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CYIL 7 ȍ2016Ȏ INTERNATIONAL LAW AND THE USE OF ARMED DRONES…
Already two thousand years ago Cicero stated that “between war and peace
there is no middle”.20 Such an approach was confirmed and further elaborated
on by Hugo Grotius in his masterpiece De Jure Belli ac Pacis (The Law of War
and Peace),21 which laid down the foundations of current international law. Hugo
Grotius stressed the importance of a firm distinction between rules applicable in
peacetime and specific rules applicable in wartime.
As a matter of fact, the 21st century conflicts show that we are witnessing various
forms of violent situations, ranging from internal riots, acts of terrorism to armed
conflicts. With a majority of current conflicts there are concerns whether parties to
such conflicts respond to these challenges within the appropriate legal framework.
Especially with respect to the conduct of counter-terrorism operations, it is not
always clear what set of rules states apply in their use of force.22 For instance, if the
U.S. is using armed drones in Pakistan, does it mean that they are in armed conflict
with Pakistan? If there is not an armed conflict between these two states, then what
are the legal grounds for the use of armed drones in a foreign territory? Or is the U.S.
operating in Pakistan based on their consent (e.g. for reasons of law enforcement)?
The case of the U.S. and Pakistan is obviously the most interesting one, because of
the quantity of drones operations, number of reported persons killed23 and lack of
publicly available information about the cooperation of these states that fuels the
controversy about the use of drones. For all these reasons the employment of U.S.
drones in Pakistan would definitely merit a further separate study.
Generally, it can be stated that parties to the conflicts are having persisting
difficulties with regard to the acknowledgement of the proper legal classification of
such a conflict.24 Despite that the armed conflict should be determined according
to objective criteria (factual situation of the ground), practice shows that states are
trying to give preference to their subjective understandings and because of their
political goals tend to moderate the gravity of the factual situation.25 As a result,
20 WILHELM G. GREVE (ed.), Fontem Historiae Iuris pentium, Band 1: 1380 V.CHR./B.C. – 1493, De
Gruyter, p. 189.
21 HUGO GROTIUS, The Rights of War and Peace (2005 ed.), 3 vols., 1625,
titles/grotius-the-rights-of-war-and-peace-2005-ed-vol-1-book-i (visited on 3 June 2015).
22 A/HRC/25/29 Report of the Special Rapporteur on the promotion and protection of human rights and
Fundamentals freedoms while countering terrorism, Ben Emmerson, 11 March 2014, para 70.
23 See for instance the LongWar Journal Report, which charts the data for US airstrikes in Pakistan (2004–
2016). The highest number occurred in 2010 with 117 reported attacks. .
org/pakistan-strikes (visited on 10 August 2016).
24 Frits Kalshoven points out that only with SecondWorldWar, Iran and Iraq war and Eritrea and Ethiopia there
was no doubt about the qualification of these conflicts.The rest of the conflicts in the 20th century were more or
less disputed by their parties. FRITS KALSHOVEN, “International Armed Conflict: Legal Qualification and
International Humanitarian Law as Lex Specialis” in G. GAVASI, G.L. BERUTO ed., IHL and Other Legal
Regimes: Interplay in Situations of Violence, Current problem of IHL IV, IIHL Proceedings 2003, p. 62-72.
25 A/HRC/14/24/Add.6, report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,
Philips Alston, Study on Targeted Killings, 28 May 2010, p. 15.