DRONE WARFARE AND INTERNATIONAL LAW

Under the United Nations Charter, states agree to “settle their international disputes in a peaceful manner” and “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” This is generally viewed as a blanket prohibition on the use of force by one state inside the borders of another sovereign state. Chapter VII of the United Nations Charter outlines just two exceptions to this prohibition. First, if the Security Council identifies “any threat to the peace, breach of the peace, or act of aggression,” it may “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” For practical purposes, this means that the Security Council can pass a resolution authorizing one or more member states to use force to carry out its mandates. The second exception relates to self-defense. In Article 51, the United  Nations Charter says, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security.” Pursuant to the United Nations Chapter’s framework of obliged laws, It is difficult to evaluate drone strikes under these rules. The drones might, like cluster bombs and landmines before them, be banned on the basis that the high civilian casualties associated with their use, make them so cruel as to be beyond the pale of human tolerance. The United Nations Special Rapporteur on extrajudicial had documented to United Nations Human Rights a summary or arbitrary executions notes in regard to their current legal status that “A missile fired from a drone is no different from any other commonly used weapon” and that “The critical legal question is the same for each weapon: whether its use complies with International Humanitarian Law” enshrining the principles of discrimination (between combatants and civilians), proportionality, necessity and precaution in the use of lethal force in armed conflict. However, The United Nations Special Rapporteur on extrajudicial had also made the point that unique to drones “There is a risk of developing a ‘Playstation’ mentality to killing” due to the low risk to the forces operating them. As The United Nations Special Rapporteur on extrajudicial had said “The greater concern with drones is that because they make it easier to kill without risk to a state’s forces, policymakers and commanders will be tempted to interpret the legal limitations

on who can be killed, and under what circumstances, too expansively.” Added to this, the developing potential for drones to fly fully autonomous missions opens up major and as yet unresolved legal questions about who would be held accountable for the lethal impact of autonomous armed drones.

The specific weapons fired from armed drones may not be currently illegal. However, taken as a whole, the drone weapon system – both as it operates now and its future potential for autonomous killing – may well be uniquely dangerous and a candidate for banning.

Beyond the question of the legal status of the weapon itself, the use of drones to conduct ‘targeted killings’ has given rise

to significant legal concerns. The United Nations Special Rapporteur on extrajudicial report to United Nations Human Rights draws attention to the rise over open or implicit targeted killing policies by states whereby specific individuals are intentionally targeted and killed. The United Nations Special Rapporteur on extrajudicial noted “Such policies have been justified both as a legitimate response to ‘terrorist’ threats and as a necessary response to the challenges of ‘asymmetric warfare’”. According to the United Nations Special Rapporteur on extrajudicial, the legality or otherwise of a particular targeted killing depends on the legal context in which it is conducted, whether in armed conflict, outside armed conflict or in relation to the interstate use of force. The United Nations Special Rapporteur on extrajudicial issues a salutary reminder that “To the extent that customary law is invoked to justify a particular interpretation of an international norm, the starting point must be the policies and practice of the vast majority of states and not those of a handful which have conveniently sought to create their own personalised normative frameworks.” It emphasises the failure of states to make information publicly available about their use of armed drones and what, if any, procedural safeguards exist to ensure compliance with the relevant international legal frameworks. This lack of transparency is leading to the term an “Accountability Vacuum” that violates both international humanitarian law and human rights law.

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