CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ THE MILITARY USE OF UNMANNED AERIAL VEHICLES IN THE FIGHT… an armed conflict, the targeted killing depends solely on the status of the persons, that is, on whether they are directly involved in the hostilities, 28 although there is a tendency to establish additional requirements for the implementation of such actions, such as the absence of other measures to address the threat posed by an individual. The targeted killing is to be judged according to the principles of IHL. The choice of methods or means of warfare is limited by the principles of IHL. Firstly, it is the principle of distinction between civilians and combatants and civilian objects and military objects; based on this principle, assaults without selection are prohibited. Secondly, while choosing the means of warfare the authorities must take into account the principle of prohibition of unnecessary harm, 29 as well as the principle of proportionality. 30 We will evaluate targeted killings using UAVs in the context of these principles. 3.1 Compliance with the principle of distinction The study of customary international humanitarian law prepared by the International Committee of the Red Cross indicates in its Rule 1 that “The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” 31 The commentary indicates that this rule is “a norm of customary international law applicable in both international and non-international armed conflicts. The three components of this rule are interrelated and the practice pertaining to each of them reinforces the validity of the others. The term combatant in this rule is used in its generic meaning, indicating persons who do not enjoy the protection against attack accorded to civilians, but does not imply a right to combatant status or prisoner- of-war status.” 32 The question of who is a combatant in an international armed conflict is not so difficult. These are “all members of the armed forces of a party to the conflict […], except medical and religious personnel.” 33 In non-international armed conflicts the question is a bit more difficult as there is no combatant status in such conflicts. The membership of such a non-governmental organisation which is a party to non-international armed conflict is not enshrined in national law, nor is it defined by any formal act. Persons in these groups do not always wear uniforms, nor are they always distinguished by an appropriate mark or identification cards, so that we can attribute these persons to a particular organization. Membership in the organization is also uneven in intensity and does not always amount to 3. Use of UAVs in armed conflict and its compliance with IHL principles 28 Ibid., p. 4. 29 First Additional Protocol of Geneva Conventions, Article 35 (2): “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.” 30 Rule 14 of customary IHL states: “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” https://ihl-databases.icrc.org/ customary-ihl/eng/docs/v1_rul_rule14 [accessed 22 May 2018]. 31 Rule 1, Customary IHL database. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule1, [accessed 21 May 2018]. 32 Ibid. 33 Rule 3, Customary IHL database. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule3 [accessed 21 May 2018].

221