International Law and Undefended Buildings

I have been meaning for a few days to respond to this query on the law of land warfare posted recently at La Riposte:

Article 25 of the Hague Convention on the Law of Land Warfare states “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited” and violation of this article is listed as a War Crime under Article 8 of the Rome Statute of the International Criminal Court.

Do American drone attacks on family compounds within Afghanistan and Pakistan, believed to be occupied by members of the Taliban violate Article 25? It is difficult to imagine how such a building, located in a village full of civilians could be construed as being defended, especially against an unmanned aircraft flying 25,000 feet overhead. Adequate defense against such an attacker would have to consist of air-defense artillery or missiles with a sophisticated tracking system to locate and engage the small, quiet drones.

Let’s consider a couple of justifications that might possibly be made for what appears, on the surface, to be an egregious violation of the Laws of Land Warfare. First, someone might claim that the building wasn’t the target – it was only a particular person or persons inside the building who were the targets, and the nature of the structure they were occupying was immaterial. But using that logic, such persons could be legitimately targeted anywhere, including schools, mosques, hospitals, and any other building.

It’s also possible someone could claim that just because there were people in the house who possessed guns, the building was “defended.” Such an argument rings hollow on several counts. First, inhabitants of Pakistan’s tribal areas are allowed to have weapons, precisely for the defense of their persons and property. Second, simply because the occupant of a building has a weapon, it doesn’t mean they will use it defensively. If approached by military or police forces they may choose to run away, to surrender, or to fight. Only in the latter case would the building become a “defended” position and thus merit bombardment.

I have only two things to add to this analysis, with which I generally concur. The first is that the general prohibition in the original Hague Conventions, reiterated in the Rome Statute, is also given more nuance by Articles 48-57 of the First Additional Protocol to the Geneva Conventions of 1977. Some of the treaty law relevant to this question includes:

From Article 48:

The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.

From Article 49, which among other things suggests these rules probably apply not only in Afghanistan but also in Pakistan, Yemen and elsewhere in this “globalized” “war”:

“The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.”

Article 51 spells out more closely the definition of “civilians,” but in terms of the question asked by E. about dwellings, it is the definition of “civilian objects” that really matters, and that is in Article 52:

para. 1: Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

para. 2: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

para. 3: In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Finally, Article 57 outlines precautions to be taken prior to attacks, including in particular:

all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;

Now note that the precautions to be taken are those to avoid civilian deaths rather than injury to one’s own forces, which suggests to me that the use of unmanned craft at all in situations such as these is particularly galling, since part of the key purpose of drones, and air power in general, is the minimization of harm to our ground forces.

Now here’s the catch, however. The United States is not a party to the Additional Protocol I, so in international law terms the question of whether the US must adhere to these rules remains open. One argument sometimes made is that these rules are accepted by so many states they have the status of binding customary law. The International Committee of the Red Cross has in fact, has made this claim; though others such as David McGrogan demur.

One way to look at this, however, is that AP1 constitutes not a set of new rules but rather a widely recognized clarification of the general prohibition in the original Hague treaty (to which the US is a party) and that therefore it is reasonable to assume that the US ought to be following these guidelines if it means to conform to Hague rules.

My final comment on this query, however, is to say that the key ethical concerns here are not really about drones per se, but about the use of air power at all in civilian areas where the goal is simply to pick off a small number of specific individuals.