Drone Wars: The Legality of Remotely Piloted Aircrafts

By: Tania Sweis

The militarized use of remotely piloted aircrafts (RPAs), more commonly known as drones, is on the rise. With this increase, many questions surface as to their legality under International Humanitarian Law and International Human Rights Law. Drones are not explicitly mentioned in, nor prohibited by, international law; they are considered no different than other weapons launched from manned aircrafts. In that case, why are they subject to such specific and vocal scrutiny?

The Legal Framework for RPAs

In the presence of armed conflict, the use of RPAs with lethal force falls under the purview of international humanitarian haw (IHL).  Under IHL, drone attacks should be undertaken with proportionality, humanity, military necessity, and distinction between civilians and combatants. In the absence of conflict, the more stringent international human rights law (IHRL) applies, and lethal force is permitted only when strictly necessary and proportionate. Many opponents of RPAs contend that they are used in the absence of conflict and should be subject to the strict IHL. It is here that much of the controversy surrounding RPAs arises. The Stanford International Human Rights & Conflict Resolution Clinic sheds light on the legality of targeted killings by RPAs under IHRL:

“’Targeted killings’ as typically understood (intentional and premeditated killings) cannot be lawful under IHRL, which allows intentional lethal force only when necessary to protect against a threat to life, and where there are ‘no other means, such as capture or non-lethal incapacitation, of preventing that threat to life.’”  In the case of drone,  “there is little public evidence that many of the targeted killings carried out fulfill this strict legal test… many particular strikes and practices suggest breaches of the test, including: signature strikes; strikes on rescuers; the administration’s apparent definition of “militant”; the lack of evidence of imminent threat; and the practice of extensive surveillance and presence on a list before killing.”

Ben Emmerson, the UN Special Rapporteur on Counter-Terrorism and Human Rights, further explains that much uncertainty results from today’s global landscape. It is occasionally difficult to determine whether or not one is in an area of conflict or combat. Particularly in the case of terrorist organizations like the Taliban, al Qaeda, and ISIS, the enemy has transcended state borders. These developments create confusion as to the applicable laws. The lack of transparency of governments engaged in RPA use exacerbates this confusion. In light of these issues, Emmerson communicated to the UN Human Rights Council that there is “a need to promote an international consensus on the core legal principles applicable to the use of armed drones in counter-terrorism operations.’” Over the course of several years, Emmerson conducted an investigation of targeted killings carried out by the United States, United Kingdom, and Israel in Afghanistan, Pakistan, Yemen, Somalia, and Gaza and uncovered thirty cases between 2006 and 2013 that “show sufficient indications of civilian deaths to demand a ‘public explanation of the circumstances and the justification for the use of deadly force’ under international law.”

In line with Emmerson’s claims, many human rights-oriented non-governmental organizations (NGOs) such as Amnesty International, the American Civil Liberties Union, and Human Rights Watch provide vocal opposition to drone use and policies. On September 18, 2014, these NGOs, along with several others, penned a joint, open letter to the UN Human Rights Council on Targeted Killing and the Use of Armed Drones.  They urged the Human Rights Council to enumerate legal standards and criteria for state disclosures of data regarding targeted killing operations; ensure that states comply with international law; enable meaningful oversight and the right to a remedy for injured civilians; and ensure the pursuit of effective investigations, tracking, and response to civilian harm.

The Response of the US Government and her Allies

Domestically, the US government overtly justified its use of RPAs.  President Obama, in his 2013 speech at the National Defense University, addressed many of the questions surrounding the legality of US drone use. The Commander in Chief directly stated that the United States is at war with al Qaeda and the Taliban, effectively cementing that IHL is applicable to US counter-terrorist RPA activity, as opposed to the more stringent IHRL. He continued to justify the points in contention of IHL, asserting that the amount of force used by the United States is proportional to the threat posed by the opposing terrorist organizations and, regarding civilian casualties, that “conventional airpower or missiles are far less precise than drones and are likely to cause more civilian casualties and more local outrage.” Nevertheless, despite these defenses, President Obama conceded that increased transparency is essential to the continued use of drones and even mentioned the possibility of a secret court that would sign off on future strikes.

Since this speech, the most progressive step the United States has taken towards the goal of transparency comes in the Targeted Lethal Force Transparency Act, introduced in April 2014 by Congressman Adam B. Schiff (D-CA-28). The act, if passed, will require the publication of an annual report on the number of deaths that result from military drone use. The report will include: “the total numbers of combatants, civilians, and other persons killed or injured outside the United States by remotely-piloted aircraft each calendar year,” but excludes any “use of targeted lethal force in Afghanistan prior to the end of U.S. combat operations, or … any use of such force in a foreign country described by a future declaration of war or authorization for the use of military force.” The passage of this act would be in line with the demands of the NGOs and other opponents of the current drone policy.

The United Kingdom’s Ministry of Defense has been notably silent regarding their planned and current use of drones and have been accused of aiding the United States in its drone program, much to the dismay of UK citizens.  The UK branch of Reprieve, a non-profit human rights organization, threatens to launch a judicial review of the Ministry of Defense if the government does not provide more transparency regarding their operations.

Conclusion

Although remotely piloted aircrafts were introduced combatively in World War I, the current surge in their use, coupled with the elusive nature of emerging enemies, calls for a reassessment of the application of international laws. As evidenced by the contrasting views concerning the legality of RPAs, the present laws are not clear as to the nuances of what constitutes legitimate and illegitimate use. At the heart of this problem is the lack of transparency of governments utilizing this technology. For the United Nations to formulate adequate regulations, a factual understanding of the real life effects of drones is essential. The Targeted Lethal Force Transparency Act by the United States, as well as the inquiries made into other states’ RPA use, is a significant step in the right direction.

Tania Sweis is a J.D. Candidate at Berkeley Law. She is a student contributor for Travaux.

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