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Drones, the Mullah, and legal uncertainty: the law governing State defensive action

The 21 May 2016 drone strike that killed Taliban leader Mullah Mansour riding in a taxi in Pakistan’s Baluchistan province, raises questions about the law governing State defensive action. Fourteen years after the first US counterterrorist drone strike in Yemen, legal consensus remains elusive.

Possible analytical frameworks can be termed the restricted “Law Enforcement” theory, the permissive “Conduct of Hostilities” approach, and the “Self-Defense” option. The “Law Enforcement” theory applies traditional highly restrictive interpretations of State self-defense. While accepting drone use within existing “combat zones”, external action is limited to human rights law based policing and is largely reliant on territorial State consent. Drone strikes are seen as being incompatible with policing. “Terrorist” groups are viewed as small organizations using low levels of force. This perspective applies a 20th Century view of terrorism that avoids the case law threshold justifying State self-defense, or finding an armed conflict exists when applying the Tadić based criteria of group organization and intensity of violence. For Afghanistan a variation of this theory accepts a limited “spillover” into some of Pakistan’s border regions, but this would not include Baluchistan. Exceptionally, drone use in a law enforcement context is viewed as possible, but without permitting collateral casualties. The “Law Enforcement” model seeks to restrict drone use to “hot battlefields” spawning debate about the “geography of war”. Notably it runs afoul of Sun Tzu’s principle of knowing your enemy. Transnational terrorists are part of broader insurgencies organized as hierarchical, horizontal and cellular armed groups, rather than independent components of a “leaderless jihad”. “Law Enforcement” proponents rely on international boundaries to limit violence involving Salafi jihadists. Unfortunately, as recognized by the United Nations, this enemy has more global aspirations.

The “Conduct of Hostilities” approach authorizes action where a State is “unwilling or unable” to police transnational threats emanating from within its borders. The historical “unwilling or unable” principle finds new life in contemporary debate. This theory depends on a post 9/11 recognition of the right to act in self-defense against non-State actors, an importation of neutrality law principles to non-State conflict, and the use of hostilities rules against targets seen as directly participating in an armed conflict. The State self-defense principle of imminence and the humanitarian law concept of direct participation in hostilities (DPH) appear to blend with targets seen as continuously planning attacks. Unfortunately, the potential for overbreadth is enhanced by failing to fully address neutrality law requirements of considering feasible and timely alternatives, and only a strictly necessary use of force; consider the restraining impact State self-defense principles; or transparently articulate the DPH criteria applied. Finally, the “Self-Defense” option, whether described as “naked self” defense or a more robust application of self-defense principles, appears as a form of “gap filling” where law enforcement rules are not applicable to drone strikes, and an armed conflict is seen technically not to exist. Effectively, humanitarian law based rules are applied under the rubric of self-defense.

Problematically, over-reliance on the territorial State under the “Law Enforcement” theory means non-State actors can gain impunity in poorly policed territory forcing the threatened State into a reactive mode enhancing the risk to its own citizens. A security “black hole” has to be avoided. Unfortunately, the more permissive “Conduct of Hostilities” and “Self-defense” approaches appear to exclude policing options and introduce a potentially broader use of force in otherwise “peaceful” territory. It also raises the legal issue of applying of hostilities rules outside of armed conflict.

What is the solution? One approach, the 2013 US Drone policy, applies the “unwilling or unable” test, but limits an armed conflict based approach through a restraining application of human rights principles, and a stricter test of “near certainty” than the “reasonable belief” standard applicable under either human rights, or humanitarian law. As seen in the Syria context States have started to embrace the “unwilling or unable” theory justifying defensive action. However, to gain wider acceptance it cannot be unfettered. It must include a holistic application of all available bodies of law including an overarching application of State self-defense principles; consideration of feasible alternatives (e.g. capture); applying law enforcement where required (e.g. non-DPH civilians), or when feasible; using appropriate DPH criteria, and demonstrating greater sensitivity to the strategic impact of collateral casualties. These criteria could readily be applied to the Mansour strike.

A May 2016 UK Parliamentary Committee report demonstrates consensus on the law may be far off.  That report accepted the UK right to act in self-defense against members of the Islamic State in Syria, but raised a number of questions including the basis for applying the “law of war” outside of an armed conflict, and whether such action was governed by the European human rights law. The European Court of Human Rights has previously sought to regulate aerial attacks, however, this raises questions of human rights law overreach, whether a traditionally restrictive authority to use force can effectively counter group threats and attendant threats of violence; and the longer-term normative impact should human rights governing principles be expanded.  Human rights law may be more effectively applied in situations of governance, such as in post invasion Iraq, than extended to areas beyond a State’s physical control by means of a Hellfire missile fired at threatening members of an organized armed group.

Meanwhile strikes are occurring, people are dying. Fundamental questions need to be asked about whether the threshold for armed conflict is properly set, how civilians can be effectively protected from “one off” non-State actor attacks, the limits of human rights law, and how best to win a conflict that is ultimately about governance and values.

Featured image credit: ‘Valley of Kohlu’. Photo by Umer Malik. CC-BY-SA-2.0 via Flickr.

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