Chesney on Attacking Mourners and Rescuers with Drones (Updated)
As most readers likely know, the Bureau of Investigative Journalism recently released a 22,000 word report documenting the disturbing U.S. practice of using drones to target individuals attending funerals or attempting to provide aid to individuals wounded in previous drone strikes. Here is the report’s central conclusion:
A three month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. The tactics have been condemned by leading legal experts.
At Lawfare today, Bobby Chesney argues that such attacks would be legal as long as they targeted individuals who qualified as members of an organized armed group and did not cause disproportionate civilian casualties:
I certainly agree that medical/first-response activities undertaken to rescue persons who have been injured by a drone strike would not normally constitute direct participation in hostilities. And one could add that attending a funeral is not direct participation in hostilities either. But all of this only matters (assuming LOAC does apply) if we assume that a person must be directly participating in hostilities in order to be targeted lawfully in that context. And that is in fact the subject of great debate.
One position is that in the NIAC setting there is no such thing as “combatant” status, that everyone accordingly has “civilian” status, and that the authority to target a civilian intentionally is limited to situations in which the civilian directly participates in hostilities. On that view, drone strikes would routinely be problematic, quite apart from whether a strike occurred during a funeral or during a post-strike rescue operation. This is not the only view of the matter, however.
A different position is advanced by the ICRC in its Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law. This document argues (pp.31-36) that members of organized armed groups (OAG) who perform a continuous combat function (CCF) in a NIAC are not civilians and may be targeted in a manner comparable to that of a combatant, not just when engaging in specific acts of direct participation. On that view, it would certainly be possible to lawfully target a member of an OAG who has a CCF, even if at that very moment the person happens to be attending a funeral or attempting to rescue someone from a collapsed building (though obviously the presence of medical personnel, family, or other non-fighters in such locations would raise difficult questions in the proportionality analysis).
Bobby’s argument, however, is significantly overbroad. It is black-letter IHL that, in the words of Article 50(3) of Additional Protocol I, “[t]he presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.” That rule is contained in the military manuals of nearly a dozen countries, including Argentina, Canada, Kenya, the Netherlands, Spain, and Sweden. And it has been affirmed by multiple international tribunals, including the ICTY and the Special Court for Sierra Leone. The ICTY Appeals Chamber, for example, held the following in Galić:
136. … [T]he Appeals Chamber finds that the jurisprudence of the International Tribunal in this regard is clear: the presence of individual combatants within the population attacked does not necessarily change the fact that the ultimate character of the population remains, for legal purposes, a civilian one. If the population is indeed a “civilian population”, then the presence of combatant within that population does not change that characterisation. In the Kordić and Čerkez Appeal Judgement, the Appeals Chamber stated:The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. [Kordić and Čerkez Appeal Judgement, § 50]The Appeals Chamber considers that Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law. [Kordić and Čerkez Appeal Judgement, § 97]
137. If, however, one is discussing whether a population is civilian based on the proportion of civilians and combatants within it, that is, the status of the population has yet to be determined or may be changing due to the flow of civilians and military personnel, then the conclusion is slightly different. The Blaškić Appeal Judgement qualified the general proposition of the Kordić and Čerkez Appeal Judgement with an important addendum. It states, quoting the ICRC Commentary, that “in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.” As such, the Appeals Chamber in Blaškić found [in § 115] that “in order to determine whether the presence of solders within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”.
All of these statements, of course, leave open the difficult question of how many combatants must be present within a civilian population for that population to lose its civilian status. It’s clear, though, that the presence of one member of an organized armed group — Bobby’s hypothetical — is not enough. It is thus incorrect to argue that it is “certainly… possible” that the principle of distinction permits the U.S. to intentionally attack one member of an organized armed group who is attending a funeral along with a number of civilians. Such an attack is a clear violation of the laws of war.
UPDATE: Unknown raises an important point in the comments, one that I should have addressed in the initial post. Although the presence of a combatant in an otherwise population does not deprive that population of its civilian character, the combatant remains a lawful target. So as Unknown points out, it would be lawful for a sniper to kill the combatant even when he is surrounded by the civilian population. But that is not what we are talking about here — the issue is a drone strike. Attacking a combatant with a drone may be more precise than attacking a combatant with a bomb, but it is not anywhere near as precise as a sniper’s bullet. A drone targets groups of people, not individuals, especially in a rescue/funeral situation where individuals are densely packed together. So my point is that, by attacking a legitimate target in a civilian population with a drone, the U.S. is attacking the civilian population — it can’t simply say that because there was a lone combatant in the population’s midst, the principle of distinction is satisfied and all that matters is proportionality.
P.S. If you disagree with that proposition, substitute “bomb” for “drone strike.” Do you think the U.S. could drop a bomb on a group of civilians and one combatant and claim that, because they were targeting the combatant, the attack automatically satisfied the principle of distinction?