Drone strikes under International Humanitarian Law (IHL) and the laws of armed conflict

Shivani Singh

(Llyod Law College, Greater Noida)

The credit of the picture - https://blogs.icrc.org/law-and-policy/2022/03/15/consumer-drones-conflict-ihl/

Introduction

The use of drones in modern warfare has become a contentious issue, with many countries developing and deploying these unmanned aerial vehicles (UAVs) for a variety of purposes, including counter-terrorism operations. Drones offer a number of advantages over traditional military methods, such as the ability to gather intelligence and launch strikes in remote and difficult-to-access areas. However, their use in warfare raises important legal questions, particularly with regard to compliance with international humanitarian law (IHL) and the laws of armed conflict. The use of drones has been a contentious issue, particularly in countries like Yemen, Pakistan, Somalia, and Afghanistan where the US has been using drones for targeted killings. The purpose of this article is to examine the legal implications of drone strikes under these two bodies of law, with a focus on the issues of extrajudicial killings, the principle of distinction and targeting military objectives, the principle of proportionality and prohibition of unnecessary suffering, and the potential violations of IHL and the laws of armed conflict.

Legality of Drone Strikes under IHL:

IHL, also known as the law of war, is a set of rules that govern the conduct of hostilities in armed conflicts. It is intended to protect civilians and combatants who are no longer participating in the hostilities. With regard to drone strikes, there are several key principles of IHL that are particularly relevant.

Extrajudicial killings and their prohibition: One of the most fundamental principles of IHL is the prohibition of extrajudicial killings. This means that individuals can only be killed as a result of a lawful act of war, such as an armed conflict between two states or a non-international armed conflict. Extrajudicial killings, in which individuals are killed outside of the context of an armed conflict, are strictly prohibited. The use of drones for targeted killings has been criticized for potentially violating this principle. The targeted killing of individuals by drones outside of the context of an armed conflict, and without due process, is a violation of the right to life and is illegal under international law.

Principle of distinction and targeting military objectives: Another crucial principle of IHL is the principle of distinction. This principle requires that combatants distinguish between civilians and combatants, and only target military objectives. Civilians and civilian objects must not be targeted. The use of drones raises concerns about the ability to distinguish between civilians and combatants, particularly in areas where the distinction is not clear. The principle of distinction is essential to ensure that civilians are not unnecessarily harmed during the course of an armed conflict.

Principle of proportionality and prohibition of unnecessary suffering: The principle of proportionality is also a vital principle of IHL. It requires that the harm caused to civilians and civilian objects must not be excessive in relation to the military advantage gained by the attack. The prohibition of unnecessary suffering is also an important principle of IHL, which aims to minimize the suffering of combatants and civilians alike. The use of drones has been criticized for potentially violating these principles, as the strikes may cause excessive harm to civilians in relation to the military advantage gained.

Potential violations of IHL: Despite these principles, there are concerns that drone strikes may violate IHL. For example, if a drone strike results in the death of civilians who are not directly participating in hostilities, it may be considered a violation of the prohibition of extrajudicial killings. Additionally, if a drone strike targets a civilian object, such as a home or a market, it may be considered a violation of the principle of distinction. The use of drones has also been criticized for potentially violating the principle of proportionality, as the harm caused to civilians may be excessive in relation to the military advantage gained by the attack.

Legality of Drone Strikes under Laws of Armed Conflict:

The laws of armed conflict, also known as the laws of war, are a subset of international law that governs the conduct of hostilities in an armed conflict. They are similar to IHL, but they only apply when there is a recognized armed conflict between two or more states or between a state and a non-state actor.

Definition of armed conflict and applicability of laws: The laws of armed conflict only apply in situations of armed conflict. An armed conflict exists when there is a resort to armed force between states or between a state and a non-state actor. The laws of armed conflict only apply to the parties to the conflict and not to civilians. The use of drones in counter-terrorism operations has been criticized for potentially violating the laws of armed conflict, as these operations are not always taking place within the context of a recognized armed conflict.

Principle of distinction and targeting military objectives: The principle of distinction is also an important principle under the laws of armed conflict. It requires that combatants distinguish between civilians and combatants, and only target military objectives. Civilians and civilian objects must not be targeted. The use of drones raises concerns about the ability to distinguish between civilians and combatants, particularly in areas where the distinction is not clear.

Principle of proportionality and prohibition of unnecessary suffering: The principle of proportionality is also an important principle under the laws of armed conflict. It requires that the harm caused to civilians and civilian objects must not be excessive in relation to the military advantage gained by the attack. The prohibition of unnecessary suffering is also an important principle under the laws of armed conflict, which aims to minimize the suffering of combatants and civilians alike. The use of drones has been criticized for potentially violating these principles, as the strikes may cause excessive harm to civilians in relation to the military advantage gained.

Potential violations of laws of armed conflict: Despite these principles, there are concerns that drone strikes may violate the laws of armed conflict. For example, if a drone strike results in the death of civilians who are not directly participating in hostilities, it may be considered a violation of the prohibition of extrajudicial killings. Additionally, if a drone strike targets a civilian object, such as a home or a market, it may be considered a violation of the principle of distinction. The use of drones in counter-terrorism operations has also been criticized for potentially violating the laws of armed conflict, as these operations are not always taking place within the context of a recognized armed conflict and may not be limited to targeting specific individuals who pose a direct threat.

Debate on Legality of Drone Strikes:

The use of drones in counter-terrorism operations has sparked a heated debate about their legality under international law. There are enough arguments in for and against the legality of drone strikes, and there is a lack of clear guidance under international law. The use of drone strikes has been a subject of debate and controversy, with arguments for and against their legality. There are several arguments in support of the use of drone strikes. One such argument is the principle of self-defense, which allows states to use force in the event of an armed attack against them. Some proponents of drone strikes argue that they can be justified as an act of self-defense if a state has evidence that an individual or group poses an imminent threat to its national security. Additionally, the use of drone strikes can be authorized under International Humanitarian Law (IHL), which governs the conduct of hostilities during armed conflicts. If a drone strike is conducted in compliance with IHL, it is considered lawful. Furthermore, proponents argue that drone strikes can also be considered a form of targeted killing, which is not inherently illegal under international law. If targeted killings are conducted in accordance with certain principles, such as necessity, proportionality, and discrimination, they can be considered lawful. Finally, states have a right to defend their sovereignty and territorial integrity, and if a state is unable or unwilling to take action against non-state actors within its borders, other states may use force, including drone strikes, in order to neutralize the threat. While these arguments provide a framework for the legality of drone strikes, it is worth noting that their use remains controversial and subject to legal and ethical debate. The potential harm caused to civilians and the potential for abuse of drone technology are important considerations that must be taken into account when assessing the legality of drone strikes.

The use of drone strikes has been a controversial topic, with several arguments against their legality as well. One argument is that drone strikes violate the sovereignty of other states, as they are often conducted without the consent of the state in which they take place. Additionally, the lack of accountability and transparency surrounding their use makes it difficult to determine whether they comply with international law. Furthermore, the potential harm caused to civilians is a significant concern, as the use of drones can make it easier for decision-makers to justify the use of force without fully considering the potential harm caused to civilians. The lack of transparency and difficulty in assessing the potential harm caused to civilians can also make it challenging for affected communities to seek justice or accountability for any harm caused by drone strikes. Finally, opponents argue that the use of drones sets a dangerous precedent for the potential abuse of drone technology and the use of targeted killings or other forms of violence without proper accountability or oversight. While proponents of drone strikes argue that they can be justified under certain circumstances, opponents argue that the potential harm caused to civilians and the risk of abuse outweigh any potential benefits. The legality of drone strikes remains a contentious issue in international law and ethics.

Despite the ongoing debate, there is a lack of clear guidance under international law regarding the legality of drone strikes. The International Committee of the Red Cross (ICRC) has called for more clarity on the legal framework governing the use of drones in armed conflict, and the UN Human Rights Council has established an expert panel to examine the issue. However, the UN Human Rights Council expert panel on drone strikes does not have an official motto. However, its mission is to investigate and assess the human rights implications of the use of drones in targeted killings and provide recommendations to promote compliance with international law and human rights standards. Its work is guided by the principles of transparency, accountability, and respect for human rights in the use of drones for targeted killings.

The expert panel on drone strikes operates as a mechanism to investigate and assess the human rights implications of the use of drones in targeted killings. The panel is composed of independent experts with diverse backgrounds and experiences in fields such as human rights law, military affairs, and international relations. The panel's functions include gathering and analyzing information on drone strikes, engaging with relevant stakeholders such as governments, civil society organizations, and affected communities, and providing recommendations to promote compliance with international law and human rights standards. Through its work, the expert panel aims to promote transparency, accountability, and respect for human rights in the use of drones for targeted killings.

Since its establishment, the expert panel on drone strikes has made significant progress in advancing the protection of human rights in the context of targeted killings. The panel's work has helped to raise awareness of the human rights implications of drone strikes, including the risk of civilian casualties, violations of the right to life, and the erosion of accountability and transparency. The panel has also contributed to the development of international standards and guidelines on the use of drones, such as the 2013 Joint Declaration on the Use of Armed Drones and the 2018 Global Counter-Terrorism Strategy. Furthermore, the panel's engagement with affected communities, civil society organizations, and governments has helped to promote a more informed and participatory debate on the use of drones for targeted killings. While there is still much to be done to address the complex and evolving challenges posed by drones, the UN Human Rights Council expert panel on drone strikes has demonstrated the potential of international cooperation and dialogue to advance the protection of human rights in this context.

Conclusion:

The use of drones in counter-terrorism operations raises important legal questions regarding their compliance with international humanitarian law and the laws of armed conflict. The principles of distinction, proportionality, and the prohibition of extrajudicial killings are key principles under both IHL and the laws of armed conflict. However, the use of drones raises concerns about the ability to distinguish between civilians and combatants, the potential for civilian casualties, and the lack of transparency and accountability in their usage. Additionally, there is a lack of clear guidance under international law regarding the legality of drone strikes. It is crucial that further guidance and regulations are developed to ensure the protection of civilians and compliance with IHL and the laws of armed conflict. Furthermore, compliance with these principles is vital to maintain the moral and legal integrity of nations in the conduct of warfare.