Drone warfare opens up a legal minefield
January 10, 2016
Unmanned aerial vehicles, or drones, have proved devastatingly effective. Militarily their use has assisted in expelling al-Qaeda from large tracts of Pakistan and Yemen. Politically they have allowed the US for some years now to pursue strategic objectives without needing to put boots on the ground in an era when there is little appetite from Western electorates to engage in further overseas military adventures.
The development of drone technology will continue apace in the years ahead; they will assuredly be an essential part of the furniture of international warfare. However as a consequence their use urgently requires a thorough overhaul of international law, convention and regulation.
It is also worth reflecting amidst the euphoria closer to home that following the decisive deployment of drones to eliminate terrorist leaders from afar that before long our enemies will also enjoy access to this technology with potentially calamitous effect. Terrorists and criminal gangs with extortion in mind will soon be able to operate hardware of this sort, the cost and capability of which is rapidly coming within their grasp. We should be unwise to believe the widespread use of drones does not come at a price.
The use of drones by the UK military was first avowed last September when the Prime Minister announced the extrajudicial killing of two UK citizens, Reyaad Khan and Junaid Hussain, who had joined ISIL in Syria and had featured prominently in a propaganda video, promoting and encouraging terrorist attacks on UK soil.
At the time our government wished to place this on the record lest details seeped out via a Freedom of Information enquiry. This is precisely what had happened in July regarding joint US-UK airstrikes over Syrian airspace when their legality and political acceptability was open to question. Moreover, the US policy of routine avowal of fatal drone attacks laid open the risk that eagle-eyed observers might notice that the two operations resulting in the deaths of Khan and Hussain had not been similarly gazetted. Better to take the initiative rather than allowing lurid conclusions to be drawn. In November, UK citizen Mohammed Emwazi (alias Jihadi John) was similarly despatched in Syria following an operation with the assistance of US military and intelligence.
For so long as these ISIL-supporting British terrorists were at large on ungoverned Syrian soil it would self-evidently be impossible to bring them to trial; their terrorist activity was designed to cause mayhem on UK soil. De facto we are at war with ISIL and as a consequence Khan, Hussain and Emwazi might properly be regarded as combatants. Yet the strong inclination in the post-Iraq war era to provide water-tight legal cover for all military operations resulted in the drone raid being classed as ‘self-defence’ under Article 51 of the UN Charter. This helped open up a series of contentious issues – were the primary subjects of the drone attack ‘directing an attack’ and was such an attack ‘imminent’?
As a consequence our Intelligence Agencies will need to show after each drone strike that they had carefully considered the operation of Article 51. This will require keeping the terms of this passage of the UN Charter under near constant review. It also involves being in a position to conclude, before seeking Ministerial authorisation, that the individuals targeted pose an imminent, clear threat to life or national security. Surely it is also as essential as ever that our security services satisfy themselves that a drone strike (rather than an attempt to capture and bring the suspects to trial) is both necessary and proportionate. In the past issues of collateral damage (in other words the impact of a strike upon innocent civilians in the vicinity) has been controversial, especially in Pakistan and Yemen, where it is recognised that US strikes have necessitated discreet cooperation by host governments.
In truth increasingly sophisticated monitoring of mobile phones, emails and other telephony has enhanced the ability to target suspects with virtually pinpoint accuracy (it was notable that the only other fatalities in the two UK strikes this summer were associates) as well as minimised collateral damage.
Nevertheless I believe there is now an urgent, probably unanswerable, case for updated and refined legislation to govern the use of – not to mention continued reliance upon – new drone technology. This would allow the government of the day to act with the timing and precision required to wage effective operations without first having to consider how to navigate the complex labyrinth of precedent, law and parliamentary approval that currently constrains the military in war zones and beyond. The US War Powers Act goes some way to providing a template in this regard, bestowing the executive branch with the ability to give the green light to action without congressional approval while maintaining a series of vital checks and balances.
It is worth recalling, however, that the US legal justification in relation to the use of drones on overseas targets has historically been markedly less strenuous than we would rightly expect here. This has arguably caused potential difficulties in the ungoverned parts of the world where the Five Eyes cooperation is often strongest – think Iraq, Pakistan, Afghanistan and more recently, Syria. Here the knowledge on the part of UK security services that intelligence passed onto their US counterparts is being used to launch drone strikes without, for example, a clear ‘imminent threat to national security’ potentially places the UK military in a legal quagmire.
Whilst a common protocol amongst Western allies would be ideal this also necessitates an open political debate about the desirability of adopting the ‘hit list’ approach that the US military have to selecting drone targets. Essentially for the Obama Administration this has involved a rolling update of named individuals, with the list being refreshed weekly wherever there is a successful drone attack that involves the assassination of terrorist targets. Needless to say such an approach is far removed from the concepts of necessity and imminent threat to national security which the British public properly expect to govern the actions of the UK security services in overseas theatre.