Extraterritorial Military Action and the Rules of War: The Legal Questions of Unmanned Systems and Targeted Killings in the Drone Age
Thesis:
Considering the proliferation of armed UAVs to state actors and a rise in targeted killings, what legal mechanisms exist for the international community to mitigate and mange future inter-state conflicts?
Introduction:
This purpose of this paper is to provide background information on the proliferation of armed UAVs to state actors, targeted killings, the issues they have created pertaining to international law and explore how international law is currently being used to address those issues. The format of this paper will include a section on background information, an analysis of how international law may be used to deal with the issue, a recommendation based on the analysis and finally a summary of what factors would be necessary to implement the recommendation.
This background will be constructed within the context of targeted killing programs and based upon the idea that were more state actors to acquire the capability to carry out targeted killings, largely through armed UAVs, then more states will conduct such operations. Within this context, the background will seek to explore the issues pertaining to international law that have already risen from targeted killings carried out by Israel, Turkey, and the United States.?The background section will then describe the existing, relevant bodies of international law dealing with those issues and provide examples of how international law has been used to address them. The paper will then provide an analysis of the issue via 3 courses of action and the pros and cons of each one. The following section will offer a recommendation based on the 3 options presented in the analysis. Finally, the paper will conclude with a summary of the factors necessary to implement the recommendation.
Background:
Autonomous, semi-autonomous and remote weapon systems have been on the path to development since the mid-19th century (Scharre, 2020). The idea of developing weapon systems that can reduce the degree of risk posed to one side’s human combatants while still being capable of striking an enemy is logical. Developing such weapons can also offer the ability to clandestinely strike an enemy or do so with a degree of deniability. UAVs are currently one of the more well-known weapon systems in this category. Despite being in development since the 1960s, this technology saw its greatest evolution through the development of powerful microprocessors, powerful optics, lithium batteries (Franzman, 2021). Advances in other areas of technology such as robotics, satellite communications and artificial intelligence have supported the development of a wider range of semi-autonomous/autonomous and remotely operated weapon systems (Scharre, 2020). Recent examples illustrating the direction that these weapon systems are moving in can be seen in the assassination of Iran’s chief nuclear scientist Mosen Fakhrizadeh which is believed to have been carried out by an AI-driven automated gun that was smuggled into Iran and operated by Mossad (Farrell, 2021). In Libya, just months after the Fakhrizadeh assassination, the Kargu-2, a Turkish made autonomous UAV carried out “what may have been the first autonomous drone attacks in history” (Apps, 2021, para. 1). While these technologies continue to develop, they are still only possessed by a small number of states, and it is the armed UAV that is offers a well-documented history of its combat-tested performance.
As UAVs developed to have larger frames, bigger motors, and more advanced onboard capabilities, their role went from intelligence, surveillance, and reconnaissance to eventually being able to carry weapons and conduct strikes (Franzman, 2020). By the beginning of the 21st century the US had developed the Predator, a MALE UAV with the ability to carry Hellfire missiles and “on October 7, 2001, the first drone operation in history took place” with an armed Predator firing upon two targets in Afghanistan (Feroz, 2021, para. 9). Since then, the number of drone-strikes conducted by the US has grown rapidly, in 2010 there were 128 strikes in Pakistan alone (Franzman, 2021). According to a 2015 conclusion by a US task force on drone policy “the drone had become the weapon of choice for the war on terror” (Franzman, 2021, pg. 55). Parallel to the US program, Israel has also developed effective armed UAVs that have been used in operations abroad (Franzman, 2020).
Over the past 20 years, technological developments in automated weapon systems, such as UAVs and remotely operated arms, have advanced to such as degree that states have been capable of carrying out targeted killings of individuals beyond their own borders. Historically, the United States has held the overwhelming monopoly on such operations. The capability to do so largely depended on dominance of the United States armed UAV program. Other drone powers, particularly Israel have also followed this strategy to eliminate individuals deemed as threats to national security (Boyle, 2020).
Up until the last 10 years, it seemed that the United States and Israel were the leaders in the field of developing automated, or remotely operated weapons systems. As the dominant producers of these systems, both Israel and the United States maintained a strict control of exportation, licenses, operation, and maintenance of these systems (Franzman, 2021). As a result, and despite growing demands, few states outside of Israel and the United States were able to acquire such systems.
This monopoly did not last for long. Due to growing demand for remotely operated weapons systems, specifically armed drones, and a global shift towards unconventional warfare strategies that depend on small special operations units paired with local partner forces and supported by UAVs for air power and ISR capabilities, a massive market was born. States like China, Iran and Turkey were some of the first to successfully develop domestic armed UAV programs and have since filled the gap created by the strict regulations of Israel and the United States. Many analysts believe the world is now enter a new phase of what they have deemed “the drone age” (Boyle, 2020). In addition to armed UAVs, states are racing to develop new remote and automated weapon systems from remotely operated machine guns to armed robots and even fully autonomous, AI driven UAVs (Mizokami, 2021).
Given the new surgical strike capabilities and reach these weapons systems offer, it is likely that targeted killing programs will not only continue but will be developed by states beyond the United States and Israel. Given the remote and transnational nature of targeted killings several issues arise within the context of international law.
Background: The Existing International Law
Currently, the approach to determining the legality of a drone strike requires a “holistic approach” as it includes “the law regulating the use of force (ius ad bellum); international humanitarian law (IHL) and international human rights law (IHRL)” (Heyns et. Al., 2016, pg. 1). Given the extraterritorial and lethal nature of targeted killing program, the main issues involve the finding the balance between “State security and the protection of individuals” which fall under IHL and IHRL, the protection of State sovereignty and territorial integrity and the use of force on another State’s territory all which fall under ius ad bellum (Heyns et. Al., 2016, pg. 4). The current, “holistic” approach requires meeting the parameters of IHL, IHRL and jus ad bellum, this approach can create complications in that “a particular drone strike may satisfy the requirements of jus ad bellum” while “it may still be inconsistent with the applicable rules of IHL and IHRL” (Heyns et. AL., 2016 pg. 5). Considering the proliferation of armed UAVs, it is evident that as more state actors obtain these capabilities there will be a greater likelihood of targeted killings that must be regulated by international law. The following section will explore 3 possible solutions to address the role of international law in regulating the conduct of armed UAVs and targeted killings.
Analysis:
Option 1: Each state must take responsibility to develop “robust standards for transparency, oversight and accountability in the use of armed drones” and “undertake effective measures to control their proliferation” of armed UAVs (UN HRC 44 38, 2020, pg. 20)
Pros: Given the complexity of creating new articles and enforcing international law, turning the responsibility to each individual state offers a realistic solution. In countries such as the United States where the courts serve as part of a system of checks and balances that can offer judicial review, the military and civilian institutions as well as the individuals who both make and execute policy can be held accountable for their action in a meaningful way. Additionally, states already have an existing legal framework for regulating the use of force abroad and the structures to follow through an enforce legislation. Finally, were the US to lead the way in this process and to clearly articulate the necessity for each state to self-regulate in order to prevent a situation where the standard for targeted killings deteriorates, then it could be possible that more states would set about to earnestly self-regulate in the interest of protecting themselves. ?
Cons: This option may work were the case that states such as the US and Israel that have a functioning, liberal democracy were they only actors with armed UAVs and targeted killing programs. In reality, with states such as China, Iran, Russia and Turkey already possessing such capabilities and the likelihood for other “less democratic” or unethical states to acquire them, trusting each individual state to earnestly self-regulate may be na?ve. Considering the increasingly cynical strategies pursued by states like Russia, there is a need for more rigorous international law and a concerted international effort to deter dubious targeted killing programs. Considering that the proliferation of armed UAVs is largely coming from actors such as China, Iran, and Turkey, perhaps it can be assumed that the same cynical approach will be applied when it comes to state self-regulation of armed UAVs and targeted killings.????????
Option 2: The UN Security Council investigates each case where armed UAVs have been used in targeted killings to determine if they are legal within the context of IHL, IHRL and jus ad bellum.
Pros: This could be a symbolic first step that creates some form of international cooperation with regards to regulating armed UAVs and targeted killings. Although limited in nature it would indicate that the international community does recognize that the proliferation of armed UAVs has created a risk of creating new conflicts or prolonging existing ones. As the UN Security council is already an established, recognized and generally respected body, it would offer the ideal existing international organization to deal with the issue. Finally, as the body of law already exists, this would not require the creation of any new legislation or organizations.
Cons: As previously mentioned, this option would likely be nothing more than a symbolic gesture. Furthermore, as each of the members of the UN security council has veto power, actors may disrupt any findings based on their own foreign policy objectives or existing alliances. The option also leaves unanswered the question of what happens next? Were the UN security council to complete an investigation and find that there was a case where a drone-based targeted killing violated international law, then what would happen? This may require additional legislation or articles that would need security council members to agree on what would be the consequences for a state that violated the law. The process for developing such agreements would undoubtedly be long and complicated and were there to be an agreement, based on the rate of technological development, it could be quickly outdated and rendered obsolete.
Option 3: The existing legal framework is sufficient and needs not be altered in anyway
Pros: As it stands, the current body of international law from IHR, IHRL and jus ad bellum form a “legal framework [that] is adequate to govern drone strikes” (Heyns et. Al., 2016, pg. 36). Between these regimes, there exist strict guidelines that must be met to demonstrate the legality of UAV-based targeted killings. Until a clear and viable alternative exists, deferring to the existing law, which is already established and largely accepted by the international community, would offer a sufficient and less complicated option.
Cons: While the existing law may be sufficient, it relies on 3 separate regimes of legislation. The proliferation of armed-UAVs is already underway, the states outside of the US and Israel that have acquired armed-UAVs have already launched their own targeted killing programs. We are at a moment where a number of countries across the Middle East, Africa and eastern Europe have either received armed UAVs, are set to receive them or are amid talks exploring procurement. Over the next 10 years we will likely see more states carrying out targeted killing programs, at the moment it appears that the current body of international law is not sufficient, looking at the case of Iraq, where Turkey continues to carry out targeted killings of both Turkish citizens but also Iraqis and other foreign nations inside Iraq, with the Iraqi government explicitly condemning the violations of its air space, it appears that this option is already ineffective (MEMO, 2020).
Recommendation:
Based on the background and the complexity of international law it would be wise to consider an option that includes the best of each of the above options. Upon reviewing the research on the existing legislature, it appears that between the IHR, IHRL and jus ad bellum that armed UAVs and targeted killings have sufficient parameters for determining their legality. Applying a holistic approach to these fundamental aspects of international law can offer a set of criteria that take into account the issues of individual human rights, the security concerns and the sovereignty of each state. The existing law has already been established and is largely recognized and respected by the international community and thus serve as viable foundation for dealing with armed UAVS and targeted killings. While they provide a foundation, this foundation is “merely a starting point” and given the fact that armed UAVs are being proliferated and that targeted killings are only likely to increase, “the international community has a strong interest in ensuring that there is clearer agreement on the basis of our common society” (Heyns et. AL., 2016, pg. 36).
???????????Using the existing legal frameworks as a starting point, it would then be wise to further develop a meaningful international discourse on armed UAVs and targeted killings. The United Nations should continue to conduct reviews and investigations into each case of targeted killings that involve armed UAVs. Although largely symbolic, this will both keep the issue on the agenda and send a message to states considering acquiring armed UAVs or conducting targeted killings that such action will not go unnoticed. By continuing such activities, the United Nations will have a database that tracks armed UAVs and targeted killings and have a structure that is well informed on the issue.
???????????Finally, as adherence to and enforcement of international law faces many challenges, the most effective form of regulation appears to be driven by each state self-regulating. Similar to the threat posed by nuclear weapons, armed UAVS pose a grave threat to all. If states are made aware of the consequences of unregulated targeted killings or use of armed UAVS or other autonomous/semi-autonomous or remote weapon systems, then perhaps they will understand that the decisions that they take individually play a critical role in determining the how they act with each other. This kind of self-regulation will require the leadership of global powers such as the United States, NATO, Russia, and China. If these states choose to self-regulate in the earnest hopes of setting a standard that deters the use of armed-UAVs or targeted killing programs and adhere to such policies and communicate that setting such standards are critical in deciding the future of international relations, peace and stability, the international community is more likely to follow suite.
Summary:
???????????In order to implement these recommendations, states that posses armed UAVs must first review their policies and regulations on exportation. The United States and Israel are leaders in producing armed UAVs however they have both implemented strict regulations regarding exportation and end user agreements. For a time, this approach managed to curb the proliferation of armed UAVs, however as actors such as China, Iran and Turkey have now developed their own domestic UAV programs they are aggressively meeting the global demand for armed UAVs. The United States and Israel should consider two approaches to support self-regulation, either they will relax their regulations on exporting UAVs to exert more influence over states that seek to acquire armed UAVs, or they seek to implement stricter regulations on the exportation of domestically produced components critical for armed UAV production abroad. The United States and Israel should also conduct official reviews of their own armed UAV and targeted killing operations within the context of their own domestic laws and international laws and publish the findings when feasible. By demonstrating adherence to rigorous domestic and international legislation, the United States and Israel can serve as a model for self-regulation and illustrate the importance of regulating armed UAVs and targeting killings.
???????????The United Nations security council should continue to conduct investigations into armed UAVs and targeted killings. The cases of Turkey’s armed UAV operations and targeted killings in Iraq should be immediately put under review and investigation of an appropriate Special Rapporteur, as Turkey has become a major driving force behind the proliferation of armed UAVs and also currently operating a large, targeted killing program, investigating it will send a strong signal to those who have or are considering acquiring armed UAVs. Finally, the recommendations provided in A HRC 44 38, provide a comprehensive set of steps that the United Nations can pursue to address the issues rising from the targeted killings and the growing use of armed UAVs.
References:
Apps,?P. (2021, June 10). U.S.?https://www.reuters.com/article/apps-drones-idUSL5N2NS2E8
Boyle, M. J. (2020). The drone age: How drone technology will change war and peace. Oxford University Press.
Farrell,?S. (2021, February 10).?Iranian nuclear scientist killed by one-ton automated gun in Israeli hit: Jewish chronicle. U.S.?https://www.reuters.com/article/us-iran-nuclear-scientist-idUSKBN2AA2RC
Feroz,?E. (2021, October 7). MIT Technology Review.?https://www.technologyreview.com/2021/10/07/1036456/opinion-afghanistan-drone-strike-warfare-failed/
Frantzman, S. J. (2021). Drone wars: Pioneers, killing machines, artificial intelligence and the battle for the future. Bombardier Books, an imprint of Post Hill Press.
Heyns,?C., Akande,?D., Hill-Cawthorne,?L., & Chengeta,?T. (2016). The international law framework regulating the use of armed drones.?International & Comparative Law Quarterly,?65(4), 791-827.?https://doi.org/10.1017/S0020589316000385
Mizokami, K. (2021, September 30). In November 2020, Israel’s secret service assassinated a prominent Iranian scientist. Popular Mechanics. Retrieved October 23, 2021, from https://www.popularmechanics.com/military/weapons/a37708762/robotic-machine-gun-kills-iranian-nuclear-scientist/.
MEMO. (2020, June 16).?Iraq army slams Turkey for violating its airspace. Middle East Monitor.?https://www.middleeastmonitor.com/20200616-iraq-army-slams-turkey-for-violating-its-airspace/
UNHCR. (2020).?A/HRC/44/38. United Nations Human Rights Council.