Removing Humans from the Kill Chain

Transcription

1 Removing humans from the kill chain Removing Humans from the Kill Chain - the legality of (semi-)autonomous weapon systems The Legality of under (Semi-) international Autonomous law Weapon Systems under International Law Romy Dimitrovski / u Supervisor: Prof. Dr. N.M. Rajkovic Department of European and International Public Law Faculty of Law, Tilburg University, The Netherlands, June, 2017 Kajkumer, 'What

2 Table of Contents List of Abbreviations 6 Chapter 1: Introduction 1.1.Background Research questions and methodology Literature review Significance of the research Chapter outline. 14 Part I: Legal Framework Chapter 2: Drone warfare 2.1. Rise of the Drones Weapons and the means of warfare under international humanitarian law The law of weaponry Superfluous injury or unnecessary suffering The (in)discriminate nature of the weapon Chapter 3: Ius ad bellum 3.1. The general prohibition on the use of force The right of self-defence Armed attack Self-defence against imminent attacks Necessity and proportionality Self defence against non-state actors..29 Chapter 4: Ius in bello 4.1. Defining the armed conflict The principle of distinction Direct participation in hostilities Membership of an organized armed group The principle of precaution The principle of proportionality Criminal responsibility Chapter 5: International human rights law 5.1. The right to life Necessity of killing Disproportionate killings

3 Part II: Legal Challenges of Autonomous Weapon Systems Chapter 6: Autonomous weapon systems 6.1. Dawn of the Killer Robots The law of weaponry Superfluous injury or unnecessary suffering The (in)discriminate nature of the weapon 52 Chapter 7: Autonomous weapon systems and the ius ad bellum 7.1. The resort to force Necessity and proportionality Chapter 8: Autonomous weapon systems and the ius in bello 8.1. The (in)ability to distinguish civilians from combatants Feasible precautions Military necessity and the proportional use of force Criminal responsibility International human rights law..69 Conclusion...72 Bibliography

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5 ACKNOWLEDGMENTS I would like to thank a number of people for their support. Firstly, thank you to my supervisor, professor Rajkovic, for guiding me through the fog of drone and post human warfare and inspiring me to immerse myself in such a fascinating topic in the first place. His constructive feedback has been critical to the completion of this thesis. And to my family and friends, in particular my mom, thank you for the constant support, the endless debates and moments of reflection on drones and autonomous weapons. 5

6 List of abbreviations AI Artificial intelligence AP I Additional Protocol I to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts AP II Additional Protocol II to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of non-international Armed Conflicts AW Autonomous Weapon AWS Autonomous Weapon Systems CCF Continuous combat function CCW Convention on Certain Conventional Weapons ECHR European Convention on Human Rights ECtHR European Court of Human Rights GC Geneva Conventions GGE Group of Governmental Experts IAC International Armed Conflict ICC International Criminal Court ICJ International Court of Justice ICRC International Committee of the Red Cross ICCPR International Covenant on Civil and Political Rights ICTY International Criminal Tribunal for the former Yugoslavia IHL International Humanitarian Law IHRL International Human Rights Law ISTR Intelligence, Surveillance, Targeting and Reconnaissance LAR Lethal Autonomous Robotics LAWS Lethal Autonomous Weapon Systems LOAC Law of Armed Conflict NIAC Non-International Armed Conflict ROA Remotely Operated Aircraft RPA Remotely Piloted Aircraft RPV Remotely Piloted Vehicles RS Rome Statute of the International Criminal Court UACV Unmanned Aerial Combat Vehicle UAV Unmanned Aerial Vehicles UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations UN GA United Nations General Assembly UN SC United Nations Security Council US United States 6

7 Introduction 1.1. Background For decades, states have been in an aerial arms race with one another, trying to outrank other states by developing new, more advanced weapons and weapon systems that are more effective and, in particular, more lethal. 1 This arms race took flight during the interbellum, which constituted an enormous shift in technological capability of, amongst others, the US, enabling it to conduct terrifying aerial attacks and resort to nuclear and chemical weapons during the Second World War and the Vietnam war. These chemical and nuclear weapons caused great civilian destruction by condemning thousands of people to horrible deaths and excruciatingly painful injuries. 2 In the aftermath of these wars, there was international concern regarding the use of certain kinds of weapons, capable of causing immense and inhumane suffering. As a result, the international community banned the use and development of nuclear and chemical weapons in general and restricted the use of various other kinds of weapons, such as landmines and blinding lasers. 3 This did not, however, discourage states from developing more lethal weapons and, due to technological innovations, states were able to rapidly create a new arsenal of weapons that were less depended on human control. One of these recently developed weapons is the unmanned aerial vehicle (UAV), also known as drone, which is remotely-operated. UAV s were initially designed for conducting surveillance and gathering intel by tracking enemy soldiers on foreign soil. In the last two decades, however, these drones have been equipped with missiles, enabling people to kill someone on the other side of the planet in real time by remote control. 4 The US were the first ones to use armed drones to launch a strike against a designated person in Ever since, 1 Tami Davis Biddle, Strategic Bombardment: Expectation, Theory, and Practice in the Early Twentieth Century in Matthew Evangelista and Henry Shue (eds), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell University Press, 2014), p Vincent Bernard, A price too high: Rethinking nuclear weapons in light of their human cost (2015) 97:899 IRRC 499, p Michael P. Scharf, Clear and Present Danger: Enforcing the International Ban on Biological and Chemical Weapons Through Sanctions, Use of Force, and Criminalization ( ) 20 Mich. J.Int L. 477, p. 483, reaffirmed by the Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (adopted on 10 October 1980, entered into force on 2 December 1983) (hereinafter CCW) and its additional protocols. See also the UN Convention on Certain Conventional Weapons, its four additional Protocols and the UNSC Res 1540 (28 April 2004) UN Doc S/RES/ Hugh Gusterson, Toward an Anthropology of Drones: Remaking Space, Time, and Valor in Combat in Matthew Evangelista and Henry Shue (eds), The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell University Press, 2014), p

8 the US alone has executed over 600 drone strikes, leading to hundreds, maybe even thousands of deaths, including innocent bystanders. 5 The fact that these drones are remotely-operated and can, thus, be used to conduct attacks on foreign soil without soldiers having to set foot in another state s territory, has caused a rapid increase in the use of armed drones, mostly by the US, both within and outside of the confines of armed conflicts. Most legal scholars share the opinion that a drone is simply an extension of the human operator. However, the manner in which armed drones are used for covert operations seems to be more problematic. 6 In particular, The US Drone policy, and the legal ramifications the Bush and Obama administrations have offered for the use of armed drones, have seemed to blur the confines of armed conflicts. 7 Not only are legal scholars inconclusive over the legality of this practice, other powerful countries besides the US, such as Russia, China and India, might share that opinion as they do have access to armed drones but have, so far, refrained from deploying them. Therefore, it seems necessary to determine the legality of these armed drones. This has, so far, proven to be quite challenging, as legal scholars have not been able to agree on whether, and how, the current international legal framework should be applied to drones in order to determine their legality, in particular the legality of the manners in which they can be used. Despite the legal debate regarding the legality of armed drones, several states have continued to produce and enhance drones and other weapon systems by diminishing the human influence even further or eliminating it all together. While there are already some defensive weapon systems that can operate autonomously, as of yet, there are no fully developed weapons that can autonomously seek out and eliminate people. These autonomous weapon systems (AWS), while not fully developed, are expected to lack any form of human control. Whereas a human has always been responsible for making the final decision on when and 5 Jessica Purkiss and Jack Serle, Obama s Covert Drone War in Numbers: Ten Times More Strikes Than Bush (The Bureau of Investigative Journalism, 17 January 2017) < accessed 7 June Michael N. Schmitt, Drone attacks under the jus ad bellum and jus in bello: Clearing the Fog of Law (2011) 13 Y.B. Int l Humanitarian L , p. 9 7 Manooher Mofodi and Amy E. Eckert, Unlawful Combatants or Prisoners of War : The Law and Politics of Labels (2003) Vol. 36, Issue 1 Cornell Int. L J. 59, p. 60 and Obama s Speech on Drone Policy (The New York Times, 23 May 2013) < Accessed 7 June

9 where a weapon will be deployed, selecting the targets and triggering the weapons missiles, AWS, depending on their software and programmed instructions and limitations, could operate independently and engage targets autonomously. 8 Thus, they would able to not only designate targets on their own, but also decide whether to start firing at the persons or objects. These developments have sparked a heated debate amongst scholars and experts, raising questions on the (lack of) capacity of AWS to make discretionary decisions regarding the resort to force, the amount of force used and determining the status of an enemy combatant and distinguishing innocent civilians from members of belligerent groups assuming a continuous combat function and civilians taking direct part in hostilities, thus, essentially, deciding who to kill. Considering that the rules of the Law of Armed Conflict (LOAC) and International Human Rights Law (IHRL) were codified decades ago when artificial intelligence and autonomous weapons couldn t have been further from the minds of politicians, legislators and legal scholars involved, can these rules even be applied to weapons fully functioning without human control? The key problem as of yet is that, while technology has evolved, law has not. Despite the fact that the international community has the obligation to determine whether the use of a new weapon or means or method of warfare that it has developed or acquired is not prohibited in some or all circumstances, no specific provision has been codified in international law that relates to or regulates the development and future use of AWS. 9 Moreover, there is no overview of, if and, how the international legal rules governing the use of weapons in times of peace and times of war apply to autonomous weapons and whether these weapons can adhere to these rules. Thus, the current development and future use of AWS might be stretching the current framework or create a legal gap altogether. It is therefore extremely important, yet equally difficult, to assess their legality prior to their development. 8 Report of the 2016 Informal Meeting of Experts on lethal autonomous weapon systems (LAWS) (12 16 December 2016), UN Doc. CCW/CONF.V/2, para Article 36 of the Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted on 8 June 1977, entered into force on 7 December 1978) (Hereinafter AP I) 9

10 1.2. Research questions and objectives In order to ascertain the legality of drones and AWS under the applicable international legal rules, the main research questions of this thesis are: 1. To what extent does drone warfare change the parameters of ius ad bellum and ius in bello? 2. To what extent do autonomous weapon systems challenge the legality of drones under ius ad bellum and ius in bello? The sub questions consist of: 1. What is drone warfare? 2. To what extent is drone warfare legal under ius ad bellum? 3. To what extent is drone warfare legal under ius in bello? 4. What are autonomous weapon systems? 5. To what extent are AWS legal under ius ad bellum? 6. To what extent are AWS legal under ius in bello? Methodology This thesis will be primarily based on a literature review. Relevant legal instruments, academic literature and reports will be examined and used to map the current legal frameworks governing the resort to force, the laws of war and international human rights law. These frameworks will first be applied to drones in order to determine their legality under international law and, supported by legal articles, assess in what ways the UAVs might stretch these rules. After having assessed the legality of the use of armed drones, this thesis will apply the same international frameworks to autonomous weapon systems. Comparisons and differences will be drawn between autonomous weapon systems and armed drones, in order to properly describe the legal gap and assess if, and how, the technical features of autonomous weapon systems challenge the current legal regime. The first question, regarding drone warfare and how it changes the parameters of ius ad bellum and ius in bello, requires a combined examination of international treaties regarding the use of force, IHL (including the laws of weaponry) and IHRL, on the one hand and articles and documents by governments, legal scholars and organisations, such as the International Red Cross Committee (ICRC), on the other hand. The latter is, as founding 10

11 father of IHL as we know it, extremely relevant for the practical application of IHL treaties to drones. Despite the fact that there are dozens of books and articles governing the use of armed drones, drones are relatively new and have not been mentioned in any international treaty. The ICRC reports and articles will be used to fill that gap and provide some background information. The second question, regarding the autonomous weapon systems and how that challenges the legality of drones under the laws of war framework, can be answered by examining a wide variety of legal opinions. Since AWS have not yet been fully developed and put to use, there is no case law, nor international rules, governing AWS Literature review Due to rapidly evolving technological advancements, the development of weapons and weapon systems that only require minimal human interference has received a lot of attention from scholars and experts. In particular, the deployment of the semi-autonomous armed drone has been the subject matter of many legal papers and reports, especially following the U.S. Policy and legal reasons given for using these weapons on various occasions. Despite the fact that there is still no universal international rule governing the use of the armed drones, the current development of autonomous weapon systems creates a much bigger legal gap. In the past couple of years, multiple legal papers and research reports have been produced, dealing mostly with the most significant feature of AWS; the lack of human control. In his article, Drone Attacks under the Jus ad Bellum and Jus in Bello: Clearing the fog of Law, Michael N. Schmitt addresses drones as a form of weapon systems and, by applying the rules of ius ad bellum and ius in bello, concludes that there is little to no reason to treat drones as a special kind of weapon. Drones are nothing more than an extension of the operator and are thus only problematic to the extent that the drones are operated in an unlawful, indiscriminate manner. 10 Kevin Heller discusses the US Drone policy and covert operations and focuses on how the so called war on terror has challenged the rules of IHL and the boundaries of armed conflicts and has thereby complicated the process of establishing which legal rules drones and drone operations must adhere to in order to be lawful. 11 Heller believes that the manner in which 10 Michael N. Schmitt, supra note 6, p Kevin J. Heller, One Hell of a Killing Machine: Signature Strikes and International Law (2013) 11 J. Int. Criminal Justice 1 11

12 drones are used by the US to execute covert operations challenge the IHL to such an extent that they might be unlawful. The lack of human interference and other inherent characteristics of AWS, have caused quite a debate amongst scholars. Some authors, such as Kenneth Anderson, Daniel Reisner and Matthew Waxman, believe that fully autonomous systems are not inherently illegal or unethical, rather the manners in which they might be used are problematic in regard to the law of armed conflict. The authors pay attention to the existing law and argue in favour of adapting these rules in order to meet the challenges the use of AWS might cause. 12 Other authors, such as Marco Sassòli, argue that AWS are simply not capable of adhering to the core principles of IHL as these weapons are not able to balance opposing interests, such as military necessity on the one hand and humanity on the other hand, or to assess the proportionality of an attack. 13 That is not to say that AWS are inherently legal, as long as these weapons are only deployed in situations in which there is no need to assess the proportionality of an attack. Meanwhile, Sassòli argues that targeting within IHL is actually based on an objective assessment of facts, not subjective value judgments. AWS might be better prepared to adhere to the principles of distinction and precautions over an direct attack than humans. He believes that the current international legal rules of IHL and IHRL can still be applied to AWS, as long as they are further clarified and the parameters are adjusted accordingly to the characteristics of AWS. The fact that these AWS could possibly actively engage targets and execute offensive operations does not only raise questions regarding the compatibility of these weapons with IHL and IHRL. As Tim McFarland and Tim McCormack point out, establishing accountability for violations of the law of armed conflict in the case of regular weapons is often quite challenging. 14 Taking humans out of the equation, removing them from the direct kill chain, complicates things even further. Who can or should be responsible for serious misconduct of AWS amounting to war crimes? Perhaps the commander in charge of 12 Kenneth Anderson, Daniel Reisner and Matthew Waxman, Adapting the Law of Armed Conflict to Autonomous Weapon Systems (2014) 90 Int. L. Studies, 386, p Marco Sassòli, Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified (2014) 90 Int. L. Studies Tim McFarland and Tim McCormack, Mind the Gap: Can Developers of Autonomous Weapons Systems be Liable for War Crimes? (2014) 90 Int L. Studies

13 deploying the weapon, the state whose military uses the AWS, or the programmer or developer responsible for creating the weapon and installing its software? 1.4 Significance of the research Most of the research that has been conducted by legal scholars on conducting lethal strikes with armed drones, focuses primarily on the use of drones by the US and how the US, by relying on the argument of self-defence or being in an armed conflict with terrorists groups abroad have seemed to blur the confines of an armed conflict, thereby implicating which set of rules, the laws of war or international human rights law, should govern these strikes. While most agree that drones are only an extension of humans and there legality under both international frameworks can only be challenged by the manner in which they are operated, there is a lack of consensus amongst scholars whether drones enhance states to use force in an illegal manner, and should therefore be restricted or prohibited, or that the drone itself should not be treated any differently than any other weapon. The lack of agreement amongst the legal scholars regarding the semi-autonomous operated drones complicates the legal questions regarding the use of AWS even further. The international obligation on states to govern and asses the compliance of the use and development of weapons and weapon systems with the LOAC in advance, applies to AWS as well. Yet, the international conferences on AWS have not led to any form of regulation of the development and use of AWS, despite the lethality and unpredictability of these weapons. In fact, most legal scholars, and experts alike, seem to be deeply divided on both the anticipated practical capabilities and (il)legality of these weapons. The aim of this research lies, first of all, in its contribution to providing a clear overview of the legal framework of the Laws of War and IHRL currently in place governing the use of weapons, both within and outside of the confines of an armed conflict. Secondly, it will assess whether this framework can be used to determine the legality of (semi-) autonomous weapons and weapon systems and, if so, whether these weapons could be deemed legal. By comparing the applicability of the LOAC and IHRL to drones versus AWS, the author aims to pinpoint the legal challenges AWS pose to the international legal framework, and assess in how far the current rules are applicable to offensive weapons that are not controlled by human operators, thereby discussing the current legal lacuna. 13

14 1.5 Chapter outline This thesis consists of two parts. The first part will set out the legal framework applicable to the lethal use of armed drones by states, both within the confines of an armed conflict and outside of an armed conflict. In the second part, the same legal framework will be applied to the lethal use of autonomous weapon systems and will focus on examining how the lack of human control over these weapons might challenge the parameters of the current legal framework of ius in bello, ius ad bellum and international human rights law and the legality of drones as determined in the first part. Chapter 2 will set out what drone warfare is and assess whether armed drones, as such, are generally prohibited or restricted as weapons or a means of warfare under the rules of weaponry and IHL. The following chapters will map the international frameworks of the rules governing the use of force, the ius ad bellum, and the rules of IHL, the ius in bello, in order to assess the legality of the manner in which armed drones are or can be used. Chapter 3 will set out the rules governing the use of force allowed in an armed conflict, as well as the resort to force against a state or non-state actor with whom the home state is not at war. Chapter 4 will set out the framework of IHL and discuss the core targeting principles of IHL, dealing with the distinction between an IAC and NIAC and status of combatant, non-combatant and civilian involved in armed conflicts, in order to assess the legal use of drones. Chapter 5 will focus on the applicability of the framework of IHRL to the lethal use of armed drones within traditional warfare and outside of the context of an armed conflict. The second part of this thesis will apply the formerly set out rules and principles of ius ad bellum, ius in bello, including the law of weaponry, and IHRL to autonomous weapon systems. In order to illustrate the challenges that the lack of human control over these weapons pose, the legality of fully autonomous weapon systems under these frameworks and their applicability to AWS, will be compared to drones. Chapter 6 will assess the legality of AWS as such under the law of weaponry and the principles of IHL that govern weapons and the means of warfare. Chapter 7 will examine the compatibility of AWS with the rules of ius ad bellum and chapter 8 will determine the adherence of AWS to the rules of IHL by describing the legal challenges they might pose and give an overview of all the various, opposing arguments raised by legal scholars and experts alike. In addition, the chapter will discuss the consequences of AWS for the criminal responsibility for violations of the laws of war by AWS and the possibility of these weapon systems complying to the rules of IHRL. 14

15 Part I: Legal Framework As set out in the introduction, this part will assess the legality of the use of lethal armed UAVs under the rules of weaponry, ius ad bellum, the targeting principles of international humanitarian law and international humanitarian law. Chapter 2: Drone warfare 2.1. Rise of the drones As briefly mentioned before, due to the lack of technological advancements, aerial warfare basically didn t exist until the introduction of the first aircraft during the First World War and the interbellum. Further experimenting led to the development of the Unmanned Aerial Vehicles (UAVs), also known as remotely piloted or remotely operated drones, in the 70 s, used during the Vietnam War. 15 These drones were initially designed for conducting reconnaissance missions, surveillance operations, directing fighter pilots to their positions and intelligence-gathering by tracking enemy soldiers on foreign soil, both in times of peace and war. Despite their limited range, these drones were widely used by various states in the 20 th century. 16 During the past few decades, technological evolutions enabled the creation of more efficient UAVs, such as the US Predator, that could conduct extensive missions for surveillance and target-strike assessment. 17 Nevertheless, the Predator had the same flaws as its predecessors; when the drone had its target in sight, it could only document that information, not directly launch an attack at that target. In order to shorten the kill-chain, the steps that have to be taken from locating a target to engaging that target, the Predator was equipped with Hellfire missiles, enabling the drone to provide intelligence, surveillance, targeting and reconnaissance (ISTR) all at once. These drones and missiles were eventually modified to enhance their ability to attack a single person, which resulted in the multipurpose UAV, the MQ Stephanie Carvin and Michael John Williams, Law, Science, Liberalism and the American Way of Warfare; The Quest for Humanity in Conflict (Cambridge University Press, 2014), p Ibid. and Nathalie Weizmann, Remotely Piloted Aircraft and International Law in Michael Aaronson and Adrian Johnson (eds), Hitting the Target? How New Capabilities are Shaping International Intervention (March 2013) 2:13 Whitehall Report 33, p Stephanie Carvin, supra note 15, p Mary Ellen O Connell, Seductive Drones: Learning from a Decade of Lethal Operations (2011) 21 J.L. Info & Sci 116, p

16 Following the attacks on the World Trade Centre, the US, as the first country in the world, deployed armed drones to strike a designated person, Anwar al-aulaqi, in the territory of Yemen, in September In the following months and years, the US used drones to conduct personality strikes against the leaders of terrorist groups, based on their identity, and signature strikes, targeting groups of men whose identities are unknown but who wear certain signatures, have certain characteristics or behave suspiciously according to the analysts operating those drones from afar. 20 Over the past two decades, the US has produced an estimated amount of over 7000 drones, used, during the Obama administration alone, to conduct hundreds of strikes in the territories of Pakistan, Iran, Iraq, Afghanistan, Yemen, Libya, Somalia and Syria. 21 The US is not the only country that has built or purchased armed drones. Israel, the UK, China, Iran Pakistan, Saudi-Arabia, Nigeria, Italy and, most likely, Russia have armed UAV s. Yet, despite the US s rapidly increasing resort to armed drones, most of these countries have seemed to refrain from using them as a weapon on and off the battlefield. 22 The debate on the compatibility of drones with the international legal frameworks of the laws of war and IHRL could be one of the reasons why most countries have not (yet) resorted to armed drones. Legal scholars refer to Unmanned Aerial Vehicles (UAV), commonly known as drone, an aircraft without a human operator on board. 23 The drone is either remotely operated by soldiers on the ground or are guided by a computer program with various levels of automation and autonomy. 24 This definitions includes both armed and surveillance drones. The latter has not caused much controversy regarding its legality. The confines of this thesis are restricted to armed drones and the legal controversies their use has caused. They have a number of distinct features, recognized in the above definition of UAVs, that set them aside from conventional 19 Benjamin R. Farley, Targeting Anwar al-aulaqi: A Case Study in U.S. Drone Strikes and Targeted Killing (2012) 2:1 American University National Security Law Brief 57, p Kevin J. Heller, supra note 11, p. 20; It seems that a vast majority of the drone strikes conducted by the CIA have been signature strikes, instead of personality strikes, which require a high degree of confidence that the precise identity of the person is known. 21 Hugh Gusterson, supra note 4, p Michael C. Horowitz, Sarah E. Kreps and Matthew Fuhrmann, Separating Fact from Fiction in the Debate over Drone Proliferation (2016) 41:2 Quarterly J.: Int. Security 7, p The drone is also known as a remotely piloted vehicle (RPV), remotely piloted aircraft (RPA), remotely operated aircraft (ROA) or, in the case of UAVs with specific combat roles, unmanned aerial combat vehicle (UACV). 24 Markus Wagner, Unmanned Aerial Vehicles (2015) Max Planck Encyclopedia of Public Int L, Legal Studies Research Paper No , p. 1 16

17 aircraft but have simultaneously caused some legal scholars and non-governmental organisations to doubt the legality of these UAVs. The first, and main feature of UAVs is that it is unmanned and can be operated from a long distance. Soldiers do not control the drone from within, as would be the case with a traditional fighter jet, but from a distance, sometimes even spanning over hundreds, even thousands of kilometres away from the intended target. 25 While the range from within which UAV s can be controlled is not unlimited, the operators do not have to be physically near the site of impact. Thus, the risk to soldiers and pilots is minimized and the resentment host countries might have against having foreign boots on the ground is limited. 26 On the other hand, the heightened utility of UAVs is feared to increase the opportunities to attack, drive war into populated areas and put civilian objects at greater exposure to incidental harm. 27 The second feature of drones is their ability to conduct surveillance operations over long, extended periods of time in any given. Due to their sensors and increased ability to remain airborne for extended periods without refuelling, most drones are able to track designated persons for hours, gather intelligence on them and record their behaviour, in order to provide targeting intelligence to support attacks carried out by, for instance, fighter jets. 28 The most important characteristic of the UAV, however, is its capacity to carry missiles and precision-guided munitions and use these to target designated people or buildings more precisely than any other weapon, executing almost surgical strikes, while avoiding excessive civilian casualties standing nearby. 29 Despite the fact that drones are able to perform tasks, such as surveillance, autonomously, human operators still must activate, direct and fire the weapons carried by UAVs. The targeting decisions are made not only on the basis of what is observed through the drones own sensors, but also on the basis of the operational context and intelligence obtained by the operating crew from various other sources Michael W. Lewis and Emily Crawford, Drones and Distinction: How IHL Encouraged the Rise of Drones (2013) 44 Georgetown J. of Int. L. 1127, p Stephanie Carvin and Michael John Williams, supra note 15, p Nathalie Weizmann, supra note 16, p Thomas Michael McDonnell, Sow What you Reap? Using Predator and Reaper Drones to Carry Out Assassinations or Targeted Killings of Suspected Islamic Terrorists (2012) 44 Georgetown Washington Int l L. Rev. 20, p. 251 and Alcides Eduaordo dos Reis Peron, The Surgical Legitimacy of Drone Strikes? Issues of Sovereignty and Human Rights in the Unmanned Aerial Systems in Pakistan (2014) 7:4 J. of Strategic Sec. 81, p Stephanie Carvin and Michael John Williams, supra note 15, p

18 2.2. Weapons and the means of warfare under international humanitarian law The LOAC, otherwise known as IHL, is codified in the 1899 and 1907 Hague Regulations and 1949 Geneva Conventions and the Additional Protocols, and governs the conduct of states or non-state actors during armed conflicts, including the weapons and means and methods of warfare the parties involved resort to, and balances the principles of humanity and military necessity. 31 While the Hague Conventions allow combatants to choose their means and methods of warfare, this right is limited by international treaties, restricting or prohibiting the use of certain kinds of weapons, and IHL, which prohibits weapons that cause superfluous injury or unnecessary suffering or are indiscriminate in nature. 32 Thus, the weapons and methods of warfare actors resort to must first of all not be prohibited or restricted by the laws of weaponry (special prohibitions) and comply with IHL (general prohibitions). Armed UAVs constitute a fairly new technological development. According to article 36 of the Additional Protocol I to the 1949 Geneva Conventions and the former St. Petersburg Declaration, all states are required to determine whether the employment of any new weapon, means or method of warfare that they study, develop, acquire or adopt would, in some or all circumstances, be prohibited by international law, including IHL. 33 Thus, the weapon itself can be inherently illegal or the manner in which it is used may be illegal. In the case of armed UAVs it must therefore first be established whether the armed drone as a weapon is illegal within the confines of the laws of weaponry and the core IHL principles. If 31 The Hague Convention of 1899 established three main treaties and three additional protocols, including the Convention for the Pacific Settlement of International Disputes and the Convention with respect to the Laws and Customs of War on Land. The second Hague Convention of 1907 resulted in thirteen treaties and one declaration, specifying the rights and duties of neutral powers and persons, different forms of warfare and a reaffirmation of the Convention respecting the Laws and Customs of War on Land. The Geneva Conventions established four conventions and three protocols. The first convention offers protection to wounded and sick armed forces in the field. The second convention contains rules regarding the condition of wounded, sick and shipwrecked soldiers at sea. The third convention governs the Treatment of Prisoners of War and the forth relates to the Protection of Civilian Persons in Time of War. The First Protocol governs the Protection of Victims of International Armed Conflicts and the Second Protocol relates to the Protection of Victims of Non-International Armed Conflicts. A Third Protocol was added in 2005, adopting an Additional Distinctive Emblem. 32 Article 35(1), 35(2), 51(4)(b)(c) and 51(5)(a)(b) AP I. See also A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977 (2006), 88:864 IRRC, p. 931and 932 (Hereafter: A Guide to the Legal Review of the New Weapons, Means and Methods of Warfare) 33 Article 36, API, Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. (adopted 29 November 1868, entered into force 11 December 1868) (hereinafter St. Petersburg Declaration) and Nathalie Weizmann, supra note 16, p.36 18

19 the drone itself is not inherently illegal, the legality of the manner in which drones are and can be used must be assessed The law of weaponry The first international convention explicitly prohibiting a certain kind of weapon or munition was the St.-Petersburg Declaration renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight in This was the first document in a long line of international treaties and declarations, together forming the law of weaponry, prohibiting or restricting the use of certain kinds of weapons and means and methods of warfare. Among these treaties were the Convention on the Prohibitions and Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW), the Hague Conventions and the Rome Statute of the International Criminal Court (RS), prohibiting employing weapons, projectiles, materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international armed conflict. 36 Following the terrible atomic and nuclear aerial attacks, conducted by the US military on Japanese cities during the final days of the Second World War, the US was openly criticized by the international community for the production and use of these inhumane weapons. 37 The World Disarmament Conference was one of many attempts under the League of Nations aimed at trying to deal with the new and more terrifying forms of aerial bombardment and the ongoing aerial arms race. 38 Nevertheless, besides the ban on atomic and nuclear weapons, the only restriction on bombardment can be found in the Hague Conventions, which prohibits the bombardment of undefended places. Armed drones have not been mentioned in any of these treaties. 34 A Guide to the Legal Review of the New Weapons, Means and Methods of Warfare, supra note 31, p St. Petersburg Declaration 36 Article 8(2)(b) Rome Statute of the International Criminal Court (circulated as document A/CONF.183/9 of 17 July 1998, corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January The Statute entered into force on 1 July 2002) (hereinafter Rome Statute) 37 Sahr Conway-Lanz, Bombing Civilians after World War II: The Persistence of Norms against Targeting Civilians in the Korean War in Matthew Evangelista and Henry Shue, The American Way of Bombing: Changing Ethical and Legal Norms, from Flying Fortresses to Drones (Cornell University Press, 2014), p. 45 and p Ibid., p. 59 and Tami Davis Biddle, supra note 1, p

20 As of yet, armed drones have not been expressly prohibited, or even included, in any IHL or international customary law treaty. The lack of a specific restriction or prohibition of armed UAVs does not render these weapons lawful. Any weapon and means and method of warfare can only be inherently lawful if its technical features, performance and the types of injuries it can inflict, are in accordance with the IHL prohibition on causing superfluous injury or unnecessary suffering and the requirement that a weapon must be discriminate in nature The prohibition to cause superfluous injury or unnecessary suffering One of the oldest principles, underlying the entire IHL framework, is the principle of humanity, which was first expressed in the 1863 US Lieber Code. In line with this principle, it is prohibited to use weapons and ammunitions of a nature to cause superfluous injury or suffering beyond what is necessary for the military purpose. 40 Parties to an armed conflict may legitimately use force against military targets, including combatants, in so far as it is necessary to weaken, not annihilate, these targets, without subjecting the enemy combatants to excessive, unnecessary injury or suffering. 41 The prohibition thus limits the amount of force parties can legally use to the extent that force is unavoidable in order to achieve the legitimate military objectives, thereby restricting the sphere within which direct attacks are legitimate. 42 In order to prevent superfluous injury or suffering, parties involved in an armed conflict bear the responsibility to take precautionary measures, including ensuring that the choice of weapon, weapon system or ammunition does not cause unnecessary and excessive harm to the enemy combatants. According to the ICRC, there are three criteria that can be used to determine whether a weapon or ammunition causes superfluous injury or suffering. First of all, the physical impact of the weapons or ammunition must be assessed. The amount of pain and type and size of the wound can be measured, using for instance the Red Cross Wound 39 A Guide to the Legal Review of the New Weapons, Means and Methods of Warfare, supra note 31, p Article 35(2) AP I, Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran, International Human Rights Law (Oxford University Press, 2014), p. 480 and Janina Dill, Legitimate Targets? Social Construction, International Law and US Bombing (Cambridge University Press, 2014), p. 78; military necessity does not admit cruelty that is, the infliction of suffering for the sake of suffering. 41 Article 52(2) AP I; 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. See also Robin M. Coupland, FRCS, The Effect of Weapons: Defining Superfluous Injury and Unnecessary Suffering, (1996) 3 A1 Medicine & Global Survival, p. 2 and Janina Dill, supra note, p Judith Gardam, Proportionality and force in international law (1993) 87 Am. J.Int l, p

21 Classification. 43 The second and third element consist of determining the likely inevitable mortality rate among victims when the weapon or ammunition is used and the inevitable serious residual disability among the survivors. 44 Some have suggested that, if there are alternative means available, the weapon or ammunition in question might cause superfluous suffering. 45 The existence of alternative weapons or ammunition, does not, however, change the impact of the initial choice of weapon or ammunition. In the case of using armed drones to launch strikes against military objectives, it should be noted that it is, in fact, not the drone itself that strikes the target. Rather, the missiles with which the drone is equipped, hit the enemy target. From that point of view, drones are perfectly legal and do not cause any harm at all, let alone superfluous injury or suffering. However, for present purposes, in order to adhere to the difference set out in the forgoing paragraphs between surveillance drones and armed drones, armed UAVs will be regarded as including both the weapon itself and the ammunition with which it is equipped. Drones have extended capabilities to gather intel on enemy combatants and military objectives over a long period of time and their ability to execute precision strikes has been enhanced, enabling drones to launch a strike against a designated combatant, enemy vehicle or military basis with accurate precision. Thus, it is more likely that the military objective will be weakened without causing unnecessary injuries. Nevertheless, some have argued that the technology of flight and surveillance has developed more rapidly than the accuracy of the missiles launched to attack. The drone itself can select a target from a distance, but the missiles are not as precise and, thus, might not entirely hit the target or cause more injury and suffering than anticipated or necessary to achieve the military purpose. 46 Few countries have used armed drones in practice to launch strikes and most of the information regarding these covert operations has been kept under wraps. Despite the lack of official information from the governments in charge, it is a fact that the U.S. alone has executed close to 600 strikes in the past two decades, which have led to the deaths of, 43 Robin M. Coupland, supra note 40, p.2 44 Ibid. and Jean-Marie Henckaerts and Lousie Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge University Press, 2005) ICRC, p. 237, Rule 70, 45 Jean-Marie Henckaerts and Lousie Doswald-Beck (eds.), supra note 44, p. 237, Rule Tony Nasser, Modern War Crimes by the United States: Do Drone Strikes violate International Law? Questioning the Legality of U.S. Drone Strikes and analysing the United States Response to International to International Reproach Based on the Realism Theory of International Relations (2015) 24 Southern California Interdisciplinary Law Journal 289, p

22 arguably, hundreds, maybe even thousands of combatants and civilians alike. 47 Again, there are no official numbers, but it can be presumed that most people hit by, for instance, a Hellfire missile, are not likely to walk away from such an attack. At the same time, the ability of armed drones to execute a precision attack and the prolonged period of time soldiers operating UAVs have to properly establish the enemy target, ensures that less people will be superfluously killed or injured, compared to a traditional airstrike executed by a soldier in a fighter jet The (in)discriminate nature of the weapon In line with the principle of distinction, one of the core norms of the laws of war, weapons must be discriminatory in nature, meaning that weapons must be capable of being directed at military targets, and their effects must be controllable in order to ensure the weapon does not attack military and civilian objects without distinction. 48 The specific features of drones that enable them to select specific targets and launch missiles in precision strikes at these targets, make the drones inherently discriminate and might even enhance its ability to adhere to the rules of IHL. 49 The fact that drones serve as an extension of the soldier by which they are operated, does enable the operators to use the drones indiscriminately, but this does not change the fact that armed UAVs as such are not indiscriminate in nature. Nevertheless, drones can be equipped with missiles or other ammunition that are prohibited because of their indiscriminate nature or uncontrollable, indiscriminate effects, such as nuclear bombs. 50 In addition, drones can be used to primarily target civilians or the drone operator can overlook some important circumstances and thereby accidently launch missiles at civilians. In the end, as Philip Alston has argued, the precision, accuracy and legality of a drone strike depends on 47 Hugh Gusterson, supra note 4, p. 193 and Jessica Purkiss and Jack Serle, Obama s Covert Drone War in Numbers: Ten Times More Strikes Than Bush (The Bureau of Investigative Journalism, 17 January 2017) < accessed 7 June Article 48 and 51 AP I and Report of the Work of Experts: Weapons that may Cause Unnecessary Suffering or have Indiscriminate Effects (26 February 2 March and June 1973, ICRC, Geneva), p. 25, para Peter Maurer (President of the ICRC), The Use of armed drones must comply with laws, ICRC (10 May 2013) < /documents/interview/2013/05-10-drone-weapons-ihl.htm> accessed 20 May Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 829 and Charles J. Moxley, Jr., John Burroughs and Jonathan Granoff, Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty (2011) 35 Fordham Int l L.J., p. 79 and Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the use of Nuclear Weapons in all Circumstances? (1996) 20:1 Fordham Int l L.J. 181, p

23 the human intelligence upon which the targeting decision is based. 51 Thus, while the drone itself is not illegal, the manner in which it is operated may well violate international law if the soldier in command does not adhere to the targeting rules of IHL and the rules of ius ad bellum and IHRL. Conclusion Within the framework of the laws of weaponry, armed UAVs as weapons have not been specifically prohibited or restricted, nor do armed drones seem to be incompatible with the principles of IHL governing the means of warfare. Despite the fact that armed drones have only been introduced less than two decades ago and currently still generate a lot of debate regarding their abilities and use in covert operations, they seem to perfectly comply with the laws of weaponry and IHL. In fact, the technical capacities of drones to autonomously conduct surveillance and gather intel for long periods of time and the launch precision strikes seem to not only adhere to the rules of IHL but even enhance them. The fact that armed drones are still dependent on the human operator to activate its missiles, suggests that the UAVs are nothing more than an extension of the soldier on the ground and are, therefore, comparable to, for instance, fighter jets. Both are operated by a human, the only difference being that the drone is operated from afar, while the fighter jet is controlled by a soldier on the ground. Thus, drones do not seem to generate much discussion based on their characteristics. However, that does not mean that the way in which armed drones have been used within and outside of the confines of the battlefield has always been in accordance with the rules governing the resort to force and the laws of war. For instance, the regular use of armed drones by the US and the dubious ramifications provided for their drone policy has caused quite a legal debate on the applicable legal frameworks and the boundaries of (non-) international armed conflicts. These legal challenges will be discussed in the next few chapters. 51 Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary execution: Study on Targeted Killings, UN Doc. A/HRC/14/24/Add.6 (2010), p. 24, para 81 23