Chesney on Attacking Mourners and Rescuers with Drones (Updated)

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?

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unknown
unknown

I always understood the relation between 50(3) and 51(5)(b) to be different, more in line with Bobby’s reasoning. Surely, the presence of one combatant or one member of OAG with CCF in a civilian population does not deprive the latter of its civilian character. However, this rule relates to the character of the group as a whole, but the individual combatant/CCF continues to have combatant (CCF) status. In other words – just like it is not allowed to treat various military objectives separated by civilian objects as one all-encompassing military target – the group as such is civilian (despite the presence of a lawful target in that group) and the group as such and as a whole cannot be attacked directly. All in all, conversely, the presence in a civilian population does not deprive a combatant/CCF of its status as lawful target. So, taking him/her out individually (cf. sniper headshot) would be lawful, but attacking the whole population would not. And an attack on that individual combatant/CCF with proportionate collateral damage/injury would be lawful as well, as the population as whole is not made the object of attack.

FMR
FMR

Luis Moreno-Ocampo’s description of distinction seems instructive: “International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives,[3] even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv).”
Also,KJH, your statement that “it’s clear that neither requires the attacker to specifically intend to attack civilians — attacking a legitimate target knowing that the effects of the attack will harm a civilian population is enough” seems to imply that you could never have a legal attack (in terms of distinction) in an area where civilians will be harmed.  That is most definitely not the law as clearly stated by Ocampo.

Remy Jorritsma

Thank you for your response, mr. Heller. I should have made clear from the start that it all boils down to the manner in (and the methods with) which the drone attack was carried out. For example, progress has been made to employ UAVs with precision weaponry (e.g. the Autonomous Rotorcraft Sniper System), with the ability to target an individual with a high degree accuracy, without much (if any) collateral damage/injury.  For this reason the assumption that drone attacks are by definition more of a “bombing” scenario than a “sniper” scenario might not be justified in light of future developments.

On another note, the question of proportionality (admittedly, a different analysis, under the same name) does play a role when assessing whether the proportion of combatants to civilians in a group still justifies treating the group as a “civilian population”. 

I was wondering: Does the fact that a group is no longer considered to be a civilian population (because the share of combatants is too high in proportion to the number of civilians) mean that for this reason alone (!) an attack on the group would be considered proportionate in the meaning of 51(5)(b)? Or do different thresholds apply here?

Jennifer
Jennifer

As for attacking rescuers of wounded combatants, I was under the impression that the sick and wounded were hors de combat and that anyone seeking to render them aid would also be protected from attack so long as they do not engage in hostilities (other than immediate self defense, that is, of themselves and wounded in their care), regardless of whether they ordinarily carry out a combat function. Can someone in the know please address this?

JordanPaust

Response…
I agree with Unknown and basically with FMR.  There are also other possible issues, such as: (1) what is the value of the legitimate DPH or combatant target — very high, high, low?  this is important with respect to contextual inquiry into reasonable necessity and proportionality under the circumstances; (2) are there alternatives (e.g., can one wait)?; are the civilians as such voluntary human shields?; and so forth.
Also, yes, drones are merely platforms and it is important to consider what types of weapons are on the drones and being used.
I disagree with Bobby when he states that it is routinely problematic to targets DPHs with weapons on a drone — because of all of the above and because of what several others have recognized here. 

Jennifer
Jennifer

Kevin,

I read Prof. Chesney’s post:“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 …. attempting to rescue someone…” as suggesting that while rescuing persons doesn’t equate to DPH, rescuers can be targeted if they are members of an OAG etc. I did not think protection in such cases relied on one’s  official (and exclusive) status as “medical personnel,” but that even combatants engaged in such activity were also considered hors de combat.

JordanPaust

Response…
On another point, our Internatonal Criminal Law casebook notes that the ICC “knowledge” standard, which, yes, is different than intent (especially when courts use a knew or was aware approach — see also the ICC stat. art. 30(2)-(3) re: “knowledge” and even “intent”) is actually a higher threshold with respect to criminal responsibility than that under customary international law, which can involve a wanton / reckless disregard lower type of threshold.

Etienne Henry
Etienne Henry

Sorry but that’s precisely the issue here. When Chesney asserts that “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 […] attempting to rescue someone from a collapsed building“, it raises the issue Jennifer raised. In IACs, Article 25 GC I states that “Members of the armed forces specially trained for employment, should the need arise, as hospital orderlies, nurses or auxiliary stretcher-bearers, in the search for or the collection, transport or treatment of the wounded and sick shall likewise be respected and protected if they are carrying out these duties at the time when they come into contact with the enemy or fall into his hands.” This personnel “shall wear, but only while carrying out medical duties, a white armlet bearing in its centre the distinctive sign in miniature; the armlet shall be issued and stamped by the military authority” (Article 41 GC I). Since the ratio for the continuous combat function is to assimilate member of organized armed groups to combattants as regards the rules on the conduct of hostilities, one can wonder if similar rules should not be… Read more »

Heath
Heath

I think you should look again at the GC I, Article 41, “shall wear, but only while carrying out medical duties, a white armlet” The problem, of course, being that most non-US combatants do not wear “a fixed distinctive sign recognizable at a distance” (GC III Art 4.1.2).  So great latitude should be allowed in determining who is a combatant.  To do otherwise creates incentives for combatants to hide among civilians, thereby creating unnecessary injuries and deaths in the civilian populace. As an example, four US marines are on a patrol.  One is hit by sniper fire.  It is long recognized that the remaining marines are legitimate targets of the sniper while evacuating the injured or dead soldier.  Likewise if they get on the radio and call in another squad of marines to help out, the new marines are targets.  The only exception occurs if members of either the original or new unit are medical personnel who wear “the protective sign.” (GC I Art 12)  So, the unanswered question is whether the persons responding to the drone strike were wearing “the protective sign,” otherwise the military is allowed to target them under the reasonable assumption that presence on a remote… Read more »

Jordan
Jordan

Response…
From 39 Denv. J. Int’l L. & Pol’y 569, 576 (2011):
When applying principles of reasonable necessity and proportionality with respect to use of drones for targeting, one should consider all relevant features of context. Among appropriate considerations are identification of the target (e.g., as a DPAA, combatant, fighter with a continuous combat function, or DPH as opposed to a non-targetable civilian); the importance of the target; whether equally effective alternative methods of targeting or capture exist; the presence, proximity, and number of civilians who are not targetable; whether some civilians are voluntary or coerced human shields; the precision in targeting that can obtain; and foreseeable consequences with respect to civilian death, injury, or suffering. As a legal expert with the ICRC avers, part of a nuanced contextual inquiry should involve consideration of “the actual level of control exercised over the situation by the operating State” and an appropriate consideration of “required intensity or urgency may” actually involve “a generous standard of ‘reasonableness’ in traditional battlefield confrontations.”

John C. Dehn

I agree with unknown’s comment and the gist of Bobby’s argument (though I might quibble with particulars regarding the battlefield status of various rescuers/mourners).  If the target or object of an attack is a fighter/combatant, collateral civilian deaths are a proportionality question.  I do not believe Kevin is correct that Article 30 of the Rome Statute yields a different result.  The relevant crime is defined, in Article 8(2)(e)(i), as “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.” (emphasis added)  Article 51(2) of the first protocol is virtually identical, “The civilian population as such, as well as individual civilians, shall not be the object of attack.” If the target or object of an attack is a not the civilian population or individual civilians, but harm to the civilian population or individual civilians is anticipated or even certain, there is no necessary violation of the principle of distinction.  The emphasis on the precise object of the attack makes this a specific intent crime that cannot be converted to a general intent crime by the application of Article 30 (or by the ICTY).  And so long as the object of an attack… Read more »

John C. Dehn

Perhaps I should add that Kevin’s argument conflates intentionally attacking civilians with an indiscriminate attack.  The former requires specific intent.  The latter does not in every circumstance.  What Kevin’s argument really boils down to is a claim that a drone-based hellfire missile is inherently indiscriminate as to object: that it attacks “groups of people” not a person.  There is (or used to be) video on youtube that disputes this.  A hellfire can be used to target an individual with disturbingly (and I mean that) messy results.   But a hellfire is not the same as a dumb bomb or artillery barrage, classic “area attacks” with “area weapons.”  The fact that its burst radius will distribute its effects to civilians in close proximity does not mean that it, in the words of Article 51(4)(b), employs “a method or means of combat which cannot be directed at a specific military objective.”  And, if it can be used in a way that satisfies the proportionality principle (as it can), it is also not inherently indiscriminate as to effect, meaning it is not an attack “which employ[s] a method or means of combat the effects of which cannot be limited as required by this… Read more »

John C. Dehn

Kevin did not take the time to understand my argument.  I don’t misunderstand Article 30 at all.  I simply don’t believe that its definitions of intent can change the very nature of a crime (hence the comment that it can’t covert the intent element).  The character of the intended object of an attack is neither a circumstance nor a consequence element, it is a mens rea requirement.  One cannot have a general intent to intentionally direct an attack against the civilian population “as such,” although that intent can and must be inferred from the circumstance of a large concentration of civilians.  Kevin can cite general definitions of intent all he wants.  What he fails to do is accurately address the very elements of the crime. The elements of crimes for intentionally attacking civilians twice emphasize the specific intent nature of the crime: 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in… Read more »

John C. Dehn

Sorry, Kevin, the text of the treaty law (thought to reflect general custom applicable in all armed conflict) is pretty clear and implemented in the language of the Rome Statute’s elements of crimes.  You have yet to explain how this element: “The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack” is not a requirement for specific intent regarding the character of the intended object of an attack.  Arguing generalities doesn’t address it and I am not going to engage you in such diversions.  Again recklessness and knowledge of a circumstance only supports an inference regarding this intent, or that an attack was indiscriminate.

Additionally, you have pretty heavily criticized the ICTY when it fits with your preferred understanding of the law.  So it is a bit hypocritical for you to attempt to chide me for firmly believing that the relevant substantive international law is different than what some tribunals have interpreted it to be. 

John C. Dehn

For the record, readers, after a quick check I am not so sure Blaskic says what Kevin asserts, though I admit the time I have available for keeping up with the ICTY is limited.  The Blaskic appeals chamber decision deals with the mens rea requirement for participation in a widespread and systemic attack against civilians as a crime against humanity.  It concludes, “In relation to the mens rea applicable to crimes against humanity, the Appeals Chamber reiterates its case law pursuant to which knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof, is required.”  (The trial chamber had concluded, erroneously in the view of the appeals chamber, that recklessness with regard to whether the accused’s acts were part of an attack on the civilian population was sufficient.)  This has nothing at all to say about the requirement that the civilian population be the specifically intended object of the widespread and systemic attack, which can easily be inferred in the crime against humanity context by a dearth of military objectives.  It may be that Kevin is conflating a great deal more than the IHL surrounding intentional and indiscriminate attacks.  It seems that he… Read more »

Jordan
Jordan

Response…
I have tried twice to respond, but …not posted

Jordan
Jordan

Response… I agree with Kevin re: art. 30 — on another matter With respect to my disagreement with Bobby’s statement about DPH targetings being “routinely … problematic,” I might have misunderstood what he intended to convey. If he meant that with respect to all of the DPH targetings that have occurred over the last many years they have been “routinely … problematic,” I meant to disagree with such and now note that actually we do not have adequate public evidence whether or not the majority of DPH targetings were targetings of persons who were not engaged in DPHing at the actual time of killing. I assume, for example, from Harold Koh’s general remarks about strictures followed, that most were DPHing at the time. At least we do not have public evidence that they routinely were not. And then there are choice points regarding when a person is DPHing and when the person who was has actually returned to not taking a direct part in hostilities. I prefer to use a movie camera and not a snapshot in answering such a question (and the question is different than the ICRC change of status re: continuous combat function, at least potentially in… Read more »

M. Gross
M. Gross

It’s kind of surreal to discuss whether we have a Protocol I violation when both states involved (Pakistan and the US) have rejected Protocol I.  It is extremely unlikely the US will ever ratify Protocol I.
As for proportionality, it’s a legal principle that exists only in theory, and is quite unsupported by the historical record.  Countries comply with it only in the sense that whatever they do is “proportional” in their eyes.

John C. Dehn

M. Gross.  Proportionality is necessarily a bit in the eye of the beholder given the inherent subjectivity of “military advantage” and “excessive” collateral damage that arises from the quality of information upon which one might reasonably rely in combat.  Violations can really only be enforced at the extremes.  The reason we discuss these aspects of Protocol I is that while the U.S. has signed but never ratified it, it has typically admitted that it mostly reflects customary law applicable in all armed conflict. Kevin, your arrogant condescension is only a reflection on you, not me, as are your exceptionally loose citations to international tribunal decisions. I wouldn’t engage you at all on this issue but for the fact that you are misleading OJ readers…and I realize how many students and practitioners actually read it.  And, by the way, I understand the civil law concept of intent quite well, thank you.  I simply do not believe it is adopted or reflected in this very specific instance.   Please — instead of a polemic or a general argument about the concepts of intent embraced in Article 30 — explain your understanding of intentionally attacking the civilian population as such in relation to… Read more »