LETTER | Armed drones challenge international law

LETTER | Unmanned aerial vehicles (UAVs) or drones, regardless of size or weight, have traditionally been used for military purposes and have recently become a system used for civilian purposes.

Using drones for civilian purposes, such as recreation, filming, or delivering medicine to remote areas, is not a problem, but using the system for military purposes is problematic because it can have devastating human consequences for the civilian population, infrastructure, and economic resources.

In spite of this, military drones, as weapons of choice to some, are rapidly proliferating. More or less a hundred countries have them. Some countries produce them at the industrial level and compete for market share.

Armed drones are in high demand mainly because they fly pilotless for hours without a break, and carry out military missions without endangering their crews on the ground. Since they fly without a pilot and are controlled from the ground, some prefer to call them the "Remotely Piloted Aerial System" (RPAS).

No matter what you call them, the use of armed drones, due to their inaccuracies in targeting, has caused “collateral damage” or put it more accurately harmed civilians including children in the areas used.

In March this year, the Yemeni Houthis, an armed non-state actor (ANSA), carried out "drone and missile strikes on several targets in Saudi Arabia, including the Aramco facility in Jeddah [and some other] key facilities in Riyadh."

Also, recently, Yemeni Houthis allegedly used armed drones to attack Abu Dhabi, the capital of the United Arab Emirates (UAE), which reportedly hit “fuel trucks that killed three people and caused a fire near the airport of Abu Dhabi.” Aljazeera has reported, that the “deadly attack jeopardises UAE’s reputation as a haven for tourism and trade.”

The United Nations secretary-general Antonio Guterres said the attacks carried out at the two locations in UAE were “prohibited by international law.” The US, as reported by Reuters, also “condemns deadly Houthi attack on Abu Dhabi.”

The irony, however, is that the US itself has carried out far worse deadly drone attacks against some other countries. For instance, recently “the US military admitted to a tragic mistake in an Aug 29, 2021, drone strike in Kabul that killed 10 civilians, including an aid worker and seven children.”

If an American drone with all its sophistication and the so-called “precision” can make such a terrible mistake, what do you expect from the Houthis’ less precise armed drone, except death to civilians and destruction to civilian installations?

These instances clearly demonstrate that drone technology and the use of armed drones, which by no means make war safer, though some believe it otherwise, raise international legal concerns, as they are awfully not precise, no matter how advanced they may be, and the people under drone threats live anxious lives, never sure when the next attack will be.

Their use, if across the border, not only violates the sovereignty and territorial integrity of the country in which strikes take place but also threatens international peace, sows the seeds of more violence and encourages ANSAs to acquire and use them if the need arises.

Cross-boundary drone attacks

International law does not specifically regulate the use of armed drones, but that does not mean that the use of armed drones is out of control, as general international law applies to them.

Armed drones are not weapons in themselves, but platforms that deliver a weapon, and this platform has to be used in a way that must not violate rules of international humanitarian law (IHL), international human rights law (IHRL), and the law regulating the use of force in international relations.

Armed drones if used by belligerents within the boundary of their country may not be the concern of international law provided no harm is done to civilians or civilian facilities or religious or cultural sites. But if used for cross-border extrajudicial killings this may violate general international law.

In 2010, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution issued a report condemning the use of armed drones to conduct “targeted killings”. However, targeted killings occasionally occur.

The killing of General Qassem Soleimani, an Iranian top military official, in January 2020 in Baghdad, Iraq, is a recent example of extrajudicial killing using an armed drone. This is just the tip of the iceberg highlighting the deadly cross border extrajudicial killings.

The use of armed drones by a state in another state, without its permission, even against ANSAs there, violates the sovereignty and territorial integrity of that country, unless the attack was carried out in self-defence, or done with the permission of the UN Security Council.

However, the council rarely authorises such attacks. Unilateral cross-boundary drone attacks violate international law.

The legitimacy or illegitimacy of the use of armed drones makes no difference to the application of IHL. This means that regardless of whether the use of armed drones is legal or illegal, the IHL applies, as long as there is an armed conflict.

IHL requires conflicting parties to adhere to the principles of distinction, precaution, humanity and military necessity, do not target non-combatants or civilians, and civilian installations. Violation of these principles gravely breaches IHL, which may constitute war crimes.

The question is who bears criminal responsibility, the commander who decides and uses the drone, his superiors or the criminal responsibility can be distributed across multiple individuals, including the ground crew, the company producing the drones and the engineers who programmed and designed the drone, etc.

An armed drone is just a tool, though intelligent it may be, or “with a mind of its own”, it is still the human who made it, decide to launch it, make use of it or control it and remember crime can only be committed by human, not by an object like a drone.

If there is anyone who bears criminal responsibility that would be humans who were involved in the production and use of that tool.

Therefore, in order to avoid all these legal complications and to protect the innocents, it is better to ban the production and use of armed drones.

The writer is a professor at the International Islamic University of Malaysia.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.