The legal gray zone of drone attacks | World| Breakings news and perspectives from around the globe | DW | 23.07.2012
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The legal gray zone of drone attacks

A US drone attack claimed its first German victim, a suspected Muslim fundamentalist, in 2010. A German federal investigation into the incident has reignited debate about the use of unmanned aircraft.

Shortly before his death, a man named in reports as Bünyamin E. travelled to the Pakistani region of North Waziristan, an Islamist stronghold. On October 4, 2010, a missile strike by a US drone struck the suspected radical Islamist along with a number of companions.

Bünyamin E. was the first German to die in a US drone attack, which the country has used extensively in its war on terror. Such attacks typically involve the use of unmanned planes steered and controlled from bases in the US. Estimates by the independent US-based Bureau of Investigative Journalism say that more than 3,000 people lost their lives to US drone attacks in Pakistan between 2004 and 2012. The Bureau also estimates that over 800 of them were civilians.

Punishment with no trial?

Jochen Hippler

Hippler sees the drone attacks in Pakistan as especially problematic

Federal German legal authorities are now investigating the controversial tactic after a nearly two-year long process of determining whether such an investigation is within the scope of their office. The US is operating in a legal gray zone and may have violated international law. Jochen Hippler of the Duisburg Institute for Development and Peace sees the drone attacks in Pakistan as especially problematic since they go against the will of the Pakistani government - at least officially.

"On the one hand, we have the problem that military attacks against a country with which one is not at war violate international law," the expert told DW. He believes a further problem lies in the killing of people merely suspected of being Islamic extremists: "In the US and in Germany, people have argued with good reason that the drone attacks represent capital punishment for people who have been accused of a crime without being given a trial."

Vague definitions

Since George W. Bush inaugurated the war on terror, the US has circumvented its own criminal law by arguing that terrorism does not represent a crime but rather an act of war. Terrorists are considered combatants. The argument goes that the international law of armed conflict can be invoked, which permits the killing of combatants, even if that may result in the deaths of civilians. The question as to whether Bünyamin E. can be viewed as a combatant in an armed conflict is now the central question in the German investigation.

The right to kill enemy combatants, however, is bound up with a whole series of criteria, stressed Martin Kahl, co-author of the 2012 Peace Report. But Kahl said those criteria are vague.

Masked Pakistani Taliban militants take part in a training session in an area of Pakistan's tribal South Waziristan

Pakistan's tribal region of North Waziristan is an Islamist stronghold

"The person in question actually has to be actively fighting. The simplest case would be when a person has a weapon and gets involved in direct combat with an American soldier," he explained, noting that this has not been the case with nearly every person killed by American drone attacks.

International law also stipulates that there must be a certain proportionality between the death of a suspected terrorist and the number of civilians whose lives may be lost. But how this proportion should be measured or established remains unclear, Kahl said.

Growing careless?

Kahl said the US supports its drone attacks by saying that the pointed killing of Islamic extremists represents an evil that prevents greater evil from coming about. Considered from a military standpoint, the drone programs have had a number of successes.

"They have taken out a whole list of high-ranking al Qaeda figures and Islamists in states like Yemen, sending shockwaves through the entire network and its ability to function," Kahl said. By using drones, there are no immediate deaths on the American side, and Kahl said that the relatively precise techniques involved result in fewer civilian deaths than in other forms of warfare.

Dr. Martin Kahl. Er ist Terrorismus-Experte am Zentrum für Europäische Friedens- und Sicherheitsstudien in Hamburg. Das Bild ist von ihm, bzw. von Seite mit seiner Einwilligung.

Kahl thinks drone attacks present a moral dilemma

But the simplicity of this method of conducting a war raises a moral dilemma for Kahl. A remote controlled attack that is not terribly expensive and is not monitored closely by the populace at home could very quickly become a tool that is used too carelessly by political and military authorities.

German authorities implicated

It is not yet clear whether the investigation into Bünyamin E.'s death will result in charges being leveled. If German authorities find that the attack represents a violation of international law, they would likely petition their American colleagues for legal and administrative cooperation.

"But I consider it unlikely that the Americans would reveal the names of any persons who pushed the button at the decisive moment," Kahl said.

For German authorities, there is a further complication. Germany's Federal Criminal Police Office may have played a decisive role in helping the US locate Bünyamin E. by providing the American military with cell phone data and information about the victim's departure from Germany.

Author: Christina Ruta / gsw
Editor: Rob Mudge

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