THE WAR ON TERROR, DRONES AND INTERNATIONAL LAW

Unmanned aerial systems (UAS), also known as drones, are aircraft either controlled by ‘pilots’ from the ground or autonomously following a pre-programmed mission. In addition to the term “drone”, these types of crafts may also be referred to as “unmanned aircraft,” “remotely piloted aircraft,” or “unmanned aerial vehicles.” There are dozens of different types of drones, the most commonly used fall into two categories: those that are used for reconnaissance and surveillance purposes and those that are armed with missiles and bombs.

A report released today by Amnesty International titled “ ‘Will I Be Next?’ U.S. Drone Strikes in Pakistan” contains information on 45 drone strikes it says were carried out by the United States in North Waziristan, Pakistan, between January 2012 and September 2013. In some of the attacks, it says, the victims were not members of militant groups like al Qaeda or the Taliban, but just ordinary civilians.

The report by Amnesty International was made public the day before Pakistani Prime Minister Nawaz Sharif is due to meet U.S. President Barack Obama in Washington and calls for certain measures to bring the drone program in line with international law, including conducting impartial investigations into the cases documented, bringing those responsible for human rights violations to justice and offering compensation to civilian victims’ families.

Most of us are familiar with UAS from their use in such places as Afghanistan, Pakistan and Yemen. The main characteristics of UAS are that they do not carry a pilot onboard, but function from “pilot” control from the ground or elsewhere, and they use pre-programmed flight coordinates. The use of UAS have many advantages for the military such as low costs—both for flying as well as maintenance and acquisition, longer flight times and less risks to pilots.

UAS began to show their usefulness at the beginning of the Cold War as a reconnaissance tool. Over time, they have evolved into being used for three categories of action: as attack weapons, operation or strike tools, and as surveillance or reconnaissance systems. All the functioning of the UAS is generally controlled via a laptop computer, a kit mounted on a vehicle or in a larger fixed facility. The current military inventory for unmanned aerial vehicles exceeds 6,000 spread out among all branches of the military, with significant increases planned in the future.

In addition to the report released by Amnesty International, a report issued in conjunction with an investigation by Human Rights Watch details missile attacks in Yemen, which the group believes, could contravene the laws of armed conflict, international human rights law and Barack Obama’s own guidelines on drones. Human rights groups have accused US officials responsible for the secret CIA drone campaign against suspected terrorists in Pakistan of having committed war crimes.

The criticism launched against the US for their use of UAS in Pakistan is based on allegations that drone attacks have killed innocent civilians. Amnesty International has highlighted the case of a grandmother who was killed while she was picking vegetables and other incidents, which could have broken international laws designed to protect civilians.

According an internal Pakistani report leaked earlier this year, at least 10 civilian deaths were confirmed as a result of CIA drone strikes in 2009. The New America Foundation estimates that up to 207 civilians were killed from 2006 to 2009, along with up to 198 people who were not identified in reliable media reports to be either civilians or militants.

The United Nations Convention on Certain Conventional Weapons (CCW or CCWC), concluded at Geneva on October 10, 1980 and entered into force in December 1983, prohibits or restricts the use of certain conventional weapons which are considered excessively injurious or whose effects are indiscriminate. The aim of the Convention and its Protocols is to provide new rules for the protection of military personnel and, particularly, civilians and civilian objects from injury or attack under various conditions by means of fragments that cannot readily be detected in the human body by X-rays, landmines and booby traps, and incendiary weapons and blinding laser weapons.

To the extent that drone attacks are not sufficiently accurate to prevent civilian deaths, some argue that they are in contravention of the Geneva Convention. Additionally, as the applicability of international humanitarian law is sometimes unclear, human rights groups argue that America’s battle with al-Qaeda does not meet the intensity required under the laws of war to amount to an armed conflict.

Do we need the UN to step in and provide a definition of armed conflict for purposes of the use of drones by the US military (or CIA)?

Is the preemptive use of drones to strike at terrorists justified as part of a “new” kind of almost continuous war where the enemy may strike at any time and without any warning and thereby justified under Article VII of the UN Charter?

Is the US use of drones in contravention of international human rights law, which only permits using deadly force when strictly and directly necessary to save human life?

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