Challenges to International Law in the 21st Century [3/4]

Since the 1940s, States have been guided on what is considered appropriate when faced with threats to international and domestic security. In the 21^st century however, the nature of war has shifted considerably; new threats in the form of non-state actors and advanced technology means state centric laws are no longer as pertinent. This four part blog discusses the various challenges international law is being faced with following the changes to warfare and security.

The previous blogs referred to how both new actors in the field of war and asymmetrical warfare have become challenges to the principles of law. This post will look to how it is also the actions of states themselves which have placed a significant strain on international law. 

New weapons, particularly drones, have opened up both new avenues of warfare and challenges to international law. States have seized on drones with their radical separation of the body of the fighter and the fight itself; it has become, as Chamayou states, “a priori impossible to die as one kills.” Whilst this enables troops to be safe and offers the political allure of ‘a surgical strike’, it has also led to a new standard of warfare.

 

 Graffiti denouncing strikes by U.S. drones in Yemen, painted on a wall in Sanaa, Yemen

The legal ‘jus in bello’ (taken literally to mean ‘just/fair in war’) parameters of drone strikes are ambiguous. The use of force outside the theatre of war is strictly prohibited under UN Charter Article 2(4) unless it is for reasons of self-defence (Art. 51 UN Charter). America however, in its use of drones, challenges this principle. A leaked 2011 Justice Department memo showed an altered interpretation of self-defence. It argued that the U.S. does not “require…clear evidence that a specific attack… will take place in the immediate future,” in order to carry out a strike.

America believes insurgents to be constantly plotting and would attack if they could, therefore it is justified in striking despite not having any clear evidence of a specific threat. Such a strong departure from the basic understanding of both self-defence and imminent threat is a dangerous challenge to a principle of law. America has established itself as the judge, jury and executioner all in one when considering what constitutes a justified act of self-defence and who poses that threat. What use are legal principles therefore, if one state alone can challenge and alter them without any repercussions?

Drones have enabled a platform for states to ignore the legal principles of sovereignty in armed conflict. The Obama administration can be said to be guilty of this, with their “Terror Tuesday,” meetings. During these meetings, strikes would be authorised based on undisclosed criteria of behavioural habits, despite not “knowing the precise identity of the individuals targeted.”  

Not only does this raise questions of moral integrity, accountability and the definition of an enemy combatant, it also challenges a key understanding of sovereignty. A state cannot use force in another unless that second state consents or if they are unable or unwilling to suppress the threat and the UN permits it. With the U.S placing themselves as the judge however, it is a circular argument – a state either consents to the intervention or they are unwilling and therefore aiding combatants; strikes will happen either way.

America’s drone strikes therefore, have completely ignored the principles of sovereignty and the international law attached to it, presenting a further challenge to the legal principles of war.