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Nikolaus Klein SJ

Drones versus International Law


From: Stimmen der Zeit, 8/2012, P. 505 et sequ.
webmaster's own, not authorized translation


In the international debate, the use of unmanned, remotely piloted missiles - equipped with precision weapons and known as drones - is not regarded as prohibited in principle, but one is increasingly concerned about it, and lawyers criticize that it violates the UN Covenant on human rights and international humanitarian law. In addition, it is regarded by many commentators as insidious. So far there is no legally binding international convention banning this weapon. Its use is regarded as insidious because the attacked people can be hit anywhere and without warning, and it is therefore absolutely impossible for them to protect themselves or to fight back.

Apart from the U.S. armed forces, which in October 2001 during the Afghanistan mission used for the first time armed drones not only on Afghan territory, but in the course of the ISAF mission - with the connivance of the Pakistani government - also in the Pakistani border areas with Afghanistan, since February 2002 the American intelligence (CIA) increasingly relies on this type of weapon, in order to kill deliberately Taliban fighters and members of the Al-Qaeda in Afghanistan, Pakistan, Somalia and Yemen. Until 2011, the use of drones was coordinated by the "Joint Special Operations Command" (JSOC) of the U.S. military. For a year now the CIA is operating independently from the Pentagon and under the direct operational control of the American president. Since 2002 about 3.000 people have been killed in these operations in Pakistan, Somalia and Yemen.

In 2010, Philip Alston, UN Special Representative for extrajudicial, summary or arbitrary executions, submitted a report. He proved that the U.S. increasingly violate international law in particular by targeted killing with the help of combat drones. He then examines in detail the articles 2 and 51 as well as Chapter VII of the UN Charter and regulations of IHL. Article 2 prohibits the threat and the use of force in international conflicts, and thus, implicitly, any military operation on foreign soil, if and when the affected State has not approved of the respective action. Article 51 or Chapter VII permit the use of force in an inter-state conflict only in the case of self-defense or as part of a peace enforcement operation imposed by a UN-mandate. Moreover, in cases of use of military force which are permitted by the UN Charter, the international humanitarian law is in force for all parties involved.



According to that, the warring parties are obliged to take account of the criteria of military necessity, the adequacy of the used means, the avoidance of unnecessary suffering, and the distinction between combatants and non-combatants. What is more, non-combatants enjoy the special protection of international law. In return, non-combatants who actively participate in hostilities cannot assert their entitlement to "combatant privileges", in other words, it is possible and neccessary to prosecute them for their criminal acts within the framework of national laws. All members of the CIA who took part in operations with combat drones would therefore fall within the scope of those regulations, because they are not members of the regular U.S. armed forces.

End of January 2012, U.S. President Barack Obama stated for the first time publicly that the CIA regularly uses drones for "targeted killing" of Al-Qaeda members and their allies. With the remark, "We keep a tight rein on it," he tried to convince his listeners that the individual decisions on a concrete "action" would be made according to law. In early March 2012 the U.S. Attorney General Eric Holder elucidated the position of his President for members of the Northwestern University School of Law (Chicago). He described the use of combat drones as being in agreement with international law, because the U.S. has and will run such combat missions with the consent of the affected countries. But even in those cases where the respective state was not in a position or unwilling to do so, the United States were entitled to self-defense in the face of an imminent threat.

Holder also refused to accept that the critics of the government denoted "targeted killing" as "murder." The reason he gave for this was that self-defense against an imminent threat is consistent with the law if it is based on the following assessments: "The judgment about whether a particular person is an immediate threat to the United States includes considerations about the relevant window of opportunity to act, estimates of the damage that could affect the civilian population if this scope is not used, and a judgment about the likelihood to be able to prevent future dangerous attacks against the United States."

The decision criteria suggested here by Holder are considerations about the effectiveness of an action. They are unable to justify the use of force - devised to result in death. Moreover, an extensive interpretation of the right to self-defense does not only mean that the interstate regulations of the UN Charter are circumvented. It also implies a by national security interests dictated reservation about the human rights formulated in UN Human Rights Covenant. Also American citizens are affected by it: Holder expressly denies that they have the absolute legal right to the constitutionally guaranteed right to a fair trial.


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