Drones And International Law: Friend Or Foe?

The use of drones in modern warfare has raised several legal questions. Drones are unmanned aerial vehicles, controlled remotely and in real-time by human operators. They are called drones because of the constant buzzing noise that some of these vehicles make in flight. There is a wide variety of models and types of drones with respect to size, weight, cost, range, and capabilities.

Drones can be used in three different ways: first, they can be used to attack ground troops with bombs and missiles like any other military plane; second, they can be used for surveillance, patrolling the skies over certain countries and observing living patterns 24 hours a day; and third, they can be used on missions to kill terrorist suspects, in what have become known as targeted killings in the context of the war on terror.

The first use of drones raises few questions from the point of view of international law, beyond those raised by any other weapon, whether aerial or manned. The use of drones for surveillance does not have much relevance either from the point of view of international humanitarian law, though it can affect airspace sovereignty or the privacy of individuals, among other things. Finally, the third use of drones has become the raison d'être of this technology and has been the focus of the debate on its legality.

The fact that armed drones make it so easy to kill individuals in remote areas has generated a very close link between drone technology and targeted killings, a link that has clearly affected both international humanitarian law and, in peacetime, international human rights law. The framework governing the use of force, humanitarian law, and international human rights certainly covers the use of drones. But the consistent enforcement of these rules currently appears to be lagging far behind the increasingly widespread and, in some cases, quite devastating use of this increasingly sophisticated technology.

The legality of drones under international humanitarian law

The legal discourse surrounding drones has largely centred around the absence of specific legal approaches to evaluate their use. Some scholars argue that drones require a new legal regime to adapt to their modern qualities and circumstances. However, others posit that drones fit into existing legal regimes, particularly international criminal law (ICL) and international humanitarian law (IHL), which continue to govern the use of force and weapons.

Drones have been used in a variety of ways, including for intelligence, reconnaissance, surveillance, and targeted killing operations. Their use in armed conflict must comply with IHL, which prohibits indiscriminate attacks and the targeting of civilians and non-combatants. The legality of drone strikes hinges on whether they satisfy the legal requirements in three broad areas: those regulating the use of force, humanitarian law, and international human rights.

The debate surrounding drones often focuses on their use in targeting terrorist leaders and insurgents, which raises concerns about extrajudicial executions and the right to surrender. Additionally, the scale and impact of drone strikes, particularly on energy infrastructure, have come into question, with critics arguing that they fail the test of proportionality if the impact on civilians is excessive.

The consistent enforcement of international humanitarian law in relation to drone usage appears to be a challenge, especially as the technology becomes more sophisticated and widely used. The future of warfare will likely be dictated by drones, and addressing the legal complexities surrounding their use is of utmost importance.

The legality of drones under international human rights law

The use of drones in warfare is becoming increasingly common, and their use raises several legal issues. Drones can be used strategically and militarily in three ways: to attack ground troops or provide support to ground troops under attack, to patrol the skies over certain countries and observe living patterns, and to carry out missions to kill terrorist suspects, known as "targeted killings".

The first use of drones in a military context does not raise many questions from the perspective of international law beyond those raised by any other weapon. The use of drones for surveillance does not have much relevance from the perspective of international humanitarian law, although it can affect airspace sovereignty and the privacy of individuals. The third use, however, has been the focus of the debate on the legality of drones.

The fact that drones make it easy to kill individuals in remote areas has generated a close link between drone technology and targeted killings, which has affected both international humanitarian law and international human rights law. The controversy surrounding drones can be limited to the issues of airspace sovereignty, respect for the "right of war", and compliance with international human rights law.

Remotely piloted aircraft, whether civilian or military, can only fly over sovereign airspace with the clear and explicit consent of the territory's state. If that consent exists, the national government could also be held responsible for possible human rights or humanitarian law violations committed by the state that sends the drones. Armed drones can also be used in the context of the right to self-defence, but only if the conditions of this right exist, such as an immediate, proportionate, and necessary response to a previous or imminent armed attack attributable to a state.

The problem arises when the targets of armed drones are civilians, and we find ourselves in a situation that can be halfway between a non-international armed conflict and mere internal unrest, including terrorist situations. According to the International Committee of the Red Cross (ICRC), if a civilian is involved in "continuous combat functions" in a non-international armed conflict, they become a legitimate target at all times, even outside the theater of operations. These are known as "personality strikes" or "targeted killings". However, this argument is only applicable when the baseline scenario can be described as an armed conflict; it does not apply to situations of misgovernment, civil unrest, or terrorist attacks, which are more suited to police repression under the rule of law and judicial and police cooperation.

In the context of international human rights law, it is always illegal to fire at individuals merely because they are suspected of having committed a crime in the past or are likely to do so in the future, as it violates the right to life and the right to a fair trial. Additionally, two practices have been denounced by NGOs and acknowledged by the US government: "signature strikes", which involve firing at individuals who have a "pattern of life" considered typical of a terrorist profile, and "follow-up strikes", in which armed drones bomb those who assist the victim of a first attack or who attend their funeral. These practices constitute war crimes during a period of armed conflict and crimes against humanity in peacetime.

In conclusion, the use of drones in warfare raises several legal issues under international human rights law. While drones themselves are not illegal, their use must comply with existing international legal frameworks, such as international humanitarian law and international human rights law. The main issues surrounding the legality of drones include airspace sovereignty, respect for the "right of war", and compliance with international human rights law, especially when targeting civilians.

The legality of drones under the law on the inter-State use of force

The use of drones in warfare is becoming increasingly common, with their use in the war in Ukraine being a notable example. Drones are also being used in the Red Sea by Houthi rebels, in the Israel-Hamas conflict by both sides, and by Iran to attack Israel.

For a drone strike to be lawful, it must satisfy the legal requirements of the ius ad bellum, as well as international humanitarian law (IHL) and international human rights law (IHRL). The ius ad bellum prohibits the threat or use of inter-State force, as outlined in Article 2(4) of the UN Charter and customary international law. However, a State may consent to the use of force on its territory by another State, or the use of force may be justified as self-defence under Article 51 of the UN Charter.

The use of drones for targeted killings raises further legal complexities. The targeted killing of individuals by any unmanned weapon may violate the fundamental rights adopted by the UN, constituting extrajudicial executions. Additionally, debates in international humanitarian law have focused on the balance between the use of lethal force and a combatant's right to surrender. While States have decided that it is necessary and proportionate to target combatants during war, critics argue that this defies basic notions of humanity.

The consistent enforcement of international legal frameworks currently appears to be lagging behind the widespread and devastating use of drone technology. However, it is important to note that drones themselves are not illegal weapons and can be used compatibly within existing legal regimes.

The legality of drones in non-international armed conflicts

IHL applies in situations of international or non-international armed conflict. To determine whether a non-international armed conflict exists, two criteria must be met: the intensity of the conflict and the organisation of the parties involved. The conflict must involve "protracted armed violence" between governmental authorities and organised armed groups or between such groups within a state.

Once a non-international armed conflict is established, IHL governs how force may be used but does not regulate whether or when force may be used. The principle of distinction, a cardinal principle of IHL, prohibits targeting civilians. Civilians may only be targeted if they take a direct part in hostilities. Determining who is a civilian and who is a legitimate target can be challenging, especially when facing non-state armed groups.

IHRL, on the other hand, applies at all times, in peacetime and in armed conflict. It requires that any deprivation of life be non-arbitrary and that lethal force be used only as a last resort to protect life. IHRL also imposes stricter requirements for the use of lethal force, including necessity and proportionality.

The use of drones in non-international armed conflicts raises several legal issues. One issue is the potential blurring of boundaries between military and police roles, as drones can be used for targeted killings, which may be more akin to law enforcement than traditional military action.

Another issue is the potential for violations of IHL and IHRL due to the ease of using drones to target individuals in remote areas. This has led to concerns about extrajudicial executions and the need for greater transparency and accountability in drone operations.

Furthermore, the use of drones by states in foreign territories without the consent of the territorial state raises questions about the applicability of IHL and IHRL. In such cases, the consent of the territorial state is required for the use of force to be lawful under the ius ad bellum, the body of law governing the use of force between states.

Overall, while drones themselves are not illegal, their use in non-international armed conflicts must comply with the applicable legal frameworks, including IHL and IHRL, to ensure legality and protect the right to life.

The legality of drones in international armed conflicts

The legality of drones in international armed conflict is a complex issue that has been the subject of much debate in recent years. While the use of drones in warfare is not a new development, the scale and scope of their deployment have evolved rapidly, particularly during the conflict in Ukraine.

International Law and the Use of Force

From an international law perspective, the use of drones is subject to the same legal requirements as any other weapon system. The relevant frameworks include the law regulating the use of force (ius ad bellum), international humanitarian law (IHL), and international human rights law.

The ius ad bellum governs the use of force by one state on another state's territory. It prohibits the threat or use of inter-state force, except in cases of self-defence or with the consent of the territorial state. Where consent is given, no issue arises under the ius ad bellum. However, consent must be given by the highest authorities in the central government of the state and must be clear, explicit, and free from coercion.

In the absence of consent, a state may invoke self-defence under Article 51 of the UN Charter to justify the use of drones in another state's territory. Self-defence requires the presence of an armed attack or imminent threat thereof, and the response must be necessary and proportionate to halting and repelling the attack. The right to self-defence persists only for as long as necessary to address the immediate or imminent threat.

International Humanitarian Law (IHL)

IHL applies in situations of international or non-international armed conflict. It governs how force may be used and includes key principles such as distinction and proportionality.

To qualify as a non-international armed conflict, there must be protracted armed violence between governmental authorities and organised armed groups, or between such groups within a state. The violence must reach a certain threshold of intensity and be carried out by organised armed groups with a command structure, headquarters, and the ability to plan and execute military operations.

IHL prohibits the targeting of civilians and requires the principle of distinction to be respected. Civilians may only be targeted if they are directly participating in hostilities, which involves a three-stage test: the act must be likely to adversely affect military operations or cause harm to protected persons, there must be a direct causal link between the act and the harm, and the act must be specifically designed to cause the required harm.

International Human Rights Law (IHRL)

IHRL applies in both peacetime and armed conflict and provides the most explicit protection for the right to life. Under IHRL, any deprivation of life must be non-arbitrary, and lethal force must be used only as a last resort to protect life. The use of force must be necessary, proportionate, and based on an imminent threat.

The legality of drones in international armed conflict depends on compliance with the applicable legal frameworks, including the ius ad bellum, IHL, and IHRL. While drones themselves are not inherently illegal, their use must adhere to the established rules of international law to ensure the protection of civilians and the right to life.

Frequently asked questions