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I HAVE A DRONE: THE IMPLICATIONS OF

AMERICAN DRONE POLICY FOR AFRICA AND
INTERNATIONAL HUMANITARIAN LAW

ADEDOKUN OGUNFOLU * and OLUDAYO FAGBEMJ*

I. INTRODUCTION
Placards that bore Martin Luther King's pictures captioned with his 'I have a
dream' clich6 juxtaposed and parodied with placards bearing Barack Hussein
Obama's pictures captioned 'I have a drone' welcomed the re-elected American
president to Germany in June 2013. 1 This was in sharp contrast to the pop-star
cult status Senator Obama the presidential candidate received during his 2008
German visit.2 The most prominent signature attribute of the Obama presidency
in warfare is the use of drones. 3 The Obama drone doctrine keeps American boots
off the ground and unmanned drones rain death on suspected American enemies. 4
It has also eroded the promise candidate Obama made in 2008 to restore America's
reputation abroad.5 The Obama administration appropriated $5 billion on drones
under the 2012 budget and America now trains lesser conventional pilots than the

*
1

2
3

4
5

(MPHIL (Ife), Senior Lecturer, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria;
postdoctoral fellow, (Cornell University Law School).
((LLB (Ife), LLM (UCL), BL, Solicitor and Advocate of the Supreme Court of Nigeria, Rivers
State Ministry of Justice, Port Harcourt, Nigeria.
M. Steininger, 'In Return to Berlin, Obama Finds a Cooler Germany', Christian Science Monitor,
19 June 2013, available at: http://www.csmonitor.com/World/Europe/2013/0619/In-return-toBerlin-Obama-finds-a-cooler-Germany (accessed 14 July 2013).
J. Izzard, 'Is Obama's Trip a Hit Back Home?', BBC News, Washington, 24 July 2008, available
at: http://news.bbc.co.uk/2/hi/americas/7524556.stm (last accessed on 14 July 2013).
P. Bergen and M. Braun, 'Drone Is Obama's Weapon of Choice', 19 September 2012, CNN,
available at: http://edition.cnn.com/2012/09/05/opinion/bergen-obama-drone/ (accessed 14 July
2013).
J. A. Druck, Droning On: The War Powers Resolution and the Numbing Effect of Technology
Driven Warfare, 98(1) Cornell Law Review (2012): 209 37, at 228.
'But his administration's unilateralism and lack of transparency on targeted killings are
undermining the connections that were painstakingly built over the past decade, particularly
with Pakistan and Yemen', A. K. Cronin, Why Drones Fail: When Tactics Drive Strategy, 92(4)
Foreign Affairs (July/August 2013): 44 54, at 50.

African Journalof Internationaland ComparativeLaw 23.1 (2015): 106-128

Edinburgh University Press
DOI: 10.3366/ajicl.2015.0112
Edinburgh University Press
www.euppublishing.com/journallajicl

I Have a Drone

107

ever-increasing number of drone operators. 6 Unmanned aerial vehicles or drones

have been developed or purchased by more than forty countries and the most
technologically advanced producer of drones, the United States, has deployed
lethal hellfire missile armed, Predator drones since 2001, to Afghanistan, later to
Iraq and other parts of the world, from the command centre in America's Nevada
desert.7 Machines and robots do not have the capacity of humans for rational
decision making, to conform to the principles of distinction and proportionality
regulating deployment of lethal force in armed conflict: 'The main ethical concern
is that allowing robots to make decisions about the use of lethal force could breach
both the Principle of Distinction and the Principle of Proportionality as specified
by International Humanitarian Law.'8
The use of drones by treaty members of the 1977 Additional Protocol I to the
1949 Geneva Conventions, whose Article 36 provides for the prohibition of new
weaponry, that falls short of the laws of armed conflict, shows that until such
a prohibition is made, drones are lawful weapons. But their deployment is still
regulated by the laws of armed conflict. 9 Nevertheless, American war on terror
has employed drones in covert operations to kill suspected Al Qaeda operatives
in residential areas far removed from theatres of armed conflict, the mandatory
precondition for the application of the rules of war." Ironically, the American
military has come to recognise that drone strikes' bloody and devastating
graphic carnage, wrought upon insurgents excluded from the civilian/combatant
bifurcation, fertilises the environment for insurgent germination:11
The long-term effect of drone strikes may be that the al Qaeda
threat continues to metastasize. An alphabet soup of groups with
longstanding local grievances now claim some connection to al
Qaeda, including al Qaeda in the Arabian Peninsula, al Qaeda in the
Islamic Maghreb, al Qaeda in Iraq, al Shabab (in Somalia), and Boko
Haram (in Nigeria).12
The danger for innocent African civilians is that they may be murdered by a
covert drone strike, at the click of a computer mouse on American soil, on any
suspected non-state actor Al Qaeda operative who fortuitously happens to be in

6 B. Gogarty and I. Robinson, 'Unmanned Vehicles: A (Rebooted) History, Background and

Current State of the Art', 21(2) Journal of Law, Information and Science (2011/2012): 1 34,
at 11-12.
7 N. Sharkey, 'Saying 'No!' to Lethal Autonomous Targeting', 9(4) Journal of Military Ethics
(2010): 369 83, at 370.
8 Ibid., at 378.
9 M. Hagger and T. McCormack, 'Regulating the Use ofUnmanned Combat Vehicles: Are General
Principles of International Humanitarian Law Sufficient?', 21(2) Journal of Law, Information
and Science (2011/2012): 74 99, at 89.
10 Ibid., at 93.
11 B. Anderson, 'Facing the Future Enemy: US Counterinsurgency Doctrine and the Pre-insurgent',
28(7 8) Theory, Culture & Society (2011): 216-40, at 227.
12 Cronin, supra note 5, at 50.

108

Adedokun Ogunfolu and Oludayo Fagbemi

their African locality.13 Robots are still unable to be programmed to interpret the
laws of armed conflict and apply them as humans do. 14 Machines and robots
do not have the capacity of humans for rational decision making, to conform
to the principles of distinction and proportionality regulating deployment of
lethal force in armed conflict: 'In short, in the harsh reality of war, there are
no silver bullet-technological solutions for ethics.' 15 America presently rules the
drone world with its cutting-edge, extremely more lethal and smarter unmanned
MQ-9 Reaper Plane that can trace the trajectory of footprints in an open field.16
In Africa too, as in Germany, the fans of candidate Obama have been made aware
of the entirely different world of President Obama. Obama has not lived up to the
huge unrealistic African expectations that an American president with a Kenyan
father would influence a positive change in public governance in Africa. Bad
governance in Africa had led to armed conflicts and resulted in African states
that do not have the capacity to guarantee security over significant portions of
their territories. This fact led to the French involvement in Mali's civil war with
British and American logistics support. An American professor of security studies
who is in support of drone warfare opined on American involvement in Mali that:
'Helping French and Malian forces defeat jihadists in Mali by providing logistical
support, for example is smart policy, but sending U.S. drones there is not.'17 The
United Nations Security Resolution 1973 of 2011, led to a North Atlantic Treaty
Organization (NATO), enforced no fly zone, during the Libyan civil war and the
United States deployed drones.18 NATO enforced no fly zone quickly assumed
an offensive nature: 'In October 2011, a US Predator and a French warplane hit
two vehicles fleeing Gaddafi's home town of Sirte, forcing the convoy to disperse,
after which Gaddafi was caught by rebels.'1 9

II. DRONE WARFARE

Modern-day drone technology was created by the United States in 1959, it
utilised them effectively during the Vietnam War for intelligence gathering, and
it was subsequently rejected by its air force fixated on pilot-ontrolled planes,
13 'The ability to launch missiles differentiates the drones that hover over Afghanistan, Pakistan,
and more recently Yemen and Somalia from drones and similar remote-controlled aircraft used
to patrol the US Mexico border and for surveillance by the FBI, DEA, and an increasing number
of local enforcement agents', M. Delmont, 'Drone Encounters: Noor Behram, Omer Fast, and
Visual Critiques of Drone Warfare', 65(1) American Quarterly (March 2013): 193 202, at 200
14 R. C. Arkin, 'The Case for Ethical Autonomy in Unmanned Systems', 9(4) Journal of Military
Ethics (2010): 332-41, at 339
15 P. W. Singer, 'The Ethics of Killer Applications: Why Is It So Hard To Talk About Morality
When It Comes to New Military Technology?', 9(4) Journal of Military Ethics (2010): 299 312,
at 304.
16 Ibid., at 308.
17 D. Byman, 'Why Drones Work: The Case for Washington's Weapon of Choice', 92(4) Foreign
Affairs (July/August 2013): 32-43, at 43.
18 P. Adey, M. Whitehead and A. J. Williams, 'Introduction: Air-target: Distance, Reach and the
Politics', 28(7 8) Theory, Culture & Society (2011): 173 87, at 177 8.
19 Gogarty and Robinson, supra note 6, at 15.

I Have a Drone

109

but adopted by its army. The first public exposure of American use of remote
pilot vehicles was in 1965 when China showed the wreckage of an American
unmanned reconnaissance plane it shot down over its territory. The Israelis
employed American-procured decoy drones, which were shot down by Egypt in
1973 because they were mistaken for bigger fighter jets on infected radar, and
this error created a simultaneous opportunity for real Israeli fighter jets to wreak
destruction and defeat upon Egypt.2"
America has drone bases all over the world and their deployment are mostly
controlled from its Creech air force base in the American Nevada desert.21
Intelligence, surveillance and reconnaissance (ISR) capabilities of drones now
have an added extremely destructive capability.22 This has whittled down the
distinction and proportionality principles of international humanitarian law
occasioning in greater civilian women and children casualties.2 3 American
drones or unmanned aerial vehicles in the twenty-first century's war theatres of
Afghanistan and Iraq have added pinpoint lethal missile deployment capability
to their traditional reconnaissance and decoy functions. Tim Blackmore's 2005
seminal article is one of the most comprehensive articles on the genealogy and
cutting-edge technological capabilities of unmanned aerial vehicles.'
Drone warfare aims to blur the laws of armed conflict, and whitewash war's
gruesome and bloody carnage through the distance of drone operators' computer
screens based on American territory, thousands of kilometres away from war
theatres.2 5 An understated fact is the error prone frailty of drone warfare. At the
beginning of the American invasion of Afghanistan, after the 11 September 2001
terrorist attacks against America, a Predator drone human operator, in a case of
mistaken identity, 'killed three non-combatants'. 26 Assassination has long been an
Israeli policy employed against leaders of Palestinian liberation movements and
the United States adopted the same tactic against al Qaeda leaders who launched
the ninth of September 2001 terrorist attacks against it, but targeted killings
is America's preferred lexicon.27 The United States on 8 January 2007, with
gunship fire deployed from an American military base in Djibouti, assassinated
several suspected Al Qaeda Islamic fighters in Somalia, earlier spotted through
reconnaissance drones.28 In the first decade of the twentieth century, drones have
been the preferred American weapon for targeted killings of suspected terrorists:
20 W.J. Broad, 'The U.S. Flight from Pilotless Planes', 213 (4504) Science, New Series (10 July
1981): 188 90.
21 D. Gregory, 'From a View to a Kill: Drones and Late Modern War', 28(7 8) Theory, Culture &
Society (2011): 188 15, at 192.
22 Ibid., at 193.
23 Ibid., at 201 3.
24 T. Blackmore, 'Dead Slow: Unmanned Aerial Vehicles Loitering in Battlespace', 25(3) Bulletin
of Science, Technology & Society (June 2005): 195 214.
25 Ibid., at 205,210.
26 M. J. Shapiro, 'The New Violent Cartography', 38(3) Security Dialogue (September 2007):
291 313, at 302.
27 D. Statman, 'Targeted Killing', 5 Theoretical Inquiries in Law (2004): 179 98.
28 0. Kessler and W. Werner, 'Extrajudicial Killing as Risk Management', 39(2 3) Security
Dialogue (April 2008): 289 308, at 289.

110 Adedokun Ogunfolu and Oludayo Fagbemi

'Since 2001, the USA has been engaged in at least 20 officially acknowledged
targeted-killing operations in a wide variety of countries, including Somalia,
Yemen, Pakistan, the Philippines, Sudan and Iraq.'29

III. INTERNATIONAL HUMANITARIAN LAW

International law has been 'defined as a body of rules and principles which are
binding upon states in their relations with one another' .3 International law was
originally applied within great powers of the nineteenth century and their colonies
were not beneficiaries of international law nor international humanitarian law
during the colonial period.31 International humanitarian law32 is that branch of
international law that protects civilians, prisoners of war and the wounded as
well as the sick by limiting the use of violence or deadly force in armed conflict
to military objects.33 Accountability for war crimes or the punishment of grave
breaches of the laws of war is a cardinal principle of international humanitarian
law. 34
The dread of the proliferation of certain deadly and extremely powerful
weapons has been the major motivating factor in the development of weapons
treaties and the subsidiary factor of humanitarian considerations came to the fore
during the drafting of the 1997 Ottawa Treaty, which prohibited antipersonnel land
mines. 35 It is pertinent to remember the distinction in international law between the
right to go to war termed jus ad bellum36 and the actual regulation of war itself
termed jus in bello.37 This paper relates majorly with the concept of jus in bello

29 Ibid., at 290.
30 J. Dugard, International Law: A South African Perspective,Juta & Co. Ltd (2004), p. 1.
31
In the nineteenth century, international law was thought to apply mainly to the Great PowersBritain, France, Russia, Prussia (then Germany), the Austro-Hungarian Empire, and (maybe)
Italy, Japan and the United States later joined the list. The many other countries of the world,
especially those in regions where there were no formal states in the Western sense, were
given either second-class status or no status at all.
E. A. Posner, The Perilsof Global Legalism, The University of Chicago Press (2009), p. 96.
32 'It is common practice to refer to the Geneva Conventions and Protocols as international
humanitarian law. This appellation underlines the humanitarian motives that impelled the
international community to adopt them', Y. Dinstein, Human Rights in Armed Conflict:
International Humanitarian Law, in T. Meron (ed.), Human Rights in InternationalLaw: Legal
and Policy Issues, vol. II, Clarendon Press (1984), p. 345, pp.345-6.
33 http://www.icrc.org/Web/eng/siteengO.nsf/htmlall/humanitarian-law-factsheet/$File/What is
IHL.pdf (accessed 20 August 2012).
34 Articles 49 52, Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field; articles 50 3, Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12August
1949; articles 1 land 85 Additional Protocol I of 8 June 1977 to the Geneva Conventions of 1949.
35 T. Meron, 'The Humanization of Humanitarian Law', 94(2) The American Journal of
InternationalLaw (April 2000): 239 78.
36 R. Wallace, InternationalLaw, Sweet & Maxwell (1997), p. 248.
37 Ibid., p.272.

I Have a Drone

111

and tangentially to the concept of jus ad bellum,38 which has become confined to
the chapter VII mandate of the United Nations Security Council.39
Present-day international humanitarian law has been dominated by its
neutralisation through the pick and choose philosophy of relevant treaties
practised by the sole super power, the United States of America, via the 2001 to
2008 controversial war on terror of the President Bush regime.40 President Ronald
Reagan had earlier decided that the United States would not ratify Additional
Protocol I of 8 June 1977 on international armed conflicts to the 1949 Geneva
Conventions, which impacts on the points made in this section. 41 A most notorious
example is the Article 98 agreement clause of the International Criminal Court that
the American government has signed with weak and dependent states to prevent
42
the prosecution of American soldiers for war crimes, except on American soil.
The war on terror does not respect sovereignty as evidenced by the American
operation authorised by President Barrack Hussein Obama on 1 May 2011 that
killed Al Qaeda leader, Osama Bin Laden in Abbottabad, Pakistan.
Africa suffered from Al Qaeda coordinated, Kenyan and Tanzanian attacks in
1998, and it still currently suffering from terrorist attacks in Somalia, the Sahel and
Sahara regions of Africa. 43 Nigeria, from 2010 to 2014, suffered from numerous
terrorist bomb attacks in its northern part. The African Union condemned the
spate of bomb attacks carried out on 24 December 2010, in Jos and Maiduguri
towns of northern Nigeria. 44 Hence, the prevalence of armed conflicts in Africa,
has led to investigations by the International Criminal Court. It is also important
to note that the Rome Statute of the International Criminal Court can only exercise
4 5
jurisdiction over natural persons and not over legal persons such as corporations
However, directors of companies can be prosecuted under the doctrines of joint
38 'After 9/11, countless scholars and statesmen have called for changes in the jus ad bellum, the
law governing resort to force, or the jus in bello, the law governing the conduct of hostilities',
R. D. Sloane, 'The Cost of Conflation: Preserving the Dualism ofJus ad Bellum and Jus in Bello
in the Contemporary Law of War', 34 Yale International Law Journal,(2009), at 47, 49.
39 Articles 39 51, especially 41 and 42 of the 1945 United Nations Charter, see full text at:
http://www.un.org/en/documents/charter/chapter7.shtml (accessed 7 October 2012).
40 P. Fitzpatrick, 'Gods would be needed ... ': American Empire and the Rule of (International)
Law', 16 Leiden Journal Of InternationalLaw, (2003): 429 66.
41 J. Kyl, D. J. Feith and J. Fonte, 'The War of Law: How New International Law Undermines
Democratic Sovereignty', 92(4) ForeignAffairs (July/August 2013): 115 25, at 123.
42 A. T. Guzman, How InternationalLaw Works: A Rational Choice Theory, Oxford University
Press (2009), p. 147.
43 Following the US Operation in Abbottabad, the Chairperson of the Commission of
the African Union Reiterates AU's Commitment to an Enhanced Global Cooperation
against Terrorism, Addis Ababa, 3 May 2011, http://au.inten/dp/ps/sites/default/files/Press%
20release bin%201aden.pdf (accessed 28 October 2011)
44 The African Union Condemns the Terrorist Attacks that occurred in Nigeria, Addis Ababa,
26 December 2010, http://au.inden/dp/ps/sites/default/files/PR NO EN 26 DECEMBER
2010 PSD THE AFRICANUNIONCONDEMNSTHETERRORISTATTACKSTHAT_
OCCURRED IN NIGERIA_0.pdf (accessed 28 October 2011)
45 Article 25(1). The original draft text submitted by the French delegate to the 1998 Rome
Conference had presented a draft that read:
The Court shall have jurisdiction over legal persons, with the exception of States, when the
crimes committed were committed on behalf of such legal persons or by their agencies or

112

Adedokun Ogunfolu and Oludayo Fagbemi

criminal enterprise and command responsibility.46 This tendency emanated from

nineteenth and early twentieth century American executive actions backed by the
decisions of the American Supreme Court in the 'Insular Cases' .4
The roots of contemporary international humanitarian law can be traced to the
pressures mounted by the military brass of European diplomats and statesmen of
the nineteenth century for the enactment of regulations to govern specific weapons
and methods of waging war.48 The Paris Declaration Respecting Maritime Law of
1856 is a prime example and was given birth by French and British preparation
for the Crimea war to persuade Scandinavian countries to stay neutral. Russian
Tsar Alexander II was also persuaded by his defence minister to sponsor the
intergovernmental conference that led to the 1868 St Petersburg Declaration
prohibiting explosive projectiles.49
The tension between international law and politics over which field had the
exclusive domain of war led to the efforts of humanitarian lawyers to craft
rules regulating peace on one hand and those regulating war among 'civilized
nations' on the other hand, but under the radar was the just war doctrine that
fizzled out of the equation. The quest by present-day scholars for an unbroken
historical progression of law reflects a misunderstanding of the polemics of
the nineteenth century highlighted above. 5 The foremost publication of the
International Committee of the Red Cross also propagates the misunderstanding
above in the following words:
International Humanitarian Law (IHL) developed at a time when the
use of force was a lawful form of international relations, when States
were not prohibited to wage war, when they had the right to make war
(i.e., when they had the ius ad bellum). There was no logical problem
for international law to prescribe them the respect of certain rules of
51
behavior in war (the ius in bello) if they resorted to that means.
For the purposes of this article paper the following definition of international
humanitarian law is apposite:

representatives. The criminal responsibility of legal persons shall not exclude the criminal
responsibility of natural persons who are perpetrators or accomplices in the same crimes.

46
47
48
49
50
51

reproduced in A. Mcbeth, International Economic Actors and Human Rights, Routledge Press
(2010), p. 306.
Ibid., Mcbeth, p.308, where he gave the example of 12 out of 23 officials of the Farben German
Company convicted in 1948 by the United States Military Tribunal at Nuremberg.
P. Fitzpatrick, 'Laws of Empire', 15 International Journal for the Semiotics of Law, 2002): at
253, 267.
D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism, Princeton
University Press (2004), p. 238.
Ibid., p.238.
Ibid., p.41.
M. Sassoli, and A. Bouvier, How Does Law Protect in War? Cases, Documents and
Teaching Materials on Contemporary Practice in International Humanitarian Law, International
Committee of the Red Cross (1999), p.83.

IHaveaDrone 113
International humanitarian law also called the law of armed conflict
and previously known as the law of war is a special branch of law
governing situations of armed conflict; in a word war. International
humanitarian law seeks to mitigate the effect of war. First in that
it limits the choice of means and methods of conducting military
operations and secondly in that it obliges the belligerents to spare
persons who do not or no longer participate in hostile actions. 2

A. Distinction between combatants and civilians

Soldiers are licensed to kill enemy combatants by international humanitarian
law.53 This makes some scholars prefer the terminology, laws of war or armed
conflict, as opposed to international humanitarian law to govern armed conflict. 4
Nevertheless, soldiers are enjoined to distinguish between military objectives and
civilian objects, as well as combatants from civilians:
In order to ensure respect for and protection of the civilian population
and civilian objects, the Parties to the conflict shall at all times
distinguish between the civilian population and combatants and
between civilian objects and military objectives and accordingly shall
direct their operations only against military objectives. 5
Soldiers are also mandated to desist from attacking civilian objects:
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.
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. 6

B. Proportionality
The principle of proportionality permits collateral damage or the most minimal
incident of civilian deaths which thereby affects the absolute operation of the

52 H. Haug, (ed.), Humanityfor all, the InternationalRed Cross and Red CrescentMovement, Paul
Haupt Publishers (1993), p. 491.
53 Article 43 Additional Protocol I of 8 June 1977.
54 Y. Dinstein, 'The Principle of Proportionality', in K. M. Larsen, C. G. Cooper and G. Nystuen
(eds), Searchingfor a 'Principleof Humanity' in InternationalHumanitarianLaw, Cambridge
University Press (2013), p 74.
55 Additional Protocol I of 8 June 1977, article 48.
56 Ibid., article 52 (1)(2); see also articles 49 51.

114

Adedokun Ogunfolu and Oludayo Fagbemi

principle of distinction between combatants and civilians.57 This is encapsulated

by article 57 of Additional Protocol (I) of 8 June 1977 to the Geneva Conventions
of 12 August 1949 and in particular sub article 2 paragraph b in the following
terms:
(b) an attack shall be cancelled or suspended if it becomes apparent
that the objective is not a military one or is subject to special
protection or that the attack 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
58
concrete and direct military advantage anticipated.

C. Martens clause
This owes its origin to the contribution of Professor Von Martens, the Russian
delegate, at the 1899 Hague Peace Conference, 59 which gave birth to the 1899
Hague Convention.6" His aim was to address what delegates at the conference
failed to agree upon, namely the faith of civilians who took up arms against
an invading army.61 Small nations felt such civilians merited the privileges of
lawful combatants and hence the guarantees accorded to prisoners of war, but the
powerful imperial states felt that such civilians should be treated as francs-tireurs
and be summarily executed as they practised in the colonies they had forcibly
acquired. Marten's contribution was codified in its preamble.62 The contribution of

57 Y. Dinstein, supra note 54, pp.72 85.

58 Full text available at: http://www.icrc.org/ihl.nsf/FULL/470? OpenDocument (accessed 27
August 2012).
59 Ticehurst, R. 'The Martens Clause and the Laws of Armed Conflict', 317 International
Review of the Red Cross, (30 April 1997): 125 34. Full text available at: http://www.icrc.
org/eng/resources/documents/misc/57jnhy.htm (accessed 27 August 2012).
60 Convention (II) with Respect to the Laws and Customs of War on Land and its annex:
Regulations concerning the Laws and Customs of War on Land. The Hague 29 July 1899. Full
text available at: http://www.icrc.org/ihl.nsf/WebART/150-110001? OpenDocument (accessed
27 August 2012).
61 Ticehurst, supra note 59, at R.1.
62 'Considering that, while seeking means to preserve peace and prevent armed conflicts among
nations, it is likewise necessary to have regard to cases where an appeal to arms may be
caused by events that solicitude could not avert ; Animated by the desire to to serve, even
in this extreme hypothesis, the interests of humanity and the ever increasing requirements of
civilization; thinking it is important, with this object, to revise the laws and general customs of
war, either with the view of defining them more precisely or of laying down certain limits for the
purpose of modifying their severity as far as possible; Inspired by these views which are enjoined
at the present day, as they were twenty-five years ago at the time of the Brussels Conference in
1874, by a wise and generous foresight; Have in this spirit, adopted a great number of provisions,
the object of which is to define and govern the usages of war on land. In view of the High
Contracting Parties, these provisions, the wordings of which has been inspired by the desire to
diminish the evils of war so far as military necessities permit, are destined to serve as general
rules of conduct for belligerents in their relations with each other and with populations. It has not,
however, been possible to agree forthwith on provisions embracing all the circumstances which
occur in practice. On the other hand, it could not be intended by the High Contracting Parties that
the cases not provided for should, for want of a written provision, be left to the arbitrary judgment

IHaveaDrone 115
Von Martens in 1899, now known as the Martens clause, influenced the genealogy
of the crimes against humanity concept. Von Martens clause is also codified by
the 1949 Geneva Conventions. It is incorporated as articles 63, 62, 142 and 158
respectively of the four Geneva Conventions of 1949 as well as article 1(2) of
Additional Protocol (I) of 8 June 1977 to the Geneva Conventions of 12 August
1949, which states that:
2. In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from
established custom, from the principles of humanity and from dictates
63
of public conscience.

D. What qualifies as war or armed conflict?

Common Article 2 of the 1949 Geneva Conventions dictates that an armed conflict
is the precondition for the application of international humanitarian law or the law
of armed conflict and the law governs the conflict until peace is attained. One of
the most prominent decisions in international humanitarian law on this concept is
the Tadic case on jurisdiction, rendered by the International Criminal Tribunal for
the former Yugoslavia.'M According to the tribunal:
An armed conflict exists whenever there is a resort to armed force
between states or protracted armed violence between governmental
authorities and organized armed groups or between such groups
within a state. International humanitarian law applies from the
initiation of such armed conflicts and extends beyond the cessation of
hostilities until a general conclusion of peace is reached, or in the case
of internal armed conflicts a peaceful settlement is achieved. Until
that moment, international humanitarian law continues to apply in the
whole territory of the warring states or in the case of internal conflicts,
the whole territory under the control of a party whether or not actual
65
combat takes place.

of the military commanders. Until a more complete code of the laws of war is issued, the High
Contracting Partiesthink it right to declare that in cases not included in the Regulations adopted
by them, populations and belligerents remain under the protection and empire of the principles
of internationallaw, as they result from usages established between civilized nations, from the
laws ofhumanity and the requirements of the public conscience', author's emphasis, Ibid., at R. 1.
63 Full text available at: http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument (accessed 27
August 2012).
64 http://www.icty.org/sid/7234 (accessed 7 October 2009).
65 The Prosecutorv Tadic case no. 160 ICTY 1995, reproduced in Sassoli and Bouvier, supra note
1 16 9
51, p.
.

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Adedokun Ogunfolu and Oludayo Fagbemi

E. Are American drone attacks compliant with international

humanitarian law?
The United States of America makes the controversial claim that its war on terror
involves on-going armed conflicts with Al-Qaeda, the Taliban and associated
forces." If this assertion is to be accepted, then the rules of international
humanitarian law are applicable to the war on terror.67 It can be argued, however,
that the assumed armed conflict against Al-Qaeda does not extend to the territories
of the African States of Somalia and Sudan, where there have been American
drone strikes.68 While it is easy to see the existence of an armed conflict in a
place like Afghanistan, where America already has ground troops, it is difficult to
see the existence of armed conflicts involving America in Somalia and Sudan, as
one cannot easily classify one-sided American drone strikes as armed conflict,
considering the definition of an armed conflict as 'protracted armed violence'
between two or more parties.69 It is also questionable as to whether those targeted
in Somalia and Sudan are actually taking a direct part in hostilities to remove
them from the protection available to civilians under the Geneva Conventions.70
Beyond these questions, there is the concern about whether American drone
attacks have complied with international humanitarian law rules of distinction and
proportionality.
The argument has always been that drones are very effective to kill with pinpoint accuracy without causing much civilian harm.71 However, the data being
used to reach that conclusion is unreliable, and the American government has
never provided details of the number of drone strikes or the casualties from
those strikes.72 In the absence of reliable government statistics, independent
organisations have produced their own reports from media and intelligence
sources. The New America Foundation classifies 85 per cent of those killed in

66 H. H. Koh, 'The Obama Administration and International Law', Speech at the Annual
Meeting of the American Society of International Law, 25 March 2010: 7, available at:
http://www.state.gov/s/1/releases/remarks/139119.htm (accessed 2 August 2013).
67 Prosecutor v Tadic, supra note 65.
68 The Bureau of Investigative Journalism, July 2013 Update: US Covert Actions in Pakistan,
Yemen and Somalia, available at: http://www.thebureauinvestigates.com/2013/08/02/july2013-update-us-covert-actions-in-pakistan-yemen-and-somalia/ (accessed 2 August 2013); S.
Bachmann, 'Targeted Killings: Contemporary Challenges, Risks and Opportunities', Journal of
Conflict and Security Law, (2013), 1 30, at 9.
69 N. Lubell and N. Derejko, 'Drones and the Geographical Scope of Armed Conflict',
11 Journal of International Criminal Justice (2013): 65 88, at 77 8. See also Human
Rights Institute, Columbia Law School, 'Targeting Operations with Drone Technology:
Humanitarian Law Implications', Background Note for the American Society of International
Law Annual Meeting, 25 March 2011: 8, available at: http://www.law.columbia.edu/ipimages/
Human-Rights-Institute/BackgroundNoteASILColumbia.pdf (accessed 2 August 2013).
70 Article 51 (3), Additional Protocol I of 8 June 1977.
71 M. Boyle, 'The Costs and Consequences of Drone Warfare', 89(1) International Affairs
(2013):1 29, at 3.
72 Ibid., at 4 5.

IHaveaDrone 117
drone strikes in Pakistan as militants.73 The Bureau of Investigative Journalism
claims that available data from June 2004 to September 2012, suggests that, drone
strikes killed between 2,562 and 3,325 people in Pakistan, of which between
474 and 881 were civilians, including 176 children.7 4 The strikes wounded
an additional 1,228 to 1,362 individuals, making a collateral harm rate of
75
20 per cent.
Other serious errors have been made by human drone operators, which highlight the imperfections of drone attacks, with lethal consequences for civilians.
In December 2009, over 40 civilians, including women and children, were killed
when a drone attacked what was thought to be an Al-Qaeda camp in the Arab
Peninsula, but which was in fact a Bedouin encampment.76 Also, in March 2011,
a drone attack on what was believed to be a group of heavily armed Pakistani militants resulted in 42 deaths, out of which local residents said 38 were civilians.77
However, in the absence of a formula to determine what excessive collateral
harm to civilians is, drone operators must aim at reducing civilian casualties
to the barest minimum. Decisions regarding proportionality of an attack are
contextual and cannot be reduced to a rule determining what should be the ratio
of civilian deaths to military deaths for an attack to be disproportionate.78 In the
future, drones may acquire more autonomy in their operations and might be able
to comply with international humanitarian law better than humans can.7 9 That
remains to be seen.
IV. AMERICAN FOREIGN POLICY AND INTERNATIONAL LAW
This section is an overview of American foreign policy and how it has shaped its
interpretation of international law, especially with regards to international human
rights law and international humanitarian law.
A. American foreign policy
'CIA Holds Terror Suspects in Secret Prisons' s was The Washington Post expos6
that greatly helped in the passage of the Detainee Treatment Act of 2005.1
73 The New America Foundation,
'The Year of the Drone', available at http//
counterterrorism.newamerica.net/drones, (last visited 16 December 2012), cited in M. Boyle,
supra note 71, at 5.
74 S. Bachmann, supra note 68, at 27.
75 Ibid.
76 K. J. Heller, 'One Hell of a Killing Machine: Signature Strikes and International Law', 11 Journal
of International Criminal Justice, (2013): 89 119, at 104.
77 Ibid.
78 C. Grut, 'The Challenge of Autonomous Lethal Robotics to International Humanitarian Law',
18(1) Journal of Conflict and Security Law (2013): 5 23, at 12.
79 Ibid., at 7
80 D. Priest, CIA Holds Terror Suspects in Secret Prisons, The Washington Post, 2
November 2005, available at: http://www.washingtonpost.com/wp-dyn/contentarticle/2005/1 1/
01/AR2005110101644.html (accessed 26 June 2013)
81 Full text of the Act is available at: http://www.dni.gov/index.php/aboutorganization/ic-legalreference-book-2012/ref-book-detainee-treatment-act-of-2005 (accessed 26 June 2013)

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Adedokun Ogunfolu and Oludayo Fagbemi

The Act was a pending legislation that barred the United States from meting out
to its prisoners in any part of the world 'cruel, inhuman, or degrading treatment' .82
Three decades earlier, American journalist Ben Bradlee, in spite of President
Jimmy Carter's appeal, exposed the King of Jordan as a CIA payroll beneficiary.83
At least twenty-four democratic countries possess missile armed drones despite
the myth that democratic countries are averse to war.84 Nevertheless, it worth
remembering, that most of the countries that embarked upon the extremely bloody
First World War were democratic, Germany, Britain and France.85 The United
States has long espoused a foreign policy to convert other countries to American
values: 'American exceptionalism is missionary. It holds that the United States has
an obligation to spread its values to every part of the world.'86 This tendency has
a long pedigree. Professor Henry Shue reiterated this when he declared that:
The warning against the danger of simply stipulating our own view
as the universal one cannot be repeated too often, especially for
Americans with our tendency to overmoralize international affairs.
However, the stipulation of our own view and the passive wait for
a globally shared view to emerge on its own are far from the only
alternatives.8"
American exceptionalism also led it to sponsor cold war proxies against
liberation movements in Angola, Mozambique. From the 1947 massacres of
indigenous Taiwanese by the Kuomintang forces that fled from mainland
China and subsequent Kuomintang murderous brutal dictatorship of Taiwan,
America was its strongest ally in the Cold War.88 American foreign policy
under Henry Kissinger in the 1970s under the cover of checking communism,
supported regimes in South Korea, Philippines and Guatemala who tortured,
imprisoned and summarily executed huge swathes of political opposition. The
Harkin Amendment/Section 116 on economic assistance and Section 502B
Amendment on security assistance to the Foreign Assistance Act were measures
taken by Congress to prevent American support for such murderous regimes.8 9
Nevertheless in the recent past, America continued support for dictators, autocrats
90
and coup d'tats worldwide.
82 J. Goldsmith, Power and Constraint: The Accountable Presidency after 9/11, W.W. Norton &
Co. (2012), p. 56.
83 Ibid., p. 54.
84 E Saner and N. Sch6rnig, 'Killer Drones: The 'Silver Bullet' of Democratic Warfare?', 43(4)
Security Dialogue (August 2012): 363 80, at 364
85 H. Kissinger, On China, The Penguin Press (2011), pp. 425 26.
86 Ibid., p. xvi.
87 H. Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd edn, Princeton

University Press (1996), p. 179.

88 E. S. Steinfeld, Playing Our Game: Why China's Economic Rise Doesn't Threaten the West,
Oxford University Press (2010), pp. 218 27.

89 Shue, Henry, supra note 87, p. 158.

90 J. G. Ruggie, 'Doctrinal Unilateralism and Its Limits: America and Global Governance in the
New Century', in D. P. Forsythe, P. C. McMahon, and A. Wedeman (eds), American Foreign
Policy in a Globalized World, Routledge Taylor & Francis Group (2006), p. 37.

IHaveaDrone 119
President Obama in the first year of his presidency laid down the road map of
his foreign policy in his 10 December 2009, acceptance speech of the Nobel Peace
Prize bestowed upon him:
But the world must remember that it not simply international
institutions-not just treaties and declarations-that brought stability to
a post-World War II world. Whatever mistakes we made, the plain fact
is this: The United States of America has helped to underwrite global
security for more than six decades with the blood of our citizens and
the strength of our arms. The service and sacrifice of our men and
women in uniform has promoted peace and prosperity from Germany
to Korea, and enabled democracy to take hold in places like the
Balkans. We have borne this burden not because we seek to impose
our will. We have done so out of enlightened self-interest-because we
seek a better future for our children and grandchildren, and we believe
that their lives will be better if others' children and grandchildren can
live in freedom and prosperity.91
President Obama in 2011, in Cairo made additional unfulfilled promises:
And finally, just as America can never tolerate violence by extremists,
we must never alter or forget our principles. Nine-eleven was an
enormous trauma to our country. The fear and anger that it provoked
was understandable, but in some cases, it led us to act contrary to our
traditions and our ideals. We are taking concrete actions to change
course. I have unequivocally prohibited the use of torture by the
United States, I have ordered the prison at Guantanamo Bay closed
by early next year .... Resistance through violence and killing is wrong
and it does not succeed. 92

B. America and international law

American exceptionalism in the past also shaped the drafting of the United
Nations Charter to protect its sovereignty and prevent application of international
law to its domestic human rights regime:
In drafting the UN charter, for example, the United States introduced
language reaffirming faith in fundamental human rights. But because
the support of southern Democrats was critical to the charter's
ratification by the Senate, the need to keep Jim Crow laws beyond
international scrutiny obliged the United States to balance that
91 Remarks by the President at the Acceptance of the Nobel Peace Prize, Oslo City Hall, Oslo,

Norway, 10 December 2009, http://www.whitehouse.gov/the-press-office/remarks-presidentacceptance-nobel-peace-prize (accessed 28 October 2011)

92 Remarks by the President on a New Beginning, Cairo University, Cairo, Egypt, 4

June 2009, http://www.whitehouse.gov/the-press-office/remarks-president-cairo-university-604-09 (accessed 28 October 2011).

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Adedokun Ogunfolu and Oludayo Fagbemi

reaffirmation by adding what became Article 2(7). 'Nothing contained
in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of
any state.' No international judgment would be passed, in other words,
on so-called separate but equal education for black children or on state
lynch laws-under which less than 1 per cent of lynch murderers were
ever tried. The United States could vote for the Universal Declaration
of Human Rights in the UN General Assembly in 1948 because it was
a statement of aspirations, which created no binding legal obligations
and required no ratification. 93

Henry Shue believes that countries do not deserve sovereignty when they
cannot protect their citizens from egregious human rights abuses such as genocide
94
in Rwanda or famine in Somalia, and humanitarian intervention is then justified.
But the danger of humanitarian intervention leads to the slippery slope of regime
change.
1. American war on terror
Regime change shaped America's war on terror from 2001 to 2008 and it
was marked by the doctrine of enemy non-combatant, which the United States
Supreme Court held President Bush's regime could not use to legislate itself out of
its international law commitments to Common Article 3 protection against torture
of the 1949 Geneva Conventions. This was the case brought by a Yemeni national,
Hamdan, who sought Common Article 3 guarantees of a fair trial and protection
from torture as well as American Constitutional guarantees of a fair trial. In the
judgment of the Supreme Court of the United States:
Common Article 3 obviously tolerates a great degree of flexibility
in trying individuals captured during armed conflict; its requirements
are general ones, crafted to accommodate a wide variety of legal
systems. But requirements they are nonetheless. The commission
that the President has convened to try Hamdan does not meet those
requirement.... But in undertaking to try Hamdan and subject him to
criminal punishment, the Executive is bound to comply with the rule
of law that prevails in this jurisdiction. 95
In 2004, the Supreme Court had held that foreign nationals held at
Guantanamo Bay were protected by statutory habeas corpus. 96 But this protection
was legislatively stripped away by the Bush administration's war on terror.
93 Ruggie, supra note 90, p. 38.
94 Shue, supra note 87, pp. 179 80.
95 Stevens J. in Hamdan v Rumsfeld, Secretary of Defense, et al., 548 U.S. 557, 635 (2006), full
text available at: http://www.supremecourt.gov/opinions/boundvolumes/548bv.pdf (accessed 25
May 2013).
96 Rasul et al. v Bush, President of the United States, et al. 542 U.S. 466 (2004), full text available
at: http://www.supremecourt.gov/opinions/boundvolumes/542bv.pdf (accessed 25 May 2013).

I Have a Drone

121

The Supreme Court in 2008 held that American Constitutional protections

extended to foreign prisoners held at Guantanamo Bay because of America's
century old exclusive jurisdiction over Guantanamo Bay.97 The American
government had argued that Cuba still retained sovereignty over Guantanamo Bay,
which precluded the extension of American constitutional law.
2. American drone warfare
The American Department of Justice in a leaked memo declared that a member
of a terrorist organisation, who posed a threat of conducting an imminent armed
attack on the United States,could be targeted by an unmanned military vehicle
(drone) in another country with the country's permission or when the country is
unable or unwilling to neutralise the threat.98 This policy also extends to American
citizens: 'Were the target of a lethal operation a U.S. citizen who may have
rights under the Due Process Clause and the Fourth Amendment, that individual's
citizenship would not immunize him from a lethal operation.'99 This position was
confirmed in a letter dated 22 May 2013, by the Attorney-General to the Chairman
Committee on the Judiciary United States Senate."10 President Obama on 22 May
2013 signed the Presidential Policy Guideline to govern the use of force against
terrorists, which marked a shift away from Central Intelligence (CIA) control to
the military.10 1 The guideline claims to prefer capture and prosecution to killing
and targeted killings must only be done when non-combatants will not be injured
or killed:102
Finally, whenever the United States uses force in foreign territories,
international legal principles, including respect for sovereignty and
the law of armed conflict, impose important constraints on the ability
of the United States to act unilaterally-and on the way in which
the United States can use force. The United States respects national
sovereignty and international law. 103

97 Boumediene et al v Bush, President of the United States, et al. 553 U.S. 723, 799 (2008), full
text available at: http://www.supremecourt.gov/opinions/boundvolumes/553bv.pdf (accessed 25
May 2013).
98 Department of Justice White Paper, 'Lawfulness of a Lethal Operation Directed Against a
U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force',
pp. 1 2, available at: http://msnbcmedia.msn.com/i/msnbc/sections/news/020413 DOJ White
Paper.pdf (accessed 6 February 2013)
99 Ibid., p. 2.
100 Full text available at: http://www.justice.gov/slideshow/AG-letter-5-22-13.pdf (accessed 27 May
2013)
101 Fact Sheet: The President's May 23 Speech on Counterterrorism, available at: http://www.
whitehouse.gov/the-press-office/2013/05/23/fact- sheet-president- s-may-23 -speechcounterterrorism (accessed 27 May 2013).
102 U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations
Outside the United States and Areas of Active Hostilities, p. 2, available at: http://www.
whitehouse.gov/sites/default/files/uploads/2013.05.23 fact sheet on-ppg.pdf (accessed 27 May
2013)
103 Ibid., p. 2.

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Adedokun Ogunfolu and Oludayo Fagbemi

Nevertheless the guidelines are subject to the President's discretion: 'Reservation

of Authority. These new standards and procedures do not limit the President's
authority to take action in extraordinary circumstances when doing so is both
lawful and necessary to protect the United States or its allies.' 104
President Obama justified the use of drones because civilian deaths were lower
than conventional conflict and they prevented the loss of American soldiers:
Where foreign governments cannot or will not effectively stop
terrorism in their territory, the primary alternative to targeted lethal
action would be the use of conventional military options. As I've
already said, even small special operations carry enormous risks.
Conventional airpower or missiles are far less precise than drones,
and are likely to cause more civilian casualties and more local outrage.
And invasions of these territories lead us to be viewed as occupying
armies, unleash a torrent of unintended consequences, (which) are
difficult to contain, result in large number of civilian casualties and
ultimately empower those who thrive on violent conflict. 105
Professor Christof Heyns, the special rapporteur of the United Nations, on
extrajudicial killings, summary or arbitrary executions, declared in 2012, that
drone attacks carried out in Pakistan, Yemen and other countries by the United
States encouraged other states to violate human rights law and threatened
five decades of international law post-World War II.106 Professor Heyns noted
that:
The targeting is often operated by intelligence agencies which fall
outside the scope of accountability. The term 'targeted killing' is
wrong because it suggests little violence has occurred. The collateral
damage may be less than aerial bombardment, but because they
eliminate the risk to soldiers they can be used more often.107
Human rights organisations have classified drone attacks as 'extrajudicial
killings' .10

104 Ibid., p. 3.
105 Remarks by the President at the National Defense University, Fort McNair, Washington, DC, 23
May 2013, http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-nationaldefense-university ; http://www.whitehouse.gov/photos-and-video/video/2013/05/23/presidentobama-speaks-us-counterterrorism-strategy (accessed 27 May 2013).
106 Bowcott, Owen, Geneva, 'Drone Strikes Threaten 50 Years of International Law, says UN
Rapporteur,' 21 June 2012, Guardian, http://www.guardian.co.uk/world/2012/jun/21/dronestrikes-international-law-un (accessed 27 May 2013)
107 Ibid.
108 J. Goldsmith, Jack, supra note 82, p. 14.

I Have a Drone

123

V. THE RESOLUTION OF THE 2011 LIBYAN CONFLICT BY THE

AFRICAN UNION AND THE UNITED NATIONS SECURITY COUNCIL
In 2011, 80 per cent of the UN Security Council Resolutions were in respect of
African countries.1" 9 Africa also accounts for most of the cases being prosecuted
by the International Criminal Court. African governments such as Chad, Kenya
and Malawi have refused to arrest the Sudanese leader, Omar Al-Bashir, against
whom the Court issued a warrant of arrest. 110 The arrest warrant was issued on
12 July 2010 by the Court against President Omar Hassan Ahmad Al Bashir of
Sudan for acts of genocide in the Darfur region of Southern Sudan. 11 On 27 June
2011, the Court issued a warrant of arrest for Saif Al-Islam Gaddafi during the
2011 Libyan conflict.1 12 This was pursuant to the UN Security Council Resolution
1970 of 26 February 2011 (based on Chapter VII and article 41 of the UN Charter,
as well as article 16 of the Rome Statute), which referred violations of the laws
of war under the Libyan conflict 'since 15 February 2011 to the Prosecutor of the
113
International Criminal Court'.
The Assembly of the African Union seventeenth Ordinary Session held at
Malabo, Equatorial Guinea from 30 June to 1 July 2011, in its decision on the
implementation of the Assembly decisions on the International Criminal Court,
expressed:
DEEP CONCERN at the manner in which the ICC Prosecutor
handles the situation in Libya which was referred to the ICC by the
UN Security Council through Resolution 1970 (2011). The Assembly
NOTES that the warrant of arrest issued by the Pre-Trial Chamber
concerning Colonel Qadhafi seriously complicates the efforts aimed
at finding a negotiated political solution to the crisis in Libya, which
will also address, in a mutually-reinforcing way, issues relating to
impunity and reconciliation. In this regard, the Assembly DECIDES
that Member States shall not cooperate in the execution of the arrest
warrant, and REQUESTS the UN Security Council to activate the
provisions of Article 16 of the Rome Statute with a view to deferring
the ICC process on Libya, in the interest of Justice as well as peace in
114
the country.

109 http://www.un.org/Docs/sc/unsc-resolutions 11.htm (accessed 28 October 2011)

110 ' Libya: Gaddafi's son Saif al-Islam in contact with ICC, BBC Africa', 28 October 2011
http://www.bbc.co.uk/news/world-africa-15496608 (accessed 28 October 2011)
111 'Situation in Darfur, Sudan In the Case of the Prosecutor v. Omar Hassan Ahmad Al Bashir
("Omar Al Bashir")' 12 July 2010, http://www.icc-cpi.int/iccdocs/doc/doc907140.pdf (accessed
31 July 2010).
112 http://www.icc-cpi.int/iccdocs/doc/doc 1099329.pdf (accessed 28 October 2011).
113 Para. 4, S/RES/1970(2011), http://daccess-dds-ny.un.org/docUNDOC/GEN/N11/245/58/PDF/
Ni 124558.pdf?OpenElement (accessed 28 October 2012)
114 Para. 6, Assembly/AU/Dec.366(XVII), Assembly AU Dec 363-390_(XVII)_E, http://www.au.
inden/sites/default/files/AssemblyAU Dec 363-390_(XVII)_E.pdf (accessed 30 September
2012).

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Adedokun Ogunfolu and Oludayo Fagbemi

Western powers together with the League of Arab States, effectively took
over the management of the Libyan conflict from the African Union through
the imposition of a no-fly zone over Libya under the UN Security Council
Resolution 1973 of 17 March 2011.115 The military campaign to enforce the
no-fly zone started immediately after the 'Paris Summit for the Support of the
Libyan People', held on 19 March 2011. On 31 March 2011, the North Atlantic
Treaty Organization (NATO) assumed sole command of the international air
operations over Libya, which was initially coordinated by the Stuttgart-based US
Africa Command (AFRICOM). A week earlier, NATO had decided to launch an
operation to enforce the arms embargo against Libya. The alliance conducted all
these attacks under 'Operation Unified Protector'."' At the second yearly high
level African Union and United States meeting held in Washington, DC on 20 and
21 April 2011, American officials insisted on regime change in Libya as sine qua
non for the resolution of its crisis.117 This effectively rendered futile the goal of the
African Union High-Level Ad Hoc Committee on Libya 'to provide Africa-owned
and African-led solutions'."'
The Committee was established in March 2011 with the Heads of State of
Mauritania, Congo, Mali, South Africa and the Chairperson of the African Union
Commission as members. 9 Its mandate was to:
1. engage with all parties in Libya and continuously assess the evolution
of the situation on the ground,
2. facilitate an inclusive dialogue among the Libyan parties on the
appropriate reforms,
3. engage AU's partners, in particular, the League of Arab States, the
Organisation of the Islamic Conference, the European Union and the
United Nations, to facilitate coordination of efforts and seek their
1 20
support for the early resolution of the crisis;

115 Paras 6 12, S/RES/1973(2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/

PDF/N1 126839.pdf?OpenElement last visited 28 October 2012).
116 Para. 11, Report of the Chairperson of the Commission on the Activities of the AU High
Level Ad Hoc Committee on the Situation in Libya: Peace and Security Council 275th
Meeting Addis Ababa, Ethiopia, 26 April 2011, http://au.inten/dp/ps/sites/default/files/275%20%20Report%20on%20Libya%20_Eng%20-%20(3)-0.pdf (accessed 30 September 30, 2012).
117 Ibid., paras41 and 42.
118 Para. 6 (vi) of the Communique of the Meeting of the Ad Hoc Committee on Libya,
held at Pretoria, South Africa, South Africa 26 June 2011, http://au.inUen/dp/ps/sites/defaulU
files/Communique%20on%2oLibya%20-Pretoria%2026%20June%20-%20_Eng%20_[1].pdf
(accessed 30 September 30, 2012).
119 The African Union announces the composition of the Ad-hoc High Level Committee
on Libya, 10 March 2011, http://au.inden/dp/ps/sites/defauldfiles/ANN EN 10 MARCH
2011 PSDTHEAFRICANUNIONANNOUNCESCOMPOSITION AD HOCHIGH_
LEVEL-COMMITTEE LIBYA.pdf (accessed 30 September 2012).
120 Para. 8, Communique, Peace and Security Council 265th Meeting Addis Ababa, Ethiopia, 10
March 2011, http://au.inden/dp/ps/sites/default/files/COMMUNIQUE EN 10 MARCH_2011_
PSDTHE_265THMEETING OF THE PEACE ANDSECURITYCOUNCIL ADOPTED
-FOLLOWING DECISION SITUATION LIBYA.pdf (accessed 30 September 2012).

I Have a Drone

125

The Committee and the African Union Commission convened a consultative

meeting on 25 March 2011 in Addis Ababa on the Libyan crisis and formulated a
roadmap which required.
I.
II.

III.

IV.
V.

The protection of civilians and the cessation of hostilities;

Humanitarian assistance to affected populations, both
Libyan and foreign migrant workers, particularly those
from Africa;
Initiation of a political dialogue between the Libyan
parties in order to arrive at an agreement on the modalities
for ending the crisis;
Establishment and management of an inclusive
transitional period; and
Adoption and implementation of political reforms
necessary to meet the aspirations of the Libyan people.121

The declaration of the 275th Peace and Security Council of the African Union,
observed that:
Council expressed serious concern that, in some crisis and conflict
situations, African efforts to attain peace are undermined by foreign
actors, whose motives are, at times, neither complementary to, nor
consistent with the implementation of African solutions to African
problems."'
Even though, both the United Nations Security Council and the African Union
Peace and Security Council at their fifth consultative meeting on 21 May 2011,
at the African Union Headquarters in Addis Ababa, Ethiopia, 'stressed the need
for a political solution to the conflict in Libya'.123 They also noted the precarious
Libyan humanitarian condition and demanded:
full compliance with human rights and International Humanitarian
Law and the creation of the required conditions for the delivery of
assistance to all needy populations across Libya. They stressed the
need to provide specific support to the African migrant workers living
in Libya, including those seeking to leave the country.124
121 Para. 7, Communique on the Consultative Meeting on the Situation in Libya,
Addis Ababa, Ethiopia, 25 March 2011 http://au.int/en/dp/ps/sites/default/files/communique__Libya eng_[1].pdf (accessed 30 September 2012).
122 Para.12, Declaration of the Ministerial Meeting of the Peace and Security Council
on the State of Peace and Security in Africa: Peace and Security Council 275th
Meeting Addis Ababa, Ethiopia, 26 April 2011, http://au.inten/dp/ps/sites/default/files/Press%
20Statement%20275%20th%20meeting%20PSC%20ministerial%20debate%2026%20April%
202011%20_2_%20_2_pdf (accessed 30 September 2012).
123 Para. 10, Communique of the Consultative Meeting between Members of the Security Council
of the United Nations and the Peace and Security Council of the African Union, 21 May 2011,
http://au.inten/dp/ps/sites/default/files/Communiqu6%20AUPSC-UNSC%20-Eng.-%20Final.
pdf (accessed 30 September 2012).
124 Ibid., para. 11.

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The African Union at the onset of the Libyan crisis sought a political solution125
and the 285th meeting of its Peace and Security Council meeting convened on 13
July 2011, emphasised this fact.126 This was in line with the second paragraph of
UN Security Council Resolution 1973, which stressed:
the need to intensify efforts to find a solution to the crisis which
responds to the legitimate demands of the Libyan people and notes
the decisions of the Secretary-General to send his Special Envoy to
Libya and of the Peace and Security Council of the African Union
to send its ad hoc High Level Committee to Libya with the aim of
facilitating dialogue to lead to the political reforms necessary to find
a peaceful and sustainable solution;
But Western powers backed military insurgents to effect regime change.
Moreover, North Atlantic Treaty Forces embarked on massive bombing of areas
controlled by the Gaddafi forces, which drew the ire of the African Union after
six weeks of destruction of lives and socio-economic infrastructure by NATO
bombs. 127
On 25 May 2011, the extraordinary session of the Assembly of the African
Union on the state of peace and security in Africa decided on the peaceful
resolution of the Libyan crisis and believed 'that the continuation of the NATO-led
military operation defeats the very purpose for which it was authorized in the first
place, i.e. the protection of the civilian population, and further complicates any
transition to a democratic dispensation in Libya'. 128 It further poignantly observed
that:
While reiterating the commitment of the AU to resolutions
1970(2011) and 1973(2011), the Assembly stressed the obligation
of all Member States of the United Nations and the other concerned
international actors to fully comply with the letter and spirit of those
resolutions. The Assembly expressed deep concern at the dangerous
precedence being set by one-sided interpretations of these resolutions,
in an attempt to provide a legal authority for military and other actions
on the ground that are clearly outside the scope of these resolutions,

125 Press Release: 'Official Presentation by the AU to the Libyan Parties of a Proposal on
a Framework Agreement for a Political Solution to the Crisis in Libya, Malabo', 1 July
2011, http://au.int/en/dp/ps/sites/default/files/Press%20Release%2OLibya%2OENG%2001-0711.pdf (accessed 30 September 2012).
126 285th Final Press Statement_-_LibyaEN http://au.inden/dp/ps/sites/default/files/285th
Final PressStatement - LibyaEN.pdf (accessed 30 September 30, 2012).
127 African Union Press release on Libya 3 05 11, http://www.au.inden/sites/defaultlfiles/Press%
20release%20on%20Libya%203%2005%201 1.pdf (accessed 18 October 2012).
128 Para. 5, Extraordinary Session of the Assembly of the Union on the State of Peace and Security
in Africa, Addis Ababa, Ethiopia, 25 May 2011, EXT/ASSEMBLY/AU/DEC/(01.2011),
http://au.inden/dp/ps/sites/default/files/D6cision%20sur%201a%20situaton%20en%20Libye%
20_Eng%20 0.pdf (accessed 30 September 2012).

I Have a Drone

127

and at the resulting negative impact on 129

the efforts aimed at building
an international order based on legality.
According to the Report of the Chairperson of the Commission on the Situation
in Libya and on the Efforts of the African Union for a Political Solution to the
Libyan Crisis:
While the diplomatic efforts to find a political solution were
underway, building on the responses received from both parties, the
air campaign conducted by NATO and the fighting on the ground
continued unabated. Since taking control of the military operations
for Libya within the framework of UN Security Council resolutions
1970 and 1973 (2011), on 31 March 2011, under 'Operation Unified
Protector', NATO has conducted close to 20,000 sorties, including
130
7,600 strike sorties.
The African Union High-Level Ad Hoc Committee on Libya met in Pretoria,
South Africa on 14 September 2011, with the presidents of South Africa, Uganda,
and Congo in attendance while the ambassadors of Mali and Mauritania accredited
to South Africa represented their countries. The Chairperson of the African Union
and the Commissioner for Peace and Security were also in attendance. The
Ad Hoc Committee expressed concern over the Libyan conflict's impact upon
regional security/terrorism and requested the Chairperson of the African Union to
convene urgently, a Peace and Security Council meeting at the side lines of the
131
66th Ordinary Session of the United Nations General Assembly in New York.
Communiqu6 of the 294th meeting of the Peace and Security Council of the
African Union held at New York on 21 September 2011 urged the United Nations
Security Council to terminate the no-fly zone measures over Libyan airspace and
abide with the spirit of its resolution 1973 (201 1).132

VI. CONCLUSION
America has broader economic interests in Africa, of which the use of drones is
part of a broad range of tools to secure such interests. Despite all the evidence
of the use of drones being a breach of international humanitarian law, America
has continued using them. Insecurity and piracy in Africa also led to the creation
129 Ibid., para. 7.
130 Para. 10, Report of the Chairperson of the Commission on the Situation in Libya and
on the Efforts of the African Union for a Political Solution to the Libyan Crisis, Peace
and Security Council 291st Meeting Addis Ababa, Ethiopia, 26 August 2011, http://au.
int / en/ dp / ps /sites/default/files/PSC%20Report%20on%2OLibya%20%20_Eng%20_Final.pdf
(accessed 30 September 2012).
131 Final Communique Ad hoc Cmtee on Libya_-_Pretoria_14_Sept_[1], http://au.inten/dp/ps/
sites/ default/ files/ Final%20Communiq%20Ad hoc Cmtee on Libya_-_Pretoria_14_Sept_
[1].pdf (accessed 30 September 2012).
132 Para. 7, PSC COMMUNIQUE 21 09 11 ENG, http://au.inden/dp/ps/sites/defaul
files/PSC%20COMMUNIQUE%20-%2021%2009%2011%20%20ENG.pdf
(last visited 30
September 2012).

128

Adedokun Ogunfolu and Oludayo Fagbemi

of the United States African Command (AFRICOM) initiative to secure the gulf
of Guinea in West Africa to guarantee oil supplies to America.133 It is instructive
that the AFRICOM commander in 2012, recommended non-military solutions of
socio-economic dimensions to tackle violence in African countries.134
In the short term, African rulers must respect, protect, and fulfil socioeconomic rights of their citizens, in order to prevent armed conflict over unjust
administration of finite resources, as well as ameliorate conflict between nomads,
and settled farmers. In the medium term, African countries must enact and
implement socio-economic policies that invest in education and healthcare, to
speed up human capacity and human development. In the long term, democratic
constitutionalism that promotes accountable leadership, will result in the crafting
of transparent policies, to efficiently utilise public resources and transform armed
conflicts into peaceful political contestation over policies. All the above measures
will enable African countries to have effective, affective, and transformative
control over their entire territories, and stem lethal American drone attacks on
innocent African civilians.

133 http://www.africom.mil/AfricomFAQs.asp (accessed 12 June 2013).

134 General Carter Ham, Commander United States Africa Command, Statement before the
House Armed Services Committee, 29 February 2012: 8 9, http://www.africom.mil/fetchBinary.
asp?pdflD=20120301102747 (accessed 4 January 2013). 'Socio-economic Rights Enhances
15 6
National Security', in R. Teitel, Humanity's Law, Oxford University Press, (2011), p.
.