CHAPTER 4 ASSESSMENT OF THE ADEQUACY OF IHL IN REGULATING THE
4.2 Drone Warfare Challenges
4.2.1 Drone Warfare Challenges and the Fundamental Principles of IHL
4.2.1.5 Distinction
Firstly, it must be noted that drones may also offer a viable means of abiding by the principle of distinction. Sehrawat488 argues that drones are a superior method of doing so than "boots on the ground", that drones enable militaries to timeously analyse combat situations before striking, and that they provide drone operators with the opportunity to use advanced methods489 of warfare. Drones provide operators with more time to distinguish between civilians and combatants.490 They also have more situational awareness than ground forces, and eliminate the emotional elements that soldiers on the ground face.491 Therefore, one may deduce that drones are capable of being legitimate under the principle of distinction, but could potentially be used in conflict therewith.
One may derive from the discussion above certain conclusions regarding military attacks conducted by drones. Where drones are utilised for armed conflict, for example, they must be capable of differentiating between the peaceful residents of an area (who must be secured against strikes) and armed forces or organised belligerent groups (who may justifiably be attacked).492 This may prove to be a challenging task in practice, especially in circumstances where combatants may intentionally seek to merge with non-combatants.493 Such an intermingling increases the danger of a lawful attack erroneously being launched against non-combatants and causing excessive and unwarranted loss of life.494
This relates to the so-called ''combatant's privilege", which essentially amounts to a licence to wound or eliminate enemy soldiers and destroy other rival military
488 Sehrawat 2017 JLIA 188.
489 Such as the pattern of life method which enables operators to gather evidence and surveillance footage from the drone itself and from other sources before striking; see Sehrawat 2017 JLIA 188.
490 Sehrawat 2017 JLIA 188.
491 Sehrawat 2017 JLIA 188.
492 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 23.
493 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 23.
494 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 23.
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objectives.495 This implies that a combatant cannot be persecuted for wounding or killing an opponent soldier, but will nonetheless be subject to prosecution where a civilian is slayed intentionally.496 Thus, when a combatant is in doubt as to the status of a potential target, it must be assumed the person is a civilian.497 However, the situation becomes complicated when one considers the possible involvement of ''irregular'' armed forces, such as in the conflicts in Afghanistan and Iraq, which has complicated the issue of combatant status in IHL. For instance, the US has until fairly recently regarded members of the Taliban and Al-Qaeda as unlawful combatants.498 The US now recognises Taliban fighters as combatants, but it is still reasoned that the members of Al-Qaeda, who are generally loosely organised, should not be considered as combatants in terms of the legal definition.499
Another challenge in such cases is the difficulty of determining whether civilians are directly participating in military activities as belligerents, thus forfeiting their right to protection, or whether their participation is voluntary (or involuntary) association or support with militant groups due to the surrounding political and cultural state of affairs.500 In the latter case, such affiliation may not necessarily amount to the forfeiture of protection, and an attack against such civilians may be regarded as illegitimate.501 In several situations, false intelligence may also be fed to armed forces by military informants or gangs, which could have devastating consequences.502
What complicates the matter of unlawful combatants even further is the fact that under IHL there is no recognisable right to target these combatants, because they are regarded as civilians.503 Only when civilians directly participate in the conduct of
495 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
496 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
497 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
498 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
499 For the definition of a combatant in terms of IHL, see para 2.4.2.5 above; Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
500 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 23.
501 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 23.
502 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 23.
503 Dormann 2003 IRRC 72-73.
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hostilities may they be targeted.504 Thus, the issue of direct participation must first be addressed before a drone strike can be launched.505 In the milieu of non- international armed conflicts, it is evident that only individuals who are actively engaged in hostilities or who are members of dissident armed groups may be targeted, but it might be incredibly difficult to identify these targets, since they often refrain from wearing uniforms.506 As a consequence, the analysis and subsequent decision required from a drone operator or in future from an autonomous drone is immensely complex.
As a result, a critical problem which must be solved before a drone strike can be initiated is the question of who constitutes a legal target, and who remains immune from a strike. It seems that what determines the outcome is direct participation in hostilities. Melzer holds, for instance, that the notion of direct participation is descriptive of an individual who does not enjoy immunity as a civilian, but to the contrary does not hold a right to the privilege of a combatant, or to prisoner of war status.507 The author further argues that individuals who are members of armed groups or forces may be targeted at any time.508 Unfortunately, there is no commonly accepted definition of ''direct participation in hostilities''.509 Nonetheless, there is agreement as to the fact that direct participation in hostilities may include only conduct that relates to combat, or conduct which directly provides combat support.510
One may therefore conclude that an armed drone attack against an opponent or terrorist group in all instances will consist of highly nuanced and intricate decision- making. This whole process may be susceptible to immediate and drastic changes in circumstances, which could have the result of the accomplishment of a valid military objective being deemed an illegitimate attack, with unwarranted loss of civilian life.
504 Dormann 2003 IRRC 72-73; Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
505 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
506 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
507 Melzer Targeted Killings in International Law 311.
508 Melzer Targeted Killings in International Law 311-312.
509 Breau "Civilian Casualties and Drone Attacks: Issues in International Humanitarian Law" 118.
510 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston A/HRC/14/24 19.
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Thus, the principle of distinction in effect weighs heavily on the shoulders of an attacker.511 Hence, succeeding in attaining legitimate military objectives with due regard to the principle of distinction becomes an inconceivably difficult task when conducted via drones,512 where minimal or no human decision-making is involved (in cases of human-on-the-loop or human-out-of-the-loop control systems).513
The immense difficulties associated with utilising the distinction principle in this context may as a result lead to ill-considered interpretations, as in the case of the US targeted killing or signature strike method, which allows for drone strikes against persons who are deemed to be or are suspected to be terrorists due to their characteristics, conduct or contacts.514 Methods such as this are not in line with the fundamental principles of IHL. In particular, they contravene the principle of distinction and do not comply with the precautionary principle515 that should be observed in situations of doubt.516