Targeted Killings, Drones and International Law

The evolution of drone technology since the start of the “war on terror” has transformed warfare beyond recognition. Once limited to surveillance operations, these “unmanned aerial vehicles” now come equipped with hellfire missiles, facial recognition, license plate readers, and on-board sensors that detect heat and motion. They can monitor Wi-Fi networks, listen-in on phone calls, scramble communication signals, and provide an “eye in the sky”, day and night, in all weather conditions. The most sophisticated models now carry a series of cameras that can monitor an entire city from over twenty thousand feet in the air, and zoom in on any object with enough clarity to lip-read. These machines are also surprisingly cheap to manufacture, and can remain airborne without refueling for up to 48 hours – all while being controlled from the safety of the other side of the world. Increasingly, these drones are now being deployed to conduct so-called “signature strikes” against anyone perceived to be acting “suspiciously” – without even first identifying who they are.

Bearing all this in mind, it really isn’t hard to understand why military drones have captured the public’s imagination in recent years. They are silent, pilotless, killing machines with capabilities straight out of a Hollywood blockbuster.

However, as bewildering as drone weaponry clearly is, it seems that the wider legal debate on their use has become lost in the clamour to understand the technology. Although media attention has rightly focused on the thousands of civilians killed by drone strikes in Yemen, Somalia, Iraq, Pakistan, and Afghanistan, the biggest question remains unanswered – why are targeted killings on the increase? The unpopularity in the West of further troop deployments is one obvious explanation, as is Osama Bin Laden’s alleged confession that his militants, “Cannot fight (unmanned) air strikes with explosives”.

Nevertheless, despite being fairly logical, these justifications fail to reveal the interconnected relationship between the use of drones for targeted killings and the subsequent development of international law. The intention of this article is to shed light on this ‘unseen nexus’, and place the topic of military drones within a much-needed broader legal context. It’s quite frankly remarkable that this relationship still remains hidden, as despite the deafening silence of the mainstream media, more people are realising that the world has been given a narrow account of the “war on terror”, instead of the larger picture.

Indeed, much of the media attention on drones has focused on the post-9/11 military campaigns of the United States. Although President George W. Bush was the first to deploy drones and provide a legal justification, the thousands of victims of “collateral damage” since 2008 have ensured that the Obama administration has become synonymous with their widespread use.

Yet despite America being at the forefront of drone technology, it’s a well-known fact that Israel is the world’s biggest exporter of military drones. Like the U.S, the State of Israel openly acknowledges that drone weaponry has allowed them to conduct targeted killings of questionable legality more efficiently. Likewise, Israel shares America’s reluctance to reveal statistics relating to their use of drones, and instead keeps a close guard on all operational information. However, perhaps less well known is the fact that Israel has admitted that their official policy of targeted killings is intended to serve a legal as well as military purpose. To clarify this position, we should first consider the opinion of the esteemed Israeli military analyst, Zeev Schiff:

The Israeli Army has always struck civilian populations, purposely and consciously…The Army has never distinguished civilian targets”

Taking his informed judgment into account, now consider the equally unequivocal words of Colonel Daniel Reisner, the former head of the Israeli Defense Force International Law Division:

What we are seeing now is a revision of international law… If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries. International law progresses through violations. We invented the targeted assassination thesis and we had to push it.”

 In effect, his statement is an admission of deliberate, indiscriminate and illegal targeted killings, not only to achieve immediate military goals, but also to eventually create new international legal norms relating to warfare and human rights. Put another way, the Israeli military seeks to overcome established law by violating it – and they make no attempt to sugarcoat their intentions. When taken this to its logical conclusion, the full implications of this ideology are just as terrifying as a sky full of drones.

But where did this ideology originate? Given the bloody history of Palestine since the British Mandate, and the violent founding of the State of Israel, it’s difficult to ascertain exactly when the deliberate violation of human rights became official Israeli government policy. Arguably the escalation of the 2008 Gaza War provides a significant milestone, as it was during the infamous “Operation Cast Lead” that legal advisers to the IDF became more open about their strategies and goals. Professor Asa Kasher is widely credited with providing much of the legal and moral justification for the War. He advised Israeli troops that the Geneva Convention was outdated, and described the population of Gaza as “neighbors of terrorists”, implying that they shouldn’t enjoy the rights of civilians living under an occupation. In his own words, he stated:

The media don’t understand the nature of international law…Much of it is customary law… We in Israel are in a key position in the development of law… What we are doing is becoming the law”

However, as unpalatable as these statements are, the wider truth is that Israel and the U.S are not alone in conducting arbitrary targeted killings. Indeed, for all the protestations of the Pakistan government about the death toll of U.S strikes, the Pakistani military are currently in the process of manufacturing and deploying their own military drones to patrol the very same regions. Other nations like China, Brazil, Turkey, Bahrain and many more are also turning to military drones to patrol their skies. Arguably, the true significance of Israeli and U.S targeted killings is that their current policies will undoubtedly determine the future conduct of emerging military powers. As such, we must ask – can any form of targeted killing be truly justified? If so, who ensures that they are conducted within a transparent and legitimate framework of law?

These questions have been addressed at length within the State of Israel. In the landmark “Targeted Killing” case, the Israeli Supreme Court refused to accept the position of the IDF that all targeted killings conducted by the military were justified. Instead, the Court upheld existing international norms by declaring that such killings cannot be pre-determined to be legal or illegal, and must instead be judged according to international law on a case-by-case basis.

Although this decision surprised many, it is merely a reflection of existing legal norms. The Israeli Supreme Court was correct to state that suspected combatants could only be considered legitimate targets for lethal force when they are taking “direct part in hostilities”. This principle is supported by the case of Gulec v Turkey, which involved the PKK, and reaffirmed that the mere presence of a suspect isn’t sufficient grounds for lethal force. The Israeli Supreme Court also confirmed that even where a suspect is directly involved in hostilities, the use of lethal force could only be justified where there is no alternative. This principle is supported by the case of Mccann v United Kingdom which involved the IRA, and reaffirmed that states have a responsibility to reduce the need to resort to lethal force where possible.

Central to these decisions is the principle of distinction: namely, are the suspects in question combatants or civilians? Although the situation is more complex when governments are facing irregular forces such as insurgents or terrorists, they must nevertheless treat all fighters as civilian until they are actively engaged in combat. With this subtle distinction in mind, any government that targets the family home of an unarmed suspected militant with a one-ton bomb in the middle of the night has arguably committed a war crime, for example. Although placing the onus on government restraint may seem unreasonable to some, this legal obligation is due to the unequivocal international duty of all governments to protect the rights of all civilians. As surmised by President A. Barak of the Israeli Supreme Court:

 At times democracy fights with one hand tied behind her back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of her security stance. At the end of the day, they strengthen her and her spirit, and allow her to overcome”

Clearly, these lofty ideals are not expedient to the military objectives of the CIA or Mossad. Nevertheless, if governments refuse to accept this responsibility, and if we as citizens of the world refuse to hold all violations of international law to account, we may all find ourselves caught between governments and militants who both share equal disregard for our human rights. In conclusion, when we consider that stockpiles of weaponised and surveillance drones will soon be flooding skies around the world, a future without firmly established human rights is truly one worth fighting to avoid.