The increasing number of drone strikes has brought targeted killings of supposed terrorists into a spotlight of debate on extrajudicial executions violating the right to life. And while the human rights issue is rightfully the center of attention, drone strikes have also contributed to the
blurry concept that territorial integrity of a sovereign state is slowly becoming. This article will question the legal basis behind the extraterritorial drone strikes within the international law in addition to individual states’ authorization.
The emergence of powerful non-state actors has signified new challenges to the idea of sovereignty in the contemporary world order. Still, according to Harvey Starr, it is the borders that “delineate areas of legal competence, encompassing the territoriality necessary to the concept of the sovereign “state.” [1] As he further notes, “territoriality was a central component that defines a state. And territoriality has long been seen as a central component of state security, because it is fundamental to the geo-political setting (or context) which affects the security of states.” [2] When the borders of the sovereign state are violated on a regular basis (as in continuous drone strikes) by any sort of military technology (even the unmanned one) to kill the nationals of this state, the security of the whole nation-state is jeopardized, and, unless the military actions were sanctioned by the UN Security Council or can be justified by the international law, all the signs point to an implied intervention.
Historically, international law recognizes a norm against state exercise of power in other states' sovereign territory. [3] However, in recent decades, the development of global business, the uncontrollable spread of data, and interconnectedness in general has prompted renewed attention to the validity and effect of territorial presumptions in law. [4] Thus, a new vision of extraterritoriality came up which “reflects the foundational ideals of the international state system. The supremacy of state sovereignty as a framework for international relations suggests that extraterritorial application of a state's law undermines other states and the international system as a whole.” [5] Traditionally, the governments "have sought to define and limit the geographic reach of statutes, constitutional provisions, and international treaty obligations"[6], but the exceptionalism of extraterritoriality in the form of terrorist organizations operating across different states has provoked some states to launch the highly-disputed drone strikes campaigns in areas not under their jurisdiction.
Article 2, Par. 4 of the UN Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” [7] There are, of course, ways around this article which allow avoiding the accusation of drone strikes violating territorial integrity: first, and most common, is the invitation to use armed drones on its territory by another state. Second, using drones against failed states whose territorial integrity is already compromised and whose governments are unable to protect their citizens. Third, use of drones is not prohibited on a battlefield as a part of an ongoing armed conflict. Nevertheless, there have been several scenarios when a state launched a drone strike campaign alone on the territory of another state without that state’s consent, thus, violating its territorial integrity. This type of action is usually justified through exercising the right of self-defense or in application of hot pursuit in a broader sense.
The most common justification of the drone attacks is referred to Article 51 of the UN Charter which claims that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” [8] Self-defense can only be exercised as a retaliation to an act of aggression, which the General Assembly resolution 3314 (XXIX) defines as “[a]n attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.” [9] At the same time, in the the famous judgement of the Nicaragua v. US case, International Court of Justice has underlined that the victim can only apply the self-defense rule if the sufficient amount of force was used on it by another state: “The Court does not believe that the concept of "armed attack" includes assistance to rebels in the form of the provision of weapons or logistical or other support. Furthermore, … there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked.” [10] All the abovementioned documents assert that extrajudicial pre-emptive drone strikes are not an act of self-defense, and the reason why “war on terror” in general cannot be regarded as one is the essence of the terror activities that possess the characteristics of crimes, rather than an armed conflict. In armed conflicts, there is no doubt who committed the offense, meanwhile, the crime cannot always be attributed to a certain actor.
Extrapolating from hot pursuit allowed under the law of the sea was another attempt to justify drone strikes, which hardly have anything in common with its original meaning: “Hot pursuit at sea provides a narrow right of coastal state law enforcement to extend the exercise of jurisdiction when a crime is suspected in the state’s territorial sea or contiguous zone. Coastal law enforcement agents may pursue a suspect on the high seas when attempting to make an arrest if the pursuit began in maritime zone where law enforcement agents have jurisdiction and the agents remain in visual contact with the suspect until the arrest.” [11] The use of drones for targeted killings of suspected terrorists contradicts this law on every level: drone strikes are not conducted by law enforcement, they do not serve a purpose of making an arrest, the pursuit does not begin on the territory where they have jurisdiction, and there is no continuous visual contact with them, thus, hot pursuit rule cannot be used to justify drone attacks.
Clearly, the international law does not provide legal grounds for drone attacks. So, how did individual states’ governments manage to justify their extrajudicial drone strikes? About a dozen countries have the armed drones’ technology, with another dozen developing it and China intending to export its newest killer drone to several more. The following countries have already used their drones in combat: United States, United Kingdom, Iraq, Pakistan, Nigeria, Iran and Israel. [12] Among them, Iraq, Pakistan and Nigeria only conducted them within their own territory, Israel launched drone strikes in Egypt’s Sinai Peninsular with the approval of Egyptian authorities, and Iran used them against militants in Syria (it was not confirmed officially if the operation was approved by a legitimate Syrian government, but there is little doubt considering the close ties of Iran with Assad’s regime). [13, 14, 15] This means two out of seven countries who used drones in combat have done it extrajudicially either as part of armed conflict or for targeted killing.
The UK has conducted drone strikes in Afghanistan (Operation Herrick, 2008-2014) and Syria/Iraq (Operation Shader, 2014-2016), among which the ones in Syria raise a lot of questions since they were neither requested nor approved by the Syrian government. [16] The British Government has issued a report that claimed the UK drone strikes in Syria are a necessary part of military action against IS and can be justified in the Rule of War framework. [17] However, the Rule of War can only be attributed to armed conflicts which sporadic drone attacks aimed at targeted killing are not. Extrajudicial executions of another state’s nationals, even counter-terror in character, if conducted outside of a battlefield, have no legal basis.
The US military has conducted hundreds of drone strikes in Iraq, Libya, Pakistan, Afghanistan, Syria, Yemen, Somalia. [18] Still, much of its drone policy is questionable. Barack Obama has justified the use of drones under the “Authorization to Use Military Force” act of September 2001, which reads, in part, “The President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." [19] However, the recent strikes in Iraq, Syria and Afghanistan were largely targeting IS which a) appeared several years after the events of 9/11, and b) is a self-proclaimed Al-Qaeda’s rival. Even though the state-like structure of IS technically allows it to be proclaimed an object of self-defense, “the law of the drone campaign had not been enacted by Congress or published in the US Code. No federal agency had issued regulations relating to drone strikes, and no federal court had adjudicated their legality. The “law” was written by executive branch lawyers behind closed doors, withheld from the public and even from Congress, and shielded from judicial review.” [20]
Violation of the territorial integrity incites more skepticism towards the drone strikes, which are also condemned of the human rights abuse. Armed drones are a type of military technology, and their deployment to a sovereign state’s territory without that state’s acting government consent can, in certain aspects, be regarded as an intervention not approved or ordered by the UN Security Council. The drone strikes might have higher precision and fewer civilian casualties, but their use is still a major violation of the UN Charter principles.
***The views expressed herein do not necessarily represent the opinions of JTMS or Yonsei Institute for North Korean Studies
References:
[1] Starr, Harvey. "Geopolitics and Conflict: Reconciling Spatiality, Borders, and Sovereignty in the Modern World System", Journal of Territorial and maritime Studies 2(1) (January 2015), pp. 139-148.
[2] Starr, Harvey. "Geopolitics and Conflict: Reconciling Spatiality, Borders, and Sovereignty in the Modern World System", Journal of Territorial and maritime Studies 2(1) (January 2015), pp. 139-148.
[3] Restatement of the Law Third, "Foreign Relations Law of the United States." (1987): 96.
[4] Daskal, Jennifer C. "The Un-Territoriality of Data." Yale Law Journal 2016 (2015).
[5] Rev, L. "Developments in the Law: Extraterritoriality." Harv. L. Rev. 124 (2010): 1226-1228.
[6] Daskal, Jennifer C. "The Un-Territoriality of Data." Yale Law Journal 2016 (2015).
[7] Article 2, para. 4, Chapter I: Purposes and Principles, Charter of the United Nations, http://www.un.org/en/sections/un-charter/chapter-i/index.html.
[8] Article 51, Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression, Charter of the United Nations, https://dronewars.net/uk-drone-strike-list-2.
[9] Resolution, General Assembly. "3314 (XXIX)." Definition of Aggression 14 (1974), http://legal.un.org/avl/pdf/ha/da/da_ph_e.pdf.
[10] The Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Merits), Nicaragua v. United States of America (1986), International Court of Justice, http://www.icj-cij.org/docket/?sum=367&p1=3&p2=3&case=70&p3=5.
[11] O'Connell, Mary Ellen. "Unlawful killing with combat drones: a case study of Pakistan, 2004-2009." Notre Dame Law School, Legal Studies Research Paper (2009).
[12] "World of Drones: Military", International Security, http://securitydata.newamerica.net/world-drones.html, accessed December 14, 2016.
[13] "World of Drones: Military", International Security, http://securitydata.newamerica.net/world-drones.html, accessed December 14, 2016.
[14] "Report: Israel Launched Numerous Drone Strikes in Sinai", Haaretz, July 11, 2016, http://www.haaretz.com/israel-news/1.730167, accessed December 14, 2016.
[15] Albin Szakola, "Iran admits conducting drone strikes in Syria", Business Insider, September 26, 2016, http://www.businessinsider.com/iran-drone-strikes-syria-2016-9, accessed December 14, 2016.
[16] "UK Drone Strike Stats", drone wars UK, https://dronewars.net/uk-drone-strike-list-2, accessed December 14, 2016.
[17] "Government must clarify legal case for lethal drone strikes outside armed conflict", Parliament, May 10, 2016, https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-parliament-2015/drones-report-published-15-16, accessed December 14, 2016.
[18] Missy Ryan, "A reminder of the permanent wars: Dozens of U.S. airstrikes in six countries",The Washington Post, September 8, 2016, https://www.washingtonpost.com/world/national-security/a-reminder-of-the-permanent-wars-dozens-of-us-airstrikes-in-six-countries/2016/09/08/77cde914-7514-11e6-be4f-3f42f2e5a49e_story.html?utm_term=.6f082d00ae98, accessed December 14, 2016.
[19] "Authorization for Use of Military Force, PL 107-40", Council on Foreign Affairs, September 18, 2001, http://www.cfr.org/911-impact/authorization-use-military-force-pl-107-40/p25703, accessed December 14, 2016.
[20] Jameel Jaffer, "How the US justifies drone strikes: targeted killing, secrecy and the law", The Guardian, November 15, 2016, https://www.theguardian.com/us-news/2016/nov/15/targeted-killing-secrecy-drone-memos-excerpt, accessed December 14, 2016.