by Mathias Großklaus

The Ministry of Defense has announced its intention to purchase armed combat drones for the first time. Although these are regularly used for targeted killings in the "war on terror", the German government has so far avoided taking a clear position under international law on the targeted murder of suspected terrorists. In doing so, it is helping to ensure that this practice remains in a dangerous legal gray area.

Defense Minister Ursula von der Leyen recently announced that the Bundeswehr will also have armed drones in service from 2018. To this end, the Bundeswehr will lease five to eight of the Heron II model from the Israeli manufacturer IAI. Unlike the purely reconnaissance drones used to date, this drone is a variant that can be equipped with weapons. According to the Minister, armed drones should be the standard for German armed forces missions in future, as they protect "the lives of German soldiers". At the same time, however, efforts were made to clarify that these weapons would not be used for targeted killings, the practice that has earned drones their problematic reputation. "Targeted killings are out of the question for the Bundeswehr," clarified Hans Peter Bartels, Parliamentary Commissioner for the Armed Forces. Instead, the drones are to be used for air support of ground troops in addition to traditional reconnaissance tasks. This statement is welcome, but as a mere declaration of intent, it lacks a fundamental position on targeted killing as a foreign policy practice, which would also contribute to clarifying this controversial strategy under international law. Such a position is urgently needed, as Germany is already at least indirectly involved in targeted killings as part of the "war on terror".

Targeted murder as a problem under international law

In order to assess the strategy of targeted killing (i.e. the bureaucratic singling out of individuals and their killing outside of combat operations or custody) under international law, it must be viewed separately from the technology with which it is carried out. Under international law, it is irrelevant whether a killing is carried out by a drone, by a combat aircraft, by special forces or by a poisoned box of chocolates. There is no doubt that drone technology brings a new dimension to this debate. It raises new moral questions, such as the automation of war, reciprocity, the consequences of technological superiority, the lowering of the inhibition threshold for acts of war and the visibility of war [1]. However, the core of the problem does not concern the weapon, but the question of what may and may not be done with it.

The Federal Republic of Germany has long evaded such a clarification. This can be explained by the fact that the question of the legality of targeted killings is inextricably linked to the more fundamental problem of how the so-called "war on terror" should be legally classified. In 2013, in response to a written question from Hans-Christian Ströbele, a member of the German Bundestag, the German government stated that it was not possible to make a general assessment of targeted killings by drone missions under international law, "but only with precise knowledge of the specific situation and circumstances of the individual case".

This is dangerous, because the crucial point of an assessment under international law is by no means an individual case, but the question of whether the "war on terror" is a war in the classic sense. This raises the question of whether state violence against "terrorists" - including any targeted killings - are acts of war or measures of international criminal prosecution, and therefore according to which law these acts are to be assessed. In the first case, international humanitarian law would apply, in particular its essential distinction between combatants on the one hand and civilians entitled to special protection on the other. In the second case, the "war on terror" would be understood as a kind of police operation, i.e. in the paradigm of fighting crime. In this case, human rights laws would be applied as well as legal provisions on the rule of law. The right to life and to a fair trial should be mentioned here in particular. The targeted killing of suspected criminals during police operations is only permitted under very specific conditions and is subject to strict controls. In 2010, for example, the German citizen Bünyamin E. was killed by an American drone strike in the Afghan-Pakistani border region. The Federal Republic of Germany was at least indirectly involved in the incident, as the Federal Criminal Police Office had previously informed American security authorities about Bünyamin E.'s departure and cell phone data [3]. The Federal Public Prosecutor's Office examined whether the killing violated international law. However, it ultimately decided not to bring charges on the grounds that the German killed was not a civilian protected by international law, but an armed combatant, stating: "Targeted attacks against such persons in an armed conflict are not a war crime under the International Criminal Code."

In 2006, the Israeli Supreme Court provided a legal clarification of targeted killings following a complaint by human rights organizations. The court argued that the confrontation between Israel and Palestine amounted to a warlike situation and should therefore be assessed in accordance with international humanitarian law. It also assumed that armed Palestinians could not be classic combatants in the sense of international law. This means that they are to be regarded as civilians, as only an either-or, but not an intermediate status is possible under international law. The USA, for example, has attempted to establish the latter by introducing the new term "unlawful combatants" for those detained in Guantanamo Bay. This in turn means that "terrorists" also enjoy special protection under international law as civilians, at least as long as they are not directly involved in combat operations. This does not make targeted killings illegal from the outset, but it does present them with high bureaucratic hurdles. For example, even a "legitimate military target" may not be killed if other means are available. This shifts the burden of proof to the side of the military apparatus [2].

Germany in the drone war

The importance of a fundamental clarification of international law is also illustrated by the Bundeswehr's current deployment in Syria. The Bundeswehr is deploying Tornados to Syria, primarily for aerial reconnaissance and to relay position data for French airstrikes. The "war on terror" is formulated as an explicit objective in the text of the mission's mandate. However, the German government subsequently clarified that wars in the sense of international law take place between two states, that the Islamic State is not one and that "war" should therefore be understood in the colloquial sense [4].

Likewise, Germany's at least indirect involvement in the practice of targeted killings by its ally, the USA, requires a clear and legally secure position. There is now an overwhelming amount of evidence to suggest that the US base in Ramstein, Rhineland-Palatinate, and the US Armed Forces Regional Command for Africa AFRICOM in Stuttgart play a central role in the American drone war. The Ramstein base serves as a flight control center and relay station for so-called remote split operations, the remote satellite control of combat drones. An AFRICOM spokesperson told Panorama: "AFRICOM in Germany gives the order to reconnoitre targets in Africa. If a wanted person has been identified, AFRICOM can also order the killing. The order goes to the pilot in the USA. The drone is guided to the target via the satellite in Ramstein" [5].

When can a person be killed?

Even though the German government now admits that it is aware of the "technical possibilities of controlling drones via relay stations", it continues to shy away from making a fundamental statement on the practice of targeted killings beyond individual cases. However, even if the Bundeswehr should continue not to use this tactic, it is necessary to determine whether targeted killings may generally be used as an aspect of law enforcement and police operations or as part of acts of war. The development of a German position on targeted killings would require the following steps: First, the German government would need to make explicit its understanding of the relationship between international humanitarian law and human rights, specifically addressing the US position that human rights law explicitly does not apply within the scope of international humanitarian law. For both cases, it would have to be made clear under which specific circumstances the proportionality and necessity of targeted killing are given. The legitimization would have to proceed in two stages: firstly, it must make clear under what conditions the sovereignty of a state that has not consented to the use of targeted killings on its territory may be violated. Secondly, it must be clarified under what circumstances the killing of a human being is permissible. It is possible that such an examination of the legality of targeted killings under international law would come to the conclusion that they can, in principle, be a legitimate instrument of foreign policy. In this case, however, precise guidelines for the bureaucratic process of target selection and its monitoring would become necessary. In view of the fact that targeted killings are not isolated cases, it is high time to answer these questions.

SOURCES

[1] For debates on the automation of killing, see Gégoire Chamayou,(A Theory of the Drone. New York: The New Press, 2015), Michael L. Gross (Moral Dilemmas of Modern War: Torture, Assassination and Blackmail in an Age of Assymetric Conflict. Cambridge: Cambridge University Press, 2010) Peter W. Singer(Wired for War: The Robotics Revolution and Conflict in the 21st Century. London: Penguin, 2009) and the work ofNiklas Schöning.

[2] Cf. Melzer, Nils. Targeted Killing in International Law. Oxford: Oxford University Press, 2008.

[3] In response, the Ministry of the Interior instructed the Office for the Protection of the Constitution not to transmit any more data to allies that would make it possible to locate German citizens.

[4] Nevertheless, the text of the mission's mandate explicitly refers to Article 51 of the UN Charter and Article 42 of the EU Treaty, i.e. intergovernmental regulations. Cf. also Christian Schaller on the problem of international humanitarian law vis-à-vis non-state armed groups.

[5] A comprehensive list of these indications and corresponding statements by the German government can be found at Netzpolitik.