no voice and the rules are written in consultation with military legal advisers and rarely tested in the courts. It is a body of law that protects civilians and civilian lawyers are entitled to, and must, influence this body of law in a much more proactive way. Purposive interpretations of the IHL principles must be adopted.”