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Drone Strikes and Targeted Killings – Legal Geography of War

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Warfare between nations is not a new chapter in the annals of human civilizations. With the advent of technological advancements, they have evolved into new profiles. In the very past, the kingdoms undertook massive battles to conquer territories were armed with spears, swords, and shields. One of the imminent outcomes of such wars was flooded blood pools. 

When men stepped into the modern era, the character of warfare was also upgraded to equip themselves with machine guns, tanks, atom bombs, etc. The latest in this genre of modern warfare is the entry of Bio-wars, armed robots, and drones. Such latest developments in warfare deliver nations two vital advantageous positions; lethal and penetrative to hinterlands. Under the conventional concept of law, there existed legal geography of war. However, with the shift to unmanned systems being the future of warfare, the legal geography of war has widened. 

What are Drone Strikes and Targeted Killings?

The drone was not considered a potential weapon at its inception but the opportunity in turning it into a lethal weapon has proved us wrong. Today, drones occupy the role of trump cards of the nations in internal and external warfare. Drones have been increasingly used as a method to target killings. The conventional methods of counterterrorism and attacks had various demerits as they can cause excessive harm, kill a huge number of innocent cohabitants, casualties to noncitizens and deploy an army at the time of encounter. However, drone strikes surpassed these challenges, as it does not involve human resources, rather a computerized, automated system of defense and surveillance, and the collateral damage was negligent as compared to the former. They are widely used illegally against the international humanitarian and human rights perspectives.

Power nations Countries such as the USA, China, Russia, and even India have incorporated this mode of vengeance in recent years. To attain legitimacy under International law, a targeted killing using drones must successfully pass through a series of interlocking gates that guide the policy decisions of nations. It includes – firstly, it checks whether Article 51 of the UN Charter applies in the present case or not and Whether the striking state has the consent of the host state. Secondly, to check whether there is an armed conflict by checking if violence reaches a minimum level of intensity and duration and is the non-state actor is sufficiently identifiable and organized. Thirdly, does the drone strike meet the International Human Rights Law requirements? (necessity and proportionality) and finally, does the strike meet the International Humanitarian Law requirements? (Distinction, proportionality, humanity, and military necessity).

However, the core concern raised by the NGOs, United Nations, and other institutions is the grave injury induced on the basic human rights of the civilians and even the reputation of a country being tarnished with the unregulated and unlawful frequent strikes. There is significant debate in the international communities on how these drones should be regulated and controversies to be settled to grab them under the ambit of war laws.

When the whole World is a Battlefield – The Legal Geography of War has become a Myth

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The biggest concern of the critics who analyze the impact of drone strikes comes from the sense that these weapons refine the geography of war from the conventional concept such that it divulges an apparent lacuna in the existing laws of war. The early war laws impliedly relied on bounded geography doctrine. The laws of war have inchoate boundaries for where they apply and where the law of everyday life applies. When redefinition of those boundaries occurs through changes in war technologies, then the ordinary law of Criminal/Civil Laws and constitutional provisions might not apply instantaneously instead laws of war might come to play quickly.

Terrorists and other hostile groups don’t stay forever at a point,  rather they are free-floating. Moreover, individual terrorists on missions are on a transit around the world. They strike at vulnerable targets in extraordinarily diverse settings. Today they might be in the USA and on another day in India or anywhere in the globe. Just like in any war the enemy needs to take refuge from the other party, so here the terrorist takes haven in countries that are amicable to them, it may not be a total sovereign state but political geography within a state. Such a population might be either sympathetic or fearful towards this hostile group. 

Similarly, counterterrorism might be mobile. The globally fluid nature of the struggle makes it impossible to define where the law of the land ends and where the law of war takes over. This is an interception point of domestic and international law. This is a very difficult question to answer as they differ from one state to another. A terrorist may be present anywhere. There sprouts the question of the legal geography of war laws. Whether the law applies to everywhere, at any time, to the same extent, and many other rising concerns?

Terrorists might be located anywhere and in fact, are significantly dispersed. Technology has no boundaries but the legal machinery became exhausted to handle the outgrowth of this subject matter. At this juncture, scholars are divided in their opinions. The former strongly supported the geographical concept of law but the latter took a more pragmatic perspective. According to the latter, the proper legal referent is not geography as such but, rather, the “conduct of hostilities.”

What was supposed to be a limited authority to conduct hostilities suddenly turned into a license concerning the conduct of intelligence activities, with no indication of what the limits might be.  When the laws of war, applied in this way, they seem to be nothing more than a lawyerly license. Many of those who were sympathetic to the idea of focused counterterrorism as a legitimate ground for using force, began to seriously consider such war. Hence its law had distinct geography.

The geographical issue is still a debate in the International Community.  Handling target killings and drone strikes under domestic law are redundant. Therefore, international law should set standards in the policy decisions of the nations. Many of these strikes are done on hostilities as an act of defense. Or else by state intelligence agencies with deliberate planning and use of force. It is very important to regulate such conflicts and build a warfare drone system worldwide. Any Strikes outside the territory of the nation should prove jus ad Bellum.

Targeted Killings – A way to Tragic Mistakes

  1. Inadequacy in the investigation procedures about unlawful drone strikes that result in civilian casualties. For instance, many cases have been reported against the US and Afghan government’s failure to recognize and report civilian deaths and casualties, reluctance in collecting evidence in a time-bound manner, and registering cases under violation of laws of war as reported by human rights watch in between November 2017 and April 2018.
  2. Increased human rights violation in the name of counter-terrorism and self-defense strategy of the government authorities disguised as planned conflict. Thus, target killing turns out to be a tragic mistake in the wake of the civilians affected.   
  3. The lacunae of legal geography to regulate drone warfare as there are no boundaries to the crimes committed and the scope of targeting is challenging.
  4. Increase in global terrorism on the verge of false attacks by the administrations and investigation authority. 
  5. The shift in the trend of detaining the offenders to complete elimination of such terrorist groups through armed drones and other technologies to maximize political penetration. The rights of the accused are also neglected by such acts of counter killings. Though the object to curb terrorism is only transient. Target killing is just an altered version of the death sentence. The only difference is that trial is not held in the former which further deteriorates the situation.
  6. Under International Humanitarian Law, War laws, and International Human Rights use of armed drones and other lethal force can be used only in dire necessity. Due to the inconsistency in law and policy, they are used often.
  7. Scattering of areas of hostility and terrorist groups as they are continuously observed by the authority. This can worsen the conflict as the terrorist groups become invisible and targeting is hindered. 
  8. In Many attacks concentrating on trans-border, the offenders flew to other states. But on many occasions, the armed drones are bombarded in neighboring states without their consent. In such cases, it will lead to conflict between nations. This further worsens if it is in contravention to treaties entered between them.

Thus in this way, target killings can be a way towards tragic mistakes.

From Swords and Shields to Drone and UAVs – Concluding the Discussion

Drone strikes are the new facet of counter-terrorism or self-defense by the nation in a good sense. At the same time, they are used as a lethal weapon of terrorism and disturbance by the scattered terrorist and rebel groups across the world. The greatest challenge in this conflict is protecting sovereignty and preserving the life of the citizens.  Though there is no going back from the current drone warfare, there should be proper regulation and practice in drone warfare.

The drone is licensed to private and government parties in the current setup. Further, the availability of drones at local and black markets through unknown sources triggers further risks.  To put an end to this imminent threat,  nations should align policies and practices. This should be done in consonance with domestic as well as international law. The countries should demonstrate that the use of lethal force as a first resort is restricted to situations of armed conflict. Strikes comply with the law of armed conflict principles of distinction, proportionality, military necessity, and humanity.

The government to maintain peace and order should make the process transparent, accountable and address public panic and anxiety. Adequate remedies should reach out to the civilians harmed in such conflicts at the earliest. For this, there should be prompt reporting and investigation at the grassroots level. There are incidents across the world where many lost lives, as the targeting was unlawful.  A collective step by nations irrespective of the ideologies they stick to should be adopted here.

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