I Have a Drone: The Implications of American Drone Policy for Africa and International Humanitarian Law

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I HAVE A DRONE: THE IMPLICATIONS OFAMERICAN DRONE POLICY FOR AFRICA ANDINTERNATIONAL HUMANITARIAN LAW

ADEDOKUN OGUNFOLU * and OLUDAYO FAGBEMJ*

I. INTRODUCTION

Placards that bore Martin Luther King's pictures captioned with his 'I have adream' clich6 juxtaposed and parodied with placards bearing Barack HusseinObama's pictures captioned 'I have a drone' welcomed the re-elected Americanpresident to Germany in June 2013. 1 This was in sharp contrast to the pop-starcult status Senator Obama the presidential candidate received during his 2008German visit.2 The most prominent signature attribute of the Obama presidencyin warfare is the use of drones. 3 The Obama drone doctrine keeps American bootsoff the ground and unmanned drones rain death on suspected American enemies.4

It has also eroded the promise candidate Obama made in 2008 to restore America'sreputation abroad.5 The Obama administration appropriated $5 billion on dronesunder the 2012 budget and America now trains lesser conventional pilots than the

* (MPHIL (Ife), Senior Lecturer, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria;postdoctoral fellow, (Cornell University Law School).

* ((LLB (Ife), LLM (UCL), BL, Solicitor and Advocate of the Supreme Court of Nigeria, RiversState Ministry of Justice, Port Harcourt, Nigeria.

1 M. Steininger, 'In Return to Berlin, Obama Finds a Cooler Germany', Christian Science Monitor,19 June 2013, available at: http://www.csmonitor.com/World/Europe/2013/0619/In-return-to-Berlin-Obama-finds-a-cooler-Germany (accessed 14 July 2013).

2 J. Izzard, 'Is Obama's Trip a Hit Back Home?', BBC News, Washington, 24 July 2008, availableat: http://news.bbc.co.uk/2/hi/americas/7524556.stm (last accessed on 14 July 2013).

3 P. Bergen and M. Braun, 'Drone Is Obama's Weapon of Choice', 19 September 2012, CNN,available at: http://edition.cnn.com/2012/09/05/opinion/bergen-obama-drone/ (accessed 14 July2013).

4 J. A. Druck, Droning On: The War Powers Resolution and the Numbing Effect of TechnologyDriven Warfare, 98(1) Cornell Law Review (2012): 209 37, at 228.

5 'But his administration's unilateralism and lack of transparency on targeted killings areundermining the connections that were painstakingly built over the past decade, particularlywith Pakistan and Yemen', A. K. Cronin, Why Drones Fail: When Tactics Drive Strategy, 92(4)Foreign Affairs (July/August 2013): 44 54, at 50.

African Journal of International and Comparative Law 23.1 (2015): 106-128Edinburgh University PressDOI: 10.3366/ajicl.2015.0112 Edinburgh University Presswww.euppublishing.com/journallajicl

I Have a Drone 107

ever-increasing number of drone operators.6 Unmanned aerial vehicles or droneshave been developed or purchased by more than forty countries and the mosttechnologically advanced producer of drones, the United States, has deployedlethal hellfire missile armed, Predator drones since 2001, to Afghanistan, later toIraq and other parts of the world, from the command centre in America's Nevadadesert.7 Machines and robots do not have the capacity of humans for rationaldecision making, to conform to the principles of distinction and proportionalityregulating deployment of lethal force in armed conflict: 'The main ethical concernis that allowing robots to make decisions about the use of lethal force could breachboth the Principle of Distinction and the Principle of Proportionality as specifiedby International Humanitarian Law.'8

The use of drones by treaty members of the 1977 Additional Protocol I to the1949 Geneva Conventions, whose Article 36 provides for the prohibition of newweaponry, that falls short of the laws of armed conflict, shows that until sucha prohibition is made, drones are lawful weapons. But their deployment is stillregulated by the laws of armed conflict.9 Nevertheless, American war on terrorhas employed drones in covert operations to kill suspected Al Qaeda operativesin residential areas far removed from theatres of armed conflict, the mandatoryprecondition for the application of the rules of war." Ironically, the Americanmilitary has come to recognise that drone strikes' bloody and devastatinggraphic carnage, wrought upon insurgents excluded from the civilian/combatantbifurcation, fertilises the environment for insurgent germination:11

The long-term effect of drone strikes may be that the al Qaedathreat continues to metastasize. An alphabet soup of groups withlongstanding local grievances now claim some connection to alQaeda, including al Qaeda in the Arabian Peninsula, al Qaeda in theIslamic Maghreb, al Qaeda in Iraq, al Shabab (in Somalia), and BokoHaram (in Nigeria).12

The danger for innocent African civilians is that they may be murdered by acovert drone strike, at the click of a computer mouse on American soil, on anysuspected non-state actor Al Qaeda operative who fortuitously happens to be in

6 B. Gogarty and I. Robinson, 'Unmanned Vehicles: A (Rebooted) History, Background andCurrent State of the Art', 21(2) Journal of Law, Information and Science (2011/2012): 1 34,at 11-12.

7 N. Sharkey, 'Saying 'No!' to Lethal Autonomous Targeting', 9(4) Journal of Military Ethics(2010): 369 83, at 370.

8 Ibid., at 378.9 M. Hagger and T. McCormack, 'Regulating the Use of Unmanned Combat Vehicles: Are General

Principles of International Humanitarian Law Sufficient?', 21(2) Journal of Law, Informationand Science (2011/2012): 74 99, at 89.

10 Ibid., at 93.11 B. Anderson, 'Facing the Future Enemy: US Counterinsurgency Doctrine and the Pre-insurgent',

28(7 8) Theory, Culture & Society (2011): 216-40, at 227.12 Cronin, supra note 5, at 50.

108 Adedokun Ogunfolu and Oludayo Fagbemi

their African locality.13 Robots are still unable to be programmed to interpret thelaws of armed conflict and apply them as humans do.14 Machines and robotsdo not have the capacity of humans for rational decision making, to conformto the principles of distinction and proportionality regulating deployment oflethal force in armed conflict: 'In short, in the harsh reality of war, there areno silver bullet-technological solutions for ethics.'15 America presently rules thedrone world with its cutting-edge, extremely more lethal and smarter unmannedMQ-9 Reaper Plane that can trace the trajectory of footprints in an open field.16In Africa too, as in Germany, the fans of candidate Obama have been made awareof the entirely different world of President Obama. Obama has not lived up to thehuge unrealistic African expectations that an American president with a Kenyanfather would influence a positive change in public governance in Africa. Badgovernance in Africa had led to armed conflicts and resulted in African statesthat do not have the capacity to guarantee security over significant portions oftheir territories. This fact led to the French involvement in Mali's civil war withBritish and American logistics support. An American professor of security studieswho is in support of drone warfare opined on American involvement in Mali that:'Helping French and Malian forces defeat jihadists in Mali by providing logisticalsupport, for example is smart policy, but sending U.S. drones there is not.'17 TheUnited Nations Security Resolution 1973 of 2011, led to a North Atlantic TreatyOrganization (NATO), enforced no fly zone, during the Libyan civil war and theUnited States deployed drones.18 NATO enforced no fly zone quickly assumedan offensive nature: 'In October 2011, a US Predator and a French warplane hittwo vehicles fleeing Gaddafi's home town of Sirte, forcing the convoy to disperse,after which Gaddafi was caught by rebels.'1 9

II. DRONE WARFARE

Modern-day drone technology was created by the United States in 1959, itutilised them effectively during the Vietnam War for intelligence gathering, andit was subsequently rejected by its air force fixated on pilot-ontrolled planes,

13 'The ability to launch missiles differentiates the drones that hover over Afghanistan, Pakistan,and more recently Yemen and Somalia from drones and similar remote-controlled aircraft usedto patrol the US Mexico border and for surveillance by the FBI, DEA, and an increasing numberof local enforcement agents', M. Delmont, 'Drone Encounters: Noor Behram, Omer Fast, andVisual Critiques of Drone Warfare', 65(1) American Quarterly (March 2013): 193 202, at 200

14 R. C. Arkin, 'The Case for Ethical Autonomy in Unmanned Systems', 9(4) Journal of MilitaryEthics (2010): 332-41, at 339

15 P. W. Singer, 'The Ethics of Killer Applications: Why Is It So Hard To Talk About MoralityWhen It Comes to New Military Technology?', 9(4) Journal of Military Ethics (2010): 299 312,at 304.

16 Ibid., at 308.17 D. Byman, 'Why Drones Work: The Case for Washington's Weapon of Choice', 92(4) Foreign

Affairs (July/August 2013): 32-43, at 43.18 P. Adey, M. Whitehead and A. J. Williams, 'Introduction: Air-target: Distance, Reach and the

Politics', 28(7 8) Theory, Culture & Society (2011): 173 87, at 177 8.19 Gogarty and Robinson, supra note 6, at 15.

I Have a Drone 109

but adopted by its army. The first public exposure of American use of remotepilot vehicles was in 1965 when China showed the wreckage of an Americanunmanned reconnaissance plane it shot down over its territory. The Israelisemployed American-procured decoy drones, which were shot down by Egypt in1973 because they were mistaken for bigger fighter jets on infected radar, andthis error created a simultaneous opportunity for real Israeli fighter jets to wreakdestruction and defeat upon Egypt.2"

America has drone bases all over the world and their deployment are mostlycontrolled from its Creech air force base in the American Nevada desert.21Intelligence, surveillance and reconnaissance (ISR) capabilities of drones nowhave an added extremely destructive capability.22 This has whittled down thedistinction and proportionality principles of international humanitarian lawoccasioning in greater civilian women and children casualties.2 3 Americandrones or unmanned aerial vehicles in the twenty-first century's war theatres ofAfghanistan and Iraq have added pinpoint lethal missile deployment capabilityto their traditional reconnaissance and decoy functions. Tim Blackmore's 2005seminal article is one of the most comprehensive articles on the genealogy andcutting-edge technological capabilities of unmanned aerial vehicles.'

Drone warfare aims to blur the laws of armed conflict, and whitewash war'sgruesome and bloody carnage through the distance of drone operators' computerscreens based on American territory, thousands of kilometres away from wartheatres.2 5 An understated fact is the error prone frailty of drone warfare. At thebeginning of the American invasion of Afghanistan, after the 11 September 2001terrorist attacks against America, a Predator drone human operator, in a case ofmistaken identity, 'killed three non-combatants'. 26 Assassination has long been anIsraeli policy employed against leaders of Palestinian liberation movements andthe United States adopted the same tactic against al Qaeda leaders who launchedthe ninth of September 2001 terrorist attacks against it, but targeted killingsis America's preferred lexicon.27 The United States on 8 January 2007, withgunship fire deployed from an American military base in Djibouti, assassinatedseveral suspected Al Qaeda Islamic fighters in Somalia, earlier spotted throughreconnaissance drones.28 In the first decade of the twentieth century, drones havebeen the preferred American weapon for targeted killings of suspected terrorists:

20 W.J. Broad, 'The U.S. Flight from Pilotless Planes', 213 (4504) Science, New Series (10 July1981): 188 90.

21 D. Gregory, 'From a View to a Kill: Drones and Late Modern War', 28(7 8) Theory, Culture &Society (2011): 188 15, at 192.

22 Ibid., at 193.23 Ibid., at 201 3.24 T. Blackmore, 'Dead Slow: Unmanned Aerial Vehicles Loitering in Battlespace', 25(3) Bulletin

of Science, Technology & Society (June 2005): 195 214.25 Ibid., at 205,210.26 M. J. Shapiro, 'The New Violent Cartography', 38(3) Security Dialogue (September 2007):

291 313, at 302.27 D. Statman, 'Targeted Killing', 5 Theoretical Inquiries in Law (2004): 179 98.28 0. Kessler and W. Werner, 'Extrajudicial Killing as Risk Management', 39(2 3) Security

Dialogue (April 2008): 289 308, at 289.


'Since 2001, the USA has been engaged in at least 20 officially acknowledgedtargeted-killing operations in a wide variety of countries, including Somalia,Yemen, Pakistan, the Philippines, Sudan and Iraq.'29

III. INTERNATIONAL HUMANITARIAN LAW

International law has been 'defined as a body of rules and principles which arebinding upon states in their relations with one another' .3 International law wasoriginally applied within great powers of the nineteenth century and their colonieswere not beneficiaries of international law nor international humanitarian lawduring the colonial period.31 International humanitarian law32 is that branch ofinternational law that protects civilians, prisoners of war and the wounded aswell as the sick by limiting the use of violence or deadly force in armed conflictto military objects.33 Accountability for war crimes or the punishment of gravebreaches of the laws of war is a cardinal principle of international humanitarianlaw.34

The dread of the proliferation of certain deadly and extremely powerfulweapons has been the major motivating factor in the development of weaponstreaties and the subsidiary factor of humanitarian considerations came to the foreduring the drafting of the 1997 Ottawa Treaty, which prohibited antipersonnel landmines.35It is pertinent to remember the distinction in international law between theright to go to war termed jus ad bellum36 and the actual regulation of war itselftermed jus in bello.37 This paper relates majorly with the concept of jus in bello

29 Ibid., at 290.30 J. Dugard, International Law: A South African Perspective, Juta & Co. Ltd (2004), p. 1.31

In the nineteenth century, international law was thought to apply mainly to the Great Powers-Britain, France, Russia, Prussia (then Germany), the Austro-Hungarian Empire, and (maybe)Italy, Japan and the United States later joined the list. The many other countries of the world,especially those in regions where there were no formal states in the Western sense, weregiven either second-class status or no status at all.

E. A. Posner, The Perils of Global Legalism, The University of Chicago Press (2009), p. 96.32 'It is common practice to refer to the Geneva Conventions and Protocols as international

humanitarian law. This appellation underlines the humanitarian motives that impelled theinternational community to adopt them', Y. Dinstein, Human Rights in Armed Conflict:International Humanitarian Law, in T. Meron (ed.), Human Rights in International Law: Legaland Policy Issues, vol. II, Clarendon Press (1984), p. 345, pp.345-6.

33 http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/humanitarian-law-factsheet/$File/What isIHL.pdf (accessed 20 August 2012).

34 Articles 49 52, Geneva Convention for the Amelioration of the Condition of the Wounded andSick in Armed Forces in the Field; articles 50 3, Geneva Convention for the Amelioration of theCondition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12August1949; articles 1 land 85 Additional Protocol I of 8 June 1977 to the Geneva Conventions of 1949.

35 T. Meron, 'The Humanization of Humanitarian Law', 94(2) The American Journal ofInternational Law (April 2000): 239 78.

36 R. Wallace, International Law, Sweet & Maxwell (1997), p. 248.37 Ibid., p.272.

I Have a Drone 111

and tangentially to the concept of jus ad bellum,38 which has become confined tothe chapter VII mandate of the United Nations Security Council.39

Present-day international humanitarian law has been dominated by itsneutralisation through the pick and choose philosophy of relevant treatiespractised by the sole super power, the United States of America, via the 2001 to2008 controversial war on terror of the President Bush regime.40 President RonaldReagan had earlier decided that the United States would not ratify AdditionalProtocol I of 8 June 1977 on international armed conflicts to the 1949 GenevaConventions, which impacts on the points made in this section.41 A most notoriousexample is the Article 98 agreement clause of the International Criminal Court thatthe American government has signed with weak and dependent states to preventthe prosecution of American soldiers for war crimes, except on American soil.

42

The war on terror does not respect sovereignty as evidenced by the Americanoperation authorised by President Barrack Hussein Obama on 1 May 2011 thatkilled Al Qaeda leader, Osama Bin Laden in Abbottabad, Pakistan.

Africa suffered from Al Qaeda coordinated, Kenyan and Tanzanian attacks in1998, and it still currently suffering from terrorist attacks in Somalia, the Sahel andSahara regions of Africa. 43 Nigeria, from 2010 to 2014, suffered from numerousterrorist bomb attacks in its northern part. The African Union condemned thespate of bomb attacks carried out on 24 December 2010, in Jos and Maiduguritowns of northern Nigeria.44 Hence, the prevalence of armed conflicts in Africa,has led to investigations by the International Criminal Court. It is also importantto note that the Rome Statute of the International Criminal Court can only exercisejurisdiction over natural persons and not over legal persons such as corporations 4 5However, directors of companies can be prosecuted under the doctrines of joint

38 'After 9/11, countless scholars and statesmen have called for changes in the jus ad bellum, thelaw governing resort to force, or the jus in bello, the law governing the conduct of hostilities',R. D. Sloane, 'The Cost of Conflation: Preserving the Dualism ofJus ad Bellum and Jus in Belloin the Contemporary Law of War', 34 Yale International Law Journal, (2009), at 47, 49.

39 Articles 39 51, especially 41 and 42 of the 1945 United Nations Charter, see full text at:http://www.un.org/en/documents/charter/chapter7.shtml (accessed 7 October 2012).

40 P. Fitzpatrick, 'Gods would be needed ... ': American Empire and the Rule of (International)Law', 16 Leiden Journal Of International Law, (2003): 429 66.

41 J. Kyl, D. J. Feith and J. Fonte, 'The War of Law: How New International Law UnderminesDemocratic Sovereignty', 92(4) Foreign Affairs (July/August 2013): 115 25, at 123.

42 A. T. Guzman, How International Law Works: A Rational Choice Theory, Oxford UniversityPress (2009), p. 147.

43 Following the US Operation in Abbottabad, the Chairperson of the Commission ofthe African Union Reiterates AU's Commitment to an Enhanced Global Cooperationagainst Terrorism, Addis Ababa, 3 May 2011, http://au.inten/dp/ps/sites/default/files/Press%20release bin%201aden.pdf (accessed 28 October 2011)

44 The African Union Condemns the Terrorist Attacks that occurred in Nigeria, Addis Ababa,26 December 2010, http://au.inden/dp/ps/sites/default/files/PR NO EN 26 DECEMBER2010 PSD THE AFRICANUNIONCONDEMNSTHETERRORISTATTACKSTHAT_OCCURRED IN NIGERIA_0.pdf (accessed 28 October 2011)

45 Article 25(1). The original draft text submitted by the French delegate to the 1998 RomeConference had presented a draft that read:

The Court shall have jurisdiction over legal persons, with the exception of States, when thecrimes committed were committed on behalf of such legal persons or by their agencies or


criminal enterprise and command responsibility.46 This tendency emanated fromnineteenth and early twentieth century American executive actions backed by thedecisions of the American Supreme Court in the 'Insular Cases' .4

The roots of contemporary international humanitarian law can be traced to thepressures mounted by the military brass of European diplomats and statesmen ofthe nineteenth century for the enactment of regulations to govern specific weaponsand methods of waging war.48 The Paris Declaration Respecting Maritime Law of1856 is a prime example and was given birth by French and British preparationfor the Crimea war to persuade Scandinavian countries to stay neutral. RussianTsar Alexander II was also persuaded by his defence minister to sponsor theintergovernmental conference that led to the 1868 St Petersburg Declarationprohibiting explosive projectiles.49

The tension between international law and politics over which field had theexclusive domain of war led to the efforts of humanitarian lawyers to craftrules regulating peace on one hand and those regulating war among 'civilizednations' on the other hand, but under the radar was the just war doctrine thatfizzled out of the equation. The quest by present-day scholars for an unbrokenhistorical progression of law reflects a misunderstanding of the polemics ofthe nineteenth century highlighted above. 5 The foremost publication of theInternational Committee of the Red Cross also propagates the misunderstandingabove in the following words:

International Humanitarian Law (IHL) developed at a time when theuse of force was a lawful form of international relations, when Stateswere not prohibited to wage war, when they had the right to make war(i.e., when they had the ius ad bellum). There was no logical problemfor international law to prescribe them the respect of certain rules ofbehavior in war (the ius in bello) if they resorted to that means. 51

For the purposes of this article paper the following definition of internationalhumanitarian law is apposite:

representatives. The criminal responsibility of legal persons shall not exclude the criminalresponsibility of natural persons who are perpetrators or accomplices in the same crimes.

reproduced in A. Mcbeth, International Economic Actors and Human Rights, Routledge Press(2010), p. 306.

46 Ibid., Mcbeth, p.308, where he gave the example of 12 out of 23 officials of the Farben GermanCompany convicted in 1948 by the United States Military Tribunal at Nuremberg.

47 P. Fitzpatrick, 'Laws of Empire', 15 International Journal for the Semiotics of Law, 2002): at253, 267.

48 D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism, PrincetonUniversity Press (2004), p. 238.

49 Ibid., p.238.50 Ibid., p.41.51 M. Sassoli, and A. Bouvier, How Does Law Protect in War? Cases, Documents and

Teaching Materials on Contemporary Practice in International Humanitarian Law, InternationalCommittee of the Red Cross (1999), p.83.

IHaveaDrone 113

International humanitarian law also called the law of armed conflictand previously known as the law of war is a special branch of lawgoverning situations of armed conflict; in a word war. Internationalhumanitarian law seeks to mitigate the effect of war. First in thatit limits the choice of means and methods of conducting militaryoperations and secondly in that it obliges the belligerents to sparepersons who do not or no longer participate in hostile actions. 2

A. Distinction between combatants and civilians

Soldiers are licensed to kill enemy combatants by international humanitarianlaw.53 This makes some scholars prefer the terminology, laws of war or armedconflict, as opposed to international humanitarian law to govern armed conflict. 4

Nevertheless, soldiers are enjoined to distinguish between military objectives andcivilian objects, as well as combatants from civilians:

In order to ensure respect for and protection of the civilian populationand civilian objects, the Parties to the conflict shall at all timesdistinguish between the civilian population and combatants andbetween civilian objects and military objectives and accordingly shalldirect their operations only against military objectives.5

Soldiers are also mandated to desist from attacking civilian objects:1. Civilian objects shall not be the object of attack or of reprisals.Civilian objects are all objects which are not military objectives asdefined in paragraph 2.2. Attacks shall be limited strictly to military objectives. In so far asobjects are concerned, military objectives are limited to those objectswhich by their nature, location, purpose or use make an effectivecontribution to military action and whose total or partial destruction,capture or neutralization, in the circumstances ruling at the time,offers a definite military advantage. 6

B. Proportionality

The principle of proportionality permits collateral damage or the most minimalincident of civilian deaths which thereby affects the absolute operation of the

52 H. Haug, (ed.), Humanity for all, the International Red Cross and Red Crescent Movement, PaulHaupt Publishers (1993), p. 491.

53 Article 43 Additional Protocol I of 8 June 1977.54 Y. Dinstein, 'The Principle of Proportionality', in K. M. Larsen, C. G. Cooper and G. Nystuen

(eds), Searching for a 'Principle of Humanity' in International Humanitarian Law, CambridgeUniversity Press (2013), p 74.

55 Additional Protocol I of 8 June 1977, article 48.56 Ibid., article 52 (1)(2); see also articles 49 51.


principle of distinction between combatants and civilians.57 This is encapsulatedby article 57 of Additional Protocol (I) of 8 June 1977 to the Geneva Conventionsof 12 August 1949 and in particular sub article 2 paragraph b in the followingterms:

(b) an attack shall be cancelled or suspended if it becomes apparentthat the objective is not a military one or is subject to specialprotection or that the attack may be expected to cause incidentalloss of civilian life, injury to civilians, damage to civilian objects, ora combination thereof, which would be excessive in relation to theconcrete and direct military advantage anticipated.

58

C. Martens clause

This owes its origin to the contribution of Professor Von Martens, the Russiandelegate, at the 1899 Hague Peace Conference,59 which gave birth to the 1899Hague Convention.6" His aim was to address what delegates at the conferencefailed to agree upon, namely the faith of civilians who took up arms againstan invading army.61 Small nations felt such civilians merited the privileges oflawful combatants and hence the guarantees accorded to prisoners of war, but thepowerful imperial states felt that such civilians should be treated as francs-tireursand be summarily executed as they practised in the colonies they had forciblyacquired. Marten's contribution was codified in its preamble.62 The contribution of

57 Y. Dinstein, supra note 54, pp.72 85.58 Full text available at: http://www.icrc.org/ihl.nsf/FULL/470? OpenDocument (accessed 27

August 2012).59 Ticehurst, R. 'The Martens Clause and the Laws of Armed Conflict', 317 International

Review of the Red Cross, (30 April 1997): 125 34. Full text available at: http://www.icrc.org/eng/resources/documents/misc/57jnhy.htm (accessed 27 August 2012).

60 Convention (II) with Respect to the Laws and Customs of War on Land and its annex:Regulations concerning the Laws and Customs of War on Land. The Hague 29 July 1899. Fulltext available at: http://www.icrc.org/ihl.nsf/WebART/150-110001? OpenDocument (accessed27 August 2012).

61 Ticehurst, supra note 59, at R.1.62 'Considering that, while seeking means to preserve peace and prevent armed conflicts among

nations, it is likewise necessary to have regard to cases where an appeal to arms may becaused by events that solicitude could not avert ; Animated by the desire to to serve, evenin this extreme hypothesis, the interests of humanity and the ever increasing requirements ofcivilization; thinking it is important, with this object, to revise the laws and general customs ofwar, either with the view of defining them more precisely or of laying down certain limits for thepurpose of modifying their severity as far as possible; Inspired by these views which are enjoinedat the present day, as they were twenty-five years ago at the time of the Brussels Conference in1874, by a wise and generous foresight; Have in this spirit, adopted a great number of provisions,the object of which is to define and govern the usages of war on land. In view of the HighContracting Parties, these provisions, the wordings of which has been inspired by the desire todiminish the evils of war so far as military necessities permit, are destined to serve as generalrules of conduct for belligerents in their relations with each other and with populations. It has not,however, been possible to agree forthwith on provisions embracing all the circumstances whichoccur in practice. On the other hand, it could not be intended by the High Contracting Parties thatthe cases not provided for should, for want of a written provision, be left to the arbitrary judgment

IHaveaDrone 115

Von Martens in 1899, now known as the Martens clause, influenced the genealogyof the crimes against humanity concept. Von Martens clause is also codified bythe 1949 Geneva Conventions. It is incorporated as articles 63, 62, 142 and 158respectively of the four Geneva Conventions of 1949 as well as article 1(2) ofAdditional Protocol (I) of 8 June 1977 to the Geneva Conventions of 12 August1949, which states that:

2. In cases not covered by this Protocol or by other internationalagreements, civilians and combatants remain under the protectionand authority of the principles of international law derived fromestablished custom, from the principles of humanity and from dictatesof public conscience.

6 3

D. What qualifies as war or armed conflict?

Common Article 2 of the 1949 Geneva Conventions dictates that an armed conflictis the precondition for the application of international humanitarian law or the lawof armed conflict and the law governs the conflict until peace is attained. One ofthe most prominent decisions in international humanitarian law on this concept isthe Tadic case on jurisdiction, rendered by the International Criminal Tribunal forthe former Yugoslavia.'M According to the tribunal:

An armed conflict exists whenever there is a resort to armed forcebetween states or protracted armed violence between governmentalauthorities and organized armed groups or between such groupswithin a state. International humanitarian law applies from theinitiation of such armed conflicts and extends beyond the cessation ofhostilities until a general conclusion of peace is reached, or in the caseof internal armed conflicts a peaceful settlement is achieved. Untilthat moment, international humanitarian law continues to apply in thewhole territory of the warring states or in the case of internal conflicts,the whole territory under the control of a party whether or not actualcombat takes place.

6 5

of the military commanders. Until a more complete code of the laws of war is issued, the HighContracting Parties think it right to declare that in cases not included in the Regulations adoptedby them, populations and belligerents remain under the protection and empire of the principlesof international law, as they result from usages established between civilized nations, from thelaws ofhumanity and the requirements of the public conscience', author's emphasis, Ibid., at R. 1.

63 Full text available at: http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument (accessed 27August 2012).

64 http://www.icty.org/sid/7234 (accessed 7 October 2009).65 The Prosecutor v Tadic case no. 160 ICTY 1995, reproduced in Sassoli and Bouvier, supra note

51, p. 1 16 9 .


E. Are American drone attacks compliant with internationalhumanitarian law?

The United States of America makes the controversial claim that its war on terrorinvolves on-going armed conflicts with Al-Qaeda, the Taliban and associatedforces." If this assertion is to be accepted, then the rules of internationalhumanitarian law are applicable to the war on terror.67 It can be argued, however,that the assumed armed conflict against Al-Qaeda does not extend to the territoriesof the African States of Somalia and Sudan, where there have been Americandrone strikes.68 While it is easy to see the existence of an armed conflict in aplace like Afghanistan, where America already has ground troops, it is difficult tosee the existence of armed conflicts involving America in Somalia and Sudan, asone cannot easily classify one-sided American drone strikes as armed conflict,considering the definition of an armed conflict as 'protracted armed violence'between two or more parties.69 It is also questionable as to whether those targetedin Somalia and Sudan are actually taking a direct part in hostilities to removethem from the protection available to civilians under the Geneva Conventions.70

Beyond these questions, there is the concern about whether American droneattacks have complied with international humanitarian law rules of distinction andproportionality.

The argument has always been that drones are very effective to kill with pin-point accuracy without causing much civilian harm.71 However, the data beingused to reach that conclusion is unreliable, and the American government hasnever provided details of the number of drone strikes or the casualties fromthose strikes.72 In the absence of reliable government statistics, independentorganisations have produced their own reports from media and intelligencesources. The New America Foundation classifies 85 per cent of those killed in

66 H. H. Koh, 'The Obama Administration and International Law', Speech at the AnnualMeeting of the American Society of International Law, 25 March 2010: 7, available at:http://www.state.gov/s/1/releases/remarks/139119.htm (accessed 2 August 2013).

67 Prosecutor v Tadic, supra note 65.68 The Bureau of Investigative Journalism, July 2013 Update: US Covert Actions in Pakistan,

Yemen and Somalia, available at: http://www.thebureauinvestigates.com/2013/08/02/july-2013-update-us-covert-actions-in-pakistan-yemen-and-somalia/ (accessed 2 August 2013); S.Bachmann, 'Targeted Killings: Contemporary Challenges, Risks and Opportunities', Journal ofConflict and Security Law, (2013), 1 30, at 9.

69 N. Lubell and N. Derejko, 'Drones and the Geographical Scope of Armed Conflict',11 Journal of International Criminal Justice (2013): 65 88, at 77 8. See also HumanRights Institute, Columbia Law School, 'Targeting Operations with Drone Technology:Humanitarian Law Implications', Background Note for the American Society of InternationalLaw Annual Meeting, 25 March 2011: 8, available at: http://www.law.columbia.edu/ipimages/Human-Rights-Institute/BackgroundNoteASILColumbia.pdf (accessed 2 August 2013).

70 Article 51 (3), Additional Protocol I of 8 June 1977.71 M. Boyle, 'The Costs and Consequences of Drone Warfare', 89(1) International Affairs

(2013):1 29, at 3.72 Ibid., at 4 5.

IHaveaDrone 117

drone strikes in Pakistan as militants.73 The Bureau of Investigative Journalismclaims that available data from June 2004 to September 2012, suggests that, dronestrikes killed between 2,562 and 3,325 people in Pakistan, of which between474 and 881 were civilians, including 176 children.7 4 The strikes woundedan additional 1,228 to 1,362 individuals, making a collateral harm rate of20 per cent.

7 5

Other serious errors have been made by human drone operators, which high-light the imperfections of drone attacks, with lethal consequences for civilians.In December 2009, over 40 civilians, including women and children, were killedwhen a drone attacked what was thought to be an Al-Qaeda camp in the ArabPeninsula, but which was in fact a Bedouin encampment.76 Also, in March 2011,a drone attack on what was believed to be a group of heavily armed Pakistani mil-itants resulted in 42 deaths, out of which local residents said 38 were civilians.77

However, in the absence of a formula to determine what excessive collateralharm to civilians is, drone operators must aim at reducing civilian casualtiesto the barest minimum. Decisions regarding proportionality of an attack arecontextual and cannot be reduced to a rule determining what should be the ratioof civilian deaths to military deaths for an attack to be disproportionate.78 In thefuture, drones may acquire more autonomy in their operations and might be ableto comply with international humanitarian law better than humans can.7 9 Thatremains to be seen.

IV. AMERICAN FOREIGN POLICY AND INTERNATIONAL LAWThis section is an overview of American foreign policy and how it has shaped itsinterpretation of international law, especially with regards to international humanrights law and international humanitarian law.

A. American foreign policy

'CIA Holds Terror Suspects in Secret Prisons' s was The Washington Post expos6that greatly helped in the passage of the Detainee Treatment Act of 2005.1

73 The New America Foundation, 'The Year of the Drone', available at http//counterterrorism.newamerica.net/drones, (last visited 16 December 2012), cited in M. Boyle,supra note 71, at 5.

74 S. Bachmann, supra note 68, at 27.75 Ibid.76 K. J. Heller, 'One Hell of a Killing Machine: Signature Strikes and International Law', 11 Journal

of International Criminal Justice, (2013): 89 119, at 104.77 Ibid.78 C. Grut, 'The Challenge of Autonomous Lethal Robotics to International Humanitarian Law',

18(1) Journal of Conflict and Security Law (2013): 5 23, at 12.79 Ibid., at 780 D. Priest, CIA Holds Terror Suspects in Secret Prisons, The Washington Post, 2

November 2005, available at: http://www.washingtonpost.com/wp-dyn/contentarticle/2005/1 1/01/AR2005110101644.html (accessed 26 June 2013)

81 Full text of the Act is available at: http://www.dni.gov/index.php/aboutorganization/ic-legal-reference-book-2012/ref-book-detainee-treatment-act-of-2005 (accessed 26 June 2013)


The Act was a pending legislation that barred the United States from meting outto its prisoners in any part of the world 'cruel, inhuman, or degrading treatment' .82Three decades earlier, American journalist Ben Bradlee, in spite of PresidentJimmy Carter's appeal, exposed the King of Jordan as a CIA payroll beneficiary.83At least twenty-four democratic countries possess missile armed drones despitethe myth that democratic countries are averse to war.84 Nevertheless, it worthremembering, that most of the countries that embarked upon the extremely bloodyFirst World War were democratic, Germany, Britain and France.85 The UnitedStates has long espoused a foreign policy to convert other countries to Americanvalues: 'American exceptionalism is missionary. It holds that the United States hasan obligation to spread its values to every part of the world.'86 This tendency hasa long pedigree. Professor Henry Shue reiterated this when he declared that:

The warning against the danger of simply stipulating our own viewas the universal one cannot be repeated too often, especially forAmericans with our tendency to overmoralize international affairs.However, the stipulation of our own view and the passive wait fora globally shared view to emerge on its own are far from the onlyalternatives.8"

American exceptionalism also led it to sponsor cold war proxies againstliberation movements in Angola, Mozambique. From the 1947 massacres ofindigenous Taiwanese by the Kuomintang forces that fled from mainlandChina and subsequent Kuomintang murderous brutal dictatorship of Taiwan,America was its strongest ally in the Cold War.88 American foreign policyunder Henry Kissinger in the 1970s under the cover of checking communism,supported regimes in South Korea, Philippines and Guatemala who tortured,imprisoned and summarily executed huge swathes of political opposition. TheHarkin Amendment/Section 116 on economic assistance and Section 502BAmendment on security assistance to the Foreign Assistance Act were measurestaken by Congress to prevent American support for such murderous regimes.8 9

Nevertheless in the recent past, America continued support for dictators, autocratsand coup d'tats worldwide.

90

82 J. Goldsmith, Power and Constraint: The Accountable Presidency after 9/11, W.W. Norton &Co. (2012), p. 56.

83 Ibid., p. 54.84 E Saner and N. Sch6rnig, 'Killer Drones: The 'Silver Bullet' of Democratic Warfare?', 43(4)

Security Dialogue (August 2012): 363 80, at 36485 H. Kissinger, On China, The Penguin Press (2011), pp. 425 26.86 Ibid., p. xvi.87 H. Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd edn, Princeton

University Press (1996), p. 179.88 E. S. Steinfeld, Playing Our Game: Why China's Economic Rise Doesn't Threaten the West,

Oxford University Press (2010), pp. 218 27.89 Shue, Henry, supra note 87, p. 158.90 J. G. Ruggie, 'Doctrinal Unilateralism and Its Limits: America and Global Governance in the

New Century', in D. P. Forsythe, P. C. McMahon, and A. Wedeman (eds), American ForeignPolicy in a Globalized World, Routledge Taylor & Francis Group (2006), p. 37.

IHaveaDrone 119

President Obama in the first year of his presidency laid down the road map ofhis foreign policy in his 10 December 2009, acceptance speech of the Nobel PeacePrize bestowed upon him:

But the world must remember that it not simply internationalinstitutions-not just treaties and declarations-that brought stability toa post-World War II world. Whatever mistakes we made, the plain factis this: The United States of America has helped to underwrite globalsecurity for more than six decades with the blood of our citizens andthe strength of our arms. The service and sacrifice of our men andwomen in uniform has promoted peace and prosperity from Germanyto Korea, and enabled democracy to take hold in places like theBalkans. We have borne this burden not because we seek to imposeour will. We have done so out of enlightened self-interest-because weseek a better future for our children and grandchildren, and we believethat their lives will be better if others' children and grandchildren canlive in freedom and prosperity.91

President Obama in 2011, in Cairo made additional unfulfilled promises:

And finally, just as America can never tolerate violence by extremists,we must never alter or forget our principles. Nine-eleven was anenormous trauma to our country. The fear and anger that it provokedwas understandable, but in some cases, it led us to act contrary to ourtraditions and our ideals. We are taking concrete actions to changecourse. I have unequivocally prohibited the use of torture by theUnited States, I have ordered the prison at Guantanamo Bay closedby early next year .... Resistance through violence and killing is wrongand it does not succeed. 92

B. America and international law

American exceptionalism in the past also shaped the drafting of the UnitedNations Charter to protect its sovereignty and prevent application of internationallaw to its domestic human rights regime:

In drafting the UN charter, for example, the United States introducedlanguage reaffirming faith in fundamental human rights. But becausethe support of southern Democrats was critical to the charter'sratification by the Senate, the need to keep Jim Crow laws beyondinternational scrutiny obliged the United States to balance that

91 Remarks by the President at the Acceptance of the Nobel Peace Prize, Oslo City Hall, Oslo,Norway, 10 December 2009, http://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-prize (accessed 28 October 2011)

92 Remarks by the President on a New Beginning, Cairo University, Cairo, Egypt, 4June 2009, http://www.whitehouse.gov/the-press-office/remarks-president-cairo-university-6-04-09 (accessed 28 October 2011).


reaffirmation by adding what became Article 2(7). 'Nothing containedin the present Charter shall authorize the United Nations to intervenein matters which are essentially within the domestic jurisdiction ofany state.' No international judgment would be passed, in other words,on so-called separate but equal education for black children or on statelynch laws-under which less than 1 per cent of lynch murderers wereever tried. The United States could vote for the Universal Declarationof Human Rights in the UN General Assembly in 1948 because it wasa statement of aspirations, which created no binding legal obligationsand required no ratification. 93

Henry Shue believes that countries do not deserve sovereignty when theycannot protect their citizens from egregious human rights abuses such as genocidein Rwanda or famine in Somalia, and humanitarian intervention is then justified.94But the danger of humanitarian intervention leads to the slippery slope of regimechange.

1. American war on terror

Regime change shaped America's war on terror from 2001 to 2008 and itwas marked by the doctrine of enemy non-combatant, which the United StatesSupreme Court held President Bush's regime could not use to legislate itself out ofits international law commitments to Common Article 3 protection against tortureof the 1949 Geneva Conventions. This was the case brought by a Yemeni national,Hamdan, who sought Common Article 3 guarantees of a fair trial and protectionfrom torture as well as American Constitutional guarantees of a fair trial. In thejudgment of the Supreme Court of the United States:

Common Article 3 obviously tolerates a great degree of flexibilityin trying individuals captured during armed conflict; its requirementsare general ones, crafted to accommodate a wide variety of legalsystems. But requirements they are nonetheless. The commissionthat the President has convened to try Hamdan does not meet thoserequirement.... But in undertaking to try Hamdan and subject him tocriminal punishment, the Executive is bound to comply with the ruleof law that prevails in this jurisdiction. 95

In 2004, the Supreme Court had held that foreign nationals held atGuantanamo Bay were protected by statutory habeas corpus. 96 But this protectionwas legislatively stripped away by the Bush administration's war on terror.

93 Ruggie, supra note 90, p. 38.94 Shue, supra note 87, pp. 179 80.95 Stevens J. in Hamdan v Rumsfeld, Secretary of Defense, et al., 548 U.S. 557, 635 (2006), full

text available at: http://www.supremecourt.gov/opinions/boundvolumes/548bv.pdf (accessed 25May 2013).

96 Rasul et al. v Bush, President of the United States, et al. 542 U.S. 466 (2004), full text availableat: http://www.supremecourt.gov/opinions/boundvolumes/542bv.pdf (accessed 25 May 2013).

I Have a Drone 121

The Supreme Court in 2008 held that American Constitutional protectionsextended to foreign prisoners held at Guantanamo Bay because of America'scentury old exclusive jurisdiction over Guantanamo Bay.97 The Americangovernment had argued that Cuba still retained sovereignty over Guantanamo Bay,which precluded the extension of American constitutional law.

2. American drone warfareThe American Department of Justice in a leaked memo declared that a memberof a terrorist organisation, who posed a threat of conducting an imminent armedattack on the United States,could be targeted by an unmanned military vehicle(drone) in another country with the country's permission or when the country isunable or unwilling to neutralise the threat.98 This policy also extends to Americancitizens: 'Were the target of a lethal operation a U.S. citizen who may haverights under the Due Process Clause and the Fourth Amendment, that individual'scitizenship would not immunize him from a lethal operation.'99 This position wasconfirmed in a letter dated 22 May 2013, by the Attorney-General to the ChairmanCommittee on the Judiciary United States Senate."10 President Obama on 22 May2013 signed the Presidential Policy Guideline to govern the use of force againstterrorists, which marked a shift away from Central Intelligence (CIA) control tothe military.10 1 The guideline claims to prefer capture and prosecution to killingand targeted killings must only be done when non-combatants will not be injuredor killed:102

Finally, whenever the United States uses force in foreign territories,international legal principles, including respect for sovereignty andthe law of armed conflict, impose important constraints on the abilityof the United States to act unilaterally-and on the way in whichthe United States can use force. The United States respects nationalsovereignty and international law. 103

97 Boumediene et al v Bush, President of the United States, et al. 553 U.S. 723, 799 (2008), fulltext available at: http://www.supremecourt.gov/opinions/boundvolumes/553bv.pdf (accessed 25May 2013).

98 Department of Justice White Paper, 'Lawfulness of a Lethal Operation Directed Against aU.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force',pp. 1 2, available at: http://msnbcmedia.msn.com/i/msnbc/sections/news/020413 DOJ WhitePaper.pdf (accessed 6 February 2013)

99 Ibid., p. 2.100 Full text available at: http://www.justice.gov/slideshow/AG-letter-5-22-13.pdf (accessed 27 May

2013)101 Fact Sheet: The President's May 23 Speech on Counterterrorism, available at: http://www.

whitehouse.gov/the-press-office/2013/05/23/factsheet-president- s-may-23 -speech-counterterrorism (accessed 27 May 2013).

102 U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism OperationsOutside the United States and Areas of Active Hostilities, p. 2, available at: http://www.whitehouse.gov/sites/default/files/uploads/2013.05.23 fact sheet on-ppg.pdf (accessed 27 May2013)

103 Ibid., p. 2.


Nevertheless the guidelines are subject to the President's discretion: 'Reservationof Authority. These new standards and procedures do not limit the President'sauthority to take action in extraordinary circumstances when doing so is bothlawful and necessary to protect the United States or its allies.' 104

President Obama justified the use of drones because civilian deaths were lowerthan conventional conflict and they prevented the loss of American soldiers:

Where foreign governments cannot or will not effectively stopterrorism in their territory, the primary alternative to targeted lethalaction would be the use of conventional military options. As I'vealready said, even small special operations carry enormous risks.Conventional airpower or missiles are far less precise than drones,and are likely to cause more civilian casualties and more local outrage.And invasions of these territories lead us to be viewed as occupyingarmies, unleash a torrent of unintended consequences, (which) aredifficult to contain, result in large number of civilian casualties andultimately empower those who thrive on violent conflict. 105

Professor Christof Heyns, the special rapporteur of the United Nations, onextrajudicial killings, summary or arbitrary executions, declared in 2012, thatdrone attacks carried out in Pakistan, Yemen and other countries by the UnitedStates encouraged other states to violate human rights law and threatenedfive decades of international law post-World War II.106 Professor Heyns notedthat:

The targeting is often operated by intelligence agencies which falloutside the scope of accountability. The term 'targeted killing' iswrong because it suggests little violence has occurred. The collateraldamage may be less than aerial bombardment, but because theyeliminate the risk to soldiers they can be used more often.107

Human rights organisations have classified drone attacks as 'extrajudicialkillings' .10

104 Ibid., p. 3.105 Remarks by the President at the National Defense University, Fort McNair, Washington, DC, 23

May 2013, http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university ; http://www.whitehouse.gov/photos-and-video/video/2013/05/23/president-obama-speaks-us-counterterrorism-strategy (accessed 27 May 2013).

106 Bowcott, Owen, Geneva, 'Drone Strikes Threaten 50 Years of International Law, says UNRapporteur,' 21 June 2012, Guardian, http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un (accessed 27 May 2013)

107 Ibid.108 J. Goldsmith, Jack, supra note 82, p. 14.

I Have a Drone 123

V. THE RESOLUTION OF THE 2011 LIBYAN CONFLICT BY THEAFRICAN UNION AND THE UNITED NATIONS SECURITY COUNCIL

In 2011, 80 per cent of the UN Security Council Resolutions were in respect ofAfrican countries.1"9 Africa also accounts for most of the cases being prosecutedby the International Criminal Court. African governments such as Chad, Kenyaand Malawi have refused to arrest the Sudanese leader, Omar Al-Bashir, againstwhom the Court issued a warrant of arrest. 110 The arrest warrant was issued on12 July 2010 by the Court against President Omar Hassan Ahmad Al Bashir ofSudan for acts of genocide in the Darfur region of Southern Sudan.11 On 27 June2011, the Court issued a warrant of arrest for Saif Al-Islam Gaddafi during the2011 Libyan conflict.1 12 This was pursuant to the UN Security Council Resolution1970 of 26 February 2011 (based on Chapter VII and article 41 of the UN Charter,as well as article 16 of the Rome Statute), which referred violations of the lawsof war under the Libyan conflict 'since 15 February 2011 to the Prosecutor of theInternational Criminal Court'.

113

The Assembly of the African Union seventeenth Ordinary Session held atMalabo, Equatorial Guinea from 30 June to 1 July 2011, in its decision on theimplementation of the Assembly decisions on the International Criminal Court,expressed:

DEEP CONCERN at the manner in which the ICC Prosecutorhandles the situation in Libya which was referred to the ICC by theUN Security Council through Resolution 1970 (2011). The AssemblyNOTES that the warrant of arrest issued by the Pre-Trial Chamberconcerning Colonel Qadhafi seriously complicates the efforts aimedat finding a negotiated political solution to the crisis in Libya, whichwill also address, in a mutually-reinforcing way, issues relating toimpunity and reconciliation. In this regard, the Assembly DECIDESthat Member States shall not cooperate in the execution of the arrestwarrant, and REQUESTS the UN Security Council to activate theprovisions of Article 16 of the Rome Statute with a view to deferringthe ICC process on Libya, in the interest of Justice as well as peace inthe country.

114

109 http://www.un.org/Docs/sc/unsc-resolutions 11.htm (accessed 28 October 2011)110 ' Libya: Gaddafi's son Saif al-Islam in contact with ICC, BBC Africa', 28 October 2011

http://www.bbc.co.uk/news/world-africa-15496608 (accessed 28 October 2011)111 'Situation in Darfur, Sudan In the Case of the Prosecutor v. Omar Hassan Ahmad Al Bashir

("Omar Al Bashir")' 12 July 2010, http://www.icc-cpi.int/iccdocs/doc/doc907140.pdf (accessed31 July 2010).

112 http://www.icc-cpi.int/iccdocs/doc/doc 1099329.pdf (accessed 28 October 2011).113 Para. 4, S/RES/1970(2011), http://daccess-dds-ny.un.org/docUNDOC/GEN/N11/245/58/PDF/

Ni 124558.pdf?OpenElement (accessed 28 October 2012)114 Para. 6, Assembly/AU/Dec.366(XVII), Assembly AU Dec 363-390_(XVII)_E, http://www.au.

inden/sites/default/files/AssemblyAU Dec 363-390_(XVII)_E.pdf (accessed 30 September2012).


Western powers together with the League of Arab States, effectively tookover the management of the Libyan conflict from the African Union throughthe imposition of a no-fly zone over Libya under the UN Security CouncilResolution 1973 of 17 March 2011.115 The military campaign to enforce theno-fly zone started immediately after the 'Paris Summit for the Support of theLibyan People', held on 19 March 2011. On 31 March 2011, the North AtlanticTreaty Organization (NATO) assumed sole command of the international airoperations over Libya, which was initially coordinated by the Stuttgart-based USAfrica Command (AFRICOM). A week earlier, NATO had decided to launch anoperation to enforce the arms embargo against Libya. The alliance conducted allthese attacks under 'Operation Unified Protector'."' At the second yearly highlevel African Union and United States meeting held in Washington, DC on 20 and21 April 2011, American officials insisted on regime change in Libya as sine quanon for the resolution of its crisis.117 This effectively rendered futile the goal of theAfrican Union High-Level Ad Hoc Committee on Libya 'to provide Africa-ownedand African-led solutions'."'

The Committee was established in March 2011 with the Heads of State ofMauritania, Congo, Mali, South Africa and the Chairperson of the African UnionCommission as members. 9 Its mandate was to:

1. engage with all parties in Libya and continuously assess the evolutionof the situation on the ground,

2. facilitate an inclusive dialogue among the Libyan parties on theappropriate reforms,

3. engage AU's partners, in particular, the League of Arab States, theOrganisation of the Islamic Conference, the European Union and theUnited Nations, to facilitate coordination of efforts and seek theirsupport for the early resolution of the crisis;

1 20

115 Paras 6 12, S/RES/1973(2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1 126839.pdf?OpenElement last visited 28 October 2012).

116 Para. 11, Report of the Chairperson of the Commission on the Activities of the AU HighLevel Ad Hoc Committee on the Situation in Libya: Peace and Security Council 275thMeeting Addis Ababa, Ethiopia, 26 April 2011, http://au.inten/dp/ps/sites/default/files/275%20-%20Report%20on%20Libya%20_Eng%20-%20(3)-0.pdf (accessed 30 September 30, 2012).

117 Ibid., paras41 and 42.118 Para. 6 (vi) of the Communique of the Meeting of the Ad Hoc Committee on Libya,

held at Pretoria, South Africa, South Africa 26 June 2011, http://au.inUen/dp/ps/sites/defaulUfiles/Communique%20on%2oLibya%20-Pretoria%2026%20June%20-%20_Eng%20_[1].pdf(accessed 30 September 30, 2012).

119 The African Union announces the composition of the Ad-hoc High Level Committeeon Libya, 10 March 2011, http://au.inden/dp/ps/sites/defauldfiles/ANN EN 10 MARCH2011 PSDTHEAFRICANUNIONANNOUNCESCOMPOSITION AD HOCHIGH_LEVEL-COMMITTEE LIBYA.pdf (accessed 30 September 2012).

120 Para. 8, Communique, Peace and Security Council 265th Meeting Addis Ababa, Ethiopia, 10March 2011, http://au.inden/dp/ps/sites/default/files/COMMUNIQUE EN 10 MARCH_2011_PSDTHE_265THMEETING OF THE PEACE ANDSECURITYCOUNCIL ADOPTED-FOLLOWING DECISION SITUATION LIBYA.pdf (accessed 30 September 2012).

I Have a Drone 125

The Committee and the African Union Commission convened a consultativemeeting on 25 March 2011 in Addis Ababa on the Libyan crisis and formulated aroadmap which required.

I. The protection of civilians and the cessation of hostilities;II. Humanitarian assistance to affected populations, both

Libyan and foreign migrant workers, particularly thosefrom Africa;

III. Initiation of a political dialogue between the Libyanparties in order to arrive at an agreement on the modalitiesfor ending the crisis;

IV. Establishment and management of an inclusivetransitional period; and

V. Adoption and implementation of political reformsnecessary to meet the aspirations of the Libyan people.121

The declaration of the 275th Peace and Security Council of the African Union,observed that:

Council expressed serious concern that, in some crisis and conflictsituations, African efforts to attain peace are undermined by foreignactors, whose motives are, at times, neither complementary to, norconsistent with the implementation of African solutions to Africanproblems."'

Even though, both the United Nations Security Council and the African UnionPeace and Security Council at their fifth consultative meeting on 21 May 2011,at the African Union Headquarters in Addis Ababa, Ethiopia, 'stressed the needfor a political solution to the conflict in Libya'.123 They also noted the precariousLibyan humanitarian condition and demanded:

full compliance with human rights and International HumanitarianLaw and the creation of the required conditions for the delivery ofassistance to all needy populations across Libya. They stressed theneed to provide specific support to the African migrant workers livingin Libya, including those seeking to leave the country.124

121 Para. 7, Communique on the Consultative Meeting on the Situation in Libya,Addis Ababa, Ethiopia, 25 March 2011 http://au.int/en/dp/ps/sites/default/files/communique_-_Libya eng_[1].pdf (accessed 30 September 2012).

122 Para.12, Declaration of the Ministerial Meeting of the Peace and Security Councilon the State of Peace and Security in Africa: Peace and Security Council 275thMeeting Addis Ababa, Ethiopia, 26 April 2011, http://au.inten/dp/ps/sites/default/files/Press%20Statement%20275%20th%20meeting%20PSC%20ministerial%20debate%2026%20April%202011%20_2_%20_2_pdf (accessed 30 September 2012).

123 Para. 10, Communique of the Consultative Meeting between Members of the Security Councilof the United Nations and the Peace and Security Council of the African Union, 21 May 2011,http://au.inten/dp/ps/sites/default/files/Communiqu6%20AUPSC-UNSC%20-Eng.-%20Final.pdf (accessed 30 September 2012).

124 Ibid., para. 11.


The African Union at the onset of the Libyan crisis sought a political solution125

and the 285th meeting of its Peace and Security Council meeting convened on 13July 2011, emphasised this fact.126 This was in line with the second paragraph ofUN Security Council Resolution 1973, which stressed:

the need to intensify efforts to find a solution to the crisis whichresponds to the legitimate demands of the Libyan people and notesthe decisions of the Secretary-General to send his Special Envoy toLibya and of the Peace and Security Council of the African Unionto send its ad hoc High Level Committee to Libya with the aim offacilitating dialogue to lead to the political reforms necessary to finda peaceful and sustainable solution;

But Western powers backed military insurgents to effect regime change.Moreover, North Atlantic Treaty Forces embarked on massive bombing of areascontrolled by the Gaddafi forces, which drew the ire of the African Union aftersix weeks of destruction of lives and socio-economic infrastructure by NATObombs. 127

On 25 May 2011, the extraordinary session of the Assembly of the AfricanUnion on the state of peace and security in Africa decided on the peacefulresolution of the Libyan crisis and believed 'that the continuation of the NATO-ledmilitary operation defeats the very purpose for which it was authorized in the firstplace, i.e. the protection of the civilian population, and further complicates anytransition to a democratic dispensation in Libya'. 128 It further poignantly observedthat:

While reiterating the commitment of the AU to resolutions1970(2011) and 1973(2011), the Assembly stressed the obligationof all Member States of the United Nations and the other concernedinternational actors to fully comply with the letter and spirit of thoseresolutions. The Assembly expressed deep concern at the dangerousprecedence being set by one-sided interpretations of these resolutions,in an attempt to provide a legal authority for military and other actionson the ground that are clearly outside the scope of these resolutions,

125 Press Release: 'Official Presentation by the AU to the Libyan Parties of a Proposal ona Framework Agreement for a Political Solution to the Crisis in Libya, Malabo', 1 July2011, http://au.int/en/dp/ps/sites/default/files/Press%20Release%2OLibya%2OENG%2001-07-11.pdf (accessed 30 September 2012).

126 285th Final Press Statement_-_LibyaEN http://au.inden/dp/ps/sites/default/files/285thFinal PressStatement - LibyaEN.pdf (accessed 30 September 30, 2012).

127 African Union Press release on Libya 3 05 11, http://www.au.inden/sites/defaultlfiles/Press%20release%20on%20Libya%203%2005%201 1.pdf (accessed 18 October 2012).

128 Para. 5, Extraordinary Session of the Assembly of the Union on the State of Peace and Securityin Africa, Addis Ababa, Ethiopia, 25 May 2011, EXT/ASSEMBLY/AU/DEC/(01.2011),http://au.inden/dp/ps/sites/default/files/D6cision%20sur%201a%20situaton%20en%20Libye%20_Eng%20 0.pdf (accessed 30 September 2012).

I Have a Drone 127

and at the resulting negative impact on the efforts aimed at buildingan international order based on legality.

129

According to the Report of the Chairperson of the Commission on the Situationin Libya and on the Efforts of the African Union for a Political Solution to theLibyan Crisis:

While the diplomatic efforts to find a political solution wereunderway, building on the responses received from both parties, theair campaign conducted by NATO and the fighting on the groundcontinued unabated. Since taking control of the military operationsfor Libya within the framework of UN Security Council resolutions1970 and 1973 (2011), on 31 March 2011, under 'Operation UnifiedProtector', NATO has conducted close to 20,000 sorties, including7,600 strike sorties.

130

The African Union High-Level Ad Hoc Committee on Libya met in Pretoria,South Africa on 14 September 2011, with the presidents of South Africa, Uganda,and Congo in attendance while the ambassadors of Mali and Mauritania accreditedto South Africa represented their countries. The Chairperson of the African Unionand the Commissioner for Peace and Security were also in attendance. TheAd Hoc Committee expressed concern over the Libyan conflict's impact uponregional security/terrorism and requested the Chairperson of the African Union toconvene urgently, a Peace and Security Council meeting at the side lines of the66th Ordinary Session of the United Nations General Assembly in New York.

131

Communiqu6 of the 294th meeting of the Peace and Security Council of theAfrican Union held at New York on 21 September 2011 urged the United NationsSecurity Council to terminate the no-fly zone measures over Libyan airspace andabide with the spirit of its resolution 1973 (201 1).132

VI. CONCLUSION

America has broader economic interests in Africa, of which the use of drones ispart of a broad range of tools to secure such interests. Despite all the evidenceof the use of drones being a breach of international humanitarian law, Americahas continued using them. Insecurity and piracy in Africa also led to the creation

129 Ibid., para. 7.130 Para. 10, Report of the Chairperson of the Commission on the Situation in Libya and

on the Efforts of the African Union for a Political Solution to the Libyan Crisis, Peaceand Security Council 291st Meeting Addis Ababa, Ethiopia, 26 August 2011, http://au.int / en/ dp / ps /sites/default/files/PSC%20Report%20on%2OLibya%20%20_Eng%20_Final.pdf(accessed 30 September 2012).

131 Final Communique Ad hoc Cmtee on Libya_-_Pretoria_14_Sept_[1], http://au.inten/dp/ps/sites/ default/ files/ Final%20Communiq%20Ad hoc Cmtee on Libya_-_Pretoria_14_Sept_[1].pdf (accessed 30 September 2012).

132 Para. 7, PSC COMMUNIQUE 21 09 11 ENG, http://au.inden/dp/ps/sites/defaulfiles/PSC%20COMMUNIQUE%20-%2021%2009%2011%20%20ENG.pdf (last visited 30September 2012).


of the United States African Command (AFRICOM) initiative to secure the gulfof Guinea in West Africa to guarantee oil supplies to America.133 It is instructivethat the AFRICOM commander in 2012, recommended non-military solutions ofsocio-economic dimensions to tackle violence in African countries.134

In the short term, African rulers must respect, protect, and fulfil socio-economic rights of their citizens, in order to prevent armed conflict over unjustadministration of finite resources, as well as ameliorate conflict between nomads,and settled farmers. In the medium term, African countries must enact andimplement socio-economic policies that invest in education and healthcare, tospeed up human capacity and human development. In the long term, democraticconstitutionalism that promotes accountable leadership, will result in the craftingof transparent policies, to efficiently utilise public resources and transform armedconflicts into peaceful political contestation over policies. All the above measureswill enable African countries to have effective, affective, and transformativecontrol over their entire territories, and stem lethal American drone attacks oninnocent African civilians.

133 http://www.africom.mil/AfricomFAQs.asp (accessed 12 June 2013).134 General Carter Ham, Commander United States Africa Command, Statement before the

House Armed Services Committee, 29 February 2012: 8 9, http://www.africom.mil/fetchBinary.asp?pdflD=20120301102747 (accessed 4 January 2013). 'Socio-economic Rights EnhancesNational Security', in R. Teitel, Humanity's Law, Oxford University Press, (2011), p. 15 6 .

I Have a Drone: The Implications of American Drone Policy for Africa and International Humanitarian Law

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