By Sakshi Pawar/ Rishika Mendiratta*
The legality of drone attacks has been a hot topic and a subject of countless debates in international law. US has time and again been accused of using the predatory drones to the disadvantage of the other non-state and state thus raising the question of fairness, proportionality of these attacks. The countries which are being subject to the attack have often questioned the ease with which a man sitting on the other side of the globe can destroy several lives without having to face the danger or the repercussions that come with putting your own troops in battle. The victims of such attacks have questioned the morality and cowardice portrayed by the US in deploying such predator drones. It began with the killing of Anwar Al- Awlaki who was a high ranking Taliban militant. He was the first American citizen killed abroad by drones and this sparked outrage and various debates in the past few years and the clash points have been based on two principles, jus in bellum and jus ad bello.
Jus ad bellum governs the legal justification of the use of military force including drone strikes, by one state against another and against armed non-state actors in another state without that latter state’s consent. Jus ad bellum is a pre-condition for analysing whether the country can resort to the use of force in the existence of an armed conflict. Armed conflict is understood as being something solely related on the facts on the ground, having no relation of any sorts to the political declaration of war.
Under Article 51 of the UN charter it is stipulated that nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. The Caroline paradigm enumerates two prerequisites of self-defence. The first that there should be extreme necessity of self- defence and second the act taken in pursuance of the same is proportional. For example the necessity of drone attacks in Pakistan and Yemen can be justified on these grounds as these terrorist outfits have their safe havens in these countries from where they infiltrate, and other countries engaging in cross border violence such as in Afghanistan or plan large scale attacks from these countries. In addition drones attacks satisfy the condition of proportionality as the anticipated collateral damage is lesser than the anticipated military advantage. The targeted strikes by all means lessen the civilian casualties by narrowing on the focus of attack.
Besides the argument that drone attacks constitutes anticipatory self –defence has been vindicated by the UN itself which has provided for self-defence against anticipated attacks. The same principle has also been discussed in the Caroline case which has enshrined the legality of the same. The use of self-defence is justified against non-state actors like AL-Qaeda, because it is an organized group and the acts committed by them are more than just frontier incidences and these attacks by them have led to the death of thousands of people since 1992.
After having dealt with issues of jus ad bellum which deal with the lawfulness of this drone program itself we now move on to proving and understanding jus in bello, which as per the ICRC and International Humanitarian Law is the “is the law that governs the way in which warfare is conducted.”  It will deal with the rights of war victims and the measures that have been imbibed in IHL for their protection irrespective of which party it is that these people belong to. The fundamental principles are those of
- military necessity
- now being added to the list, the principle of humanity.
Article 52 of Geneva Protocol I requires that armed attacks in wartime be do with military objectives and offer a definite military advantage. A strict military advantage lies against terrorists in Afghanistan against whom these drones are deployed as they pose a grave threat to the security of both the country in which they are residing and countries like the United States. The need for a definite military advantage would imply that the absence of these attacks would lead to a grave disadvantage in countries the states itself may be unwilling or unable to suppress the threat. Let us take the example the death of the 5 militants due to a drone strike in Datta Khel area of North Waziristan on 6th August, 2015(they were involved in the Peshawar School Attack and also the Pakistan Airport Terrorist Attack) in this particular case is a definite military advantage as the building belonging to the Haqqani network was taken down. Looking at the bigger picture, it is also important to remember that taking down a group of terrorists belong to a greater network does not necessarily stop the functioning of the terrorists for long and nay defeat this aspect of military advantage.
The principle of distinction takes into account
- if the distinction between the civilian population and combatants, and between civilian objects and military objectives is maintained,
- if the attacks are indiscriminate?
When it comes to the first question, attackers are not prohibited from attacking a legitimate military target with civilians or civilian objects in proximity as long as “weapons [are] aimed individually.” Drones have now acquired sophisticated technology capable of distinction and it cannot be condemned by this principle. The ICRC limits the targeting of combatants only at the time when they are taking part in hostilities so as to prevent arbitrariness with regards to them getting hurt. However the real problem in this case is that the belligerents themselves do not want to be distinguished and have avoided this by dressing up and acting as civilians by day and taking part in hostilities at another time when they are difficult to find. The US states that they not be allowed to take the best of both worlds and is forced to step out of these limitations and take actions. Additionally, attacks are not done indiscriminately if they are done with “constant care” and by taking “tall reasonable precautions” as per Article 57(1) and (4) of AP I, to avoid hurting or damaging the civilian population or objects respectively.
The principle of proportionality has been ingrained in Article 51(5) of AP I which prohibits “attack[s] 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.” Harold Koh, Legal Adviser of the Department of State has stated in in his speech in 2009: “In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.” The reassurance given by Harold Koh is quite questionable as has been seen and voiced by several residents in Pakistan and Afghanistan where reports of indiscriminate and arbitrary bombings are more heard of than the military advantage that they seek to pose. Additionally, it is a very subjective decision as to how many lives of innocents are worth killing that of these terrorists, as of now it is the US who has been the judge of this matter.
A relatively new principle has been introduced as a capstone to the aforementioned three principles which is the principle of humanity. Article 23 of Hague IV prohibits parties from employing material calculated to cause unnecessary suffering. The argument that has been posed by the US is that drone attacks as compared to most other military strategies do minimize suffering and seem like the ideal weapon for this particular kind of war, but as has been stated previously the US has been the judge of this matter and the opinion as to whether the weight of the argument does lie in their favor will vary from person to person.
In conclusion, there can be no concrete decision as to the legality or the illegality of the operations. It is usually assumed due to the covert nature of the CIA operations that they do not satisfy these principles. On the other hand, it must also be considered that secrecy being the essence of the attacks without which they cannot function, lack of complete proof of legality does not inherently render the operation illegal. If the CIA were to release details of its procedure it would most likely not be able to complete its purpose. The essential principles that really end up being a determining factor here are the principles of necessity and proportionality. Necessity lies in the favor of the US as drone attacks on terrorists are sometimes situated in countries where the governments will not deal with their operations which forces the US to protect its citizens and step up to take control of it. Proportionality or the lack of it is a very subjective argument and it is this loophole that allows the US to use predator drones in these countries.
*(Sakshi and Rishika are pursuing law from Gujarat National Law University. Their essay titled “Legal Encryption of Deceptive Drones” won the First Hidyatullah National Law University International Law Essay Competition. They can be contacted at email@example.com and firstname.lastname@example.org)
 IHL and other legal regimes – jus ad bellum and jus in bello, international committee of red cross (2010), available at https://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm.
 Ryan J. Vogel, Drone Warfare and the Law of Armed Conflict, 1 Denver Journal of International Law and Policy 39, 103 (2010).
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8 1977, art. 52(2).
5 IANS, Five killed in US drone strike in Pakistan, (Aug 7, 2015, 02.17 AM IST, http://timesofindia.indiatimes.com/world/pakistan/Five-killed-in-US-drone-strike-in-Pakistan/articleshow/4838 3383.cms; Agence France-Presse, US Drone Strike Kills 5 Militants in Pakistan, (August 06, 2015 23:54 IST), http://www.ndtv.com/topic/us-drone-attack.
 Roy Gutman & Daoud Kuttab, CRIMES OF WAR pp. 195–97 (Roy Gutman & David Rieff eds., 1999).
 Harold Koh, Legal Advisor, U.S. Dep’t of State, Keynote Address at the American Society for International Law Annual Meeting: The Obama Administration and International Law (March 25, 2010), http://www.state.gov/s/l/releases/remarks/139119.htm.