This article is written by Vishakha Gupta, a student of NUJS, Kolkata.

Since the dawn of industrialization, man has strived more and more to reduce his dependence on human labour and effort. Sophisticated machines have been invented in order to achieve this objective. This trend of industrialization has not neglected the defence forces of the countries. The latest innovation which may turn around the way armies work around the world is the Unmanned Aerial Vehicle, or UAV. Popularly known as the Drones, UAVs are remote controlled operated aircrafts which are used to conduct surveillance and launch missiles.

As of present, United States, United Kingdom, Israel, Turkey, France, Germany, India, Russia, China, Iran, among many others are in possession of active armed Drones. However, the most number of strikes have been conducted by United States in Pakistan, Yemen, and Somalia. Thus, the legality of Drones is best judged in view of the Drone attacks conducted by United States.

Why so serious?

The legality and moral acceptability of the Drones has emerged as a pertinent issue internationally, primarily due to the sheer number of Drone strikes over the years. Certain rough facts would formulate the gravity of the present situation. The first Drone strike by United States was on Yemen in 2002. Since then, 116 strikes have been reported from there.[1] Between 2004 and 2014, there have been 388 reported Drone strikes on Pakistan alone by the United States.[2]. Somalia was first hit in 2007. There have been approximately 6-9 strikes reported.[3] The above figures vary notably with every investigator, adducing the clandestine nature of the Drone strikes carried out by United States.

What further augments the solemnity of the situation is the modus operandi. The Drones function akin to professional killers- they kill at a command. They are unmanned and are operated by authorized men sitting in a control room. A U.N. Report by special investigator Philip Alston has revealed that such power to blow off places and people via a mere command on a remote generates a Playstation mentality in the personnel operating the Drones.[4] The bulk of power entrusted on the personnel is fearsome. Drones are being employed in great numbers chiefly because it negates the risk of death of the attacker country’s own men. The only people who suffer are those of the victim country. A further peril that subsists with respect to the employment of Drones in military warfare is that of incorrect information. Drones are released on basis of intelligence from spies and informants. Such intelligence includes the location and the local environment. A small error in the information transmitted may result in deaths of thousands of civilians, as the Drones are incapable of distinguishing between civilians and combatants.

The legality (or illegality) of Drones

There is no specific treaty, convention, declaration or judgment which declares the Drones to be illegal. Therefore, their legality is ascertained from the United Nations Charter, International Humanitarian law, and International Human Rights law. United Nations Charter is the foundational treaty to which every member of the United Nations has to adhere. International Humanitarian Law (IHL) comprises various treaties and conventions which propound international peace, and govern armed conflicts. International Human Rights Law (IHRL) derives recognition from United Nations Declaration on Human Rights and similar treaties, conventions and customary law. IHRL applies in absence of applicability of IHL.

Arguments for

Drone strikes have generated protests all around the world. The international community looked down in horror as thousands of people were bombed in Pakistan, Yemen and Somalia. However, it was not until 2012 that President Barack Obama formally acknowledged the attacks. Up till then, the Drone strikes were attempted to be kept secret from the world (possibly the worst kept secret ever). In 2001, the United States Congress enacted the Authorization for the Use of Military Force, soon after the 9/11 attacks. Under this statute, the Drone strikes deployed to combat terrorism are be legally valid under if the President has so consents.[5] Whether President Obama has consented to the strikes has not been ascertained.

Article 51 of the United Nations Charter prohibits the use of force except in case in exercise of “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” In the Nicaragua case, [1986 I.C.J. 94] the International Court of Justice has clarified that only “grave form of the use of force” may trigger the exception embedded in Article 51. The force used in self- defence should be proportional and necessary [The Oil Platforms (Iran v. U.S.) Case, 2003 I.C.J. 189]. United States, defending the strikes brings the same within the purview of Article 51. The stand of United States is that the Drone strikes fit in the confines of anticipatory self –defence against the acts of Al-Qaeda.[6]

IHL may be executed through the Geneva Conventions, which allow for targeted killings in tight boundaries in a case of an “armed conflict”. Such armed conflict may be ‘international armed conflict” or “non-international armed conflict”. The former is the conflict taking place “between two or more States”, and is regulated by Article 2 of the Geneva Convention; whereas the latter takes place on the territory of one State, governed by Article 3 of the Geneva Convention. In case of Article 2, the entire Convention applies; in case of Article 3, certain rules laid down in the article itself apply.  It has been widely accepted that United States and Al-Qaeda is not in an international armed conflict, as the latter has been a non-aggressive party after 9/11. United States and Al-Qaeda, however, do satisfy the Boskoski test of non-international armed conflict of an organization and intensity.[7] Both Al-Qaeda and United States have a command structure and organization, and the conflict and hostility between the two can definitely be classified as fulfilling the criteria of intensity.

In case of non- international armed conflict, United States must comply with hors de combat, i.e. not attacking persons injured, and those taking no part in the hostilities. United States asserts that it targets only the members of Al-Qaeda, and not the civilians, and thereby is in compliance with hors de combat.

Another issue is compliance with the principles of jus ad bellum (“right to go to war”) of necessity and proportionality, and those of jus in bello (appropriate conduct during war) of distinction and proportionality. Jus ad bellum and jus in bello are the two criteria for a Just War. Drone strikes as a counterterrorism technique fulfill the requirement of necessity. With respect to the death toll in 9/11 and imminent danger that Al- Qaeda constitutes, the test of proportionality is achieved. Lastly, as the Drones target only the terrorists, the principle of distinction is conformed to. The International Court of Justice has opined that “weapons that are incapable of distinguishing between civilian and military targets” are not recognized in international law. [Advisory opinion on Nuclear Weapons General List No. 95 (1995-1998)] The Court, however, did not expressly outlaw such weapons. Thus, even if Drones are incapable of distinguishing between combatants and non- combatants, they are not illegal.[8]

A component of IHRL is the International Covenant on Civil and Political Rights. Article 6 of the Covenant prohibits arbitrary deprivation of life. United States asserts that as Drone strikes are based on reliable intelligence, ICCPR is not violated.

Arguments against

The Drone strikes have caused havoc and killed thousands of innocent civilians in Pakistan, Yemen and Somalia. In a memo released in 2013 by the Justice Department of United States, President Obama contends that the Drone strikes were employed only where an imminent threat existed. In order to propound this argument, the definition and limits of imminent threat was irrationally twisted. The theory of self- defence and imminent threat as explicated in this 16-page memo was broader than any other theory that has been put forth yet.[9] This white paper has generated a huge unrest around the world, especially among the international legal scholars.

Self-defence under Article 51 of the United Nations Charter, as interpreted by the International Court of Justice has a very high level of applicability. It applies only in case of “grave form of use of force”. Such high levels have not been complied with by the United States so as to permit the applicability of the exception under Article 51. Though United States attempts to justify its actions as anticipatory or pre-emptive self- defence, the legality of anticipatory self-defence has not been agreed upon internationally till yet. United States has employed the Drones against two distinct terrorist groups- the Pakistan Taliban and the Al-Qaeda. Assuming that anticipatory self- defence is permissible under Article 51 of the Charter, United States can claim the same against Al-Qaeda only. Pakistan Taliban is guilty of attacks only in Paksitan and against its inhabitants.[10] The same holds for attack on Taliban in other countries as well.

As discussed above, one of the requirements of the Bokoksi test of non-international armed conflict is existence of organisation. It may be contended that Al Qaeda does not follow a traditional command structure, as the members do not wear uniforms, or carry arms openly. Moreover, Al- Qaeda does position its troops at the borders of the nations it seeks to attack. Therefore, Al Qaeda lacks the legitimacy to engage in armed conflict and is not entitled to its corresponding privileges under the prevailing international law. The same case is often made out for the members of the Central Investigation Agency or CIA, which is the chief intelligence- gatherer of United States, and has organised all the Drone attacks. CIA officers cannot operate as “lawful combatants” in an armed conflict as they are not members of a military chain of command, do not wear uniforms, and are not trained in the laws of war.[11]

Drone strikes do not fulfill the Just War criteria of necessity, proportionality and distinction. As there is no grave danger or immediate threat of another terrorist attack on United States, the Drone strikes are not necessary. The Drone strikes are not proportional to the danger that Al-Qaeda and Taliban constitutes. The number of deaths caused by Drones is inordinate with respect to the threat perceived. The unmanned Drones cannot distinguish between a lawful combatant and an innocent civilian, and therefore do not fulfill the requirement of distinction. The strikes may very possibly be based on incorrect intelligence received by the attacking country, which would lead to arbitrary attacks, violating Article 6 of the International Covenant on Civil and Political Rights. Killing of non-combatants also violates the principle of hors de combat under the common Article 3 of the Geneva Convention.

The Drone strikes in Pakistan, if conducted without the consent of elected representatives of Pakistan, violate its sovereignty as United States and Pakistan are not in a state of armed conflict between the two countries. However, post 9/11, United States wanted Pakistan to collaborate in combating terrorism and it is suspected that Pakistan has consented for the Drone strikes. The Pakistan government neither denies nor affirms the allegations. However, the Pakistan military has never attempted to shoot down the Drones. Instead, a Drone strike was launched from Pakistan’s own airbase.[12] Nevertheless, even if the attacked country has given consent, it does not waive the application of IHL and IHRL.

The final verdict?

Most of the international community is against the deployment of the Drones, considering the horrific massacres they have led to. Despite this, United States continues its efforts towards counter- terrorism through Drone strikes. The Playstation mentality, arbitrary deprivation of life, killing of innocent civilians make the Drone strikes morally unacceptable. However, the legal validity of such Drone strikes is still under debate as there has been no conclusive declaration, convention or treaty with respect to the same. This envisions a formidable future as United States’ use of Drones has initiated an arms race. A global divide between countries who possess armed Drones and robot armies and those who don’t is also anticipated. The development of Artificial Intelligence prognosticates a dangerous idea of unmonitored Drones. In absence of definite laws, and zero risk to operator, the employment of Drones is gradually rising, remodeling the war of armies into a war of technologies.

[1] Drone Wars Yemen: Analysis  (International Security, New America Foundation) http://securitydata.newamerica.net/drones/yemen/analysis

[2] Drone Wars Pakistan: Analysis  (International Security, New America Foundation) http://securitydata.newamerica.net/drones/pakistan/analysis

[3] Get the data: Drone wars (Bureau of Investigative Journalism)   http://www.thebureauinvestigates.com/category/projects/drones/drones-graphs/

[4] U.N. Doc A/HRC/14/24/Add.6 of 28 May 2010

[5] Jonathan Masters, Targeted Killings (CFR.org) http://www.cfr.org/counterterrorism/targeted-killings/p9627

[6] Andrew C. Orr, Unmanned, Unprecedented, And Unresolved: The Status Of American Drone Strikes In Pakistan Under International Law  44 Cornell International Law Journal  http://www.lawschool.cornell.edu/research/ILJ/upload/Orr-final.pdf

[7] Prosecutor v. Boskoski, Case No. IT-04-82-T, Judgment, at 78– 93 (Int’l Crim. Trib. for the Former Yugoslavia July 10, 2008)

[8] Andrew C. Orr, Unmanned, Unprecedented, And Unresolved: The Status Of American Drone Strikes In Pakistan Under International Law 44 Cornell International Law Journal  http://www.lawschool.cornell.edu/research/ILJ/upload/Orr-final.pdf

[9] Justice Department memo reveals legal case for drone strikes on Americans (NBC News) http://investigations.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans

[10] Sikander Ahmed Shah, War on Terrorism: Self Defense, Operation Enduring Freedom, and the Legality of US Drone Attacks in Pakistan, 9 Wash. U. Global Stud. L. Rev. 77 (2010).

[11] Afsheen John Radsan & Richard Murphy, Measure Twice, Shoot Once: Higher Care For Cia-Targeted Killing, 2011 University Of Illinois Law Review 4 (2011) http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=1476509

[12] Michael J. Boyle, The costs and consequences of drone warfare 89 International Affairs 1,29 (2013)