In the military, remote pilot aircraft (the drone drones) have long been used in the fight against terrorism, between lights and shadows. On the one hand, in fact, there is no doubt that their use implies, for the States that use them, not to send soldiers on the field ("boots on the ground"), with all that can be achieved, either, referring , a considerable cost savings; On the other hand, however, there are so many controversies that arise when it comes to the deaths of civilians, and in any case, by some statistics disclosed by certain humanitarian organizations, they seem to derive from them every time, whether in the right or not, of the cd targeted killings (targeted killings), in the light of international law and, in particular, of international humanitarian law.
To clarify the terms of the question a little bit, we interviewed the lawyer Marco Valerio Verni (photo), an expert on international law and international humanitarian law, who recently, inter alia, had the opportunity to intervene on the issue in issue at a seminar held last September, at the Interforze Summit Operations Command, Rome, in the context of the Fifth Qualified Director for the Application of International Humanitarian Law in Armed Conflict and Crisis Response Operations, organized by the Italian Red Cross.
Lawyer Verni, when does the use of AFS in military operations and, specifically, in the fight against terrorism begin? And why?
After the attack on the Twin Towers, whose sad anniversary occurred just recently, the then Bush administration, considering that serious act a declaration of belligerence in all respects by the terrorists, decided to undertake, in response, a a real war against them, which, by its very nature, should have been understood as "worldwide" and "permanent". Of course, this would have cost, both in terms of human lives and economic, and the American people, although deeply affected, were certainly not keen on further and prolonged bloodshed. Thus it was that, over time, the use of APRs began to be preferred which, remotely piloted, would have avoided all this. Furthermore, the war that was to be fought would no longer be (only) against state actors but against groups of terrorists, more elusive and difficult to capture. From there, the subsequent practice of targeted killings, ie those operations aimed at eliminating a particular individual, not in the custody of state authorities, and considered seriously dangerous due to his past or future terrorist activities.
There is no shortage of controversy over their use and targeted killings, both by some humanitarian organizations and by the United Nations itself ...
Let's take a step back: always in the aftermath of the attack on the Twin Towers (14 2001 September of 42), the American Congress gave the US President the Authorization for the use of the military force against terrorists (AUMF), to allow the use of every means necessary to prosecute those responsible for the attacks of three days before and each individual or flanking group, interpreting in an extensive manner the concept of the right of self-defense in response to an attack by others, together with the authorization of the Security Council of the United Nations, in cases where it is necessary to "maintain or restore international peace and security" (Article 51), an exemption (article 2 of the UN Charter) to the prohibition of the use of force established by art. 4, paragraph XNUMX, "against the territorial integrity or political independence of any State" or "in any other way incompatible with the purposes of the United Nations".
The latter (United Nations), for their part, have always viewed this approach with a certain diffidence, arguing that, no matter how serious the terrorist phenomenon is, it cannot be considered, due to its intensity, as an armed conflict, and that it would be a forcing, if not, even, a contra ius practice to fight a war without place and time and highlighting (see, for example, the Report on extrajudicial, summary or arbitrary executions - UN doc. A / HRC / 14 /24/ Add.62 of 28 May 2010 - by the Special Rapporteur of the Human Rights Council Philip Alston, or the one "on Promotion and protection of human rights and fundamental freedoms while countering terrorism" - UN doc. A / 68/389 of 18 September 2013, written by Special Rapporteur Ben Emmerson), as outside a formally ascertained armed conflict, the possibility of an "intentional, premeditated and deliberate use of lethal force" achieved through the use of APR cannot be considered i admissible "under international law".
Employment that, conversely, would be considered lawful in the event of a formal conflict between States, ie in the presence of one of the two exceptions to the use of the aforementioned force, provided for by the UN Statute, always having regard, however, to the rules of "ius in bello".
Is the Red Cross of the same opinion?
The International Committee of the Red Cross, through an interview released in 2013 by its president Peter Maurer, stated that, once the lawfulness of a conflict according to the rules of the "ius ad bellum" has been ascertained, the use of APRs is certainly not prohibited by the regulations of international humanitarian law (which, of course, does not express an explicit reference to them, but implies their equation with conventional weapons), but it is clear that it is then that their use must comply with it. Therefore: respect for the distinction between military objectives and civil goods, respect for the civilian population, military operations carried out according to certain criteria (necessity, proportionality, suitability of the means and methods used, first of all).
But in view of the features of the war on terror, and the new military technology available, focusing precisely on the use of APRs and the benefits derived from it, there are those who suggest to deepen and develop the above idea, that is to say, besides the category of formal conflicts between States and those covered by the UN Charter, a tertium genus, which provides for the possibility of combating a "widespread" armed conflict (as it is potentially exportable in any geographic location) and "permanent" (because it is destined to end only when the terrorist threat is definitively thwarted), along the lines of that hypothesized by the USA from the 2001, with the AUMF previously mentioned.
The road, however, is long and uphill because this would presuppose, on the one hand, the possibility of making the whole world a battlefield, perhaps indefinitely, on the other, the possibility of leading a conflict, or perhaps , to carry out individual missions involving the use of lethal force on the territory of a foreign state without the consent, even implicit, of the latter. Not considering that, even if it were granted, we would still face the right to life (and therefore the prohibition of arbitrary killings) which, as such, is protected, in its essential core, by general rules of an imperative nature and , therefore, beyond the conventional derogation.
As far as non-governmental organizations are concerned, their controversy stems from the fact that, according to some statistics1, faced with a few "real" targets - alias terrorists - would have different civil victims every now and then.
An unacceptable number of "civilian casualties" ...
I do not feel like discussing such numbers, but it is true that the "side effects", as mentioned, are always possible, and, however cynical the statement may seem, predict civilian deaths in the face of a necessary military action, conducted with proportionality and suitable means and methods of combat aimed at achieving a precise and important military advantage is in the dramatic nature of the conflicts.
Clearly, outside these parameters, such killings could very well be considered war crimes, in light of the provisions of art. 8 of the Statute of the International Criminal Court, according to which it is forbidden to deliberately launch attacks in the knowledge that they can cause loss of life, injuries to the civilian population or damage to property of civilians.
A kind of balancing of interests?
Exactly. If, after so much effort, for example, you manage to identify a terrorist hiding in a certain place and you have the reasonable suspicion that the next day, he will no longer be there, to go who knows where - perhaps to carry out another attack - it is necessary to act quickly and put various aspects on the scales, following the aforementioned criteria: military necessity and its mandatory nature, advantage, in addition to the proportionality of the means used in the action, precisely to avoid, or minimize, the losses of innocents.
Italy is also involved in the fight against terror via remote pilot aircraft.
At the moment, the APRs included in our Air Force are not armed and have surveillance and reconnaissance tasks: their use in the operating theater (Afghanistan above all) has allowed numerous convoys not to jump on mines or to fall into ambushes. So, they are certainly included in the action plans of the anti-terror coalition, but our pilots were not used to hit.
(photo: US Air Force)
1 For example, at the drones.pitchinteractive.com link, some of them may be found in Pakistan.
