The increased use of armed drones for targeted killing in counter-terrorism operations has drawn a great deal of critical attention from the international community. While a panel discussion at the UN Human Rights Council (HRC) in late 2014 facilitated an expansive discussion on drones in relation to International Humanitarian Law (IHL), many of the participants, including the US, UK and France, refused to accept that the topic came under the mandate of the HRC. The meeting was indicative of the political deadlock that has developed regarding the legality of certain deployments of lethal drones outside recognised theatres of conflict.
For its part, the US claims that its drone strikes in Pakistan, Yemen, Somalia, and Afghanistan are “necessary, legal and just” as a result of post-9/11 counter-terrorism legislation that sanctions force anywhere as acts of self defence. Other states, however, take a different view, rebuking CIA targeted killing operations - Venezuela went so far as to accuse the US of “state terrorism”.
What this controversy demonstrates is that there is in effect a legal blank space in the regulation of drone use outside war zones. For their advocates, who are becoming increasingly reliant upon them for counter-terrorism and counter-insurgency operations, there is support for their legality. For their political opponents, there is opposition to them as instruments of extrajudicial killing. In this context no progress on regulating their current use seems likely in the near future.
As the Birmingham Policy Commission report on the security impact of drones observed, however, this is not because drones pose fundamentally novel legal challenges, but because there is a lack of consensus on how (and whether) to apply existing international law to their use. Removing the pilot from the vehicle does not fundamentally change the ability of operators to comply with IHL. And the deployment of drones for targeted killing only constitutes a small portion of their use; most drone operations are for surveillance. In this context, calls for new legislation on drones underestimate the strength and dexterity of existing laws and place too much emphasis of the novelty of armed drone use.
The international community seems to have realised that, with military technologies developing rapidly, legal and ethical challenges posed by new weapons systems are likely to occur more frequently. With the prompting of civil society groups, a number of concerns surrounding future drones, in particular those exhibiting high levels of autonomy, is currently being discussed in forums provided by the UN Convention on Certain Conventional Weapons (CCW). This forum convened an informal meeting of state representatives, experts and civil society groups in May 2014 to investigate the possible challenges increasingly autonomous weapons may pose, particularly in relation to IHL. State representatives, including from the US, gave guarantees that they are not developing fully autonomous weapons.
The main problem in this area, however, is one of definition. The class of weapons being discussed is broad, difficult to conceptualise, not yet invented and could include water, land or airborne weapons systems. Disagreements over the scope of the category being discussed and the possibility of highly-autonomous weapons being realised in the near future, clearly indicate the need for multilateral understanding before meaningful discussion of policy can ensue. The very act of discussing these technologies facilitates the development of better-informed unilateral state policy, and may in time result in multilateral action, but most importantly it serves to lay the foundations of consensus in a particularly hazardous area of military development.
Following near-universal recognition of the usefulness of the CCW meeting, a second informal gathering has been arranged for April 2015. It is likely that, once consensus on definition has been reached, a full legal review will commence under the mandate of the CCW. This may recommend new legislation in line with the proposals of campaigns such as Stop Killer Robots.
The meetings and the mandate of the CCW may not offer a panacea for autonomous weapons, let alone on all future drones. However, they are an example of the international community working to address potentially damaging developments in lethal force and ensure the integrity of states and international organisations in this ethically challenging area.
Professor David Hastings Dunn is Head of the Department of Political Science and International Studies at the University of Birmingham
