Drone Warfare and Disproportionate Civilian Deaths: A Commentary
The use of drones (or unmanned aerial vehicles –UAVs) is a dangerous weapon of choice for the developed countries, particularly the United States of America, the United Kingdom and their allies, in international armed Conflicts (IAC) or non-international armed conflicts (NIAC) whether declared or undeclared. Similarly, medium and small powers (Israel, Saudi Arabia, and Yemen, amongst others) have also used drones even under unprovoked circumstances. Use of armed drones in IAC or NIAC, like other lethal weapons of war, is regulated by International Humanitarian Law (IHL) including customary international law and general principles of law.
A drone can be deployed quickly, from a faraway distance, and retained in the air for long periods of time, and used to lethal effect against targeted and untargeted individuals, often in foreign countries considered enemy territories or states harbouring terrorists. Drone strikes routinely result in the killing of some combatants, non-combatants, but mostly women, children and unnecessary destruction of civilian objects. The United States has used armed drones to carry out targeted and signature strikes against known, unknown or suspected ‘terrorists’ and alleged insurgents or hostile elements.
The United States and its allies have used drone strikes in Kosovo, Afghanistan, Iraq, Pakistan, Yemen, Somalia and several other countries. Israel, on the other hand, has used drones in Palestine, Syria and Lebanon, while Saudi Arabia and Yemen (the Houthis) have used drones against each other. The use of drones has exponentially increased and other countries are observing the developments with keen interests are more likely to use it against their enemies, real or perceived whenever opportunity arises.
As of June 29, 2016, according to US Department of Defence Casualty Website, there were 4,424 total deaths (including both killed in action and non-hostile) and 31,952 wounded in actions (WIA) as a result of Iraq war. The term “non-hostile” is a euphemism for civilian deaths. The numbers of civilian deaths in Somalia, Afghanistan or Syria resulting from drone strikes are unknown but many independent observers believe that many women and children are often killed in drone attacks in such unlawful attacks.
Advocates for drone warfare argue that use of drones is cost-effective, and has lower risks to life for those using them compared to man-piloted aircrafts or ground forces. Drones launched at great distances and sometimes beyond the theatre of war or in counter-insurgency operations guarantees that those who operate drones from their far-away bases are always safe and face no risks. The proponents of the use of drone maintain that it is effective deterrent and compared to deploying forces on the ground and in a foreign territory, it minimises civilian casualties and reduce further risks.
Critics of drone warfare point out that local civilian population are often killed with the result that done strikes tend to alienate potential allies, serve as recruiting agents for insurgent movements and terrorist networks. Victims and survivors of drone attacks often resolve to fight back by all means necessary, including use of suicide bombs carried and detonated by young boys and girls most of whom are brainwashed to believe that they shall become martyrs and go straight to heaven.
Both proponents and opponents of drone warfare have generally avoided discussions on whether drone strikes are legal or ethical. Much of the discussions have focused on the political aspect of drone warfare and its effectiveness. In this brief commentary my submission is narrowly focused on whether civilian deaths arising from drone strikes is justified; and whether the high levels of civilian casualties meet the criteria for proportionality as regulated IHL, customary international law, general principles of law, whether used in IAC or NIAC.
2. Doctrine of Proportionality
The concept of proportionality is one of the many doctrines in IHL that is problematic to determine and apply in IAC or NIAC. The principle is embedded in Additional Protocol II of 1977 to the four 1949 Geneva Conventions, and in particular Article 4 which refer to provisions on Fundamental Rules of Humane Conduct as well as in Common Article 3 which belligerents are obliged to respect under all circumstances. While the provisions generally apply to NIAC, legal scholars concur that it has now attained the level of customary international law and therefore applicable to all armed conflicts, both declared and undeclared wars.
A definition of proportionality, in a legal context, has a plethora of challenges. The word ‘proportion’ (from the Latin word proportione) means “according to each part.” It can also mean “balance, symmetry, corresponding in magnitude or intensity.” However, ‘corresponding’ is not the same as ‘equivalent’, rather, the noun and adjective proportional deals with relationship among parts. The word ‘proportionality’ as used in the IHL therefore tends to mean different things to different combatants, commanders and military strategists. To that extent, there appears to be a wide margin of appreciation in agreeing on proportionality of a response to an enemy ‘attack’ or a military ‘operation’ by the opposing combatants.
The doctrine of proportionality is closely related to that of military necessity. In both doctrines, the question whether an act implies illegal use of force, aggression or intervention is often a question of fact. There are limited opportunities for assessing a situation by an impartial entity and, even in cases where such examination is available, political considerations may override legal arguments. Therein lays the challenges of agreeing to a set of facts that are deemed proportionate or disproportionate to a response against a belligerent in a given situation. There are, however, a number of factors which, at least in the opinion of the acting party in armed conflict situations, may legitimise forceful behaviour which, if it were not for these factors, would be clearly illegal in IHL.
To inflict physical or psychological harm may be justified only in so far as it is really necessary to attain the military advantage intended. Thus, necessity and proportionality of the means employed become conditions of the lawfulness of the use of force or specific weapons, in this particular case, use of armed drones. However, weapons that cause superfluous injury or unnecessary suffering are prohibited and not justified by military necessity or considered proportionate. Injuries can only be ‘superfluous’ either if they are not justified by any requirement of military necessity or if the injuries normally caused by the weapons or projectiles are manifestly disproportionate to the military advantage reasonably expected from the use of the weapon. The question posed then is: Are drone attacks manifestly disproportionate to the military advantage expected?
There are, to that extent, two conditions to be met. The first condition will only rarely be the case, since the intended injuring serves a military goal, namely the neutralization of enemy combatants or military material. The second condition will only be fulfilled if the weapon is at least relatively superfluous – which requires a comparative judgement as to how much suffering various weapons cause and whether alternative military means could achieve the same results with less suffering.
3. Challenge to the application of the doctrine of proportionality
To address the questions of ‘superfluous’ and ‘suffering’ creates another challenge to understanding the doctrine of proportionality because the notion of ‘suffering’ is not quantifiable under a medical perspective since the notion is defined according to psychological criteria. Accordingly attempts have been made to find alternative formulae, which are more accessible to technical use, and recent terminology favours the more objective term of ‘injury’.
The traditional notion of ‘unnecessary suffering’ means essentially the same, namely a physical or emotional impairment which cannot be justified by military necessity and therefore disproportionate. To this extent it is a concept which enables the effects of various methods of warfare to be compared, and as well to question the military usefulness of a weapon in relation to its adverse consequences on those affected by it, for example, use of the so-called ‘smart bombs’ or ‘drone strikes’ that end up killing more civilians, including women and children, than the intended military objective.
The doctrine of proportionality is often referred to in relation to ‘indiscriminate attacks’ that result in the death or injury of civilians, including women and children. The practice of ‘area bombardment’ being defined as bombardments which combine a number of clearly separate and distinct military objectives located in a built-up area and treating them as a single military objective was common practice during the Second World War. This practice has recently been used by the United States in Afghanistan and Iraq, and by Israel in Lebanon. This military practice has always, without exception, resulted in the death and injury of many civilians, although the offending States regularly argue that the said practice is legal.
State practice, since the Second World War has not demonstrated its willingness to accept prohibition of ‘area bombardment’. To that extent, the scope of the principle of proportionality is relevant when considered in the context of Second World War atrocities and contemporary State Practice. As a general rule, if collateral damage is likely to affect the civilian population as a consequence of an attack, the anticipated damage must not be excessive in relation to the intended military advantage.
The scope and extent of all collateral damage resulting from ‘attacks’ are measured on the yardstick of proportionality of the intended target vis-à-vis the civilian population. Similarly the resulting effects of military ‘operations’ is measured proportionate to civilian deaths or injury. Collateral damage which inevitably occurs on the occasions of nearly every attack is justifiable only in so far as losses of the enemy civilian population are commensurate with military advantage which the operation sought to achieve.
In principle, the above proposition sounds reasonable. However, in practice, and considering that the concept of military necessity and proportionality are loosely defined, including the fact that the doctrines are open to subjective determination by the offending combatants; it has not always provided effective restraint on combatants with the result that civilians are not sufficiently protected and many civilians continue to be killed by combatants.
Combatants continue to enjoy considerable margins of actions in times of armed conflicts because objective standards for the appraisal of expected collateral damage and the criteria for assessing the intended military advantage are virtually non-existent. In practice, it is the military commander or an officer responsible for planning the military operation who are the individuals in positions to know best the possible results and repercussions on the civilian population, to assess the consequences of the operation and to determine its proportionality.
On the other hand, these military commanders are interested parties and their primary responsibility is to protect soldiers under their respective commands. Yet, the final responsibility remains in the hands of these partial military commanders and strategists and political leaders who very often act only on the basis of the information available to them at the time of the decision. The result is that as facts on the ground change, and the military planners may not have the new information, it becomes increasingly likely that civilians will be killed and the debate on whether the military action was proportionate or disproportionate will last for just a while until the next big massacre of civilians.
Besides, as combatants with their own military agendas, it becomes highly questionable whether they can objectively balance military necessity against civilian casualties and reasonably conclude that civilian deaths was proportionate or disproportionate to the military objective to be achieved.
There is yet another problem in determining what types of military acts may be considered proportionate. In practice, civilians and civilians objects may be within or near military targets. Thus, such circumstances may involve combatants and civilians, military objects or installations and civilian settlements; industrial plants, and infrastructure installations of dual use – that is, installations used for military and civilian purposes, being within, or located in the same areas or close to the others.
Such a complicated mixture of objects, however, not only makes it difficult to meet the requirement of distinction, but also makes it likely for military attacks to result in collateral damage. To prevent excessive losses and damage to the civilian population becomes a logistical military nightmare and extremely difficult in such situations, unless the adversary takes it upon himself to ensure a certain minimum separation between military objectives and civilian objects alongside the civilian population.
An additional challenge is imposed on the combatant attacker if the opposing side in the armed conflict uses the civilian population to shield military activities, whether by transferring parts of the civilian population deliberately to military installations, or by calculatedly establishing military objectives among the civilian population and civilian objects, a common example of which is sub-contracting in the armament industry.
While these practices are wrong, and probably unlawful, however, violation of international legal obligation by the adversary does not exempt the combatant attacker from his legal obligations with regard to extending reasonable and legitimate protection to the civilian population. To comply with the law while the other party to the armed conflict violates it, imposes on the combatant attacker extreme difficulties of justification, without having the alternative of accepting a higher level of collateral damage, if he wants effectively to counter the moves of the other belligerent combatants.
A further challenge relates to the role of civilians who are deliberately embedded into the military organisations of the belligerent, such as workers in arms factories or civilian drivers of munitions transports including engineers working on or repairing damaged military tanks, planes and other military equipments, or as during the Iraq War in 2003 when the United States embedded journalists within its military ranks. There is also a new trend of artist (singers, film starts, and activists) who support war efforts either by donating money, performing or entertaining combatants as encouragement and therefore contributing to the war efforts.
The legal status of these individuals as combatants or civilians has remained ambiguous and unclear. A legitimate question may therefore be asked: does the killing of thousands of workers in an attack on a munitions factory have the same relative value, in terms of proportionality of collateral damage, as the predictable deaths of women and children caused by an attack on a military command centre located in the midst of a densely populated civilian quarter or of a pop star entertaining troops engaged in armed conflicts albeit residing in their barracks or military camps or installations?
Under IHL, the role of the commander responsible for a military operation is not made easier by these uncertainties, although one should not exaggerate demands for exact detail in such a rule. What is required is no more than a sincere effort to cope with the problem of collateral damage, and a proper application of common sense. However, even the application of common sense raises a further problem. Is determining what is, or is not common sense require an objective or subjective test? Who measures the sincerity of the efforts of the application of the law and further what criteria is to be used? Whose common sense is the yardstick for measuring the sincerity of the efforts of the application of the IHL?
Contemporary practice suggests that combatants usually focus on narrow self interests and especially where civilians are usually enemy civilians and not their own nationals, the test appears to be not only flexible but selective as well.
It is persuasive to argue that the IHL is dependent on an inherent sense of, and respect for, humanity, whose impulse is to avoid attacks causing catastrophic collateral damage on civilians when the objective is of only marginal importance and violates the principle of proportionality. Unfortunately, this optimistic view of the law is not supported by the drafting history of the IHL, contemporary use of the concepts of collateral damage, military necessity, proportionality and State practice.
The sooner the international community considers adopting a comprehensive legal regime regulating drone warfare the better. At the moment, civilians, civilian population and civilian objects enjoy very little or no protection in drone warfare.
- Obote Odora, LLM, LLD (Stockholm), Specialist, International Humanitarian Law
 Article 4(1) and (2) of Protocol II on Fundamental guarantees. It provides:
“1.All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect to their persons, honour and convictions and religious practices. They shall in all circumstances be treated humanely without any adverse distinction. It is prohibited to order that there shall be no survivors.
2.Without prejudice to the generality of the foregoing, the following acts against the persons
referred to in paragraph 1 are and shall remain prohibited at any time and in any place
(a)violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(c)taking of hostages;
(d)acts of terrorism;
(e)outrages upon personal dignity, in particular humiliating and degrading treatment, rape,
enforced prostitution and any other form of indecent assault;
(f)slavery and the slave trade in all their forms;
(h) threats to commit any of the foregoing acts.”
 Fleck, D, (1995) The Handbook of Humanitarian Law in Armed Conflicts, (Oxford University Press), at p.115
 Id, at p.178.