UNIVERSITY OF MONTERRREY DEPARTMENT OF LAW AND SOCIAL SCIENCES

Transcription

1 UNIVERSITY OF MONTERRREY DEPARTMENT OF LAW AND SOCIAL SCIENCES TARGETED KILLING AND DRONE WARFARE TO COUNTERTERRORISM IN PAKISTAN DURING BARACK OBAMA S ADMINISTRATION ( ) FINAL EVALUATION PROJECT PRESENTED AS A REQUIREMENT FOR OBTAINING AN UNDERGRADUATE DEGREE IN INTERNATIONAL RELATIONS BY: STEPHANIE YAZMIN PADILLA BARRERA ASSITING PROFESSOR: JASON RUSSEL WEIDNER SAN PEDRO GARZA GARCÍA, N.L. MAY 2016

2 TARGETED KILLINGS AND DRONE WARFARE TO COUNTERTERRORISM IN PAKISTAN DURING BARACK OBAMA S ADMINISTRATION ( )

3 ACKNOWLEDGEMENTS This thesis became a reality thanks to the kind support and help of many individuals. I would like to extend my sincere thanks to all of them. Foremost, I want to express my gratitude to my family for their love, encouragement, and support they have given me these past 5 years. To Arthur Acevedo, for his constant encouragement and patience while I was elaborating this thesis. To my friends, for all their support and encouragement which made my college experience enjoyable. To my advisor, Jason Weidner for his help and orientation in the realization of this thesis. To the University of Monterrey for giving me all the tools necessary to become a professional. 3

4 ABSTRACT The September 11, 2001 terrorist attacks on the United States brought with them a new type of threat, foreign policy and rhetoric, which has presented a real threat to international law and world order. Shortly after the attacks, the ex-president George W. Bush, employed a war on terror against Afghanistan to capture the persons responsible for the attacks of the World Trade Center and the Pentagon. The war on terror is still going on since President Barack Obama has engaged in a new strategy to counterterrorism. This strategy includes the use of drones to carry out targeted killings missions to take out persons that form part of terrorist groups like the Taliban and al-qaeda. Such strategy was used by ex-president George W. Bush, but has increased greatly during Obama s administration. The increase of targeted killings using drones has raised some questions regarding the legality of such strategy since drones have rarely, if ever, killed just the intended target. After denying for many years that these attacks do take place, the U.S. administration has recently admitted to conduct such operations, defending them as a legal and legitimate response to terrorist threats. 4

5 TABLE OF CONTENTS CHAPTER 1: THE LEGALITY OF TARGETED KILLINGS OF SUSPECTED TERRORIST WITH THE USE OF DRONES Introduction International Humanitarian Law Principle of Humanity Principle of Distinction Principle of Proportionality Principle of Military Necessity Just War theory Jus ad bellum Jus in bello Conclusion CHAPTER 2. THE DEVELOPMENT OF DRONE WARFARE Introduction Origins First World War World War Two The Vietnam War United States UAV Programme Target drones during the War on Terror War on Terror Modern Drone Campaign Targeted Killings Conclusion CHAPTER 3: A NEW ERA OF MILITARY WARFARE Introduction Obama s drone war The legal debate of targeted killings

6 3.3.1 Who is a lawful target? Legality of drone as a weapon Effectiveness of the drone policy Critics by the International Community Drones as future weapons in warfare CONCLUSIONS BIBLIOGRAPHY ANEX Annex 1. U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities

7 ABBREVATIONS CIA...Central Intelligence Agency FATA...Federally Administered Tribal Area HVT...High Value Target IAC...International armed conflict ICJ...International Court of Justice ICRC...International Committee of the Red Cross ICTY...International Criminal Tribunal of the Former Yugoslavia IHL...International Humanitarian Law NIAC...Non-International armed conflict UAV...Unmanned aerial vehicle U.N....United Nations U. S...United States 7

8 The present research has as an objective to analyze the targeted killings and drone warfare to counterterrorism in Pakistan during Barack Obama s administration from Similarly, it is intended to critically assess the claims made regarding the l the legality of the targeted killings of suspected terrorists conducted with the use of drones. Over the past decade, the use of unmanned aerial vehicles, commonly referred to as drones; by the United States Government has expanded exponentially in location, frequency, and scope. Moreover, the use of drones to carry out targeted killings increased greatly during Barack Obama s first mandate, and as ever since been the preferred method in counterterrorism efforts against the Taliban and al-qaeda network. The use of drones as a method of conducting targeted killings has triggered much debate about the legality of these strikes and the legal framework under which these strikes should be assessed. Under this panorama, some questions arise that will seek to be answered on the base of the development of this investigation. Principally, what is the legitimacy of targeted killings with the use of drones under International Humanitarian Law? Secondly, what are the effects of using drones to conduct targeted killings in Pakistan? Lastly, will drones be the future weapon of choice for the U.S. and other countries.? In relation with the above mentioned, it is possible to stance the central hypothesis of this thesis: The counterterrorism strategy of Obama s administration of targeted killings using drones in Pakistan cannot be considered lawful under International Humanitarian Law. The research will be conducted from the legal framework of International Humanitarian Law to answer the questions regarding the legality of drone targeting and the methodology will be based on literature review as well as data concerning drone strikes conducted by the United States. In order to develop the arguments already mentioned, the present document is divided in three chapters. The first chapter, establishes the legal framework which the thesis will be analyzed from, being International Humanitarian Law, the framework. Also, Just War theory will be used to demonstrate how the United States is justifying its drone 8

9 policy. The second chapter, lays out the historical framework of the development of unmanned aerial vehicle, as well as the early usage of drones in war, and establishes the modern drone program of the United States. Finally, the third chapter analyzes the debate regarding the legality of targeted killings using drones and concludes if drones are the future weapons in warfare. The subject of targeted killing using drones is one of the most contemporary issues in modern international law. It is important to research this issue in the Social Science discipline because the acceptance of targeted killings as a legal means to conduct foreign policy and counterterrorism has implications for the development of international law and international human rights. Not only is it important in the social sciences discipline but also in International Relations because the use of targeted killings could become an accepted tool to counterterrorism under customary law and drones could proliferate and face the same repercussions as nuclear weapons. 9

10 CHAPTER 1: THE LEGALITY OF TARGETED KILLINGS OF SUSPECTED TERRORIST WITH THE USE OF DRONES Now let me be clear. None of this will be easy. The struggle against violent extremist will not be finished quickly, and it extends well beyond Afghanistan and Pakistan. It will be an enduring test of our free society, and our leadership in the world. And unlike the great power conflicts and clear lines of division that defined the twentieth century, our efforts will involve disorderly regions, failed states, diffuse enemies. - President Barack Obama, The Way Forward in Afghanistan and Pakistan, speech at West Point, December 1, Introduction The conduct of targeted killings using drones increased greatly during President Barack Obama s first mandate and has become a tool that is argued to be effective at reducing the strength of the Taliban and Al-Qaeda organization. The precise nature of the legal controversy has at times been misunderstood. It is not necessary about drones or targeted killings, but is often about the use of lethal force outside traditional battlefields. In this specific case, the targets are suspected members of the Taliban and al-qaeda and its associates, which are considered non-state actors and thus the nature of the situation is a non-international armed conflict. This increased use of drone attacks against nonstate actors has raised many questions regarding its legality, and thus the legal framework of this thesis will be based on International Humanitarian Law to analyze the issue presented, and the Just War theory as background information as to how the United States is justifying its use of drones to carry out targeted killings. 1.2 International Humanitarian Law International Humanitarian Law is well developed and covers a wide variety of aspects of warfare, offering protection to victims of war and limiting permissible means and methods of warfare. This law is applicable in armed conflicts and is often abbreviated 10

11 to International Humanitarian Law or Humanitarian Law. Although, the military tends to prefer the expression Laws of Armed Conflicts" (LOAC) or Laws of War, these two expressions should be understood as synonymous with International Humanitarian Law (Bouvier & Langholtz, 2012). International Humanitarian Law developed over the 19 th and early 20 th centuries, but since the establishment of the UN, war has been outlawed although with few exceptions, like self-defense. Thus, the main reason why it is no longer called Law of War, because war in the traditional sense is no longer considered legitimate. During an armed conflict, the legality of a strike depends on international humanitarian law. The United States considers itself to be involved in an armed conflict with al-qaeda and its associated forces. Two forms of armed conflict exists- international and non-international; which are set forth in Common Articles 2 and 3 respectively of the fours 1949 Geneva Conventions: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance 1. As noted above, only two types of armed conflicts exists, which are legally recognized under International Humanitarian law. The main difference is that international armed conflicts involves two or more opposing states, while noninternational armed conflicts, are between governmental forces and non-governmental armed groups (ICRC, 2008). A more restrictive definition of non-international armed conflict was adopted for the specific purpose of Additional Protocol II of the Geneva convention: "an armed conflict which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, 1 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, arts. 2-3, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, arts. 2-3, Aug. 12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, arts. 2-3, Aug. 12, 1949, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, arts. 2-3, Aug. 12, 1949, 75 U.N.T.S

12 under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol" 2. According to the Aust (2005), even if a state resorts unlawfully to the use of force, international humanitarian law will still apply to all parties involved in the conflict. Therefore, the mere existence of an armed conflict under international humanitarian law is enough for a state to use the force, regardless if there is a declaration of war or the recognition of a state of war (Greenwood, 1987). Thus, it is important to lay out the principles that make up IHL to have a better understanding of the legality of using drones to carry out targeted killing missions of suspected terrorists in Pakistan within the framework of a non-international armed conflict. These principles are the following: principle of humanity, principle of distinction, principle of proportionality, and principle of military necessity Principle of Humanity This principle is also referred as the principle of unnecessary suffering, which is the core principle from which all other principles flow (Chengeta, 2011). The basics of this principle are found in some international legal acts such as: The St. Petersburg Declaration of 1868, The Hague Convention of 1907, and The Geneva Conventions of 1949 and its Additional Protocols of The St. Petersburg Declaration of 1868 is the first formal agreement prohibiting the use of certain weapons in war, which was later laid down in Article 2 (e) of The Hague Regulations on land warfare of 1899 and 1907 (ICRC, 2008). The fourth Hague Convention underlines in its preamble that: 2 Additional Protocol II, art. 1, para. 1 of the Geneva Convention 12

13 it s important to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible. 3 For this reason, in The Hague Convention of 1899 (II) and of 1907 (IV) an important disposition was added in the preamble, known as the Martens Clause. This clause according to La Haye (2010) states the application of the principles of the law of war of notions in cases not covered by the instrument in question. Although many wonder, if this clause was meant to cover cases of non-international conflicts, the Martens Clause was actually introduced to resolve the issue of the status of civilians who took arms in an occupying force (Blischenko, 1987). On the other hand, in art. 13 of the Geneva Convention a reference to the protection of civilians in the case of war is made, and explains that the dispositions of the Convention have as a goal the lessening of the pain caused by war 4. The principle of humanity is also prescribed in the Additional Protocol I, which entails that it is prohibited to employ weapons, projectiles, and material and methods of warfare of a nature or cause superfluous injury or unnecessary suffering (art.35, par.2), and its violation constitutes a war crime. Thus, States are prohibited from the following weapons: lancers or spears with barbed head, serrated-edged bayonets, explosive bullets, poison and poisoned weapons, biological and chemical weapons, and nuclear weapons (Takemura, 2014). All these dispositions of the legal treaties mentioned above are important in regard to honor the principle of humanity that the International Humanitarian law have set forth to avoid the effects of the armed conflict. 3 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations c concerning the Laws and Customs of War on Land. The Hague, 18 October Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August

14 1.2.2 Principle of Distinction The principle of distinction entails that the parties of an armed conflict should at all times make a distinction between civilians and combatants, and should only direct attacks to the latter (ICRC,2009). Thus, it is important to clarify the definition of combatants versus civilian combatants (armed forces) to have a better understanding of who is a legitimate target. These definitions are set forth in Article 43 of the Additional Protocol I of the Geneva Convention: 1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict. 2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities. 5 The principle of distinction is also a customary rule of international humanitarian law, as stated in Common Article 3 of the Geneva Conventions of 1949, article 51(4)(b) of Additional Protocol I, and article 13(3) of Additional Protocol II: Indiscriminate attacks are prohibited; indiscriminate attacks are: b) those which employ a method or means of combat which cannot be directed at a specific military objective. 6 Protection of civilian population: Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities. 7 The term military objective is broadly defined. According to the United States Law of War Manual, military objectives include combatants, and those objects which by their 5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June Protocol Additional to the Geneva Conventions of 12 August 1949, and rela ting to the Protection of Victims of Non- International Armed Conflicts (Protocol II), 8 June

15 nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage 8. An example of indiscriminate attacks is given in Art. 51 (5) Protocol I: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. The principle of distinction is applicable to both international and non-international armed conflicts (Takemura, 2014). Therefore, in a NIAC, members of the non-state armed group party to the conflict may be targeted where they directly participate in hostilities, or, potentially, where they have a continuous combat function (ICRC,2009). Regarding the legality of drone targeting, this principle is fundamental as it determines who can lawfully be targeted during an armed conflict. In cases of doubt, a person will be considered to be a civilian as stated in Article 50 (1) of the Additional Protocol I and the same goes for objects as stated in Article 52(3) of the Additional Protocol I: In case of doubt whether an object which is normally dedicated to civilian purposes, such as place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used 9. Thus, non-state actors in non-international conflict become a complicated issue when states must distinguish combatants from civilians and have to decide which are participating directly in hostilities under the principle of distinction Principle of Proportionality The principle of proportionality aims at minimizing collateral damage. This term refers to the civilians who are killed during an attack on a military target. Collateral 8 U.S. Army Law of War Manual, supra note 72, at art. 40 (c). 9 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protecti on of Victims of International Armed Conflicts (Protocol I), 8 June

16 damage can also result from accidents and errors, such as technical malfunction. Therefore, the principle of proportionality seeks to reduce the civilian causalities by requiring that the amount of casualties is not excessive in relation to military advantage (Herman, 2014). This principle is codified in article 51(5)(b) of Additional Protocol I and repeated in articles 57(a)(ii) and 57(2)(b): 1. Among others, the following types of attacks are to be considered as indiscriminate: (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 2. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. While it is legally accepted that civilian persons and objects may be incidentally harmed in an armed conflict, attacks that do not comply with the rule of proportionality are forbidden. The International Tribunal for the Former Yugoslavia (ICTY) has said, In determining whether an attack was proportionate it is necessary to examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack 10. Therefore, the principle of proportionality obliges the attacking party to gather and assess information about the target and the persons in the proximity of the target. 10 Prosecutor v. Stanislav Galic, Case No. IT T, Trial Chamber Judgment, 5 December 2003 at para. 58. Available from tjug/en/gal-tj031205e.pdf. 16

17 1.2.4 Principle of Military Necessity The principle of military necessity entails that only a certain amount of force and only certain actions that are needed to accomplish a reasonable military objective can be use, and that these have to offer a definite military advantage (ICRC, 2012). This principle first appeared prominently in the 1863 Lieber Code, which states the following: Art. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. Art. 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war ( ) Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. Art. 16. Military necessity does not admit of cruelty that is, the infliction of suffering for the sake of suffering or for revenge (...) And in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult 11 It is important to note that the notion itself is to be found within the rules of International Humanitarian Law. Article 52 (1)(2) of Addition Protocol I lists the objects that can be subject to lawful attacks: 1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. According to the ICRC, the principle of military necessity is, the related principle of proportionality, an essential component of IHL. This principle permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise 11 Francis Lieber, U.S. War Dep t, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (Apr. 24, 1863), reprinted in THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3 (Dietrich Schindler & Jiri Toman eds., 4th ed. 2004). Note that the Lieber Code was a national regulation, not a treaty. Nevertheless, it provided the foundation for much subsequent international humanitarian law. For more information on the Lieber Code and military necessity, see Burrus M. Carnahan, Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity, 92 AM. J. INT L L. 213 (1998). 17

18 prohibited by international humanitarian law (ICRC, 2012). In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict. Nevertheless, this principle clashes the most with humanitarian protection since it permits armed forces to engage in conduct that will result in causalities, destruction, and harm. 1.3 Just War Theory Just War theory analyses how wars are made legitimate and which arguments are used to justify the use of lethal force. This theory originated and evolved principally in theological and ethical, not legal, terms. It is also not a theory that is linked to one or more theorists, but instead is a theoretical work that has evolved during the course of history. Although Hugo Grotius is probably the most comprehensive and formidable classical member of the tradition, many recognize Michael Walzer, as the dean of contemporary Just War theorist. Some of the rules developed by this theory have since been codified into contemporary international laws and treaties governing armed conflicts, such as The Hague & Geneva Conventions of 1907 and The United Nations Charter (1945) Article 2. The just war theory is indeed the most influential perspective on the ethics of war and peace. The legitimizing of wars has been debated ever since the ancient Greek philosopher Aristotle theorized about which principles should guide the use of force (Santiago, 2009). The medieval philosopher, Thomas Aquinas, formulated a guideline about what should constitute rightful intentions and purposes. Later on, Hugo Grotius wrote in his book On the Law of War and Peace, that civilians and non-combatants should be protected from assaults and what norms and rules should guide warfare (Sjoberg, 2010). Similarly, St. Augustine of Hippo was another philosopher that contributed to the thinking of the Just War theory. Augustine s thinking of the Just War theory was a response to Aquinas s significant dilemma: how to justify war waged by a Christian ruler, given that Christianity is based on peace (a similar dilemma that has been addressed by various thinkers within Islam). Not only does the Just War theory claims that war can, 18

19 under certain conditions, be morally justified, but also under certain treaties on the laws of war such as The St Petersburg Declaration and the Pact of Paris. To demonstrate the later stated, Jus ad bellum and Jus in bello; which form part of the division of just war theory, will be explained in the next sections Jus ad bellum This principle means the right to wage war or the use of armed force and specifies that the aggressor must have the right intention and cause (Aust, 2005). States that resort to war to be justified, a political community, or state, must fulfil each and every one of the following six requirements (Shaw, 2016): Just cause: To be justified in waging war, a nation must do so in the cause of justice. Just cause is first and foremost the self-defense of a nation that is physically and aggressively attacked by another nation. It also includes the protection of persons from brutal, aggressive regimes; and punishment for grievous wrongdoings which remains uncorrected. Right Intention: The nation that wages war must do so for the right motives, that is, only to ensure that the just cause is attained by war s end. Having the right reason for launching a war is not enough: the actual motivation behind the resort to war must be morally appropriate. There can be no ulterior motives, such as, racial or ethnic hatred, or provoking war for a land grab. If another intention crowds in, moral corruption sets in but International Law does not include this rule. Proper authority and public declaration: The decision to wage war must be made only by the proper authorities of a state, following the process set forth by that nation s laws. The states failing the requirements of minimal justice lack the legitimacy to go to war. Last Resort: A nation may resort to war only if it has exhausted all diplomatic means of resolving the conflicts peacefully. The state must be able to demonstrate that there is no other reasonable or practicable means of righting the wrong, short of war. Probability of Success: A state may not resort to war if it can foresee that doing so will have no measurable impact on the situation. The aim is to block mass violence which is going to be futile. International law does not include this requirement, as it is seen as biased against small, weaker states. Proportionality: A state must, prior to initiating a war, weigh the universal goods expected to result from it, such as securing the just cause, against the universal evils expected to result, notably causalities. Only if the benefits are proportional to, or worth, the cost may the war action proceed. 19

20 While the principles of Jus ad bellum are useful guidelines for reviewing the ethics of the used of armed force, it is important to note that the prohibition against the use of force amongst States and the exceptions to it are set out in article 2(4) of the United Nations Charter of 1945: 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 Nation Jus in bello This principle refers to justice in war and to right conduct in the midst of battle. It has traditionally been concerned with the treatment of the enemy. The responsibility for state adherence to the jus in bello norms falls into the hands of military commanders, officers, and soldiers who execute and formulate the war policy of a particular state (Orend, 2008). It should be noted that there is an important distinction to be made between external and internal jus in bello. The external or traditional jus in bello, concerns the rules a state should observe regarding the enemy and its armed forces; and internal jus in bello concerns the rules a state must follow in connection with its own people as it fights war against an external enemy. The rules of Jus in bello are mentioned by Orend (2008) in his entry on War in the Stanford Encyclopedia of Philosophy: Obey all international laws on weapons prohibition: Chemical and biological weapons, in particular, are forbidden by many treaties. Discrimination and Non-Combatant Immunity. Soldiers are only entitled to use their (non-prohibited) weapons to target those who are, in Walzer's words, engaged in harm. Proportionality. Soldiers may only use force proportional to the end they seek. They must restrain their force to that amount appropriate to achieving their aim or target. Weapons of mass destruction, for example, are usually seen as being out of proportion to legitimate military ends. Benevolent quarantine for prisoners of war (POWs). If enemy soldiers surrender and become captives, they cease being lethal threats to basic rights. They are no longer engaged in harm but are to be provided, as The Geneva Conventions spell out, with benevolent not malevolent quarantine away from battle zones and until the war end. 20

21 No Means Mala in Se. Soldiers may not use weapons or methods which are evil in themselves. These include: mass rape campaigns; genocide or ethnic cleansing; using poison or treachery; forcing captured soldiers to fight against their own side; and using weapons whose effects cannot be controlled, like biological agents. No reprisals. A reprisal is when country A violates jus in bello in war with country B. Country B then retaliates with its own violation of jus in bello, seeking to chasten A into obeying the rules. The principle of jus in bello regulates the conduct of parties engaged in an armed conflict. It is tantamount with the International Humanitarian Law, since it seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent possible (ICRC, 2015). The sources of IHL are found in the well-known fundamental principles of international law, set forth in the U.N Charter and its organism s statues. 1.4 Conclusion The compliance of the four fundamental principles of IHL, governing the use of force, are needed to conduct a just war. The principle of humanity requires the use of weapons that will not inflict unnecessary suffering. The principle of distention requires that only lawful targets; such as combatants, civilians directly participating in hostilities, and military objectives, may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Lastly, the principle of necessity requires that the target have definite military value. These principles, however, do not forbid the use of technologically advanced weapons. The evolution of IHL is fundamental for the issue of targeted killings of suspected terrorist using drones, due to the international custom of the norms that apply in the international armed conflicts. The United States does not recognize the combatants of Al- Qaeda and the Taliban as legal. The Taliban was not recognized by the U.S. as the legitimate government of Afghanistan, and Al-Qaeda is not a State as argued by the 21

22 United States. Also, the majority of them do not carry arms or wear uniform, which is a requirement of International Humanitarian Law to be considered legal combatants. Therefore, the United States labeled the Taliban and Al-Qaeda as enemy combatants since the start of the War on Terror (Knuckey,2010). Due to the fact that the classification of enemy combatants does not exist in IHL, it is hard for the combatants to have a defined legal status. Also, it is important to mention that there are two impediments to applying all the treaties mentioned in this chapter to current armed conflicts. First, treaties apply only to the States that have ratified them. While nearly all States have ratified the four Geneva Conventions of 1949, Additional Protocol I has not yet gained universal adherence. As the Protocol is applicable only between parties to a conflict that have ratified it, its efficacy today is limited because several States that have been involved in international armed conflicts are not a party to it (Henckaerts & Doswald- Beck, 2005). Likewise, Additional Protocol II is only applicable in armed conflicts taking place on the territory of a State that has ratified it. While some 150 States have ratified this Protocol, several States in which non-international armed conflicts are taking place have not (Henckaerts & Doswald-Beck, 2005). In these non-international armed conflicts, common Article 3 of the four Geneva Conventions remains the only applicable treaty provision. Secondly, many of these treaties do not regulate a large proportion of today s armed conflicts in sufficient detail. The reason is that the majority of current armed conflicts are non-international, which are subject to far fewer treaty rules than international conflicts. Although a few treaties apply to non -international armed conflicts such as: The Convention on Certain Conventional Weapons, the Statute of the International Criminal Court, the Chemical Weapons Convention, The Hague Convention for the Protection of Cultural Property and its Second Protocol; they only provide a very basic framework of the minimum standards and are regarded as a status of custom in international law. Hence, that is one of the reason why the United States has been able to loop through the 22

23 legal framework to justify its War on terror and use drones to carry out targeted killings on suspected terrorist. The laws of armed conflicts are indeed important to justify the use the force. However, given the nature of the issue of the target killings of suspected members of Al- Qaeda and Taliban inside and outside Pakistan by using drones, there are still many questions regarding the legality of these actions. Legal scholars and human rights advocates have argued that the principle of distinction and proportionality are not begin met by the United States and therefore the killings of suspected terrorist are illegal. 23

24 CHAPTER 2. THE DEVELOPMENT OF DRONE WARFARE To fully understand the role and mission of Army Aviation today and why it is best served by aircraft organic to the Army is to trace its history, underlining, with the benefit of historical perspective, the mistakes. The story roots itself in the requirements for battlefield reconnaissance: the need to know more information about the enemy and the terrain -D. F Harrison in Bloom, J (2009) Unmanned Aerial Systems: A historical perspective. 2.1 Introduction Drones have recently become a subject of much debate and scrutiny but they have a lengthy history. Unmanned aerial vehicle (UAV), commonly known as drone, is an aircraft without a human pilot on board. They have become the hallmark innovation in the U.S War on Terror and with their unprecedented reconnaissance capabilities have been able to degrade militant groups like the Taliban and terrorist organizations such as al- Qaeda. Drones are the 21 st century state of the art technology but the employment of drone on the battlefield is not new. During the last 50 years, the United States military had employed drones as a platform for reconnaissance allowing the safe observation of the battlefield from afar (Gertler, 2012). The kind of asymmetric conflicts occurring in Afghanistan (2002) and Iraq (2003) after the events of 9/11 in New York, created more technological advances in the capabilities in unnamed aircraft. This chapter explores the evolution of development of UAVs from the beginning of the First World War until the 21 st century, as well as the use of them to carry out targeted killing missions during the War on Terror, and describes the modern drone campaign. 2.2 Origins Unmanned Aerial Vehicles claim a lineage as the precursor of manned flight that dates back to the dawn of aerial warfare. The earliest cited example of the military application of UAVs dates back to 1849 when the Austrians launched over 200 pilotless balloons carrying bombs controlled by timing fusses over the City of Venice (Sloggett, 24

25 2014). While balloons generally do not meet today s definition of a UAV, the concept is strong enough that once winged aircraft had been invented, the idea of using them unmanned for military purposes was possible. The first true UAVs, which are technically defined by their capability to return successfully after a mission, were developed in the late 1950s, but the American military began designing and developing unmanned aircraft during WWI First World War During World War I, both the Navy and the Army experimented with aerial torpedoes and flying bombs. Some of the most brilliant minds of the day, like Elmer Sperry, were called on to develop systems to use against U-boat submarine bases. The efforts consisted of combing wood and fabric airframes with either gyroscope or propeller revolution counters to carry out payloads of almost 200 pounds of explosives a distance of approximately 40 miles (Keane & Carr, 2014). Indeed, the use of aircraft changed the face of war and the U.S Army and Navy designed and built a new type of aircraft that did not require a pilot, to get far ahead in producing military fliers. It was only during WWI that the first UAVs took flight in the United States. The success of UAVs in test flights was erratic, but the military recognized the potential in combat (Slogget, 2014). For this reason, in 1917, Dr. Peter Cooper and Elmer Sperry invented the automatic gyroscopic stabilizer, which helped to keep an aircraft flying straight and level (Keane & Carr, 2014). Not only did these two men invented the gyroscope, but also, used their technological breakthrough and converted a U.S Navy Curtis N-9 trainer craft into the first radio-controlled UAV (Slogget, 2014). This new type of aircraft was named the Sperry Aerial Torpedo and had the capability to fly 50 miles carrying a 300-pound bomb in several test flights, but it was never actually seen in combat (NOVA, 2012). At first, unmanned aircraft was not seen as potential intelligence-gathering platform but the flying torpedo emerged because initial funding came from the U.S Navy. The potential benefits of this flying torpedo were that this aircraft was configured in a way that 25

26 it could attack an enemy warship over a longer range and deliver the payload more accurately than a traditional torpedo riding through the water (Slogget, 2014). Many problems such as where the operator would be based and other limitations on the operation of the existing technology arose, which led the U.S Navy to cancel the program due to lack of funds and the program s lack of progress. While the Navy struggled with its program, the U.S Army developed a slightly more successful flying bomb called the Kettering Bug. This new torpedo was a small biplane equipped to carry a bomb load of 300 pounds, while flying on a pre-set course using an on-board gyroscope and altimeter (Miller, 2014). Charles Kettering was the designer of this unmanned flying bomb that could hit a target at a range of 50 miles (Keane & Carr, 2014). To ensure that the Kettering Bug hit its target, a mechanical system was devised that would track the distance the aircraft flew. While the development of the Kettering Bug was better than the Navy s Sperry Aerial Torpedo, it too had some problems at the initial flight tests, and the aircraft was never deployed in the First World War. The reliability of the Kettering Bug did eventually improve and by the end of the war, forty-five of the airframes were assembled (NOVA, 2012). However, like the Navy, the Army cancelled the program soon after the end of the WWI due to lack of funding. According to Keane & Carr (2014) if the Army and the Navy unmanned aircrafts programs had worked together, perhaps an operational system could have been fielded before the Armistice World War Two During World War Two, the UAVs also participated in the same fashion as the First World War but were designed to carry high explosives. The Germans were far ahead in aerial technology innovation with their V-1 and V-2, both flying bombs, that demonstrated the threat a UAV could pose in combat (NOVA, 2012). Both the V-1 and V-2 caused extensive British civilian casualties. Hence, the U.S Air Force attempted to create a successful unmanned aerial vehicle, in a top-secret mission called Operation Aphrodite. This operation involved a B-17 bomber equipped with TV cameras, parachutes, and 26

27 explosives (ISO,2014). The U.S Air Force used this mission as an experimental method of destroying the German V-1 and V-2 weapon production and launch facilities. The operation called for 65 four-engine aircraft to be remotely piloted and crashed into their targets with explosive or napalm, which is a jellied gasoline. The most striking feature of the operation was the fact the B-17 had to be stripped down to the basic airframe. It had no crew, guns, turrets, interior furnishing, load, or amenities on the flight (Boyne, 2010). The reason for this was to provide the aircraft with aerodynamic capabilities that would successfully complete the mission. Operation Aphrodite is said to be an early version of drones since the B-17 after becoming airborne and heading to the target area, the pilot and co-pilots would turn over control of the plane to a mother aircraft and bail out (Boyne, 2010). Next, the pilot aboard the mother aircraft used remote control to guide the highly explosive plane to its target area and put it its final dive. Nevertheless, the first mission carried out on August 4, 1944 was not successful and it also claimed the life of former President John F. Kennedy s older brother, Joseph Kennedy, whose bomber exploded over the English Channel (ISO, 2014). According to the accounts in Aphrodite: Desperation Mission, by Jack Olsen (1972), ground personnel were aware of the fatal flaw in the operational system that could allow movement of the control switch that detonated the explosive. Yet, when the discrepancy was pointed out, the Navy s response was that the device had been designed by experts and was not to be altered in the field (Boyne, 2010). Eighteen additional flights test using the B-17s followed the same disastrous path and without the most remote degree of success. As a consequence, Operation Aphrodite was terminated by the personal order of Lt. Gen. Carl Spaatz, the US Army Air Forces commander of the Strategic Air Forces in Europe (Boyne, 2010). Although, the method of operation of the B-17s was dangerous, one operation was successful in knocking out the German s V-1 and mark the first time a UAV was used against another UAV (NOVA, 2012). Despite the failures of Operation Aphrodite, the attempts made by the United States to eliminate the V-1, laid the groundwork for post-war UAV programs in the country. 27

28 2.2.3 The Vietnam War During the Vietnam War, technology started to make UAV s more effective. According to Dyke Weatherington, deputy of the defense UAV office, the unmanned aerial vehicles were used fairly extensively during this war, and were called drones. The UAV used during this period were called the Ryan Firebee (AQM-34), and were about the size of today s Predator UAV. The Ryan Firebee was used for simple day-reconnaissance missions but later on were used for other missions such as night photo, surface-to-airmissile radar detention, location and identification (Garamone, 2002). It was not until the Vietnam War in Southeast Asia that UAV technology had advanced to allow for a new combat role and redefinition of the unmanned concept (Miller, 2014). Due to concerns about American pilots being shot down over the enemy territory, the drones were given combat roles to replace manned reconnaissance flights. According to Clark (2000) a total of 3,435 operational reconnaissance UAV missions were flown between 1964 and The Ryan Firebee was controlled by a ground operator using a remote control camera and was able to launch missiles and conventional bombs. Not only did the Firebee was used for their reconnaissance and bomb damage assessment roles, but also, to bait and reveal North Vietnamese anti-aircraft installations (Miller, 2014). The successful deployment of the Ryan Firebee continued though the end of the war but this unmanned aerial vehicle was not recognized as a significant military platform worth developing. This was due to cultural resistances within the U.S. Air Force (Miller, 2014), which resulted in drone technology being abandoned until late in the 20th century United States UAV Programme The application of UAVs in a variety of missions in the U.S during the 1900 s emerged due to the Israeli Air Force s use of their weaponized drone, the Pioneer, in the 1982 war in Lebanon (NOVA, 2012). The U.S Navy was impressed with the Pioneer and purchased several of them from Israel and the Ronald Reagan Administration began 28

29 increasing UAV research in The use of drones in combat were first utilized during the Persian Gulf War and according to a 1993 congressional report by the House Oversight and Investigations Subcommittee, during Operation Desert Storm, the UAVs were used as tool for gathering intelligence at the tactical level. The Pioneer also provided imagery support to Marine, Army, and Navy units. Certainly, the utility of drones was recognized during the Gulf War, and its use in the military operations demonstrated the effectiveness of the UAVs. More so, that the U.S military began to invest in the research and development of combat unmanned aerial vehicles. The Department of Defense spent over $3 billion in UAV programs during the 1990s and set up a program called Advanced Concept Technology Demonstration Program (Callam, 2010). It was in this program that the RQ-1 Predator was developed, which could provide 14 to 16 hours of surveillance via high definition color television, infrared cameras, and synthetic aperture radar (SAR) before returning to its base (Callam, 2010). Though, the Predator was designed purely for reconnaissance use, several of these UAVs were equipped with Hellfire antitank missiles and were successful in hitting their targets. The history of development of unmanned aircraft have come a long way over the past century, and with the emergence of network terrorism and their unconventional tactics, the need for a platform that can strike select targets has made modern UAVs the weapon of choice. Nowadays, unmanned aircraft such as Global Hawk, operate almost completely autonomously, remotely piloted by operators thousands of miles away (Sloggett, 2014). Drones have truly become an integral part of the U.S Military since they help carry out missions and provided reconnaissance. After the events of September 11, 2001, the United States government began to use drones against al-qaeda targets and its affiliates in an effort to eliminate and eradicate them. Thanks to the developments of UAVs, the United States can now fight its War on Terror from above and it has become the modern kill weapon. 29