International Law and Drone Warfare
Over the past decade the use of drones, robots, and other remotely controlled weaponry has surged in the area of modern warfare, raising questions on the challenges these new technologies bring to human rights and the application of International Law as a whole. States and non-governmental organizations have done very little to change existing laws, and remain unmoved at large by the challenges this new technology brings, leaving lawyers, human rights activists and organizations stuck with old laws that no longer apply to new wars. This paper will look at some of the challenges contemporary wars bring to international law, and explore debates centered on the legality surrounding the use of drones by arguing that an update in existing laws is necessary.
Although relatively a new phenomenon, Unmanned Aerial Vehicles (UAVs), colloquially known as drones, are now seen as the face of American airpower (Farley 2014: 141). A 2012 report by the Department of Defense to the Congress on the future of UAVs states that by 2017 the Army, Air Force, Navy and Marine Corps combined will have 8,388 Unmanned Aircraft Vehicles (2012: 5). Since the first drone strike in 2001, drones have been used in Yemen, Libya, Iraq, Somalia, Afghanistan, Pakistan, Syria and elsewhere. It has been reported that in Pakistan alone, as of July 2013, an estimated 2,039 to 3,370 people were killed due to U.S. drone strikes (Gusterson 2014: 194). The use of drones in wars is showing no sign of decline; on the contrary unpiloted technology is progressing by the day, and is seen by scientists to be still in its early stages.
The Geneva Conventions of 1949 came to be in the aftermath of the Second World War, updating the three previous conventions, in hope to prevent atrocities of the war from reoccurring. The Second World War was generally fought with troops on the ground: today, war looks very different; intelligent machines and unpiloted planes have revolutionized military affairs. Michael Evans writes on how today’s technology has transformed traditional theory and practices of war. Evans explains premodern war as social at core rather than technological, characterized by existential, and not instrumental presence. On the other hand, post-modern war is characterized by “high-tech aerospace power, causality limitation, and cautious exist strategies” (2003:136). War today continues moving forward and away from humanity as it replaces soldiers with drones, and spies with satellites. These changes have left lawyers and human rights workers protesting having to “apply international law written for the Second World War to Star Trek technology’’ (Singer 2009: 387).
There is international muddle on whether International Human Rights Law (IHRL) and International Humanitarian Law (IHL) can be affectively applied to today’s warfare. The dominant belief is that IHL and IHRL are complementary legal regimes, however while IHRL applies at all times, IHL is tailored to govern armed conflict (Melzer 2008: 58). The ambiguity around whether U.S. drone strikes abroad constitute an armed conflict leads to confusion on the laws that ought to be used to govern these attacks. As Klem Ryan puts it: “Without the clear distinction of the battlefield concepts essential for the effective functioning of the law lose their clarity” (2014: 212). The International Committee of the Red Cross defines international armed conflict as conflicts that occur between two or more opposing states, and non-international armed conflict as that “between governmental forces and non- governmental armed groups, or between such groups only”(ICRC 2008: 1). Experts have questioned whether the U.S is in armed conflict with groups whose members were targeted by U.S drones (Cavallaro, Sonnenberg and Knuckey 2012: 111). As the nature of these strikes remain contested and lack legal clarity, it is appears that the current laws are insufficient in regulating drone warfare, the gap between existing laws and today’s warfare makes it possible for states to engage in bombings with no legal oversight (Farley 2015: 151). In 2011 after Obama authorized the use of drones in Libya, Obama was criticized for not acquiring the needed Congress approval that the law dictates as required for any use of US military forces that lasts longer than 60 days. Following criticisms Obama argued that the use of drones in Libya did not amount to military force as there wasn’t any “troops on the ground, [and] that Libyan forces are unable to fire at them meaningfully’’ (Savage 2011). The introduction of drones, political theorists argue, has made the decision to go to war more appealing, as less human costs and less political risks are involved and war appears more attractive.
The introduction of unmanned aerial vehicles has changed the way accountability is to be determined, or rather made accountability ambiguous and more difficult to pin. While old wars were traditionally fought between two national armies face to face, drones have created new wars that are fought across oceans with no direct contact between combatants. The use of remotely controlled weaponry has changed the face of contemporary battle space (Bhatt 2012: 815). The chain of command behind a UAV strike is more complex than that known in traditional battlefields where a soldier is physically present on the ground and makes a decision to shoot his/her arrow or fire his/her gun. Determining accountability in the traditional battlespace is simpler; a soldier on the ground is held accountable for his/her actions. However, the chain of command is multifaceted when an American combatant is sitting in a UAV control center in Nevada firing missiles in Yemen. If the missile results in the death of a civilian, is the soldier in Nevada to blame? Is his supervisor, who gave the order, to be held accountable for ordering him to fire? Or is it the person behind manufacturing the drone? Determining accountability has become more dubious as the use of drones has lead to blurring the lines between civilians and combatants. Drones are commonly manufactured by private companies such as General Atomics Aeronautical Systems, which makes them produced, programmed, and designed by civilians and this has arguably lead to the “expansion of the role of the combatant into civilian space” (Bhatt 2012: 821). It is not only civilians that are taking on military roles, likewise soldiers operating drones from home soil while living the lives of civilians with the ability to fire missiles killing people on the other side of the world by day, and having dinner parties with friends and families by night, have lead to the “increasing civilianization of many military functions’’ (Bhatt 2012: 821).
The technology for autonomous drones already exists, autonomous drones can make decisions to target and kill without human input, completely unpiloted. Singer argues that with autonomous drones war crimes would be impossible to pin, as war crimes are determined as such through violation and intent, and an unpiloted machine is capable of neither (Singer 2014: 389). A report published by Human Rights Watch and the Harvard Law School International Human Rights Clinic in 2015, echoes Singer’s concern agreeing that acts committed by machines would not amount to crimes as intent can not be established, and affirms that “[e]xisting mechanisms for legal accountability are ill suited and inadequate to address the unlawful harms fully autonomous weapons might cause.’’(2015: 2). The report recommends an absolute ban on the development and production and use of fully autonomous weapons through national laws and instruments of international law (2015: 5). Other issues of determining liability rise including that of software failures; if an autonomous drone uses lethal force against civilians because of a software glitch, do we then put on trial for war crimes the civilian engineer responsible for creating the algorithm that enables drones to scan, select, target, and fire missiles? Or do we abandon accountability and accept the death of civilians as an unfortunate software glitch that might amount to a war crime?
Where Does the Battlespace Begin, and Where Does it End?
The use of drones has changed what it means to ‘go to war’, and the physical confinement of a battlefield. This raises the question of where the borders of the legal battlefield begin and where they end. Evans argues that globalization and new warfare lead to “a process in which space and time have been so compressed by technology as to permit distant actions to have local effects and vice versa” (Evans 2003: 133). Gusterson, a professor at George Washington University, argues that drone warfare “removes the U.S combatant from the battlefield, as it embeds the battlefield in his local world” (Gusterson 2014: 199). The expansion and relocation of the battlespace Evans, Singer, and Gusterson speak of disrupts the equilibrium of power in conflict. Making the battlefield virtual, and bringing it to the feet of American soldiers without them having to leave the comfort of their country, raises questions on the symmetry in war, or rather the lack of it.
There is clear asymmetry in power when one soldier has the luxury to be absent from combat while the other is not aware of drones hovering over his family house and does not view himself as being in battle. War advancements have removed the combatant further and further away from the battlefield, away from the enemy and closer to safety, from having to fight sword to sword, to the physical space rifles allowed, to the protection of tanks, the distance of planes, and now drones. Drones allow U.S military personnel to fight with complete immunity and zero risk. Gusterson argues that drone warfare is closer to torture than it is to war, where one party is able to inflict pain and injury, while the other completely lacks the power to resist, fight back, or reach his torturer (Gusterson 2014: 204).
International humanitarian law views the battlefield as “a physical space linked to a time and an event where particular rules and obligations govern the people present in the location’’ (Ryan 2014: 210), it is thus argued that as drones localize and bring home the distant battlefield, IHL no longer applies. IHL draws on the existence of a physically confined battlespace where two or more opposing parties are present; without clear lines mapping the battlefield, laws become obscure. In other words, with the use of drone warfare “the contemporary battlespace becomes legally incorrigible and geographically ambiguous’’ (Bhatt 2012: 819).
The guaranteed safety of one party, and the complete destruction of the other gives rise to questions on the principle of proportionality, which is foundational to IHL. The principle of proportionality dictates that the harm resulting to civilians due to a military attack must be proportional to the military advantage of an attack. Furthermore, while IHL requires states to suspend attacks that would clearly result in the loss of civilian lives and provide warnings to attacks that will possibly affect civilians, drone attacks by the U.S. have failed to do both. The U.S. frequently carries out what is known as ‘signature strikes’ where drones fire missiles on a group of people whose identity is unknown, but believed by U.S drone pilots on the other side of the globe to look suspicious, by being men of fighting age, or by being present in a territory that is visited by jihadists (Ryan 2014: 212;Heller 2013: 90; Gusterson 2014: 194). In December 2013, the U.S. launched a drone attack in Yemen on a convoy of trucks that were believed to be carrying Al Qaeda fighters; the trucks were actually full of civilians on their way to a wedding party. The attack resulted in the death of 17 civilians and left many others wounded (Williams 2014; Ali and King 2013). Statistics show that in Pakistan alone between the years 2008 and 2010, drones resulted in 500 killings, only 8% of which are reported to have been ‘top-tier militant targets’ or ‘mid-to-high-level organizers’ (Cavallaro, Sonnenberg and Knuckey, 2012: 31). Other experts have estimated that for every Jihadi the U.S succeeds in killing using drones, fifty civilians are killed (Kilcullen and Exum 2009).
The distance drones allow does not only expand and globalize the borders of war, but also has other implications on the way soldiers fight battles. Killing becomes easier when soldiers are detached from the immediate battlespace and are given god-like mighty that enables them to kill while sitting in an air-conditioned control center, surrounded by the safety of a familiar environment. The person, or group, the drone pilot sees on screen is dehumanized, and appears similar to video game characters. Distance is argued to make killing easy and impersonal; one former private in the air force once said in an interview ''I thought killing somebody would be this life-changing experience. And then I did it, and I was like, 'All right, whatever'...killing people is like squashing an ant. I mean you kill somebody and it's like 'All right, let's go get some pizza'' (Tilghman 2006). American psychiatrist Robert Jay Lifton speaks of what he calls ‘doubling’, a psychological outcome that the use of drones can result in. Doubling is when soldiers create psychic doubles where their online personality would be willing to commit crimes they normally wouldn’t do. Lifton explains that the use of drones allows soldiers to swiftly step into and out of war, which can lead to “the calling forth of a functional second self by a single individual as a means of adapting to highly antithetical environments.” (Lifton 2013: 15). Some argue that drone warfare comes with advantages including enabling soldiers in making more accurate decisions, avoiding human mistakes, removing anger, revenge, and fear out of the battlefield, and making it possible to ‘play back battles’ (Singer 2009: 390). Yet, these technological advancements are not price-free and arguably bring more harm than good.
Although this paper focused on the use of drones by the United States, drones are not restricted to US warfare, in fact they go well beyond it. In 2014 the international drone market was worth over six billion US dollars, and over 50 countries were reported to either own or produce drones (Gusterson 2014: 194). The fault in the current system is that it repeatedly fails to take preventive measures in regulating wars. Although the threats drones bring to international law have been thoroughly researched by legal scholars, international organizations, academics, and military experts, laws seem to insist on an approach of ‘if we don’t think about it, it won’t happen’. We deal with the implications of warfare technology only after they have caused substantial damage, even though we can clearly see transformations as they happen. Failing to mesh the legal systems with weapons as they are being developed and created, and not growing legal instruments simultaneously with warfare technology, leaves us with outdated laws that are incapable of safeguarding civilians.
While technology in military affairs progresses viciously in research, production, size and use, outlining the future of warfare, warfare law lags behind seemingly frozen in time. Despite the above grim picture, past experiences have shown that international law isn’t and should not be a static text but rather evolves and responds towards emerging new realities. Hence, when the international community recognized the changing nature of conflicts in 1977 and agreed to develop two protocols to the Geneva Conventions to address gaps that were not envisioned when the four Geneva Conventions were formulated. It is hoped that the work of human rights organizations across the world would create the needed momentum and encourage the international community to keep abreast in protecting human rights in times of conflict.
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Author: Leen Bakerjian, PhD student, Géza Marton Doctoral School of Legal Studies, University of Debrecen, Faculty of Law