Drone Warfare

Introduction

The term ‘drone’ defines a remotely piloted aircraft customarily used for the purposes of surveillance or precision air strikes. Due to their relative novelty in the context of geopolitical history, drones lack an explicitly defined status in either the treaties or legal customs that constitute International Human Rights Law (IHRL) and International Humanitarian Law (IHL). As the majority of extant international legislation was formulated in the context of a military paradigm that presupposed direct confrontation between combatants (see below), these existing legal frames are in many ways inadequate for the provision of a comprehensive drone policy. Moreover, controversial deployments of drone strikes in recent conflicts has brought them to the forefront of global contention, creating an imminent need for a cohesive geopolitical approach to the issue.

Case Studies

US drone strikes

Recent developments in international policy: - In September 2017, top military advisers to the Trump administration proposed modifying domestic

legislation to include foot soldiers (in addition to high-level militants) as legitimate targets in drone strikes and to remove high level vetting thereof.

- On September 10 2018, The New York Times reported that a secret US military base in Dirkou (a town in Niger located 250 km south of the Libyan border) would begin deploying drones to carry out assassinations in the Sahel region of Northern Africa.

Targeted Assassinations

June 15 2018 - Pakistani Taliban Leader Mullah Fazlullah Khorasani August 26 2018 - Afghani IS leader Abdu Saad Erhabi

By region (according to the New America Foundation): - Yemen since January 2018:

- 30 civilians killed

- Yemen since 2002: - 267 drone attacks - 111-142 civilian casualties

- 1,330 - 1,716 total dead

- Afghanistan (according to the Bureau of Investigative Journalism) - since 2015: - 4,076 strikes - 150-313 civilian casualties - 3,594-4,879 total dead

Israeli drone strikes

The Israeli drone program is classified by the government. Nonetheless, their repeated use against Hamas in the ongoing Israel-Palestine conflict has garnered international attention. Recent examples include:

- 2014 - 4 Palestinian boys (aged 10-11) killed on a beach in Gaza. - 29 October 2018 - 3 boys (aged 13-14) killed on the border between Israel and Gaza

UK drone strikes - In Iraq/Syria in the period 2014 - December 2017

- 5,474 missions flown - 3,599 weapons launched

In Afghanistan in the period May 2008 - November 2014: 4,728 sorties were carried out by Reaper UAVs.

Chinese dominance in international drone market

- As of November 10 2018 - China has manufactured drones for 17 countries, including:

- Pakistan/Myanmar - Post-Soviet states (Turkmenistan, Uzbekistan, Kazakhstan) - Egypt, Algeria, Ethiopia - Saudi Arabia/United Arab Emirates

This recently acquired market power is in stark contrast to the effective monopoly built and maintained by the USA following the September 11 2001 attacks.

Issues

Jus ad bellum

- Article 2(4) of the UN Charter forbids “the threat or use of force against the territorial integrity of another state”. Subsequent international legislation has clarified that there are three scenarios in which the use of force in a foreign territory is permitted:

- With the ‘freely given and clearly established’ consent of a ‘legitimate’ government authorised to given such assent, provided the ensuing action does not contravene the obligations of either party under IHL and IHRL.

In self defence; article 51 enshrines the right of states to individual or collective self-defence in response to an armed attack until action has been taken by the Security Council to resolve the dispute. By authorisation of the UN Security Council.

This raises the following issues

- Do recent examples of drone strikes (by the US/UK/Israel etc.) qualify any of these conditions?

- In the contexts of religious and ideological sectarianism that prevail in many of the countries where drone strikes have been employed (notably Syria and Yemen), does it make sense to speak of a governmental administration as having the authority required for consent?

- Have these drone strikes been conducted in such a way that is consistent with overarching legal modalities of necessity and proportionality?

- Given that many drone strikes target imminent threats, under what conditions can preemptive warfare be proportional?

Jus in bello

IHL - The body of law that applies only in cases of armed conflict. - Relevant provision: The civilian - combatant distinction - Under articles 48 and 51 of Additional Protocol 1 and article 12 of Additional Protocol 2 to the

Geneva Conventions, states in armed conflict are obligated to recognise the distinction between civilians and combatants and to do everything feasible to verify that targets are in the latter category (article 57). Under this legislation, incidental death of civilians is illegal when the incidental harm is ‘excessive in relation to the concrete and direct military advantage anticipated’.

IHRL - Applies in and out of armed conflicts; governs the relationship between the state and those under its

jurisdiction.

Relevant provisions: - The Right to Life - Enshrined in article 6 of the ICCPR, the contexts in which the use of lethal

force is legal vary according to the situation: - During an armed conflict, killing is permitted so long as it is lawful under IHL - Otherwise, this right has been interpreted by the Human Rights Committee as requiring that the

force used be proportionate (to the threat posed by the target) and necessary (i.e. the only available means to reduce the threat posed by the target).

- The right not to be subjected to cruel, inhuman or degrading treatment. Contained in article 7 of the ICCPR, this includes a prohibition against torture, defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as including ‘physical or mental’ suffering.

This raises the following questions: - Have the requirements imposed by IHRL been satisfied in recent cases of drone strikes? - Could the psychological impacts of drone strikes constitute them as inherently a form of torture? - Given that the civilian-combatant distinction is subjectively grounded (‘direct military advantage

anticipated’), can a drone operator, given their geographic removal from the strike, ever have the information required to render the strike just?

Suggested Reading

http://www.ibanet.org/Document/Default.aspx?DocumentUid=b0b8af88-fd20-44f8-a920-634484645113

https://dronewars.net/

https://thediplomat.com/2018/11/explaining-the-proliferation-of-chinas-drones/

http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf