Prior to the 20th anniversary of the catastrophic attacks on September 11, 2001, the U.S. Navy’s Mideast-based 5th Fleet announced that a new task force would be launched, including airborne, sailing, and underwater drones (A.P., 2021). In this regard, Navy officials refused to reveal the specifications of systems that would be used in the newly established task force. However, it is declared that in the upcoming months, the capabilities of drones would be stretched across a region of chokepoints crucial to both global energy supplies and worldwide shipping (Ibid).
The launch of this new drone task force by the U.S. military in the middle east has crucial importance, as the U.S. troops have recently left Afghanistan after 20 years of war on terror. Therefore, this task force would play an essential role as part of U.S. policy in the fight against terrorism and would raise significant concerns from the perspective of International Law and International Humanitarian Law (IHL). As a result, in this article, the legal issues that would arise in this context will be explored, and, ultimately, specific recommendations will be proposed.
- Drone Strikes; Entangled Part of Military Operations
States have been attempting to develop new methods of utilizing lethal force, particularly as part of their fight against terrorism. Armed drones have been employed more excessively among various weapons, as they provide a strategic advantage of deploying deadly force against a remote target without exposing one’s own forces to risks (Christof Heyns, Dapo Akande, Lawrence Hill-Cawthorne, And Thompson Chengeta, 2016).
The first armed drone attacks in Afghanistan have performed over two decades ago, in October 2001, and Yemen in November 2002, against targets suspected of participating in Al-Qaeda and Taliban (Krähenmann, 2020). Drone strikes have been a frequent component of military operations since then. Therefore, more States and Armed non-state actors (ANSAs) are employing weapons to perform assaults both inside and outside armed conflict areas, which has imposed severe humanitarian challenges to the civilian population (Ibid).
- Legal Concerns Raised by The Use of Armed Drones
From the standpoint of International law, the use of drones is not explicitly regulated. However, it is widely accepted that they are governed by the general rules of IHL. Since, under IHL, means of warfare include weapons, weapons systems, or platforms. In this regard, the way such weapons are used is essential and should be considered a method of warfare. As a result, given the fact that Armed drones are not weapons in themselves, but they could be considered as platforms that deliver a weapon, the use of armed drones as a means of warfare is governed by the IHL rules(Ibid). Notably, military attacks such as targeted killing by drone strikes should comply with IHL rules. In this part, the most important rules are explained.
- The Principles of Distinction
Under IHL rules, in case of an armed conflict, attacks must comply with the Principle of Distinction between Civilians and Combatants. This principle provides that;
“The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”
Based on sufficient state practice, this rule emerged as a norm of customary international law applicable in both international and non-international armed conflicts. The three components of this rule are interconnected, and the practice related to each reinforces the validity of other components (ICRC, 2020).
- The Principle of Proportionality
The principle of proportionality requires that the expected collateral damage, which is a possible adverse impact on the civilian bystanders or the civilian infrastructure, shall not be excessively comparing to the direct military advantage. IHL rules provide that; (ICRC, 2020).
“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”
- Principle of Precautions in Attack
The parties to an armed conflict shall also take several practical precautionary steps in their attacks in order to ensure that the concept of distinction and proportionality is fulfilled. (Krähenmann, 2020). IHL rules require that; (ICRC, 2020).
“In the conduct of military operations, constant care must be taken to spare the civilian population, civilians, and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize incidental loss of civilian life, injury to civilians, and damage to civilian objects.”
- The Prohibition of Indiscriminate Attacks
Based on IHL rules, Indiscriminate attacks are those that; ”(a) which are not directed at a specific military objective; (b) which employ a method or means of combat which cannot be directed at a specific military objective; or (c) which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. (ICRC, 2020). In other words, under IHL, attacks that are carried out by means or methods of warfare that cannot be directed at military objectives or it is not possible to limit the effects of it are prohibited.
- Drone Attacks Under IHL
The employment of armed drones raises a number of concerns in implementing these rules. Firstly, Although, drone strikes may be accurate which is critical for analyzing the principle of distinction in this context, the accuracy does not guaranty that the target was correctly identified. Rather, ‘the remote nature of drone attacks can (and has been) directly connected to indiscriminate attacks against both military and civilian targets’ (Crawford, 2016). The reason for such assumption refers to the fact that there is a delay among transmission and reception of required data collected by the drone, and a lack of on the ground information. (Krähenmann, 2020) As a result, The Principles of Distinction might be violated.
Secondly, if a drone attacks a military target, it may amount to a violation of the Principle of Proportionality. Since, depending on the warhead used in the attacks, excessive harm to civilians and civilian infrastructure might occur (Ibid).
- Concluding Remarks and Recommendations
It is evident that during an armed conflict, within the meaning of IHL rules, military drones are employed as one of the primary means of warfare. Besides, in some instances, the proliferation of utilizing this warfare amounted to a violation of IHL rules.
Owing to the fact that after 20 years of “war on terror,” the U.S. troops left Afghanistan and the U.S. Navy announced the establishment of a new Drone task force in the middle east, there is a concern that this means of warfare could be employed excessively by U.S. military in the future. As a result, the following recommendations are made;
- Provide more transparency and accurate information on the part of States that conduct drone attacks
- Adopt an international convention on armed drones under the auspices of UN
- States should ensure that drone attacks are based on sufficient information concerning the target and the possible presence of civilians in the targeted area.
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By Mahmoud Refaat: The European Institute for International Law and International Relations.
