In my first article examining the legality of assassinating
known or suspected terrorists through the use of unmanned armed vehicles (UAVs),
I argued that the first step is to decide whether such killings could be
classified as part of an armed conflict.
If they are considered as part of an armed conflict, according to
international law, the rules of armed conflict would apply; otherwise the laws
of self-defence would be relevant.
According to the Geneva Conventions and customary
humanitarian law, armed conflict only applies when two or more States are
involved. When the United States defines
its campaign against terrorists as a global conflict, this designation is not
based on the correct definition of war as characterized by international law but
on America's own interpretation of its effort to eradicate terrorism. Only two or more States can legally, in the
strictest terms, engage in war, not a State against individuals scattered
around the globe.
The international laws relating to self-defence apply to the
case where a State is seeking to protect itself from a group or groups of
terrorists. The laws of self-defence are
articulated in the seventh chapter of the United Nations Charter. In Chapter 7, Article 51, it states that:
"Nothing in the present Charter shall impair the inherent right of individual
or collective self-defence if an armed attack occurs..Measures taken by members
in the exercise of the right of self-defence shall be immediately reported to
the Security Council and shall not"affect the authority or responsibility of
the Security Council"to take such action"to maintain or restore international
peace and security."
In analyzing this clause in the UN Charter, the overriding
issue is whether this right of self-defence only exists if an armed attack has
occurred or whether self-defence is legitimate under conditions of
"anticipatory self-defence" or "pre-emptive self-defence".
A precedent exists in customary law in the Caroline case
which established that an "imminent threat" exists when it is "instant,
overwhelming, and leaving no choice of means, and no moment for
deliberation." Developed by Daniel
Webster, these criteria legitimize the use of force in the absence of an act of
There is an extensive body of work seeking to define when
the use of force is legitimate given an imminent threat including the argument
that: "The rule does not actually require an attack to be imminent to act, but
rather permits defensive measures to be taken before one passes a point in time
when it is too late to prevent catastrophe.
It is difficult to argue that the threat extended by a
single or group of terrorists poses a threat to the security of the United
States. It could be argued that
terrorist poses a threat to individuals or to property belonging to the United
States in which case criminal law applies and the response requires police
action not an armed attack by a State.
A further point reinforcing the argument of a police action
is that these targets of drone attacks are suspects until due process condemns
them for criminal acts. Killing the
suspect precludes the application of due process.
It is clearly evident that for a State to launch an attack
by an UAV is a violation of international law and those responsible for such
acts become suspects of war crimes.
Arbitrary killing of individuals around the world notwithstanding the
justification cannot be in accordance with the rule of law under which certain
norms of behaviour have been established for the treatment of individuals
suspected of illegal acts.