Re-Thinking the Principle of Proportionality Outside of Hot Battlefields

By Charles P. Trumbull, attorney-adviser in the Office of the Legal Adviser, U.S. Department of State.

This Article is written in the author’s personal capacity, and the views expressed in this Article do not necessarily represent those of the Department or the United States government.


Abstract

The United States’ targeted strikes against members of Al-Qaeda, the Taliban, and associated forces outside of hot battlefields have generated significant debate on both legal and policy grounds. This Article argues that while enemy combatants can be targeted outside of hot battlefields under international humanitarian law (IHL), the traditional rule regarding collateral damage must be re-examined in these circumstances. This Article brings to light the serious concerns with applying the principle of proportionality – which permits attacks so long as the expected collateral damage is not excessive in relation to the military advantage anticipated – outside of hot battlefields by examining this principle’s unique historical development, its potential ethical justifications, and the key differences in the legal framework applicable in international armed conflicts (IACs) and non-international armed conflicts (NIACs). As a historical matter, this Article explains that the principle of proportionality developed in the context of IACs, where civilians were considered enemies due to their various roles in furthering the war fighting effort of their nation. The laws of war permitted significant civilian casualties in these contexts because civilians were deemed partially responsible for the armed conflict and thus liable to share in the hardships of war. In many circumstances, however, civilians residing outside of hot battlefields cannot be considered enemy civilians, as they may play no role in the underlying conflict. As such, we should question on legal and moral grounds whether these civilians should be subject to the same risks as civilians in IACs who to some degree further, and potentially benefit from, the conflict. Moreover, the balance struck by the principle of proportionality between military necessity and humanitarian objectives assumes that state parties in an IAC will take additional precautionary measures, consistent with their treaty obligations in IACs, to protect civilians. This assumption may not be warranted in NIACs as non-state actors often seek sanctuary outside of hot battlefields and intentionally conceal themselves among the civilian population. Finally, the infliction of collateral damage, even to the extent legally permitted by the principle of proportionality, may undermine key counter-insurgency and jus post bellum objectives. This Article concludes with some recommendations on how to modify the principle of proportionality when using force outside of hot battlefields.


Introduction

A group of men gather for tea and conversation in the hujra of an elder in North Waziristan, Pakistan.1 A veiled woman sets down a platter of tea and then quickly leaves the men to return to the female section of the compound. The men speak in hushed tones. Although this area of Pakistan is under Taliban control, a number of Taliban commanders have been killed in the past several months by U.S. drone strikes. Locals are never sure if anyone is listening or watching. As the men sip a second cup of tea, they hear a loud hissing sound and instinctively duck their heads. A split second later, a missile hits the center of the small compound, blowing off the roof, shattering the windows, and killing at least seven individuals in the compound. Neighbors rush to the scene, picking through the debris and carrying the dead and injured to the local hospital.

from 2004–2007, the United States launched only eleven drone strikes in Pakistan. 3 In 2008, the Bush Administration ramped up the drone program, launching 35 attacks. The Obama Administration further embraced the use of drones in Pakistan, with 53 attacks in 2009, 117 attacks in 2010, 64 attacks in 2011, 46 attacks in 2012, 28 attacks in 2013, and 24 attacks in 2014. 4 Drones have also reportedly been used to attack al-Qaeda members in Syria, Yemen, and Somalia, including a 2012 attack that killed Anwar al-Awlaki, a dual U.S. and Yemeni citizen who allegedly orchestrated several failed plots against the United States, as well as Samir Khan, an editor of al-Qaeda’s online magazine Inspire. 5

Scenes like this have become increasingly frequent in Pakistan and, to a lesser extent, in Yemen and Somalia.2 According to The Long War Journal, from 2004–2007, the United States launched only eleven drone strikes in Pakistan. 3 In 2008, the Bush Administration ramped up the drone program, launching 35 attacks. The Obama Administration further embraced the use of drones in Pakistan, with 53 attacks in 2009, 117 attacks in 2010, 64 attacks in 2011, 46 attacks in 2012, 28 attacks in 2013, and 24 attacks in 2014. (4) Drones have also reportedly been used to attack al-Qaeda members in Syria, Yemen, and Somalia, including a 2012 attack that killed Anwar al-Awlaki, a dual U.S. and Yemeni citizen who allegedly orchestrated several failed plots against the United States, as well as Samir Khan, an editor of al-Qaeda’s online magazine Inspire. (5)

The vast majority of drones are used in “hot battlefields,” such as the conventional military operations in Afghanistan, Iraq, and Libya.(6) Drones, also called Unmanned Aerial Vehicles (UAVs),(7) have played a crucial role for the United States in these conflicts.(8) They can quietly circle for hours at a time, allowing operators to collect the intelligence and pattern-of-life information used to identify targets that manned airplanes could not. (9) Remote operators can use drones to target enemy belligerents without putting American soldiers’ lives at risk. Drones facilitate greater compliance with the rules of international humanitarian law (IHL), the legal framework applicable in armed conflicts. UAV operators can focus on their target without the stress of the combat environment, and UAVs’ sensor technology can provide more accurate targeting. As a result, it is widely accepted that drones will, and should, continue to be a significant part of the United States’ arsenal in armed conflicts.(10)

The use of drones (or any other weapons platform) outside of hot battlefields, however, has generated significant debate in legal and policy circles.11 Many critics argue that the applicable legal framework outside of hot battlefields is human rights law (HRL), not IHL, and that drone strikes constitute extra-judicial killings in most circumstances. On the other hand, proponents of drone use in such circumstances argue that IHL is not confined to hot battlefields. Under this theory, IHL recognizes that state parties to an armed conflict have a right to target enemy belligerents, like members of al-Qaeda or the Taliban, wherever they are located, subject to rules regarding respect for state sovereignty. The right to target enemy belligerents, moreover, applies regardless of the characterization of the conflict as an international armed conflict (IAC) or a non-international armed conflict (NIAC).


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Suggested Citation:

Trumbull, Charles P, Re-Thinking the Principle of Proportionality Outside of Hot Battlefields (September 27, 2015). Virginia Journal of International Law, Vol. 55, 2015. Available at SSRN: https://ssrn.com/abstract=3227222

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