You are on page 1of 12

Research Proposal Submitted By: Niteesh Kumar Upadhyay, Ph.

D Scholar WBNUJS,
Kolkata

Topic: Use of Drones in Military Operations: Ethical, Legal, and Social


Issues.

Introduction
War is an uncontrollable and universal phenomenon and every nation of the world is facing some
or the other kind of national or non-international armed conflicts. The situation is made worse by
the use of latest technology weapons which has lethal effect on civilian life. International
Humanitarian Law (IHL) and International Human Rights (IHRL) Law govern the conflicts
which occur within or outside the territory of any nation. Invention of new technologies and
weapons of war is posing a serious threat to legal regime surrounding IHL and IHRL and even in
certain conditions modern warfare is not sufficiently dealt under the provisions of IHL or IHRL.
One such example of weapons is Unmanned Aerial Vehicle (UAV) and which is
interchangeably also called Drone as supported by a new nomenclature Remotely-Piloted
Aircraft, or RPA1. Technological weapons like Drones have produced increasingly
sophisticated means for fighting, while laws are too moderate for regulating their use2.
Drones are like professional killers. Just one command to them, and they will operate in a
framework which may well violate the International Humanitarian Law and the International
Human Rights law. Drone attacks have huge issues involved like when to use, where to use,
proportionality of attack. One question that pops up in our mind- Does drone strike take care of
hors de combat or people who want to surrender or those who are injured3?
1 RYAN J. VOGEL, DRONE WARFARE AND THE LAW OF ARMED CONFLICT, DENV.J. INTL. L. &
POLY, VOL. 39:1, Jan.12 2010, at 102, available at http://www.law.du.edu/documents/djilp/39No1/3-Vogel.pdf

2 LAURIE R. BLANK BENJAMIN, CHARACTERIZING US OPERATIONS IN PAKISTAN: IS THE UNITED


STATES ENGAGED IN AN ARMEDCONFLICT?, R. FARLEY.FORDHAM INTERNATIONAL LAW JOURNAL
VOL.34, ISSUE 2, 2011, ARTICLE 2, available athttp://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?
article=2275&context=ilj

3 RYAN J. VOGEL, DRONE WARFARE AND THE LAW OF ARMED CONFLICT, DENV.J. INTL. L. &
POLY, VOL. 39:1, Jan.12 2010, at 102, available at http://www.law.du.edu/documents/djilp/39No1/3-Vogel.pdf

In the war against Al Qaeda and other terrorists organization, unmanned aerial vehicles (Drones)
have increasingly become the United States weapon of choice because of its various advantages.
Drones reach remote territories and targets, save American blood and treasure, achieve optimal
accuracy and efficiency in targeting operations, and also avoid the controversies surrounding the
insertion of ground forces. Due to the above advantages and reasons the United States has
increasingly relied upon unmanned aerial vehicles (UAVs), or Drones, to target and kill
enemies during Armed Conflicts4. Countries like Pakistan, Somalia, and Yemen, are the few on
whom Drone attacks were made on the grounds that the respective governments of the above
states maintain only partial control over their territory and have proven incapable of eliminating,
or unwilling to eliminate, terrorist actors and activities5.
Drones have been criticized for causing disproportionate number of civilian casualties or for
merely sending the wrong message about American power. These casualties also increase the
anti-American feeling among the relatives and friends of civilians and increase the number of
people ready for Armed Conflict with the other country. The most serious legal challenges to the
use of Drones in the modern combat environment involve questions of where such unmanned
aircraft may be legally employed. It is contended that drone strikes in places like Yemen and
Pakistan violate International law because there is currently no Armed Conflict occurring in
these nations.
Drones are not always accurate due to mistaken location of terrorists leaders and persons.
Drones attack can face a serious defect in near future due to improvement of the present signal
jamming or disruption technology which could severely degrade drone operations if they did not
defeat them entirely. The other serious threat is that of Advances in Artificial Intelligence (AI)
4 RYAN J. VOGEL, DRONE WARFARE AND THE LAW OF ARMED CONFLICT, DENV.J. INTL. L. &
POLY, VOL. 39:1, Jan.12 2010, at 102, available at http://www.law.du.edu/documents/djilp/39No1/3-Vogel.pdf

5 DR. CHRISTOPHE PAULUSSEN, TESTING THE ADEQUACY OF THE INTERNATIONAL LEGAL


FRAMEWORK IN COUNTERING TERRORISM: THE WAR PARADIGM,ICCT RESEARCH PAPER, AUG.
2012,
available
athttp://www.icct.nl/download/file/ICCT-Paulussen-Legal-Framework-for-Counter-TerrorismAugust-2012.pdf

which could one day allow for the use of unmonitored drones that would execute their
missions based upon preprogrammed parameters. This would mean that the proportionality
assessment done at weapons release would be performed by the Artificial Intelligence chip in the
drone, such developments would require the creation of new IHL provisions specifically
addressing such weapons systems and their performance. The use of Drone may also result in a
new kind of arms race which is no doubt a danger to the global peace6.
IHL allows use of lethal force to be employed based upon the status of the target. A member of
the enemys forces may be targeted with lethal force based purely on his status as a component of
those armed forces. In contrast, IHRL permits lethal force only after the extent of dangerousness
has been shown. Under IHRL (the law enforcement model), lethal force may only be employed if
the individual poses an imminent threat to law enforcement officers attempting to arrest other
individuals. Further, IHRL requires that an opportunity to surrender be offered before using
lethal force against any person. In case of Drones they are incapable of offering surrender
before utilizing lethal force; armed Drones may not be legally employed in situations governed
by IHRL. Its also a question of debate as which law will be applicable (IHL or IHRL) on the
Drone conducted over Pakistan or Iraq by CIA7.
If the minimum threshold of hostility that defines an armed conflict is met, then IHL applies
within that geographical area. In IHLs absence IHRL would apply, as would the law
enforcement restrictions on lethal force, including the requirement of a surrender offer. This
would preclude any use of armed Drones within the geographical area governed by IHRL,
regardless of whether the state whose territory was involved consented to their use. Fundamental
6 KURT LARSON & ZACHARY MALAMUD, THE UNITED STATES, PAKISTAN, THE LAW OF WAR
AND THE LEGALITY OF THE DRONE ATTACKS, THE JOURNAL OF INTERNATIONAL BUSINESS &
LAW, MAR. 30, 2011, available at
http://law.hofstra.edu/pdf/academics/journals/jibl/jibl_issues_v10n01_united_states_pakistan.pdf

7 ANDREW C. ORR, UNMANNED, UNPRECEDENTED, AND UNRESOLVED: THE STATUS OF


AMERICAN DRONE STRIKES IN PAKISTAN UNDER INTERNATIONAL LAW, CORNELL
INTERNATIONAL LAW JOURNAL VOL. 44, available at
http://www.lawschool.cornell.edu/research/ILJ/upload/Orr-final.pdf

principles of jus in bello are composed of (a) military necessity, (b) distinction, and (c)
proportionality, with many now adding to the list (d) the principle of humanity8.
International Armed Conflicts triggered the appliance of IHL through Common Article 2 of the
Geneva Conventions, which applied the entire Conventions to such conflicts. Such conflicts were
those occurring between two or more of the High Contracting Parties. Non-international armed
conflicts triggered the application of IHL through Common. Article 3 of the Geneva
Conventions, which itself sets minimum standards of conduct for conflicts taking place on the
territory of one of the High Contracting Parties. As these two choices were defined, however,
they were not collectively exhaustive, potentially leaving room for a third choice that IHL left
unaddressed. The problem with these definitions of international and non-international armed
conflict is that collectively they did not describe all the types of armed conflicts that might exist.
Example can be taken of the United States conflict with Al-Qaeda which could not be an
International Armed Conflict because Al-Qaeda is not a High Contracting Party to the Geneva
Conventions. Yet it was also clearly not a non-international Armed Conflict as defined above
because it is not internal to the United States. These kinds of third dimension conflict make the
application of IHL impossible and thats why there is a need to relook them.
The another question need to be answered is whether Drone attack on the territory of Pakistan
by America is the violation of the territorial sovereignty of Pakistan. A constructed legal
justification for the cross-border invasion of Drones is closely related to the macro theory of
self-defense is Hot Pursuit. Hot Pursuit is a Customary International Law that has been
enshrined in the United Nations Convention on the Law of the Sea. The doctrine usually
pertains to the law of the seas and the capability of one States navy to pursue a foreign ship that
has violated laws and regulations in its territorial waters, even if the ship flees to the high seas.

8 VIK KANWAR, POST-HUMAN HUMANITARIAN LAW: THE LAW OF WAR IN THE AGE OF ROBOTIC
WEAPONS, REVIEW ESSAY, available athttp://harvardnsj.org/wp-content/uploads/2011/02/Vol.-2_KanwarFinal.pdf.

US policy permits pre-emptive self-defense, the use of force even when a threat is not
imminent and uncertainty remains as to the time and place of the enemys attack9.
The doctrine as mentioned has been expanded and adapted to relate to sovereign land as well as
territorial waters10. So this theory proves that the Drone Strike on Pakistan is not violating
territorial sovereignty of Pakistan.
The United Nations Charter also allows one nation to cross the territory of other nation to take
action against the terrorists but in the case when other parent nation is not able to control their
activities. The Drone attack over Pakistan comes under this exception. The other argument
against the above argument is that the attacks do not meet the requirements for self-defense
under the United Nations Charter11 (Charter) and as interpreted by the International Court of
Justice (ICJ) 12and customary International Law13.

9 PHILIP ALSTON, REPORT OF THE SPECIAL REPPORTER ON EXTRAJUDICIAL, SUMMARY OR


ARBITRARY EXECUTIONS, A/HRC/14/24/ADD.6,Available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf

10 KURT LARSON & ZACHARY MALAMUD, THE UNITED STATES, PAKISTAN, THE LAW OF WAR
AND THE LEGALITY OF THE DRONE ATTACKS, THE JOURNAL OF INTERNATIONAL BUSINESS &
LAW, MAR. 30, 2011, available at
http://law.hofstra.edu/pdf/academics/journals/jibl/jibl_issues_v10n01_united_states_pakistan.pdf.

11 U.N. CHARTER arts. 51; 2(4).


12VINCENT BATAOEL,ON THE USE OF DRONES IN MILITARY OPERATIONS IN LIBYA: ETHICAL,
LEGAL, AND SOCIAL ISSUES, SYNESIS: A JOURNAL OF SCIENCE, TECHNOLOGY, 2011; 2: G, at 69-76,
available at
http://www.synesisjournal.com/vol2_g/2011_2_G69-76_Bataoel.pdf

13 PHILIP ALSTON, REPORT OF THE SPECIAL REPPORTER ON EXTRAJUDICIAL, SUMMARYOR


ARBITRARY EXECUTIONS, A/HRC/14/24/ADD.6,
Available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf

Pilots sitting in the United States control the drones using joysticks while watching a live
video feed from a powerful on-board camera. Accordingly, an obvious advantage of the program
is the lack of risk to an onboard pilot. On the other hand, critics argue that removing the risk
eliminates a natural check on commanders decisions to attack, making the decision to use deadly
force easier. In the above situation a very important factor of IHL is often neglected .That is of
sparing the civilian population and members of the military that have surrendered or are hors de
combat from the ravages of warfare14.
Under customary International Law, a state enjoys a wide and largely ill-defined right to employ
force in self-defense but it should meet with the requirement of necessity and proportionality
and the need to act must be instant, overwhelming, leaving no choice of means and no moment
of deliberation in certain cases like for the protection of territorial integrity, political
independence, freedom of navigation for its ships, the protection of economic welfare, the
protection of nationals abroad, and as a measure of anticipatory self-defense, and Drone attack
and any state fall within this category Right to self-defense is available to state15.
The Public interest groups such as the International Committee for Robotic Arms Control hold a
common belief that it is not acceptable for machines to control, determine, or decide upon the
application of force or violence in conflict or war but, other groups like, the Fellowship of
Reconciliation believe that the use of Drones develop a Play station mentality, in which
operators indiscriminately kill adversaries as done in a video game. This group believes that
Drones could lead to the deterioration of decision making in the use of force, ultimately
resulting in violation(s) of International Humanitarian Law16.
14(Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 94,
para. 176 (June 27)

15 S.K VERMA, AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW, SATYAM LAW


INTERNATIONAL, 2012, at 494
16 VINCENT BATAOEL, ON THE USE OF DRONES IN MILITARY OPERATIONS IN LIBYA: ETHICAL,
LEGAL, AND SOCIAL ISSUES, SYNESIS: A JOURNAL OF SCIENCE, TECHNOLOGY, 2011; 2: G, at 69-76,
available at http://www.synesisjournal.com/vol2_g/2011_2_G69-76_Bataoel.pdf

A number of factors contribute to the Drones accidental killing of non-militants. First, while
the Drone strikes target specific persons, they depend on intelligence that may not be reliable.
Moreover, militants take refuge among civilians, making it difficult to avoid civilian causalities.
The other argument supporting the illegality of Drone attack by America is that Al Qaeda
does not follow a traditional command structure, wear uniforms, carry its arms openly, or mass
its troops at the borders of the nations it attacks. Al Qaeda lacks the legitimacy to participate in
armed conflict and is not entitled to its concomitant privileges under international law. The irony
of this argument, however, is that many prominent academics argue that the same case can be
made about the status of the reportedly civilian CIA employees who operate the armed,
unmanned aerial drone counterterrorism strikes against Al Qaeda militants17.CIA officers cannot
operate as lawful combatants in an armed conflict: they are not part of a military chain of
command, do not wear uniforms, and are not trained in the laws of war18.

Research Methodology
The researcher has primarily relied on the Doctrinal Method. The research is based on
comprehensive study of sources which are primarily International Law, International
Humanitarian Law, National and International Guidelines, study of customary Human Rights
Law, Text Books, Journals, Reports, document issued by ICRC and various others international
and national organization and other web resources, case laws, news articles etc. Analytical,
critical and Comparative methods are used as major tools of study in support of the arguments.

Objectives of Study:

17 ANDREW BURT & ALEX WAGNER, BLURRED LINES: AN ARGUMENT FOR A MORE
ROBUST LEGAL FRAMEWORK GOVERNING THE CIA DRONE PROGRAM, THE YALE
JOURNAL OF INTERNATIONAL LAW, VOL.38, 2011.
18 AFSHEEN JOHN RADSAN & RICHARD MURPHY, MEASURE TWICE, SHOOT ONCE:
HIGHER CARE FOR CIA-TARGETED KILLING, UNIVERSITY OF ILLINOIS LAW REVIEW, Vol.
2011, No. 4, 2011, available at http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=1476509

The objectives of the study are to find out the controversies and debates involved during
the Drone attack. Drone attack has posed a threat not just to the security of different
nations but it also proved that the IHL and IHRL are incapable in dealing with such
drone strikes. The Drone Strikes Constitute Lawful Self-Defensive Force against Al

Qaeda, A Non-State Actor.


The compelling national security interests and the Drones effectiveness to date make it
hard to imagine that the United States will discontinue drone strikes against Al Qaeda
fighters in Pakistan Thus, the question becomes whether the program is legal under

international law, and if not, why ?


To study about the violation of IHL during the Drone attack and to find out that

whether terrorism is law enforcement issue or a military necessity.


To study in detail about the lacunae of IHL in dealing with situation which do not fit in
the category of international armed conflict and non-international armed conflict.

Example Drone attack over Pakistan, Yemen and Iraq.


To analyze the effect of arms race about keeping more and more number of Drones
and effect of this on global peace and security. Will it be possible to have a treaty
prohibiting use of Drones?

Hypothesis
The use of drones is a serious threat to the applicability of IHL. Drones started a new
dimension of war against terrorism which does not fit in the blanket term International Armed
conflict or Non-International Armed conflict. Furthermore Drone attack may lead to hostile
conditions between two nations and also lead to a new kind of arm race which is dangerous for
securing global peace. Drones are also serious threat to the hors de combat persons and thus
violate a basic principle of IHL.

Chapterisation
Chapter 1: Deals with the Introduction about Drones and its use during Armed Conflict.
Chapter 2: Deals with the study of war against terrorism and the concept of state sovereignty.
Drone attack till date had breached territorial sovereignty of nations like Pakistan, Iraq, and
Yemen etc. This Chapter will also discuss the legality of Drone attack on Al-Qaeda by CIA.

Chapter 3: Deals with the study of Drone attack with special reference to IHL and the
challenges Drone attack poses for application of International Law with special reference to
the protection of hors de combat and civilians.
Chapter 4: Deals with case studies of Drone attack in the recent past and its social impact on
the life of civilians.
Chapter 5: Deals with suggestion and concluding observation.

Research Questions
1. Does the United States or other nations involved in Drone Attack are having
an affirmative obligation to seek the less harmful option if a target might just as
easily or within a reasonable range of practicability, be captured and detained?
2. Does a Drone Attack violate the territorial sovereignty of a nation which is not
involved in an Armed Conflict with the United States? Whether Consent of the
government where the strike occurs is important?
3. Do the Strikes Satisfy Jus ad Bellum Necessity of International Law and Whether
Drone strikes fail the Jus in Bello requirements of distinction and
proportionality which govern hostilities once an Armed Conflict exists?
4. Whether CIA agents who are not the military personnel have the legality of
conducting such Drone Strikes?
5. The Drone Campaign Constitutes Lawful Anticipatory Self-Defensive Force
and are Drones threat to global peace?
6. Whether Drone Strikes constitute Acts of Aggression and does Hostilities
between the United States and Al Qaeda constitute an Armed Conflict?
7. What is Human Shielding and what are the challenges it poses during an Armed
Conflict?

BIBLIOGRAPHY

1. RYAN J. VOGEL, DRONE WARFARE AND THE LAW OF ARMED CONFLICT,


DENV.J. INTL. L. & POLY, VOL. 39:1, Jan.12 2010, at 102, available at
http://www.law.du.edu/documents/djilp/39No1/3-Vogel.pdf
2. MICHAEL J. BOYLE, THE COSTS AND CONSEQUENCES OF DRONE
WARFARE, INTERNATIONAL AFFAIRS, VOL. 89:1, 2013, available at
http://www.chathamhouse.org/sites/default/files/public/International
%20Affairs/2013/89_1/89_1Boyle.pdf
3. GILIAN BROCK, GLOBAL JUSTICE: A COSMOPOLITAN ACCOUNT,
OXFORD UNIVERSITY PRESS, 2009, at 172-175.

4. JOHN

FINNIS,

HUMAN

RIGHTS

AND

COMMON

GOOD,

OXFORD

UNIVERSITY PRESS, 2011, at 197.

5. VINCENT BATAOEL, ON THE USE OF DRONES IN MILITARY OPERATIONS


IN LIBYA: ETHICAL, LEGAL, AND SOCIAL ISSUES, SYNESIS: A JOURNAL
OF SCIENCE, TECHNOLOGY, 2011; 2: G, at 69-76, available at
http://www.synesisjournal.com/vol2_g/2011_2_G69-76_Bataoel.pdf
6. PHILIP

ALSTON,

EXTRAJUDICIAL,

REPORT

OF

SUMMARYOR

THE

SPECIAL
ARBITRARY

REPPORTER

ON

EXECUTIONS,

A/HRC/14/24/ADD.6,
Available at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.p
df
7. S.K VERMA, AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW,
SATYAM LAW INTERNATIONAL, 2012, at494 , available at

http://www.theindianbookshop.com/an-introduction-to-public-international-law9788192120416-paper-cover
8. MARTIN DIXON, TEXTBOOK ON INTERNATIONAL LAW, OXFORD
UNIVERSITY PRESS, 2005
9. TARGETING OPERATIONS WITH DRONE TECHNOLOGY: HUMANITARIAN
LAW IMPLICATIONS, HUMAN RIGHTS INSTITUTE, COLUMBIA LAW
SCHOOL:

MARCH

25,2011,

available

at

http://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteA
SILColumbia.pdf
10. LAURIE R. BLANK BENJAMIN, CHARACTERIZING US OPERATIONS IN
PAKISTAN: IS THE UNITED STATES ENGAGED IN AN ARMEDCONFLICT?,
R. FARLEY.FORDHAM INTERNATIONAL LAW JOURNAL VOL.34, ISSUE 2,
2011, ARTICLE 2, available at
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2275&context=ilj
11.

CHRISTOPHE

PAULUSSEN,

TESTING

THE

ADEQUACY

OF

THE

INTERNATIONAL LEGAL FRAMEWORK IN COUNTERING TERRORISM:


THE WAR PARADIGM, ICCT RESEARCH PAPER, AUG. 2012, available at
http://www.icct.nl/download/file/ICCT-Paulussen-Legal-Framework-for-CounterTerrorism-August-2012.pdf
12. KURT LARSON & ZACHARY MALAMUD, THE UNITED STATES, PAKISTAN,
THE LAW OF WAR AND THE LEGALITY OF THE DRONE ATTACKS, THE
JOURNAL OF INTERNATIONAL BUSINESS & LAW, MAR. 30, 2011, available at
http://law.hofstra.edu/pdf/academics/journals/jibl/jibl_issues_v10n01_united_states
_pakistan.pdf
13. MICHAEL W. LEWIS,

DRONES AND THE BOUNDARIES

OF THE

BATTLEFIELD, TEXAS INTERNATIONAL LAW JOURNAL ,VOL. 47, ISSUE 2 :


293, available at http://www.tilj.org/content/journal/47/num2/Lewis293.pdf
14. AFSHEEN JOHN RADSAN & RICHARD MURPHY, MEASURE TWICE,
SHOOT

ONCE:

HIGHER

CARE

FOR

CIA-TARGETED

KILLING,

UNIVERSITY OF ILLINOIS LAW REVIEW, Vol. 2011, No. 4, 2011, available at


http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=1476509

15. ANDREW BURT & ALEX WAGNER, BLURRED LINES: AN ARGUMENT FOR
A MORE ROBUST LEGAL FRAMEWORK GOVERNING THE CIA DRONE
PROGRAM, THE YALE JOURNAL OF INTERNATIONAL LAW, VOL.38, 2011,
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2185098
16. PROFESSOR SUSAN BREAU, MARIE ARONSSON, RACHEL JOYCE, DRONE
ATTACKS, INTERNATIONAL LAW, AND THE RECORDING OF CIVILIAN
CASUALTIES OF ARMED CONFLICT, OXFORD RESEARCH GROUP
DISCUSSION PAPER 2, JUNE 2011
17. ANDREW C. ORR, UNMANNED, UNPRECEDENTED, AND UNRESOLVED:
THE STATUS OF AMERICAN DRONE STRIKES IN PAKISTAN UNDER
INTERNATIONAL LAW, CORNELL INTERNATIONAL LAW JOURNAL VOL.
44, available at http://www.lawschool.cornell.edu/research/ILJ/upload/Orr-final.pdf
18. MICHAEL N. SCHMITT, UNMANNED COMBAT AIRCRAFT SYSTEMS AND
INTERNATIONAL

HUMANITARIAN

LAW:

SIMPLIFYING

THE

OFT

BENIGHTED DEBATE, BOSTON UNIVERSITY INTERNATIONAL LAW


JOURNAL,

VOL.

30:595,

available

at

http://www.bu.edu/law/central/jd/organizations/journals/international/volume30n2/
documents/symposium_schmitt.pdf
19. CHERI KRAMER & SANTA CLARA, THE LEGALITY OF TARGETED DRONE
ATTACKS AS U.S. POLICY, JOURNAL OF INTERNATIONAL LAW 375 (2011)
20. VIK KANWAR, POST-HUMAN HUMANITARIAN LAW: THE LAW OF WAR IN
THE

AGE

OF

ROBOTIC

WEAPONS,

REVIEW

ESSAY, available

http://harvardnsj.org/wp-content/uploads/2011/02/Vol.-2_Kanwar-Final.pdf

at