There has been increased controversy in recent years surrounding the use of armed drones and their implication on the right to life. This was the focus of the 2017 Annual International Comparative Law Quarterly (ICLQ) Lecture held on 16 March at the British Institute of International and Comparative Law. At the lecture, Professor Dapo Akande from the University of Oxford and Dr Lawrence Hill-Cawthorne from the University of Reading presented their paper, ‘The International Law Framework Regulating the Use of Armed Drones’ co-authored with Professor Christof Heyns and Dr Thompson Chengeta. The paper was published in the ICLQ in October 2016. The lecture attracted a large audience and was followed by an informative Q&A session and a lively reception. It also provided the opportunity to present the 2016 Young Scholar Prize to Daniel Costelloe for his article, ‘Treaty Succession in Annexed Territory’ published in the ICLQ in March 2016.

International Law and the Use of Armed Drones

The aim of the article discussed in the lecture was to contribute to the clarification of international law applicable to the use of armed drones. Drone attacks have occurred in countries like Pakistan, Syria and Yemen by US and UK forces (amongst others). In Pakistan, for example, approximately 2300 people were killed by US drone strikes between 2004 and 2014. Of those killed, 150 were reported to have been children. Given the potential negative consequences of drone attacks and their growing use by states and possibly non-state-actors, examining the international law framework applicable to their use is highly relevant. It is important to establish the framework in order to avoid legal confusion now and in the future.

As regards the applicable framework, the authors identify three bodies of law which govern the use of drones: (1) the law governing the inter-state use of force, ius ad bellum, (2) international humanitarian law (IHL) and, (3) international human rights law (IHRL). For a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable regimes. For instance, a state might justify a drone strike under IHL without examining whether the attack was lawful according to the rules of ius ad bellum or vice versa. The authors argue that this practice is unacceptable and states must take a holistic approach to the three international law regimes.

Following this, the authors examined key issues that arise when regulating the use of drones.

First, some states engaging in drone strikes vindicate their use on the basis of self-defence. This is a justification under ius ad bellum which permits the use of force by one state on the territory of another state. In order to use force on the basis of self-defence, a state must prove that there is an ‘imminent’ threat that must be quelled. The authors note that states using drones have conflated the ‘imminence’ test. A drone strike on an individual because of his/her past conduct, without evidence of a possible and immediate future attack, may not be an ‘imminent’ enough threat to warrant the use of force.

Second, a fundamental issue when discussing drones is the difficulty in classifying a conflict as an international armed conflict (IAC), a non-international armed conflict (NIAC) or neither. Drone use is only governed by IHL if the conflict is objectively classified as an IAC or a NIAC. Otherwise only IHRL is applicable. Given the complex nature of current conflicts, often with many actors involved, classifying conflicts is a difficult feat. However, it is an incredibly important exercise for determining which obligations states and NSAs must adhere to when using drones.

Ultimately, the ICLQ lecture demonstrates that the existing international law framework is sufficient to regulate the use of drones. Despite some uncertainty, especially with regard to classification, the international community must ensure that states and NSAs that use drones are accountable for their actions under international law.

 

Written by Nadeshda Jayakody.

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