Elie Kallab, Executive Master of Conflict Management and Humanitarian Action and an author for Routledge, Taylor and Francis Group. Also, Kallab is currently part of the UN Sustainable Development Solutions Network.

  1. Introduction

Since the 1930s, remote-controlled model aircraft has become so popular that both kids and adults include them as a priority item on their Christmas present list. However, the traditional remote-controlled model has evolved into an essential technological mean for effective commercial, military, and humanitarian usage. According to the Federal Aviation Administration (FAA), the number of registered drones is expected to grow to nearly 600,000 after introducing more lenient registration processes in the US for the acquisition of a private drone.[1] Additionally, drones are being used as a “Big Data “tools in order to capture multiple and various infographics from different locations. Lastly, States started using drones as part of a comprehensive military strategy to deter a state and collect intelligence information.

This post analyses the legality of the usages of drones as a weapon during a conduct of hostilities by looking into its compliance with the rules of Jus in Bello.

The expected outcome of this post blog is to determine whether the international legal framework set by the ICRC is ready to challenge the unexpected issues that might arise from the use of such drones as a weapon in the battlefield. The post blog first analyses the legality of the use of drones from the perspective of IHL.  In the second part, the blog will tackle the compliance of drones with the rules of Jus in Bello.

I-             Drones vis-à-vis International Humanitarian Law

1-   The Legality of the Use of Drones as Weapon 

There can be no doubt that when a new weapon emerges, a debate will take place regarding its legality. It is well known that the concepts of the distinction between civilian and military objects and “properly assess the risk of excessive harm to civilians” constitutes the pillar of Jus in Bello[2]. It seems that Unmanned aerial vehicles (UAVs) or drones are equipped with an advanced sensory system that will enable them to achieve targeted attacks. 

According to Article 36 of the Additional Protocol I to the Geneva Conventions, in order for a weapon to be considered as compatible with IHL, it is necessary to check whether such weapon:

  • would already be prohibited under a specific weapons treaty;
  • would constitute an indiscriminate weapon;
  • would be of a nature to cause superfluous injury or unnecessary suffering, or widespread, long-term and severe damage to the natural environment;
  • would contradict the “principles of humanity” or “public conscience.”[3]

Based on the above-stated provision, one could observe two main legal gaps:

  • Firstly, that not all State parties to the 1949 Geneva Conventions are signatories of the Additional Protocol I, which makes this article a non –fully complied legal provision. 
  • Secondly, the Additional Protocol I does not specify the ways or the procedures that States should refer to in order to determine the legality of the use of new weapons. 

Complying with such a mechanism will also ensure full adherence to the common Article 1 of the 1949 Geneva Conventions.

II- Drones and Jus in Bello

For  the UN Special Rapporteur on extrajudicial, summary or arbitrary executions that targeted killings in general violate the right to life. However, he added that in exceptional circumstances, targeted killings may be legal.[4]. In other terms, drones’ attacks must comply with the rules applicable to the conduct of hostilities such as precautions in attacks, distinctions and proportionality. [5]

  1. Precautions in Attacks

Most of the rules applicable in precautions in attacks which were stated in the Additional Protocol I, are customary rules . The ICRC in a report published in 2019, confirmed the fact that states must take all precautionary measures to spare the life of civilians.

In general terms, drones comply with the requirements of precautions in attacks for the following reasons:

  1. The video feed features that are equipped in drones can provide a real time project or picture of the target.
  2. Most drones are equipped with tracking devices to follow the person being targeted.
  3. Most of the missile fired from drones have a small blast radius.

Nevertheless, we can cite several failures of the use of droned by the USA in its counter-terrorism attacks in Afghanistan. For instance, the Hellfire Missile incident[6], the drone airstrike in Helmand province that led to a high number of civilian deaths[7].

  • Rules on Distinction

Drones were mostly used by the USA in counter-terrorism attacks in Afghanistan and Yemen in 2012. Also, the NATO has launched drones’ attacks in Libya in 2011 against the Ghaddafi regime. The Obama Administration praised the effectiveness of the use of drones and confirmed its accuracy.

Based on the above realities, we should note that only civilians that are directly participating in the conduct of hostilities can be legally military targeted. According to Recommendation VIII of the ICRC’s Interpretative Guidance:” all feasible precautions must be taken in determining whether the civilian is directly participating in hostilities.” [8]

There were claims that the CIA has launched drones’ attacks which targeted funerals and rescues locations during its counter-terrorism operations in Afghanistan such as the incident that took place in North Waziristan on May 16 2009. Although Obama has declined these allegations by calling the launched attacks as “targeted, focused effort”, the Bureau of Investigative Journalism has found that during the Obama’s Administration, between 292 and 535 civilians, including more than 60 children, were reported as killed in Afghanistan. [9]

  • Rule on Proportionality

According to Articles 51 (5)(b) and Article 52 (a)(iii) of the Additional Protocol I 1977 of the Geneva Conventions, the question of proportionality is linked to the legal and prohibited means methods of warfare. According to the IHL Customary Rules, states should refrain from using means and methods of warfare that cause excessive injury to civilians. In other terms, States should avoid causing unnecessary suffering.  [10]

I should highlight the fact that proportionality is related directly to the anticipated military advantage. In some instances, such as the killing of Batullah Meshud in 2009, the CIA has justified its conduction of sixteen drones ‘missiles strike that led to the death of more than 321 civilians to the anticipated military advantage of targeting Meshud.

Conclusion

In general, drones are not prohibited by IHL. However, sates must ensure that when they use drones as main  means and methods of warfare, they comply with the of IHL rules.

When it comes to the rules of distinction, drones provide the commanders and decision makers with the capability to analyse sources related to the situation of the civilians and locations.  For the rule of proportionality, drones would give the technological benefit to check the clear picture of the targets and its surroundings with a surgical precision like laser-focus.

[1] Whitwam, R. (2019, August 26). Retrieved November 16, 2019, from Extreme Tech : https://www.extremetech.com/extreme/297235-weaponized-drones-are-illegal-faa

[2] Greenwood, C. (2003). International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq. San Diego International Law Journal , 22

[3] Bobillier, S. (2013). General Assembly, The use of drones in counter-terrorism operations. Geneva: University of Geneva.

[4] Extrajudicial, summary or arbitrary executions: Report of the Special Rapporteur (2019) New York: Human Rights Council

[5] Greenwood, C. (2003). International law and the pre-emptive use of force: Afghanistan, Al-Qaida, and Iraq. San Diego International Law Journal , 25

[6] US Hellfire Missile Orders, FY 2011-2018. (2019, February 25). Retrieved November 16, 2019, from Daily Defence Industry: https://www.defenseindustrydaily.com/US-Hellfire-Missile-Orders-FY-2011-2014-07019/

[7]  Hopkins, N. (2011, July 5). Military. Retrieved from The Guardians:

https://www.theguardian.com/uk/2011/jul/05/afghanistan-raf-drone-civilian-deaths

[8] Melzer, N. (2009). Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Geneva.

[9]  Woods, C., & Lamb, C. (2012, February 4). CIA tactics in Pakistan include targeting rescuers and funerals. Retrieved from The Bureau of Investigative Journalism : https://www.thebureauinvestigates.com/stories/2012-02-04/cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals

[10] Bobillier, S. (2013). General Assembly, The use of drones in counter-terrorism operations. Geneva: University of Geneva.