Drones In Warfare: A Legal Conundrum
Textually, the word drone is used to describe “an armed, remotely piloted aircraft” or “a remotely operated weapon system”, keeping in mind that the control system of weapons, including identification of the target, always involves some degree of human command. But a drone is also commonly referred to as an “unmanned combat aerial vehicle”.
Scientific developments have also led to the launch of more miniature UAVs (unarmed aerial vehicles) of insect size called nano drones.
Drones are used to perform a number of tasks in both war and peace times. Congestion monitoring and police surveillance, etc. are among a few activities performed by drones during peace time. But the use of drones during war time has fueled the debate among international lawyers and organizations because during war time, drones have also been deployed for the extraterritorial killings of people. When we study the research conducted by organizations like the International Committee of the Red Cross (ICRC) regarding the legal framework applicable to drones, we come across many questions and arguments surrounding the legality and illegality of drones. Both sides have valid points for justifying their stance yet no final decision seems to have been reached over the legal framework applicable to drones and the actual status of drone-oriented armed conflict in international humanitarian law (IHL). I have tried to enlist some of the main questions raised to judge the legality and acceptability of drones in an international legal framework.
Legality of Using Drones
The first question is regarding the legality, lawfulness and use of drones. Various concerns have been expressed about it. As far as the law is presently concerned, a drone is not a weapon or platform that has been specifically prohibited by any international treaty, custom or convention. It has been alleged that drones are less costly to produce as compared to traditional warfare aircraft and they have the potential to spread harm even miles away from the personnel operating them. In this way, drone technology has the ability to spread the effects of armed conflict anywhere in the world, which even traditional military forces cannot. Therefore, the legality of drones must be taken into account as the concerned issue is of a grave nature and has made the whole world prone to the effects of armed conflict and warfare by not remaining confined to a specific area or region.
While weapons such as cruise missiles can also result in inflicting injuries or harm miles away from where they are being fired or operated, it is also argued that the probability of civilian causalities is reduced by the use of drones as they only hit the target that is fed into their system and therefore may not necessarily violate the provisions enshrined under international humanitarian law.
Opponents claim that although drones are not prohibited by any specific law or treaty, certain aspects of their use come under the ambit of restrictions imposed by international law. For instance, it is a blatant violation of international humanitarian law to fire prohibited weapons from drones, such as biological or chemical weaponry. Similarly, states that are parties to the Cluster Munitions agreements are barred to deploy drones for cluster munitions. Moreover, the use of incendiary weapons from drones is also prohibited by international customary law and the deployment of many such weapons has been barred by a number of treaties and conventions.
This shows that the legality or illegality of drones depends on the use and type of weapon platform. As far as permissible weapons are concerned which are fired by drones in accordance with the principles of proportionality and distinction, they are considered the least destructive mode of aerial warfare as they cause minimum civilian casualties and hit the decided target precisely. But whenever prohibited weapons are deployed through drones or if the principles of proportionality and distinction are violated along with other rules of international humanitarian law, the use of drones becomes illegal.
Whether Drones are in Compliance with the Principle of Distinction
The principle of distinction is one of the basic principles provided by international humanitarian law to be followed during armed conflict. This principle asserts that there must be a distinction between a civilian and military objectives, thereby declaring civilians as protected persons unless they directly participate in the hostilities.
After the era of the global war against terrorism and with the emergence of robotic warfare, a new debate has erupted among international legal intellectuals as to whether robotic warfare follows the principle of distinction.
It has been argued that drones lack three basic functions to be in compliance with the principle of distinction:
- Firstly, they do not have sufficient sensory and visionary programming to distinguish between civilians and combatants, the injured or hors de combat, surrendering combatants, or military and civilian objectives in warfare.
- Secondly, each and every bit of the distinction is required to be fed into the computer in order to make it follow the principle of distinction. Due to the inadequate definition of a civilian that is to be translated into a computer code, it is not feasible to feed a program into a drone system which could not distinguish between civilians and combatants.
- Thirdly and most importantly, even if the machines have been developed or programmed enough to discriminate between civilians and combatants, they would still lack the wisdom and common sense to make emergency distinction decisions during warfare.
Due to these reasons, we can never expect the machines to take independent decisions in accordance with the principle of distinction. Hence, the application of the principles of international humanitarian law in robotic warfare seems like a hard job to pull off.
Moreover, autonomous drones have been part of the United States’ robotic warfare which has resulted in them being used since long for extraterritorial killings. The United States’ policy related to the principle of distinction has been very ambiguous as the US has not been able to provide standards for combatants and civilians directly participating in hostilities. Moreover, the US has been unable to lay effective rules for when civilians lose protection, when they regain protection and what amounts to direct participation in hostilities.
Two basic questions need to be addressed regarding the use of drones in the context of distinction:
- What conduct falls within the category of direct participation in hostilities?
- When do individuals regain protection as civilians?
To address these questions, the ICRC has provided some criteria:
“(1) The harm likely to result from the act must reach a certain threshold (threshold of harm);
(2) there must be direct causal link between the act and the harm (direct causation); and
(3) the act must be specifically designed to support a belligerent party to the detriment of another (belligerent nexus).”
Another interlinked issue is the duration for which direct participation in hostilities amounts to the loss of civilian protection. As per ICRC’s Interpretive Guidance, participation includes, “both the immediate execution phase of the specific act, its preparation and the deployment and return from the location of its execution.” Some critics have argued that the definition given by ICRC’s Interpretive Guidance is quite narrow as it does not address the “pragmatic” and “tactical” realities of military operations and military actors. Moreover, the definition of ‘direct participation in hostilities’ seems like a “revolving door” where civilians can potentially participate directly in hostilities and regain protection immediately afterwards. To avoid this “revolving door” approach, some scholars have given a much broader definition to ‘direct participation in hostilities’. Brigadier General Kenneth Watkin, a military law expert, has argued that “a civilian who is repeatedly involved in hostilities is continuously participating, and must affirmatively disengage to retain protection. And direct participation should include preparation for the attack, not just the immediate execution phase of a specific act.”
Another controversial term that gets debated about frequently is known as the ‘continuous combatant function’. The rule of distinction in international law does permit a direct attack on the armed forces but on the other hand, non-state armed groups are not given the status or privileges of armed forces by virtue of any conventional humanitarian law, custom or state practice. The question is, what would be the status of the non-state organized group’s members? If they are not given the status of members of the armed forces, would they be dealt with as civilians and consequently enjoy protection if they are not directly participating in hostilities? To resolve this ambiguity ICRC’s Interpretive Guidance has introduced the concept of ‘continuous combatant function’ for such individuals. Continuous combatant function requires “lasting integration into an organized armed group which is acting as the armed force of a non-state party to an armed conflict.” Lubell has argued that ‘continuous combatant status’ has given states the access to kill non-state actors at any time and in any place as they are neither combatants nor civilians and states are under no obligation to even grant them the status of prisoners-of-war if captured alive.
The controversy over ‘direct participation in hostilities’ and the coining of the term ‘continuous combatant status’ has led to a great deal of misuse of drone attacks. States using drone technologies for extraterritorial killings and attacks must make it clear as to who may be targeted. Due to the above-mentioned controversies, it is very hard to decide whether drone attacks comply with or justify the principle of distinction.
Drones are unmanned aerial vehicles which are basically being deployed by states to carry out extraterritorial killings of enemies. They have not been explicitly banned by any international treaty or convention but their legality may be judged by the nature of weapons being fired from them. Moreover, it is tough to decide whether drone technology follows the principle of distinction when targets fall under the ambit of neither combatants nor civilians, as discussed above. Alongside these issues, it is complicated to decide whether drone attacks are part of international armed conflict (IAC) or non-
 Jelana Pejic , “Extraterritorial targeting by means of armed drone: Some legal implications,” International Review of the Red Cross Winter (2015): 2.
 Jane Meyer, “The predator war,” In the New Yorker, October 26, 2009.
 Stephen Holmes, “What’s in it for Obama,” London Review of Books 35 (2013): 15-18.
 Jelana Pejic, “Extraterritorial Targeting by Means of Armed Drone: Some legal implications,” 4.
 Noel E. Sharkey, The Evitability of Autonomous Robot Warfare,” International Review of Red Cross 94 (2012):788.
 Ibid, 789.
 Bill Boothby, “And for Such Times As: The Time Dimension To Direct Participation In Hostilities,” N.Y.U.J. Int’l L. & Pol 42(2010):750.
 Nils Melzer , “keeping the Balance Between Military Necessity and Humanity; A Response to Four Critiques the ICRC’s interpretive Guidance on the Notion of Direct Participation in Hostilities, “ N.Y.U.J. Int’l L. & Pol (2010):856
 Kenneth Watkin , “Opportunity Lost: Organized Armed Groups, “ N.Y.U.J Int’l L. & Pol 42 (2010): 652
 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law ( New York: Cambridge University Press, 2005), 120.
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