466 Revista del Instituto Español de Estudios Estratégicos Núm. 2 / 2013 play in a situation of armed conflict, for which IHL is applicable. a) As for the principle of discrimination, a drone could a priori fulfil the requirements derived therefrom as an operator would be able to see in real time whether civilians were present or not up until a few minutes or even seconds before the attack. Of course, this does not provide one hundred percent certainty, as the use of drones in practice has shown over and over again in Afghanistan and other places65. Yet, as a whole, there seems to be a majority view that a drone is able to adapt (acting with caution and good faith) to the requirements of the concept of distinction or discrimination. The “precautionary” approach would advise, for instance, not to attack if a video shows somebody digging a hole at a roadside, despite the fact that one cannot be wholly certain that this person is not planting an improvised explosive device there66. In accordance with the principle that this article shall examine, drones may only strike (of course while respecting ius ad bellum) military and civilian targets if “they participate in hostilities”, and while also respecting the principle of proportionality. If this is not the case, their activities constitute a violation of IHL, which in practice has occurred with drones on more than one occasion67. If a drone attack targets a civilian whose direct participation in hostilities cannot be proved, the state that launches the missile is thus carrying out a targeted killing. Consequently, determining if a civilian is participating in these hostilities is a basic requirement in order to ascertain whether he or she loses the protection afforded to the civilian population by IHL. Plus, this is not particularly straightforward in the case of terrorists.68. 65 Vid. ad ex. the practice mentioned by CASEY-MASLEN, Stuart: “Pandora’s box?...” cit., p. 607. 66 A scenario described by the authors cited below to suggest that a drone will not always be able to fully “see” this and therefore to draw a distinction (GEISS, Robin and SIEGRIST, Michael: “Has the armed conflict in Afghanistan affected the rules on the conduct of hostilities?”, International Review of the Red Cross, March 2011, Number 881 from the original version, pp. 1-39. p. 38). 67 The case of the Taliban leader Baitullah Mehsud is particularly insidious: on 23 June 2009, the CIA killed Wali Mehsud, one of the Taliban commanders in Pakistan, so that his funeral, which they presumed would be attended by Baitullah Mehsud, who occupied the highest position within the organisation, would serve as a trap to kill the latter. Taliban leaders and many civilians were expected to attend the funeral in question (estimates put the number of attendees at approximately 5,000). A drone struck the ceremony, at which the Taliban leader they sought was in fact present, and the resulting death toll stood at 83 people. Of those, 45 of were civilians, including 10 children and 4 tribal leaders. As fate would have it, Baitullah Mehsud escaped unharmed and was killed six weeks later together with his wife in a fresh attack carried out by the CIA (WOODS, Chris and LAMB, Christine: “CIA tactics in Pakistan include targeting rescuers and funerals”, 4 February 2012, http://www.thebureauin-vestigates. com, last accessed Sunday 15 September 2013). 68 The International Committee of the Red Cross attempted to shed some light on the matter in its 2009 interpretive guidance on the notion of direct participation in hostilities, available at: http:// www.icrc.org/eng/resources/documents/publication/p0990.htm. Israel’s Supreme Court also had the opportunity to rule on this issue in 2006 (Supreme Court of Israel, Public Committee against torture in Israel et al. v. Government of Israel et al., HCJ 769/02, 11 December 2005). The ruling questions
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