Drones, Armed Conflict and Lawful Killing: Is the US at war?

Luke Rostill - 19th November 2013

On 12 November, Ben Emmerson QC, UN Special Rapporteur on Counter-Terrorism and Human Rights, addressed the use of drones at a seminar hosted by the Oxford Martin Programme on Human Rights for Future Generations and the Oxford Human Rights Hub. Many believe that the use of drones to kill persons that the US regards as ‘terrorists’ is wrong in all but the most exceptional of circumstances. In general, the legality of the practice depends on whether or not the United States is at war: is it engaged in an armed conflict? In this post, Luke Rostill returns to the blog to summarise Emmerson’s approach to that question, as well as his views on some more specific issues relating to the use of drones.

The idea that counter-terrorism law is a branch of the law of armed conflict is a recent one. This classification (or re-classification) was not motivated by intellectual concerns: it was political, even ideological. And it has life-or-death consequences.

Emmerson noted that, in the immediate aftermath of 9/11, the Bush administration took the view that the attacks amounted to acts of war. Over time, a very clear consensus emerged that the US was engaged in a non-international armed conflict.  Not everyone has accepted that. The UK government and its lawyers have consistently taken the view that terrorism is a matter of law-enforcement, not armed conflict.  For instance, in the Northern Ireland context, it was always thought that IRA members were criminals. But, for Emmerson, 9/11 was a turning point. Crudely put, the US’s reasoning was that by expanding the notion of armed conflict, it could lawfully kill ‘terrorists’ because it is permitted to kill the enemy. Here lies the reason for treating counter-terrorism law as an aspect of the law of armed conflict.

Although the figures are disputed, Emmerson believes that a surprisingly low number of civilians have been killed by drones. The reason for this, he argued, is that, if used in strict conformity with international human rights law, drones ought to be able to minimise the number of civilian casualties. And since states are under a legal duty to use whatever weapons are least likely to cause damage to civilians, states may not only be permitted but required to use drones. Nonetheless, Emmerson highlighted a number of issues surrounding the use of drones in his interim report to the UN General Assembly. At the seminar, he was primarily concerned with the basis for distinguishing ‘civilians’ from ‘non-civilians.’ Under ordinary international human rights law, civilians may be attacked only if they are engaged in an armed attack against the actor. The US government thinks that this is too narrow. The International Committee of the Red Cross has suggested that a person should lose his or her status as a ‘civilian’ if he or she has a ‘continuous combat function’. The US rejects that view: it thinks that voluntary human shields are (also) legitimate targets. Thus, the definition of ‘civilian’ is critical, and yet there is little clarity about who counts as a ‘civilian’. If we are unsure about this, then we are unsure about who can and who cannot be lawfully killed.

Of course, all of this is premised on the view that the United States is engaged in an armed conflict. Emmerson concluded by identifying one significant consequence of that view. The law of armed conflict is reciprocal: if the US is right about it being lawful for it to target ‘terrorists’ under the law of armed conflict, then it is also lawful for ‘terrorists’ to target US military personnel wherever in the world they may be. This is a result of applying the law of armed conflict in any context where ‘targeted killing’ is seen as desirable. Whilst this approach is not without foundation, it is not necessarily wise. Emmerson emphasised that the whole point of the law of armed conflict is to regulate the circumstances in which states can kill. Given this, do we want it to play an ever larger role in international law and international affairs?

Luke Rostill is a DPhil in Law Candidate at the University of Oxford

Photos from this event can be found here, an audio recording here, and a summary of the live Twitter feed here.

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