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CYIL 7 ȍ2016Ȏ
INTERNATIONAL LAW AND THE USE OF ARMED DRONES…
practice of states [(e.g. the Korean War (1950–1953), the Arab-Israeli Conflict
(1967) or the Iran-Iraq war (1980–1988)] confirmed by doctrine maintaining
that such recourse to armed force between states is, regardless of the reasons or the
intensity,
44
some experts started to argue that “minor incidents, in terms of duration
and casualties”
45
would not qualify as IAC because of a lack of
“animus belligerendi”
.
46
Using
“a contrario”
legal interpretation to
“animus belligerendi”
and referencing
the use of drones in Yemen,
47
Francoise Hampson notes that there actually may
be an alternative animus – extraterritorial law enforcement. Furthermore, clarifying
that “just because the state is presumably acting in self-defence does not necessarily
make the action an armed conflict”.
48
The ICRC apparently rightly disagrees, as
such construction would go against the original meaning of Article 2 of the Geneva
Conventions.
49
As already emphasized above, it is extremely important to always
distinguish the legal grounds for resort to use of force and the rules applicable in
a situation of armed conflict. This part is an excellent example of the dangerous
conflation of
ius ad bellum
and
ius in bello
bodies of law.
Even more confusion, in terms of what law applies, is represented by conflicts
which are not titled or classified according to the internationally agreed or understood
terms.
50
For instance, what does it mean under the LOAC if a state announces it is
conducting counterterrorist operations or, more generally, “War on Terror”? In this
respect, the US claims that they are in an ongoing armed conflict with Al-Qaeda, as
44
How is the Term “Armed Conflict” Defined in International Humanitarian Law?, ICRC Opinion
Paper, March 2008.
45
For instance, International Law Association, The Hague Conference (2010), Final Report on the
Meaning of Armed Conflict in International Law, p. 17-18.
46
For instance, Syrian mortar shells killing five Turkish civilians in 2012 andTurkey artillery response later
that same day was not considered as armed conflict between both parties.
https://www.washingtonpost.
com/world/middle_east/2012/10/04/ff256bcc-0e0b-11e2-a310-2363842b7057_story.html (visited
on 5 August 2015).
47
It is not publicly known whether the Yemeni government would grant the US consent for use of drones
over its territories. On the other hand, Francoise Hampson notes that it is not clear whether the issue
of consent is relevant here. FRANCOISE J. HAMPSON, “The Relationship between International
Humanitarian Law and Human Rights Law from the perspective of a Human Rights Treaty Body”,
International Review of the Red Gross
, Vol. 90, No. 871, September 2008, p. 553-554.
48
Francoise J. Hampson, “The Relationship between International Humanitarian Law and Human
Rights Law from the perspective of a Human Rights Treaty Body”,
International Review of the Red
Cross
, Vol. 90, No. 871, September 2008, p. 553-554.
49
ICRC, Report 31st International Conference of the Red Gross and Red Crescent, “International
humanitarian law and the challenges of contemporary armed conflicts”, 31IC/11/.5.1.2, Geneva,
October 2011, p. 7.
50
“The terrorism label has been applied liberally since 9/11, without charity as to its scope (the term been
undefined or ill-defined), often without due process, and with serious consequences for those branded
or other associated with them.” HELEN DUFFY, “Human Rights Litigation and the War on Terror”,
International Review of the Red Gross
, Volume 90, Number 871, September 2008, p. 591.