On the implications of the use of drones in international law.

• Author: Saura, Jaume

1. INTRODUCTION II. DRONES: WHAT THEY ARE AND WHERE THEY ARE USED 1. WHAT ARE DRONES? 2. HISTORICAL OVERVIEW 3. A WEAPON OF CHOICE 4. LETHAL AUTONOMOUS WEAPONS III. DRONE SYSTEMS AS MEANS OF WARFARE IV. THE USE OF COMBAT DRONES BEYOND NATIONAL TERRITORY: CONSENT AND SELF DEFENSE 1. THE ROLE OF CONSENT OF THE TERRITORIAL STATE 2. SELF-DEFENSE 3. TARGETED KILLING BY DRONES 4. THE RIGHT TO LIFE 5. THE LEGAL FRAMEWORK OF TARGETED KILLING 6. A LEGAL ASSESSMENT OF THE USE OF DRONES FOR TARGETED KILLING IN PRACTICE V. FINAL REMARKS I. INTRODUCTION

   On 23 May 2013, President Obama formally acknowledged that the United States (US) had been taking "lethal, targeted action against al-Qaeda and its associated forces, including with remotely piloted aircraft commonly referred to as drones," and that it intended to continue doing so because these actions were "effective" and "legal." (1) When these words were pronounced, it was no secret that the US and other countries were embarked in the research, development and use of these unmanned systems. (2) As a matter of fact, it was not the first time that high ranking officials of the US had acknowledged this, though little more was officially disclosed. (3) After Obama's words, opacity remains the policy concerning the frequency and scope of the use of drones by either the US or any other power that possesses them. (4) Not only has the general public lacked enough information: "Even the other two branches of federal government ... have reportedly not been fully informed of the details of the program." (5) Likewise, there seems to be a clear leap between what official spokespeople and apologetic scholars say on the one hand and what actually happens on the ground on the other. (6)

   The purpose of this paper is to contextualize the challenges that drones imply for international law, particularly in the realm of international human rights law. It has been rightly said that drones are simply new weapons that, as any other, must be used in accordance with existing law. (7) In this respect, what the current drone proliferation brings about is the questioning, or a reappraisal, of some very core international law principles and norms; principles and norms that are fully in force and must be respected whether one uses drones or any other armament. In this article, I shall provide an overview of current drone technology and how it is used; I shall subsequently present some of the challenges that these systems bring to international law in three arenas: the means of warfare; the prohibition of the use of force and its exceptions; and international human rights and international humanitarian law (IHL), particularly when drones are used for targeted killing.

2. DRONES: WHAT THEY ARE AND WHERE THEY ARE USED

   In spite of the lack of transparency that surrounds this issue most authors coincide in the description of current and prospective drone technology as well as in its current proliferation. We know plenty of things about drones and where they are being used.

   1. What are drones?

      Drones are unmanned aircraft, controlled remotely and in real time by human operators. (8) Though they are generally referred to as "unmanned aircraft vehicles" (UAV), some prefer to call them "remotely piloted aircraft systems" (RPAS): "RPAS are under control of a remote pilot-in-command for the entire flight under normal conditions and movements on the ground". (9) Irrespective of this terminological issue, "drones" are robot planes flown by ground-based pilots that represent the latest development so far in war-fighting technology, separating the warfighter from the consequences of his actions by as much as several thousand miles. (10) Their nickname comes from the constant buzzing noise that some of them make in flight; (11) they are extremely diverse: "there are currently dozens of types of drones in service, all of which differ greatly in terms of size, shape, weight, cost, range and capability." (12) The North Atlantic Treaty Organization (NATO) classification table shows this huge variety of UAV: Class I are those aircrafts that weigh less than 150 kg., among which there are different subtypes, including so-called "micro" UAVs with less than 2 kg that cannot fly higher than 200 feet. On the opposite side of the spectrum, Class III drones (Predators, Global Hawk, etc.) weigh more than 600 kg (usually, several tones), can fly up to 65.000 feet high and have an almost unlimited mission radius. (13) In total, the US alone may be flying 7,000 such devices during a natural year, with half-a-million-hour flight. (14)

      Drones are being used in three different ways: first, when ground troops attack, or come under attack, armed drones are called in and use bombs and missiles in a similar way to other military aircraft; second, drones are on patrol in the skies of some countries (such as Afghanistan), observing the 'pattern of life' on the ground 24 hours a day; and third, they are used in pre-planned missions to conduct targeted killings of suspected militants. (15) The first of these uses makes little difference with any other weapons, including traditional manned aircraft, in terms of international law: such use will or not be legal depending on general international humanitarian law parameters. In the second use (patrolling), drones need not even be armed and play only a surveillance function. (16) This may not have in principle any humanitarian law implication, but does concern sovereignty and privacy issues, among others. As for the third use, it seems to have become the main use of combat drones, probably given their vulnerability (as of today) in conventional air warfare, (17) and where the focus of legality has been shed upon. To be clear, killing someone is legal or illegal (usually, illegal) irrespectively of the means used; but the fact that armed drones make it so much easier to kill people in remote areas has established a strong linkage between drones and targeted killing; a link that concerns both international human rights and humanitarian law. (18)

   2. Historical overview

      The technology to fly devices without a pilot exists since the immediate post Second World War. As a matter of fact, even during World War I the US Army and US Navy experimented with a remote control system invented by Sperrey and Hewitt that allowed war planes to fly without a pilot in order to, once they were loaded with explosives, direct them against the enemy. Had the system worked (the prototypes were highly unstable) they would have been closer to cruise missiles than to current drones, but the precedent shows how battlefields have been robotized the moment the adequate technology existed. (19) As mentioned, actual "[d]rones were first used by the United States in the 1950s as target practice for fighter pilots. In the 1960s, they were used to spy over China and Vietnam, and also for surveillance in Bosnia and Kosovo in the 1990s." (20) Thus, during the Cold War drones were only used for surveillance purposes, but not only by the US; Israel, for instance, "used reconnaissance drones in Lebanon in 1982 and again in 1996 to guide piloted fighter bombers to targets." (21)

      Although the technology was developed earlier, the use of drones as weapons rather than as surveillance devices is very much linked to the US 'War on Terror' following the 9/11 attacks and the appearance in this scene of a non-military actor, the US Central Intelligence Agency (CIA). Even if "[i]t was during NATO's 1999 Kosovo campaign that Armed Forces started to think about the utility of strapping a missile to the UAV which led to the [Predator drone] armed with Hellfire missiles," (22) the fact is that "[t]he first time a missile was fired from an armed drone in an attack was in Afghanistan, less than a month after 9/11." (23) In a parallel process, during the Balkan Wars, and in order to skip the slow bureaucratic machinery of the Pentagon and its adjudicative processes, the US Government commissioned the CIA to create a surveillance drone. Even if the Gnat-750 produced by General Atomics for the CIA did not work very well, particularly in bad weather, this commission allowed the CIA to start its own relationship with the drone industry. (24) In fact, "[t]he CIA allegedly carried out its first targeted drone killing in February 2002 in Afghanistan, where a strike killed three men near a former mujahedeen base called Zhawar Kili." (25) It was the beginning of a new attack vector that would become extremely popular only a few years later.

   3. A Weapon of Choice

      All authors agree that the Obama administration has produced a huge surge in the use of drones. (26) According to different sources, when President Bush left the White House, the US had carried out at least 45 drone strikes, (27) or up to 52, (28) in Pakistan alone. Before the end of his first term in office, President Obama had more than quintupled any of these figures, again in Pakistan alone. (29)

      But the US is not the only actor using drones, armed or not. A recent report states that "approximately 50 States currently either possess drones or are in the process of developing or acquiring them." (30) Philip Alston was mentioning "only" 40 States in 2010, (31) among them: "Israel, Russia, Turkey, China, India, Iran, the United Kingdom, and France either have or are seeking drones that also have the capability to shoot laser-guided missiles." (32) Dave Webb et al. add "Belarus, Colombia, Sri Lanka, and Georgia." (33) Curiously, there is contradiction among authors on some countries. For instance, there are allegations that Germany has already used armed drones, (34) while other authors state that "Germany has made a request to purchase five Reapers and four mobile ground stations for $250 million, although they will not be armed as that step is not deemed to be acceptable in Germany." (35) Also, although Spain is not mentioned in these reports, local authors state that "Spanish industry has a...