War Crimes: Do US Drone Strikes Violate Article 25 of the Hague Convention?

Villagers comb through the rubble left after a 

US drone strike in Pakistan killed 18 people, 

including 10 women and children - but no 

Al Qaeda or Taliban fighters.

Article 25 of the Hague Convention on the Law of Land Warfare states “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited” and violation of this article is listed as a War Crime under Article 8 of the Rome Statute of the International Criminal Court.

Do American drone attacks on family compounds within Afghanistan and Pakistan, believed to be occupied by members of the Taliban violate Article 25? A focus on this question ignores some other key issues raised by the Drone War, including the legality of strikes executed by civilian employees of the US government (ie, the CIA) on US citizens and non-citizens, and whether an on-going air campaign where 1/3 of the casualties are civilian can be considered discriminate and proportional, but one has to begin somewhere.

So let’s start by considering the nature of the targets. In his book TALIBAN: Islam, Oil and the New Great Game in Central Asia, Ahmed Rashid describes exactly what US Hellfire missiles slam into on a regular basis - “mud-brick homes plastered with more mud and straw… built behind high compound walls.”

It is difficult to imagine how such a building, located in a village full of civilians could be construed as being defended, especially against an unmanned aircraft flying 25,000 feet overhead. Adequate defense against such an attacker would have to consist of air-defense artillery or missiles with a sophisticated tracking system to locate and engage the small, quiet drones. 

Let's consider a couple of justifications that might possibly be made for what appears, on the surface, to be an egregious violation of the Laws of Land Warfare. First, someone might claim that the building wasn't the target - it was only a particular person or persons inside the building who were the targets, and the nature of the structure they were occupying was immaterial. But using that logic, such persons could be legitimately targeted anywhere, including schools, mosques, hospitals, and any other building.

It’s also possible someone could claim that just because there were people in the house who possessed guns, the building was “defended.” Such an argument rings hollow on several counts. First, inhabitants of Pakistan’s tribal areas are allowed to have weapons, precisely for the defense of their persons and property. Second, simply because the occupant of a building has a weapon, it doesn’t mean they will use it defensively. If approached by military or police forces they may choose to run away, to surrender, or to fight. Only in the latter case would the building become a “defended” position and thus merit bombardment.

So, it appears that in those cases where ground forces have approached a compound and been engaged by defensive fire from within, aerial bombardment (by drones or manned aircraft) would certainly be appropriate and legal. However, where no such evidence exists that a compound is defended exists, any bombardment, including drone strikes, would be a war crime and should be prosecuted as such.