The European Parliament resolution on armed drones that calls, inter alia, for adoption of a common EU position on their use has ignited controversy. In particular, the resolution proffers a number of legal assertions that have been the subject of debate for some time. Unfortunately, it lacks the legal precision for which one would hope in a pronouncement on such a divisive subject. For instance, the resolution asserts that allegations of civilian casualties incident to a drone strike obligate States to conduct investigations, but fails to distinguish between the differing human rights and humanitarian law investigatory requirements. It also seems to suggest that a naked allegation alone triggers an obligation to investigate, which it clearly does not. Similarly, the Resolution emotively highlights Additional Protocol I’s prohibition on attacks with a primary purpose of terrorizing the civilian population despite the absence of any credible evidence that drone strikes have ever had such a purpose as their operational objective.
Perhaps the most curious assertions deal with the geographical constraints of drone warfare. The resolution offers two. First, it states that drone strikes “outside a declared war by a State on the territory of another State without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.” Reference to “a declared war” is counter-normative. The existence of an “armed conflict” depends on the attendant facts. Irrespective of whether the parties have declared war, once two or more States are engaged in “hostilities,” an international armed conflict (IAC) is underway and the geographical parameters thereof, such as the permissibility of conducting military operations on the enemy’s territory, apply. … continue »