A Step in the Wrong Direction: The EU Parliament’s Drone Resolution

The European Parliament resolution on armed drones that calls, inter alia, for adoption of a common EU position on their use has ignited controversy. In particular, the resolution proffers a number of legal assertions that have been the subject of debate for some time.  Unfortunately, it lacks the legal precision for which one would hope in a pronouncement on such a divisive subject.  For instance, the resolution asserts that allegations of civilian casualties incident to a drone strike obligate States to conduct investigations, but fails to distinguish between the differing human rights and humanitarian law investigatory requirements.  It also seems to suggest that a naked allegation alone triggers an obligation to investigate, which it clearly does not. Similarly, the Resolution emotively highlights Additional Protocol I’s prohibition on attacks with a primary purpose of terrorizing the civilian population despite the absence of any credible evidence that drone strikes have ever had such a purpose as their operational objective.

Perhaps the most curious assertions deal with the geographical constraints of drone warfare.  The resolution offers two.  First, it states that drone strikes “outside a declared war by a State on the territory of another State without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.” Reference to “a declared war” is counter-normative.  The existence of an “armed conflict” depends on the attendant facts.  Irrespective of whether the parties have declared war, once two or more States are engaged in “hostilities,” an international armed conflict (IAC) is underway and the geographical parameters thereof, such as the permissibility of conducting military operations on the enemy’s territory, apply.  Similarly, the existence of a non-international armed conflict (NIAC) is a question of fact based on the participation of an adequately organized armed group and the intensity of the hostilities.

Instead, the situation that raises legal questions is one in which no armed conflict is underway and a State conducts a drone strike against a non-State actor on another’s territory (assuming any “attacks” by the non-State actor are not attributable to the territorial State).  The position adopted in the resolution represents a highly restrictive school of thought whereby either 1) territorial sovereignty reigns supreme over the right of self-defense, or 2) the right of self-defense is unavailable in the face of armed attacks by non-State actors that are not attributable to a State.   Neither position is insensible.  One could argue that the risk of abuse by States is so high that the veil of sovereignty cannot be pierced based solely on a claim of self-defense, particularly in light of the option of resort to the Security Council.  And with regard to self-defense against non-State actors, the International Court of Justice has in the Wall advisory opinion and Congo-Uganda judgment displayed unease with the notion absent attribution of their acts to a State.

Nevertheless, in my view, both positions are flawed; President Obama, former State Department Legal Adviser Koh, and Attorney General Holder have likewise rejected them. With respect to the first, the better interpretation of the extant law is that territorial sovereignty and self-defense must be balanced to best achieve their respective objects and purposes.  This is accomplished through what has now become known as the “unwilling or unable test.”  States may conduct defensive operations, including drone strikes, on another State’s territory, but only when the territorial State is unwilling or unable to comply with its clear duty under international law to ensure its territory is not used as a base for harming the former, and then only to the extent necessary to put an end to that harmful use.   Of course, this standard is subject to abuse; but that risk hardly justifies depriving States of their most fundamental existential right—to defend themselves.  Indeed, it must be cautioned that the EU position would appear to equally bar any form of forceful humanitarian intervention in the absence of an authorizing UN Security Council resolution.

The more difficult question surrounds the second position.  May States conduct self-defense operations, as distinct from law enforcement, against non-State actors?  If not, territorial sovereignty would prohibit extraterritorial drone operations against them except as a matter of law enforcement (an unlikely scenario).  In the aftermath of the 9/11 attacks, it appeared clear that States viewed self-defense as applicable to non-State actors. The evidence includes numerous Security Council resolutions and international military support for U.S. operations on the basis of collective defense.  Further support is found in that fact that while the UN Charter’s Article 2(4) prohibition on the use of force expressly applies to States, no such limitation appears in Article 51’s acknowledgement of the inherent right of self-defense. Despite the International Court of Justice’s cautionary comments on the subject, many States, such as the United States and the Netherlands, continue to publicly maintain the position that States may conduct self-defense operations against non-State actors.  Their views clearly run counter to the position that appears to have been adopted in the EU resolution.

The second geographical restriction propounded by the resolution is that “international humanitarian law does not permit the killing of persons who are located in non-belligerent States.”  Again, the statement lacks the necessary granularity.  If the reference to “non-belligerent States” is meant to refer to neutral States during an IAC, it is clearly wrong. It is true that neutral territory is inviolable, a principle codified in the 1907 Hague Conventions V and XIII.  The quid pro quo of this inviolablility is that neutral States shoulder an obligation pursuant to customary law and, e.g., Article 5 of the Hague Convention V, to ensure belligerent States do not use their territory for purposes related to the conflict.  If belligerent forces (or forces affiliated with a party to the conflict) do so, and the neutral fails to take action to put an end to the offending operations, the opposing party to the conflict may cross into neutral territory for the limited purpose of putting an end to the offending activities.  This customary law right has been recognized in, for instance, the U.S. Commander’s Handbook, the San Remo Manual, the HPCR Air and Missile Warfare Manual, and the Tallinn Manual.

If the resolution’s reference to non-belligerent States is interpreted as alluding to the territory of a State not involved in a particular NIAC, the question is whether drone operations may be conducted in that territory.  The answer requires a bit of humanitarian law surgical analysis.  There is an on-going debate about whether IHL applies outside the State involved in a NIAC.  One view is that it does not, although that interpretation appears to be losing velocity.  A second position, advocated by the ICRC, is that IHL applies in cross-border areas into which a NIAC’s hostilities have spilled. A third, for which I have expressed support, maintains that the reach of IHL is dependent on party status, not on geography.

But this debate is about the law that applies to the conduct of extraterritorial operations (humanitarian law v. human rights law), not about whether the forces involved have a legal right to be there.  In other words, it concerns the issue of whether an individual or object is the lawful target of a drone strike, not the lawfulness of the drone operating at a particular location.  The latter question is answered by resort to precisely the same law outlined above since it is a jus ad bellum rather than a jus in bello matter.  The issue is violation of another State’s territory.  Therefore, the drone operation, at least its presence at the location of the strike, is lawful if 1) the territorial State has consented; 2) the Security Council has authorized the operation of which the strike is a part; or 3) it is conducted pursuant to its right of self-defense in a situation in which the territorial State is unwilling or unable to take action to ensure its territory is not being used by armed groups to conduct attacks.

As I have argued elsewhere, the drone debate is finally maturing.  In particular, reports by UN Special Rapporteurs Christof Heyns and Ben Emmerson, including Emmerson’s most recent report, are marked by particular sophistication.  The EU resolution is, by contrast, a step in the wrong direction. 

About the Author(s)

Michael Schmitt

Chair of Public International Law at the University of Exeter Law School in the United Kingdom, Charles H. Stockton Professor at the U.S. Naval War College’s Stockton Center for the Study of International Law, Francis Lieber Distinguished Scholar at the U.S. Military Academy at West Point, Director of Legal Affairs for Cyber Law International Follow him on Twitter (@Schmitt_ILaw).