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INTERNATIONAL LAW AND THE USE OF ARMED DRONES…
a measure of last resort, and therefore it rigorously follows the “capture rather than
kill” principle.
30
Secondly, the LOAC prohibits an attack against a legitimate military target if the
attack “may be expected to cause incidental loss of civilian life, injury to civilians and
civilian objects from damage which would be excessive in relation to the concrete
and direct military advantage anticipated of an attack”.
31
The conduct of hostilities
therefore tolerates incidental loss of life of surrounded civilians, “collateral damage”.
On the contrary, the law enforcement paradigm requires “a balancing between the
risks posed by the individual versus the potential harm to this individual as well as
to bystanders”.
32
Unlike in the LOAC, under the law enforcement paradigm the
life of an individual posing a threat needs to be taken into consideration, because
if a person would not pose an imminent threat, the use of lethal force could be
considered as disproportionate.
33
Finally, the conduct of hostilities does not suppose the use of less-than-lethal
weapons,
34
but the law enforcement entails a human rights proportionality test
consisting in the use of the smallest amount of force necessary and, if possible,
application of an escalation of force procedures.
35
3.2 What constitutes an “armed conflict”?
The Geneva Conventions (1949) operate with the term “armed conflict” in
a number of its provisions, despite the fact that they do not define it. In practice, it
largely depends on the parties to the conflict how they assess the factual and legal
facts of the conflict. Furthermore, the ground for invoking LOAC applicability
differs in international and in non-international armed conflict.
On a background of Common Article 2 of the Geneva Conventions doctrine
defines IAC as “resort to armed force between two or more states”.
36
Based on negative
experience from the past, “there is no longer need for a formal declaration of war”
37
30
ICRC Expert Meeting, The Use of Force in Armed Conflicts – Interplay between the Conduct of
Hostilities and Law Enforcement Paradigm, November 2013, p. 1-7.
31
Article 57 para 2 (a) (iii) Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflict (API).
32
ICRC Expert Meeting, The Use of Force in Armed Conflicts – Interplay between the Conduct of
Hostilities and Law Enforcement Paradigm, November 2013, p. 8.
33
CORDULA DROEGE, “Elective affinities? Human Rights and humanitarian law”,
International
Review of the Red Cross
, Volume 90, Number 871, September 2008, p. 525-526.
34
The LOAC only prohibits use of such a force (means and methods) that can cause superfluous injury or
unnecessary suffering. Article 35, Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International Armed Conflict (API).
35
ICRC Expert Meeting, The Use of Force in Armed Conflicts – Interplay between the Conduct of
Hostilities and Law Enforcement Paradigm, November 2013, p. 8.
36
For more information see Article 2 GC, Tadic case (ICTY) and ICRC Opinion Paper, How is the Term
“Armed Conflict” is Defined in International Humanitarian Law, March 2008.
37
J. S. PICTET,
Commentary to the Geneva Conventions I
, ICRC, 1952, p. 32.