Drones and Other Unmanned Weapons Systems under International Law [1 ed.] 9789004363267, 9789004363250

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Drones and Other Unmanned Weapons Systems under International Law

International Humanitarian Law Series Editors-​in-​Chief H.E. Judge Sir Christopher Greenwood Professor Timothy L.H. McCormack Editorial Advisory Board Professor Georges Abi-​Saab H.E. Judge George H. Aldrich Madame Justice Louise Arbour Professor Ove Bring Professor John Dugard Professor Dr. Horst Fischer Dr. Hans-​Peter Gasser H.E. Judge Geza Herczegh Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Theodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiri Toman

Volume 53

The titles published in this series are listed at brill.com/​ihul

Drones and Other Unmanned Weapons Systems under International Law By

Stuart Casey-​Maslen, Maziar Homayounnejad, Hilary Stauffer, and Nathalie Weizmann

LEIDEN | BOSTON

Cover illustration: Copyright ANP. Library of Congress Cataloging-in-Publication Data Names: Casey-Maslen, Stuart, author. | Homayounnejad, Maziar, author. | Stauffer, Hilary, author. | Weizmann, Nathalie, author. Title: Drones and other unmanned weapons systems under international law / Stuart Casey-Maslen, Maziar Homayounnejad, Hilary Stauffer, and Nathalie Weizmann. Description: Boston ; Leiden : Brill, 2018. | Series: International humanitarian law series ; 53 | Includes bibliographical references and index. Identifiers: LCCN 2018024985 | ISBN 9789004363250 (alk. paper) Subjects: LCSH: Uninhabited combat aerial vehicles (International law) Classification: LCC KZ6687 .C37 2018 | DDC 341.6/3—dc23 LC record available at http://​lccn.loc.gov/2018024985​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill.” See and download: brill.com/​brill-​typeface. ISSN 1389-​6 776 ISBN 978-90-04-36325-0 (hardback) ​I SBN 978-90-04-36326-7 (e-​book) Copyright 2018 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents List of Treaties vi Soft-Law Instruments vii List of Cases viii United Nations Resolutions xi Introduction 1 Stuart Casey-​Maslen 1 Development, Use, and Transfer of Unmanned Weapons Systems 8 Stuart Casey-​Maslen 2 Legality of Use of Armed Unmanned Systems in Law Enforcement 46 Stuart Casey-​Maslen 3 Armed Unmanned Weapons Systems under Jus ad Bellum 62 Stuart Casey-​Maslen 4 Armed Drones and the Law of Armed Conflict 89 Nathalie Weizmann 5 Ensuring Fully Autonomous Weapons Systems Comply with the Rule of Distinction in Attack 123 Maziar Homayounnejad 6 Unmanned Weapons Systems and the Right to Life 158 Stuart Casey-​Maslen 7 Corporate Liability: An Alternative Path to Accountability? 195 Hilary Stauffer 8 Autonomous Weapons Systems and International Criminal Law 217 Stuart Casey-​Maslen Index 251

Treaties Global Treaties 1648 Treaty of Westphalia 63 1868 Saint Petersburg Declaration on Explosive Bullets 225 1899 Hague Convention ii 90, 225 1907 Hague Convention iv 90 1925 Geneva Gas Protocol 147 1928 Kellogg-​Briand Pact 63, 64, 246, 247 1933 Montevideo Convention on the Rights and Duties of States 65 1945 United Nations Charter 64ff, 72, 73, 74, 76, 77, 81, 82, 246 1949 Geneva Conventions 91, 92 n16, 93, 94, 96, 97, 175 1954 Hague Convention on Cultural Property 133 n64 1966 International Covenant on Civil and Political Rights (iccpr) 158–​59, 167 1972 Biological Weapons Convention 100 1977 Additional Protocol I to the Geneva Conventions 90, 92 n16, 104, 107, 108ff, 128–​29, 132–​33, 134, 136, 221, 229, 233, 234 1977 Additional Protocol ii to the Geneva Conventions 90, 93, 95, 96, 97, 99, 175, 176, 177, 229 1980 Convention on Certain Conventional Weapons (ccw) 101, 216 1980 Protocol iii on Incendiary Weapons 140–​41 1984 Convention Against Torture 160 1992 Chemical Weapons Convention 101 1996 Amended Protocol ii on Landmines to the ccw 138, 139, 140, 148–​49, 151, 154 1997 Anti-​Personnel Mine Ban Convention 101, 138–​39, 147, 150 1998 Rome Statute of the International Criminal Court (icc Statute) 96, 176, 177, 210, 217, 218–​19, 228, 229, 235 2008 Convention on Cluster Munitions 101, 141–​44 2013 Arms Trade Treaty 190, 216 2017 Treaty on the Prohibition of Nuclear Weapons  101

Regional Treaties 1948 Charter of the Organization of American States 66 1969 American Convention on Human Rights 161 1981 African Charter on Human and Peoples’ Rights 161 2005 African Union Non-​Aggression Pact 67, 79

Soft-​Law Instruments Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) 46, 49, 61 Code of Conduct for Law Enforcement Officials (1979) 46, 47, 48, 49, 50 Joint Declaration for the Export and Subsequent Use of Armed or Strike-​Enabled Unmanned Aerial Vehicles (uav s) (2016) 26, 199–​200 Minnesota Protocol on the Investigation of Potentially Unlawful Deaths (2016) 191–​92 Missile Technology Control Regime (mtcr) 198–​99

Cases International Bodies International Court of Justice (icj) Contentious Cases

Armed Activities on the Territory of Congo case, Judgment (2006) 64 n12, 80, 170 Corfu Channel case, Judgment (1949) 66 Military and Paramilitary Activities In and Against Nicaragua case, Judgment (1986) 66, 78

Advisory Opinions

Legality of the threat or use of nuclear weapons (1996) 167–​68, 170, 219, 225 Palestinian Wall (2004) 78 n75, 80, 169

International Criminal Court (icc)

Prosecutor v. Gombo, Decision on the Charges (2009) 96 Prosecutor v. Lubanga, Judgment (2012) 243 Prosecutor v. Katanga, Decision on the confirmation of charges (2008) 243 Prosecutor v. Katanga, Judgment (2014) 243, 245

Regional Human Rights Bodies European Court of Human Rights

Alkin v. Turkey, Judgment (2009) 51 n15 Al-​Skeini and others v. United Kingdom, Judgment (2011) 163 Banković and others v.  Belgium and 16 other states, Decision as to admissibility (2001) 163, 164 Benzer v. Turkey, Judgment (2014) 47 n2, 178–​79, 192–​93 Esmukhambetov and others v. Russia, Judgment (2011) 51 n15 Issa and others v. Turkey, Judgment (2005) 164–​65 McCann and others v. United Kingdom, Judgment (1995) 47 n3 Nachova v. Bulgaria, Judgment (2005) 48 n7, 49 n8

Inter-​American Commission on Human Rights Richmond Hill v. United States (1996) 161

Cases

ix

Inter-​American Court of Human Rights

Cruz Sánchez and others v. Peru, Judgment (2015) 47 n2 Santo Domingo Massacre v. Colombia, Judgment (2012)  179–​80

Tribunals International Criminal Tribunal for Rwanda (ictr) Prosecutor v. Ngirabatware, Judgment (2012) 244–​45

International Criminal Tribunal for the former Yugoslavia (icty)

Prosecutor v. Blaškić, Judgment (Trial) (2000) 223 Prosecutor v. Blaškić, Judgment (Appeal) (2004) 224 n40 Prosecutor v. Boškoski, Judgment (2008) 94 n26, 97, 98 nn45 47 Prosecutor v. Furundžija (“Lašva Valley”), Judgment (1998) 237, 244 Prosecutor v. Galić, Judgment (2003) 103 n69, 106 n85 Prosecutor v. Gotovina, Judgment (2012) 105–​06, 173–​75 Prosecutor v. Haradinaj, Judgment (2008) 94 n27, 95 n32, 98 n46 Prosecutor v. Limaj, Judgment (2005) 94 nn26 27, 95 n33 Prosecutor v. Martić, Judgment (2007) 105, 223 Prosecutor v. Slobodan Milošević, Decision on Motion for Judgment of Acquittal (Rule 98bis Decision) (2004) 60 n42 Prosecutor v.  Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (1995) 53 n22, 91, 95 n31 Prosecutor v. Tadić, Opinion and Judgment (1997) 53 n22 Prosecutor v. Tadić, Judgment (Appeal) (1999) 241

United Nations Treaty Bodies Human Rights Committee

Guerrero v. Colombia, Views (1982) 48, 178

National United Kingdom High Court

Al-​Saadoon and others v. Secretary of State for Defence (2015) 164 R (Khan) v. Secretary of State for Foreign & Commonwealth Affairs (2012) 180–​82 R. v. Tony Blair and others (2017) 247

x Cases House of Lords

R. v. Jones (Margaret) (2006) 247

United States District Court for the District of Columbia

Nasser al-​Aulaqi v. Barack H. Obama, Robert M. Gates, and Leon E. Panetta (Civil Action No. 10–​1469 (jdb)) (2010) 185–​86 Nasser al-​Aulaqi v. Leon Panetta and others, Opinion (Civil Action No. 12–​1192 (rmc)) (2014) 187–​89 Salem Bin Ali Jaber and others v.  United States and others, Memorandum Opinion (2016) 189–​90

Supreme Court

County of Sacramento v. Lewis (1998) 188 Kiobel v. Royal Dutch Petroleum (2013) 206 New York Central & Hudson Railroad v. United States (1909)  211

United Nations Resolutions General Assembly Resolutions 2625 (xxv) 65 n18, 69 n39 3314 (xxix) 66, 67, 73–​74 34/​169 46 n1 45/​166 46 n2 World Summit Outcome 77

Security Council Resolutions 573 66 1368 80, 84 1373 80, 84 1973 69 n36 2249 81, 82

Introduction Stuart Casey-​Maslen In 1981, Edward Teller claimed that the unmanned vehicle had become “a technology akin to the importance of radars and computers in 1935.”1 In a reconnaissance role, unmanned vehicles—​especially remotely piloted aircraft known colloquially as drones—​are fast becoming a mainstay of armed forces and law enforcement agencies alike. When weaponised, the technology offers states a new and highly valued capability, largely shorn of direct risk to their own personnel, to use lethal force within and outside situations of armed conflict and whether inside their borders or abroad.2 Indeed, on the basis of their ability to surveil for long periods without interruption and to kill at less than a minute’s notice by control thousands of miles away, in 2015 the American political scientist Peter Warren Singer claimed that such unmanned systems were a “game-​changer.”3 1 “DOD’s use of remotely piloted vehicle technology offers opportunities for saving lives and dollars: report to the Congress: summary, by the Comptroller General of the United States,” United States (us) General Accounting Office, Washington, dc, 1981; see L. Hancock with S. Wexler, Shadow Warfare: The History of America’s Undeclared Wars, Counterpoint, 2014, p. 455; and S. Shane, Objective Troy, Tim Duggan Books, New York, 2015, pp. 70–​71. 2 Though note that in a 2015 interview with Aljazeera, retired us General Mike Flynn, for a short period of time President Donald Trump’s National Security Advisor, stated that “When you drop a bomb from a drone … you are going to cause more damage than you are going to cause good.” “ ‘Drones Cause More Damage Than Good’, Al Jazeera English ‘Head to Head’ interview with Lt. Gen Michael Flynn,” Aljazeera, 16 July 2015, at: http://​pr.aljazeera.com/​ post/​124230887340/​drones-​cause-​more-​damage-​than-​good-​al-​jazeera. Similarly, in an interview in 2013, former General Stanley McChrystal, the erstwhile commander of nato forces in Afghanistan, said, “What scares me about drone strikes is how they are perceived around the world. The resentment created by American use of unmanned strikes … is much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one.” R. Crilly, “Stanley McChrystal criticises reliance on drones as strikes hit Pakistan,” Daily Telegraph, 8 January 2013, at: http://​ www.telegraph.co.uk/ ​ n ews/ ​ worldnews/ ​ a sia/ ​ p akistan/ ​ 9 787912/ ​ S tanley-McChrystal​ -criticises-​reliance-​on-​drones-​as-​strikes-​hit-​Pakistan.html. 3 P. Singer, “The Five Deadly Flaws of Talking About Emerging Military Technologies and the Need for New Approaches to Law, Ethics, and War,” Ch. 12 in P. L. Bergen and D. Rothenberg (eds.), Drone Wars, Cambridge University Press, 2015, pp. 215, 216.

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_002

2 Casey-Maslen But Singer goes much further in his assertions, arguing that drones are a technology that also acts to “change the rules of the game.”4 Assessing the truth of this remarkable claim is, in part, the aim of this book. Is it the case, for example, as the United Kingdom (uk)’s Attorney General claimed in January 2017, that “the application of international law has … evolved to respond to the threats now faced around the world,” namely domestic and international terrorism?5 Have the international legal rules governing the inter-​state use of force changed since the 9/​11 attacks, allowing use of drones where a territorial state is “unwilling or unable” to act? And outside the conduct of hostilities in an armed conflict, does the customary law standard for intentional lethal use of force in the conduct of law enforcement remain unadulterated? Or can drones be used to kill even where it is not “strictly unavoidable” to protect life? Certain weapons systems have already been fielded whose integrated sensors and programming enable autonomous targeting decisions without a human “in the loop,” and many more are on the horizon. With such unmanned systems, who is to be held accountable where a machine rather than a person determines who to kill or what to destroy and when to fire a missile? Can war crimes be committed by a computer given that mens rea is a critical element in a successful prosecution under international criminal law? These issues have far-​reaching implications, not only under international law but also under domestic criminal law. This concerns not only individuals but also potentially the companies that manufacture such autonomous weapons systems.

Content of the Book

Chapter  1 describes the development of unmanned weapons systems since 1919. In that year, Elmer Sperry, the inventor of autopilot technology and the gyroscope, successfully sunk a captured German battleship using a pilotless aircraft. Although most unmanned systems deployed in the twentieth century were unarmed, used for reconnaissance rather than to dispense lethal force, the early twenty-​first century has seen a rapid and substantial increase in the 4 Ibid., p. 215 [added emphasis]. 5 Rt. Hon. Jeremy Wright QC, “Attorney General’s Speech at International Institute for Strategic Studies: The modern law of self-​defence,” London, 11 January 2017, p. 19, at: https://​www​ .gov.uk/ ​ government/ ​ u ploads/ ​ s ystem/ ​ u ploads/ ​ a ttachment_​ d ata/​ f ile/​ 5 83171/​ 1 70111​ _Imminence_​Speech_​.pdf.

Introduction

3

types and use of armed drones. The iconic drone remains the General Atomics-​ manufactured Predator, whose Hellfire missiles were first fired in anger by the United States (us) on 7 October 2001 against Mullah Omar, the erstwhile leader of the Taliban; one of the opening acts of hostilities in the armed conflicts in Afghanistan that followed the 9/​11 attacks. A little more than a year later, in Yemen, the Predator became the first armed drone to be used to kill outside an “active battlefield.”6 Since then, possession and use of armed unmanned aerial systems have proliferated; as of writing, Israel, Nigeria, Pakistan, the United Kingdom, and the United States are all known to have used armed drones; it is likely that Iraq, Saudi Arabia, and the United Arab Emirates have also fired munitions from remotely piloted aircraft. On two occasions during June 2017, a us F-​15E Strike Eagle combat aircraft was reported to have shot down an armed Iranian-​made Shahed 129 drone as it threatened coalition forces in Syria.7 Many more states either already have unmanned weapons systems in their arsenals or are actively seeking to acquire them. They are joined by a number of non-​state armed groups, including Hezbollah8 and Islamic State.9 Certain types of fully autonomous weapons systems are already deployed. A South Korean company has developed an automated, turret-​based multiple weapons platform that is capable of locking onto a human target up to three

6 This phrase was employed by John O.  Brennan, Assistant to the President for Homeland Security and Counterterrorism, in his speech on “The Ethics and Efficacy of the President’s Counterterrorism Strategy” to the Wilson Center in Washington, dc, on 30 April 2012. Transcript available at:  https://​www.wilsoncenter.org/​event/​the-​efficacy-​and-​ethics​-us​ -​ counterterrorism-​ strategy. The term “conventional war zone” has also been widely employed. See, e.g., C. Savage and S. Shane, “US Reveals Death Toll From Airstrikes Outside War Zones,” The New  York Times, 1 July 2016, at:  https://​www.nytimes.com/​2016/​07/​02/​ world/​us-​reveals-​death-​toll-​from-​airstrikes-​outside-​of-​war-​zones.html?_​r=0. 7 See, e.g., T. Demerly, “U.S. F-​15E Downs Iranian-​Built Syrian Drone After Airstrike on U.S. Led Forces,” The Aviationist, 9 June 2017, at:  https://​theaviationist.com/​2017/​06/​09/​u-​s-​f-​15e​ -downs-​iranian-​built-​syrian-​drone-​after-​airstrike-​on-​u-​s-​led-​forces/​; R. Browne and B. Starr, “US shoots down another pro-​regime drone in Syria,” CNN, 20 June 2017, at: edition.cnn​.com/​ 2017/​06/​20/​politics/​us-​syria-​shoots-​down-​pro...drone/​index.html; and bbc, “Syria conflict: US jet ‘downs Iranian-​made drone’,” 20 June 2017, at:  www.bbc.co.uk/​news/​world-​middle​ -east-​40344534. The Shahed 129 was publicly unveiled in September 2012. 8 See, e.g., M. Alami, “Hezbollah enters drone age with bombing raids in Syria,” Middle East Eye, 21 March 2017, at: http://​www.middleeasteye.net/​news/​analysis-​hezbollah-​enters-​new-​war​ -use-​armed-​drones-​syria-​11412100. 9 See, e.g., M.  Gault, “Islamic State’s drone fleet,” Reuters, #Commentary, 30 March 2017, at: http://​www.reuters.com/​article/​us-​warcollege-​30mar-​idUSKBN1712DN.

4 Casey-Maslen kilometres away. The Phalanx Close-​in Weapon System is a ship-​based 20mm gun system that autonomously detects, tracks, and attacks targets; an equivalent land-​based fixed weapon system also exists. The Harpy is an unmanned aircraft incorporating an explosive warhead that detects electromagnetic emissions from radar equipment before dive-​bombing it. Over the longer term, miniaturisation and cooperative “swarms” will be important components in fully autonomous weapons systems. An explicit exception allowing for use of such a system was included in the 2008 Convention on Cluster Munitions where a munition dispenses explosive submunitions “designed to detect and engage a single target object.”10 The Convention is a widely-​ratified disarmament treaty that otherwise outlaws possession, transfer, and use of cluster munitions. Aside from the distinct discussion of jus ad bellum rules, it is a mistake to characterise a critical debate as to the legality of drone strikes as one between the applicability of international human rights law and the law of armed conflict (loac). In fact, international law constrains state use of force either as the conduct of hostilities during an armed conflict (the exceptional case), or as law enforcement (the default scenario), whether such policing operations occur during or outside a situation of armed conflict. Accordingly, Chapter 2 discusses the legality of the use of armed unmanned systems under the law of law enforcement, a body of international law that combines international criminal justice norms and standards and human rights obligations. The applicable rules dictate that any force used must be only the minimum necessary in the circumstances (the principle of necessity) and must be conducted for a legitimate law enforcement purpose. In addition, force used must be proportionate to the threat (the principle of proportionality). As described in Chapter 2, the substance of these principles differs materially with respect to their homonyms within the context of the law of armed conflict. A distinct standard applies when law enforcement officials “shoot to kill.” This may be lawful when such action is “strictly unavoidable to protect life,” for example to stop a suicide bomber or a hostage-​taker from killing another person. In this standard, imminence is an integral part of the test of lawful use of force. If a suspect is not about to pull the trigger of a firearm aimed at a hostage’s head, or to detonate a bomb, intentional lethal use of force is not strictly unavoidable to protect life. The United Nations (un) Special Rapporteur on extrajudicial, summary or arbitrary executions has asserted that the rule applies not only to police use of firearms but also to employment 10

Art. 2(2)(c), 2008 Convention on Cluster Munitions.

Introduction

5

heavy weapons such as drone missiles, whose use constitutes an intentional lethal use of force.11 Chapter 3 assesses how jus ad bellum constrains the use of armed unmanned systems, especially in light of state practice and opinio juris since September 2001. Under Article 2(4) of the un Charter, the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the un, is deemed unlawful. Three generally allowed exceptions exist to this general prohibition on the inter-​state use of force, which also stands independently as a norm of customary international law. The exceptions are: the valid consent of the territorial state; individual or collective self-​defence; and explicit authorisation from the un Security Council, acting under Chapter vii of the Charter, each of which is discussed. It is uncontested that Article 2(4) does not preclude the use of force on the territory of another state when express consent is secured from the government of that state. But who is the authority under international law that is capable of giving valid consent during an armed conflict? And can consent also be construed from the lack of a response by the territorial state to drone strikes or other forcible action, as some argue? Is, therefore, the requisite nature of the consent, as identified by the International Court of Justice in its 1986 judgment in the Nicaragua case, being rendered easier to obtain by a foreign power? Linked to, but distinct from, consent is the notion of self-​defence. Article 51 of the un Charter preserves a state’s “inherent” right of self-​defence in response to an armed attack, though the principles of necessity and proportionality constrain what action in self-​defence may be lawful. But what amounts to an armed attack is a matter of dispute, despite the apparent certainty on this issue expressed by the uk Attorney-​General cited above. In addition, there remain doubts as to whether self-​defence is legally available in response to the acts of non-​state actors. These critical issues of international relations are addressed and analysed in Chapter 3. In Chapter 4, Nathalie Weizmann assesses the use of unmanned weapons systems under the rules governing the conduct of hostilities under loac (also widely referred to as international humanitarian law, ihl). When drone strikes amount to hostilities in an armed conflict and when they do not is contentious, particularly given the expansive interpretation proffered by the United 11

“Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,” un doc. A/​HRC/​26/​36, 1 April 2014, §71. See also, e.g., European Court of Human Rights, Esmukhambetov and Others v. Russia, Judgment (First Section), 29 March 2011 (as rendered final on 15 September 2011).

6 Casey-Maslen States. In contrast, when a drone strike is indeed subject to loac regulation it is undisputed that the rules of distinction and proportionality in attack are central to the appreciation of legality. But the accuracy and reliability of targeting required by the law and the extent of foreseeable civilian harm that is permissible are uncertain, subject to diverging judicial and academic opinion. The ability of a fully autonomous weapon system to comply with the rule of distinction will depend on its recognition technology and the environment in which it is used. Technology could potentially perform iris recognition, detect metallic footprints specific to combatants, or somehow assess threats based on intent. But even in “low clutter” environments, the weapons system might have to be capable of identifying individuals who are surrendering or otherwise become hors de combat and are thereby protected from lawful attack. Even more complex is the system’s assessment of proportionality at the instant of attack when civilians were at risk of harm. The challenges in applying existing loac rules to machines that determine who to target and when to fire are deliberated accordingly. In Chapter 5, Maziar Homayounnejad looks at how fully autonomous weapons systems may comply with the loac rule of distinction and how such weapons systems could be regulated via legal transplants. The focus is on finding potential transplants from existing weapons regimes that might usefully be applied to a regulation treaty, a non-​binding loac manual, or other voluntary agreement. The emphasis on transplants has a simple rationale:  where certain rules have already been successful in regulating other weapons that share common features with unmanned weapons systems, they are more likely to be administrable and therefore successful in regulating such weapons systems. Chapter 6 considers unmanned weapons systems from the perspective of the right to life under international human rights law both during and outside armed conflict. Does it apply extraterritorially to drone strikes, including their use in the conduct of hostilities? The discussion incorporates consideration of the Minnesota Protocol, a soft-​law instrument whose revision under the aegis of the un Special Rapporteur on extrajudicial, summary or arbitrary executions was published in May 2017 by the Office of the un High Commissioner for Human Rights. The Protocol articulates parameters of state obligations under the right to life to investigate potentially unlawful death, also setting a common standard for the conduct of an effective investigation. Chapter 6 further assesses the right to a remedy under international human rights law of the victims of an extrajudicial drone strike, and discusses cases at domestic level against the executive for the conduct of, or complicity in, targeted killings. In Chapter 7 Hilary Stauffer discusses the application of international and domestic criminal law to the use of unmanned weapons systems, including to

Introduction

7

corporate manufacturers of fully autonomous weapons systems and to those who may be complicit in war crimes committed by the munitions a machine decides to fire. The chapter surveys the domestic legal system in selected states that use, manufacture, or export armed unmanned systems, also identifying potential civil law remedies for unlawful conduct. Finally, Chapter 8 looks at how international criminal law punishes the most serious violations of international law through the use of unmanned weapons systems, whether as aggression, war crimes, or crimes against humanity. More complex, potentially, is the extent to which international criminal law can hold an “accomplice” responsible where the primary violation is committed by a weapons system that may not be under the direct control of a person:  fully autonomous weapons systems.

Chapter 1

Development, Use, and Transfer of Unmanned Weapons Systems Stuart Casey-​Maslen Introduction The origin of unmanned systems can be traced back to the end of the nineteenth century. In 1898, Nikola Tesla controlled a boat on a pond in Madison Square Garden by means of a radio signal, the first such application of radio waves in history and arguably also the genesis of modern robotics.1 At the same time, floating on that body of water was enormous military potential.2 Other scientists in the United States (us), as well as in France, Spain, and the United Kingdom (uk), followed Tesla’s lead, initiating research into remote control of different forms of vehicle, including some that were weaponised. Notable among this field of pioneers was the French inventor, Gustave Gabet, who in 1909 tested a nine metre-​long torpedo on the river Seine in Paris; Gabet claimed that he could control the floating torpedo at a distance of up to 13 kilometres.3 Armed aerial drones have also existed, at least in research and development circles, since the end of the First World War. In 1918, based on technological innovations by Elmer Sperry, the us Army began experiments with an aircraft nicknamed the Kettering Bug, “a pilotless biplane with gyroscopic guidance that could carry 180 pounds of explosives for about forty miles before dive-​bombing into a target.”4 In 1919, Sperry successfully sunk a captured German battleship using the pilotless aircraft.5 But the unmanned system remained rudimentary, 1 I. G.  R. Shaw, “The Rise of the Predator Empire:  Tracing the History of U.S. Drones,” Understanding Empire, 2014, at:  https://​understandingempire.wordpress.com/​2-​0-​a-​brief​ -history-​of-​u-​s-​drones/​. 2 Ibid. 3 R. Branfill-​Cook, Torpedo:  The Complete History of the World’s Most Revolutionary Naval Weapon, Seaforth, United Kingdom, 2014, p. 51. 4 S. Shane, Objective Troy, Tim Duggan Books, New York, 2015, p. 69. 5 us Army uas Center of Excellence, “ ‘Eyes of the Army’, US Army Unmanned Aircraft Systems Roadmap 2010–​2035,” ARMY.MIL, No. 4 (2010); see R. P. Barnidge, Jr., “A Qualified Defense of American Drone Attacks in Northwest Pakistan under International Humanitarian Law,” Boston University International Law Journal, Vol. 30 (2012), 409–​47, at p. 413.

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_003

Development, Use, and Transfer of Unmanned Weapons Systems

9

with the in-​flight guidance system offering stability rather than directional control. “Upon reaching its destination a pre-​set timing mechanism would cut the plane’s four-​cylinder gas engine after which the wings would be disconnected and the bomb-​bearing fuselage would fall to earth, detonating on impact.”6 In subsequent decades, us efforts to develop the technology with a view to increasing control of armed drones during flight often disappointed. During the Second World War, for instance, Operation Aphrodite involved us Navy plans to use radio waves to fly planes packed with explosives remotely into German submarine pens and other military objectives. The initial part of the flight was manned, with remote control only beginning once the pilots had bailed out of the cockpit. Each of the more than a dozen attempts is said to have failed, in many instances owing to the lack of effective control of the planes onto the intended target.7 Opinions differ as to the success of research and development (R&D) of attack drones during the Vietnam War. According to one view, unmanned weapons systems fell a long way short of expectations; a particular challenge was to ability to track the precise location of the planes as they headed for their targets.8 Other commentators, though, note the relative achievements of the Martin Marietta “Walleye,” the first precision-​guided munition (pgm) to be directed onto the target by television: in 1967, Walleye glide-​bombs were used to knock out the main power station in Hanoi.9 Subsequently, Maverick fire-​ and-​forget tactical air-​to-​ground missiles and gbu-​8 hobo pgm s were fired from remotely controlled aircraft.10 Surveillance Drones Whatever the accomplishments of armed unmanned systems during the war, Vietnam was certainly the setting for the first widespread deployment

6 7 8 9 10

“A Brief History of Precision Guided Weapons,” Twenty-​First Century Books, at: http://​ www.tfcbooks.com/​articles/​tws10.htm. J. Olsen, Aphrodite:  Desperate Mission, ibooks (Reprint edition), 2004; see also A. Cockburn, Kill Chain, Verso, London, 2016, p. 24. Cockburn, Kill Chain, p. 25. L. Hancock with S. Wexler, Shadow Warfare: The History of America’s Undeclared Wars, Counterpoint, 2014, p. 452; cf also p. 454. Ibid., p. 454. In 1971, as part of the quaintly named Project Have Lemon, the us Air Force (usaf) Flight Test Center at Edwards Air Force base in California had attached a Maverick missile to a drone produced by Ryan Aeronautical.

10 Casey-Maslen of surveillance and reconnaissance drones.11 It is argued that unmanned systems were “strikingly successful” over the course of the Vietnam War, “scoring firsts in many areas of photography, electronic and signals intelligence.” It is claimed that around three thousand missions were flown not only over North Vietnam “but also covertly Laos and China.”12 Decades of drone evolution had effectively begun in 1960 with the us Air Force’s awarding of a us$200,000 contract to Ryan Aeronautical13 to adapt one of its drones that was being used for target practice into one that could be used for “unmanned, remotely guided photographic surveillance.”14 The decision to initiate the unmanned aircraft programme (code-​named “Red Wagon”) followed the Soviet Union’s shooting down of the U-​2 spy aircraft.15 R&D led to the Lockheed D-​21 Air Launched Drone being flown at supersonic speed already in the second half of the 1960s.16 Despite these alleged successes, us interest in unmanned systems waned after its defeat in Vietnam. It was not until the 1990s and first the Gulf War and then the armed conflicts in Bosnia and Herzegovina17 and with Yugoslavia over Kosovo18 that us drones would again be extensively deployed. Of particular note, Bosnia would see the first deployment of General Atomics’ Predator drone.19 As was the case through most of the twentieth century, though, these unmanned aerial systems were not weaponised, perhaps, at least in part, owing to the persistent difficulty in remotely directing armed drones onto a specific target. 11

12 13 14 15 16 17

18 19

D. Cenciotti, “The dawn of the robot age: US Air Force testing air-​launched UCAVs capable to fire Maverick and Shrike missiles in 1972,” The Aviationist (weblog), 14 March 2012, at: http://​theaviationist.com/​2012/​03/​14/​the-​dawn-​of-​the-​robot-​age/​. Hancock and Wexler, Shadow Warfare: The History of America’s Undeclared Wars, p. 454. This equates to about $1.6 million today. Hancock and Wexler, Shadow Warfare: The History of America’s Undeclared Wars, p. 453. “The History of Drone Technology,” at:  http://​www.redorbit.com/​reference/​the-​history​ -of-​drone-​technology/​#5tfp6dT7JeR8ktpo.99. “Lockheed D-​21 Air Launched Drone,” Last revised 12 May 2010, at:  http://​www.wvi​ .com/​~sr71webmaster/​d21~1.htm. rq-​1 Predator drones have been operational in Bosnia and Herzegovina since 1995 in support of nato, United Nations, and us operations. “Predator RQ-​1/​MQ-​1/​MQ-​9 Reaper UAV, United States of America,” Airforce-​Technology.com, at: http://​www.airforce​ -technology.com/​projects/​predator-​uav/​. D. Abel, “Downing the Drones,” Boston Globe, 10 June 1999, available at: http://davidabel5​ .blogspot.fr/​2005/​06/​downing-​drones.html. H. A. Crumpton, The Art of Intelligence: Lessons from Life in the CIA’s Clandestine Service, Penguin Press, United States, 2012, pp. 150–​51.

Development, Use, and Transfer of Unmanned Weapons Systems

11

By the end of the 1990s, however, key individuals within the us defence and intelligence community had come to understand that unmanned systems offered a valuable and distinct intelligence and surveillance capacity. In a review of use of unmanned aerial systems in Operation Allied Force in Kosovo, for example, the air phase of which marked the greatest employment of drones then seen, Lieutenant-​Commander Dixon of the us Navy concluded that “the operational commander’s integration and use of uav s [unmanned aerial vehicles] were critical in the engagement of time-​critical Serbian targets in Kosovo.”20 Dixon argued that drone doctrine, tactics, techniques, procedures, and contingency operations needed to evolve “to support joint integration of uav s and strike weapon systems.” He recommended that us military services continue to look for “new and better ways to integrate this phenomenal capability as a combat multiplier.”21 Even prior to the 9/​11 attacks, the United States was using drones to look for Osama bin Laden. In 1996, bin Laden had “declared war” on the United States, and in 1998, al-​Qaeda operatives detonated bombs at the us embassies in Nairobi and Dar-​es-​Salaam, killing 224 people and injuring more than 4,500 others.22 On 25 April 2000, Richard Clarke, the White House counterterrorism adviser, proposed that the Central Intelligence Agency (cia) fly Predator drones over Afghanistan.23 In September 2000, the resultant Project Afghan Eyes, run by the cia’s Counterterrorism Center, twice identified an individual they believed to be bin Laden (though whether this was indeed the al-​Qaeda leader is disputed). Analysts reportedly mused: What if the Predator toted a missile along with its camera? What if the instant they got confirmation of the tall guy’s identity they could fire at the push of a button? What if, some morning between a boring early staff meeting and a desultory lunch, they could kill Bin Laden, spend the afternoon writing it up, and still get home for dinner with the kids?24 20

21 22 23 24

J. R.  Dixon, “UAV Employment in Kosovo:  Lessons for the Operational Commander,” us Naval War College, Newport, RI, January 2000, p.  14, at:  www.dtic.mil/​cgi-​bin/​ GetTRDoc?AD=ADA378573. Ibid. Federal Bureau of Investigation (fbi), “East African Embassy Bombings,” at: https://​www​ .fbi.gov/​about-​us/​history/​famous-​cases/​east-​african-​embassy-​bombings-​1998. The first Predator prototype had its maiden flight in July 1994. R. Whittle, Predator: The Secret Origins of the Drone Revolution, 1st Edn, Henry Holt, New York, 2014, pp. 85, 86. Shane, Objective Troy, pp. 66–​67.

12 Casey-Maslen Ultimately, Osama bin Laden was not killed by a drone strike, though an unarmed “stealth” drone was involved in the operation in May 2011 during which the al-​Qaeda leader was shot and killed. Lockheed Martin’s rq-​170 Sentinel drone, also known by its nickname “Wraith,” was used for reconnaissance25 during the Navy seal raid on bin Laden’s compound in Abbottabad in north-​eastern Pakistan.

Unmanned Weapons Systems

Development, Use, and Transfer by the United States The Predator The Predator is, in many ways, the iconic armed drone. Although irrevocably linked to extraterritorial use of force by the United States, its design was actually the brainchild of an Iraqi-​born Israeli citizen, Abraham Karem.26 The first Predator strike in anger is said to have hit a Taliban camp in Kandahar on 7 October 2001. The attack, which was targeting the Taliban supreme leader, Mullah Omar, killed two of his bodyguards but missed Omar, who made good his escape.27 Nonetheless, as The New York Times journalist Scott Shane observes: “A new era in warfare had begun, with unpredictable consequences. … The Predator would be the first drone to become famous—​and infamous—​ generating newspaper editorials, protest marches, secret legal opinions, and outlandish artworks.”28

25

The rq designation indicates that the Sentinel does not carry weapons; it is not known if an armed version exists or is planned. The “R” is the us Department of Defense (dod) designation for reconnaissance aircraft while “Q” means it is a remotely piloted aircraft system. 26 R. Whittle, “The Man Who Invented the Predator,” Air & Space, April 2013, at: http://​ w ww.airspacemag.com/ ​ f light- ​ today/ ​ t he- ​ m an-​ w ho- ​ i nvented- ​ t he- ​ p redator​ -​3970502/​?no-​ist=&page=1; see also Cockburn, Kill Chain, p. 50. In 2012, The Economist described Karem as the “dronefather,” though he has denied responsibility for the decision to weaponise the Predator. “The dronefather,” The Economist, 1 December 2012, at: http://​www.economist.com/​news/​technology-​quarterly/​21567205​-​abe​-​karem​-​created​ -​robotic​-​plane-​transformed-​way-​modern-​warfare. 27 A. H.  Michel, “How Rogue Techies Armed the Predator, Almost Stopped 9/​11, and Accidentally Invented Remote War,” Wired, 17 December 2015, at:  https://​www.wired​ .com/ ​ 2 015/ ​ 1 2/ ​ h ow- ​ rogue- ​ techies- ​ a rmed- ​ t he- ​ p redator- ​ a lmost- ​ s topped- ​ 9 11- ​ a nd​ -accidentally-​invented-​remote-​war/​. 28 Shane, Objective Troy, p. 69.

Development, Use, and Transfer of Unmanned Weapons Systems

13

In the words of the us Air Force (usaf), the world’s biggest user of the us$4 ­million Predator, the mq-​1B version29 produced by San Diego-​based General Atomics30 is an armed, long-​endurance, remotely piloted aircraft “employed primarily as an intelligence-​collection asset and secondarily against dynamic execution targets.”31 As usaf notes, the Predator is part of a $40 million system:32 a “fully operational system” comprises four sensor and/​or weapon-​equipped aircraft, a ground control station, a primary satellite link, supported by operations and maintenance crews.33 The aircraft, powered by Austrian-​manufactured Rotax engines,34 can fire two laser-​guided air-​to-​ground Hellfire (“helicopter-​launched fire-​and-​forget”) agm-​114 missiles against armour and personnel. The Hellfire Missile The development of the Hellfire missile system began in 1974 with the us Army’s declared requirement for an air-​to-​ground missile launched from helicopters against armoured fighting vehicles. Production of the base model agm-​114A began in 1982.35 Today the Hellfire missile, which can hit targets up to eight kilometres away travelling a maximum speed of 950 miles per hour, comes in a range of variants: 114K: the basic Hellfire ii missile, which uses a shaped-​charge • agm-​ heat (High Explosive Anti-​Tank) warhead to destroy armoured vehicles or punch into buildings

29

30 31 32

33 34

35

The “M” is the dod designation for multi-​role aircraft. The “1” refers to the aircraft being the first of the series of remotely piloted aircraft systems. A change in designation from rq-​1 to mq-​1 occurred in 2002 with the addition of the agm-​114 Hellfire missiles, enabling reaction against intelligence, surveillance, and reconnaissance, close air support, and interdiction ­targets. us Air Force, “MQ-​1B Predator,” Fact Sheet, 23 September 2015, at: http://​www​.af​ .mil/​AboutUs/​FactSheets/​Display/​tabid/​224/​Article/​104469/​mq-​1b-​predator.aspx. General Atomics, “Aircraft Platforms,” 2016, at: http://​www.ga-​asi.com/​aircraft-​platforms. us Air Force, “MQ-​1B Predator,” 23 September 2015. “General Atomics MQ-​1 Predator (Predator A) Unmanned Aerial Vehicle (1995),” Military Factory, Last updated 26 August 2015, at: http://​www.militaryfactory.com/​aircraft/​detail​ .asp?aircraft_​id=46. us Air Force, “MQ-​1B Predator,” 23 September 2015. Rotax is the brand name for a range of internal combustion engines manufactured by the Austrian company brp-​Powertrain GmbH & Co, headquartered in Gunskirchen in northern Austria. “AGM-​114 Hellfire ii Missile, United States of America,” Army-​technology.com, undated but accessed on 17 January 2017 at: http://​www.army-​technology.com/​projects/​hellfire​ -ii-​missile/​.

14 Casey-Maslen 114K-​A:  adding a blast fragmentation sleeve to the heat war• agm-​ head’s anti-​tank capability, for “added versatility” against unarmoured

• • • •

targets in the open agm-​114M: a version developed for the Navy with a warhead solely of blast fragmentation for use against boats or lightly armoured vehicles agm-​114N: a thermobaric metal-​augmented charge warhead “that can suck the air out of a cave, collapse a building, or produce an astoundingly large blast radius out in the open” agm-​114P: a variant for use from drones flying at high altitude with a 360° targeting capability agm-​ 114R:  a “multi-​ purpose” missile headed into production which incorporates improved guidance and navigation capabilities for use against armoured vehicles, fortified positions, or soft/​open targets.36

The standard explosive charge in a Hellfire missile is either 8 or 9 kilograms, with a reported “kill radius” of 15 metres and a “wounding radius” of 20 metres.37 Scott Shane claims that after a 2010 strike killed several civilian women and children in Pakistan, President Barack Obama asked the Central Intelligence Agency (cia) to reduce the size of the explosive they were incorporating in the Hellfire missiles fired from drones.38 The change is reported to have been implemented.39 In August 2015, it was reported that with the United States and its allies conducting airstrikes against Islamic State, Hellfire missiles were “in high demand.” usaf had budgeted more than $700 million for 3,756 Hellfire missiles for 2016,40 and in 2015 the us Department of Defense sought approval for Hellfire sales to Egypt, Israel, Lebanon, Pakistan Saudi Arabia, and South Korea

36

37 38 39

40

“US Hellfire Missile Orders, FY 2011–​2016,” Defense Industry Daily, 16 February 2016, at:  http://​www.defenseindustrydaily.com/​us-​hellfire-​missile-​orders-​fy-​2011-​2014-​07019/​. According to media reports, the “Romeo” variant is set to become the mainstay of the future Hellfire munitions to be used by drones until the missile system is supplanted by the Joint Air-​to-​Ground Missile (jagm) programme, discussed below. See, e.g., G. Chamayou, La théorie du drone, Editions de la Fabrique, France, April 2013. Shane, Objective Troy, p. 212. J. Becker and S. Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, 29 May 2012, at: http://​www.nytimes.com/​2012/​05/​29/​world/​obamas​ -​leadership-​in-​war-​on-​al-​qaeda.html?pagewanted=1&_​r=2. Making the unit cost per missile a little more than $185,000.

Development, Use, and Transfer of Unmanned Weapons Systems

15

“that amount to thousands of missiles worth hundreds of millions of dollars.”41 In May 2016, the United Arab Emirates (uae) was cleared to purchase 4,000 agm-​114 K and R Hellfires after the us Department of State signed off on the $450 million sale. In 2015, Lockheed Martin won a contract to develop the replacement for the Hellfire, known as the Joint Air-​to-​Ground Missile ( jagm), which will, initially at least, be housed in an agm-​114R Hellfire “Romeo” body, combining a semi-​active laser and “fire-​and-​forget” millimetre-​wave radar to improve accuracy against moving targets and in poor weather.42 According to the manufacturer, the jagm is the “next generation air-​to-​ground missile for use on joint rotary-​wing and unmanned aircraft systems for the Army, Navy and Marine Corps.”43 In early December 2016, a jagm was test-​ launched by an ah-​64D Apache pilot and successfully guided to the target, a remotely piloted boat four kilometres away, using both laser and radar sensors.44 The jagm is scheduled to reach initial operational capability in 2018.45 In late 2017, us Army Program Executive Officer for Missiles and Space, Barry Pike, told us online news outlet, Defense News, that low-​level production was beginning in the spring of 2018.46 The Reaper The basic Predator unmanned system has been supplemented by the mq-​9 Predator B model, also propeller-​driven, but better known by its nickname 41

42 43

44

45

46

J. Gould and A.  Chuter, “Army Win Solidifies Lockheed’s Air-​to-​Ground Market Share,” Defense News, 9 August 2015, at: http://​www.defensenews.com/​story/​defense/​land/​weapons/​2015/​08/​08/​army-​win-​solidifies-​lockheeds-​air-​-​ground-​market-​share/​31243261/​. Ibid. See also Lockheed Martin, “Joint Air-​to-​Ground Missile Multi-​Mode Guidance Section,” 2016, at: http://​www.lockheedmartin.com/​us/​products/​JAGM.html. Lockheed Martin, “US Army and US Navy Award Lockheed Martin $66 Million Contract for Joint Air-​to-​Ground Missile,” Press release, Orlando, Florida, 4 September 2015, at: http://​ www.lockheedmartin.com/​ u s/​ n ews/​ p ress-​ releases/​ 2 015/​ s eptember/​ m fc-​ u s​ - army​ -​us-​navy-​award-​lockheed-​martin-​66-​million-​contract-​jagm-​missile.html. J. Judson, “Joint Air-​to-​Ground Missile Destroys Small Boat in Test,” Defense News, 13 January 2017, at:  http://​www.defensenews.com/​land/​2017/​01/​13/​joint-​air-​to-​ground​ -missile-​destroys-​small-​boat-​in-​test/​. “US Hellfire Missile Orders, FY 2011–​2016,” Defense Industry Daily, 16 February 2016. See also “JAGM:  Joint Air-​Ground Missile Again,” Defense Industry Daily, 6 June 2016, at:  http://​www.defenseindustrydaily.com/​joint-​common-​missile-​program-​fired-​but-​not​ -forgotten-​0229/​. “Video: Latest update on the Joint Air to Ground Missile (JAGM),” Defense News, 9 October 2017, at:  https://​www.defensenews.com/​video/​2017/​10/​09/​latest-​update-​on-​the-​joint​ -air-​to-​ground-​missile-​jagm/​.

16 Casey-Maslen the Reaper. The faster and more powerful Reaper, which can carry four Hellfire missiles as well as laser-​guided bombs such as the Paveway ii and gbu-​12, is currently the us Air Force’s main armed drone. That said, as one commentator noted in 2014, its standard version “suffers the same inadequacies” that have plagued the original Predator. “It can’t fly in bad weather and its satellite-​relayed control signal tends to lag, which can cause crashes when operators sitting in trailers in the us can’t respond fast enough to problems. … It’s also possible to hack the Reaper’s video stream … and jam its gps.”47 By September 2015, usaf had 93 Reapers in its inventory.48 In February 2017, it was reported that the air force was phasing out its Predator drones in favour of the Reaper.49 On 1 October 2017, an armed us Reaper drone was shot down by Houthi air defence systems over Sana’a in Yemen.50 A  month earlier, a press report suggested that Australia was poised to procure Reaper drones from General Atomics.51 The Avenger To add to the range of drones it markets, since 2009 General Atomics has been offering the Avenger (formerly known as Predator C). The Avenger is a jet aircraft capable of operating at speeds up to 460 miles per hour at a maximum altitude of 60,000 feet for up to 20 hours at a stretch.52 Its weapons bay can house 3,500 pounds of precision-​guided munitions.53 But the response of 47

48 49 50 51

52

53

D. Axe, “The U.S. Air Force Was Not Fond of the Next-​Gen Predator Drone: Flying branch blew off General Atomics’ Predator C as too modest, too flimsy,” War is Boring (website), 13 November 2014, at:  https://​medium.com/​war-​is-​boring/​the-​u-​s-​air-​force-​was-​not​ -fond-​of-​the-​next-​gen-​predator-​drone-​77cb9a3d10b8#.vpmlxa7g3. usaf, “MQ-​9 Reaper,” Fact Sheet, 23 September 2015, at:  http://​www.af.mil/​AboutUs/​ FactSheets/​Display/​tabid/​224/​Article/​104470/​mq-​9-​reaper.aspx. Sr. Airman Christian Clausen, usaf, “AF to retire MQ-​1, transition to MQ-​9,” 24 February 2017, at: http://​www.globalsecurity.org/​military/​library/​news/​2017/​02/​mil-​170224​-afns01​.htm. J. Binnie and N. Gibson, “US Reaper shot down over Sanaa,” Jane’s Defence Weekly, 5 October 2017, at: http://​www.janes.com/​article/​74639/​us-​reaper-​shot-​down-​over-​sanaa. A. Greene, “Defence accused by Israeli company of lack of transparency over Reaper drone deal with US,” ABC News (Australia), Updated 2 September 2017, at: http://​www​ .abc.net.au/​news/​2017-​09-​02/​reaper-​drone-​defence-​accused-​lack-​transparency-​israeli​ -company/​8866036. “General Atomics Avenger (Predator C) Unmanned Combat Aerial Vehicle (UCAV) (2016),” Militaryfactory.com, 2016, at:  http://​www.militaryfactory.com/​aircraft/​detail​ .asp?aircraft_​id=757. General Atomics, “Predator C Avenger RPA,” at: http://​www.ga-​asi.com/​predator-​c-​avenger.

Development, Use, and Transfer of Unmanned Weapons Systems

17

the us armed forces to the new drone was lukewarm at best. In a 2014 article, David Axe reported that in late 2011, the Air Force “bought one Avenger for testing for an estimated $15 million. And by the end of the year, the brass had passed their judgement. The Avenger ‘offered only minor improvements over the mq-​9 [Reaper]’, according to the official history.”54 In contrast, press reports have regularly asserted that India has been seeking to procure up to 100 armed Avengers for the Indian Air Force in a deal worth us$8 billion; it was not clear, though, whether us President Donald Trump’s administration would allow the deal to go through.55 As of late 2017, the deal was said to be still under active consideration.56 R&D In early January 2018, it was reported in The Times that aircraft carriers in the sky, capable of launching swarms of drones that depart to assault enemy targets before returning to dock with their flying mothership, were being developed by the us military. The “Gremlins” programme was started in 2015 by the Defence Advanced Research Projects Agency (darpa). darpa has envisioned the drones landing, or being “captured,” at the back of a Lockheed C-​130 Hercules military transport aircraft, a challenging manoeuvre because of turbulence at the rear of the plane.57 The Journal of the United States Naval Institute has claimed that each gremlin would cost about us$700,000. Noting that both the Chinese navy and the Iranian military had captured and reverse-​engineered 54

55

56

57

D. Axe, “The U.S. Air Force Was Not Fond of the Next-​Gen Predator Drone: Flying branch blew off General Atomics’ Predator C as too modest, too flimsy,” War is Boring (website), 13 November 2014, at:  https://​medium.com/​war-​is-​boring/​the-​u-​s-​air-​force-​was-​not​ -fond-​of-​the-​next-​gen-​predator-​drone-​77cb9a3d10b8#.vpmlxa7g3. “India Set To Acquire 100 Armed Avenger Drones From The US,” Swarajya, 12 November 2016, at: http://​swarajyamag.com/​insta/​india-​set-​to-​acquire-​100-​armed-​avenger-​drones​ -​from-​the-​us; H.  Siddiqui, “US releases UAV technology to India, mulls Predator deal,” Financial Express, 21 July 2017, at:  http://​www.financialexpress.com/​india-​news/​us​ -releases-​uav-​technology-​to-​india-​mulls-​predator-​deal/​772379/​. All India/​Press Trust of India, “US ‘Considering’ India’s Request For Armed Drones For Air Force:  Official,” NDTV, Updated 22 October 2017, at:  https://​www.ndtv.com/​india​ -news/​us-​considering-​indias-​request-​for-​armed-​drones-​american-​official-​1765536; and G.  Luthra, “IAF confirms it wants Unmanned Predator Avengers. Military Cooperation Key to Indo-​US Relations,” India Strategic, November 2017, at: http://​www.indiastrategic​ .in/​2017/​11/​09/​iaf-​confirms-​it-​wants-​unmanned-​predator-​avengers/​. W. Pavia, “US plans to attack enemy targets with ‘gremlin’ drones released from jets,” The Times, 2 January 2018, at: https://​www.thetimes.co.uk/​article/​7712985a-​efdc-11e7​ -89aa-​dfdca00d3076?t=ie (subscription needed).

18 Casey-Maslen us drones, it suggested that the gremlins should have an ability to self-​destruct if they could not make it back to their mothership.58 Use of Armed Drones in Counterterrorism Operations The original Predator mq-​1 was the drone used for the first killing outside a “conventional war zone”: in Yemen in November 2002. The target was the head of al-​Qaeda in Yemen, Qaed Salim Sinan al-​Harithi, who was suspected of involvement in the suicide bombing attack against the uss Cole in Aden on 12  October 2000. In the drone strike one Hellfire missile missed its target but the second hit the car in which Mr al-​Harithi was travelling, killing him and the five other passengers.59 The us Government had agreed with their Yemeni counterparts that its involvement in the operation would remain secret. Despite that pledge, public disclosure of the cia’s work was made two days after the attack by the us Deputy Secretary of Defense, Paul Wolfowitz, “leading to a gap in American operations in Yemen that would last for seven years, during which al-​Qaeda would build its strength in the country.”60 According to available information, the United States first used armed drones in Pakistan in 2004 in a cia strike that killed up to eight people, including a local Taliban commander, Nek Muhammad Wazir, and two children, near Wana in South Waziristan. The Pakistani army initially claimed responsibility for a “rocket attack.”61 As reported in 2013 by The New York Times, the target was “not a top operative of al-​Qaeda, but a Pakistani ally of the Taliban who led a tribal rebellion and was marked by Pakistan as an enemy of the state. In a secret deal, the cia had agreed to kill him in exchange for access to airspace it had long sought so it could use drones to hunt down its own enemies.”62 The decision to use the cia rather than the armed forces reflected concern on the part of Pakistan as to how their citizens would perceive this foreign use of force

58 59 60 61

62

Ibid. Shane, Objective Troy, pp. 77, 78. Cited in ibid., p. 79. M. Mazzetti, “A Secret Deal on Drones, Sealed in Blood,” The New  York Times, 6 April 2013, at:  http://​www.nytimes.com/​2013/​04/​07/​world/​asia/​origins-​of-​cias-​not-​so-​secret​ -drone-​ war-​ in-​ pakistan.html?pa gewanted=all; and see The Bureau of Investigative Journalism, “Get the data:  Drone wars. The Bush Years:  Pakistan strikes 2004–​2009,” 10 August 2011, at: https://​www.thebureauinvestigates.com/​2011/​08/​10/​the-​bush-​years​ -2004-​2009/​. Ibid. According to the report, the deal “paved the way for the c.i.a. to change its focus from capturing terrorists to killing them, and helped transform an agency that began as a cold war espionage service into a paramilitary organization.”

Development, Use, and Transfer of Unmanned Weapons Systems

19

and a corresponding admission by the United States that there were significant sovereignty (and ad bellum) issues. Including the attack targeting Mr Muhammad, the Bureau of Investigative Journalism alleges that, during the remaining period of presidency of George W. Bush, the cia conducted a total of 51 drone strikes in 2004–​09 killing a reported 410 to 595 people, including 102 to 129 children, and a further 175 to 277 reported injured.63 In one of these strikes, on 13 January 2006, and despite their secret deal with the United States, the Pakistani government publicly protested against a strike that was said to have killed as many as 18 civilians. The main target at an alleged al-​Qaeda and Taliban commanders’ meeting was Ayman al-​Zawahiri, then al-​Qaeda’s second in command, but he was not present when the missile was fired. Despite initial claims that all the victims were al-​Qaeda or Taliban figures, later reports by local officials suggested that most of the dead were civilians, including fourteen from a single family, with possibly six children killed. Pakistan’s Ministry of Foreign Affairs summoned the us Ambassador, Ryan Crocker, to deliver an official protest.64 The us Congressional Research Service later described the attack: A missile attack on a residential compound in northwest Pakistan near the Afghan border killed up to 18 people, reportedly including numerous women and children. Some reports said the death toll was higher and included up to one dozen Islamic militants. Pakistani officials and local witnesses blamed the attack on us air forces, possibly Predator drones that were targeting top Al Qaeda leader Ayman al-​Zawahiri, who was not at the scene. us officials would not confirm us involvement. The incident led to major public anti-​u s demonstrations.65 In August 2007, Barack Obama, then campaigning for the Democratic nomination for the presidency, publicly criticised a decision by the Bush administration to cancel a planned raid to grab Ayman al-​Zawahiri in Pakistan in 63 64

65

The Bureau of Investigative Journalism, “Get the data: Drone wars. The Bush Years: Pakistan strikes 2004–​2009.” J. S.  Landay, “US secret:  CIA collaborated with Pakistan spy agency in drone war,” McClatchy DC, 9 April 2013, at: http://​www.mcclatchydc.com/​news/​nation-​world/​world/​ middle-​east/​article24747829.html. K. A. Kronstadt, “Pakistan: Chronology of Recent Events,” Updated 7 February 2006, CRS Report for Congress, available at:  http://​fpc.state.gov/​documents/​organization/​61521​ .pdf.

20 Casey-Maslen 2005 on the basis that it was too risky. In a speech to the Woodrow Wilson Center in Washington dc, he said the failure to act was a “terrible mistake.” He pledged: “If we have actionable intelligence about high-​value terrorist targets and President Musharraf will not act, we will.” From the Republican side, Mitt Romney claimed Obama had gone from “Jane Fonda to Dr Strangelove in one week.” Subsequently, his rival for the nomination, Hillary Clinton, noted that he had “basically threatened to bomb Pakistan, which I don’t think was a particularly wise position to take.”66 At the time of the future President’s speech in 2007, a dozen strikes had occurred in Pakistan and one in Yemen; President George W.  Bush would significantly increase the pace of drone attacks in the last six months of his second term, in part because the Pakistani authorities were believed to have been tipping off some of the targets.67 According to Scott Shane, in combatting terrorism Obama considered “invading countries decidedly old school, something left over from the era of the telegraph. The drone, using some of the same technology that was now creating the smart phone boom, might be the new, more humane way to protect the country.”68 Indeed, drone use, both within and outside the conduct of hostilities in armed conflict (as generally understood; see Chapters 2, 3, and 4), accelerated massively during the presidency of Barack Obama. While all figures should be treated with caution, The Bureau of Investigative Journalism claimed that, as at the end of January 2015, almost 2,500 people had been killed by covert us drone strikes since President Obama’s inauguration.69 During 2015, the Bureau calculated that 13 drone strikes in Pakistan killed between 60 and 85 people,70 while in Yemen, 10 strikes killed between 30 and 51,71 and in Somalia, 11 to 12 strikes killed between 20 and 93.72 Their estimated number of “civilian” 66 67 68 69

Shane, Objective Troy, pp. 126–​28, and supporting citations at pp. 342, 343. Ibid., pp. 130, 140. Ibid., p. 131. J. Serle, “Monthly Updates on the Covert War:  Almost 2,500 now killed by covert US drone strikes since Obama inauguration six years ago: The Bureau’s report for January 2015,” Bureau of Investigative Journalism, 2 February 2015, at:  https://​www.thebureauinvestigates.com/​2015/​02/​02/​almost-​2500-​killed-​covert-​us-​drone-​strikes-​obama​ -inauguration/​. 70 Summary tables and casualty rates at:  https://​ docs.google.com/​ spreadsheets/​ d/​ 1NAfjFonM-​Tn7fziqiv33HlGt09wgLZDSCP-​BQaux51w/​pubhtml#. 71 Summary tables and casualty rates at: https://​docs.google.com/​spreadsheets/​d/​1lb1hEYJ​ _omI8lSe33izwS2a2lbiygs0hTp2Al_​Kz5KQ/​pubhtml#. 72 Summary tables and casualty rates at:  https://​ docs.google.com/​ spreadsheets/​ d/​ 1-LT5TVBMy1Rj2WH30xQG9nqr8-​RXFVvzJE_​47NlpeSY/​pubhtml#.

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casualties for these covert drone strikes 2015 was exceptionally low: a maximum of five in Pakistan, none in Yemen, and four in Somalia. In total for Pakistan in 2004 to February 2016, The Bureau reported that 423 strikes had killed between 2,497 and 3,999 people in Pakistan, of whom between 423 and 965 were believed to be civilians.73 The United States is believed to have first struck Somalia using munitions fired from an unmanned weapons system in June 2011. The drone, which was operated by us Special Forces, targeted al-​Qaeda-​linked al-​ Shabaab fighters in Somalia, killing several people.74 On 5 March 2016, according to a report by the us Department of Defense a us drone strike killed more than 150 al-​Shabaab fighters in a training camp about 120 miles north of the Somali capital, Mogadishu.75 The same day this death toll was announced, Lisa Monaco, President Barack Obama’s counterterrorism and homeland security adviser, pledged to release information on how many terrorism s­ uspects and civilian casualties the United States had killed in its drone strikes since 2009. Ms Monaco said this would occur in the “coming weeks.”76 In fact, the release of information finally happened at the beginning of July 2016, with the contested claim that no more than 116 civilians had been killed from 2009 through to the end of 2015 in 473 drone strikes77 outside areas of “active hostilities” (including Afghanistan, Iraq, and Syria).78 But official figures have not only been disputed by journalists; on occasion  allied nations have also contested us claims. Thus, after a late September 2016 drone strike that hit the north-​central city of Galkayo, Somali officials  claimed that the us action had killed 22 local soldiers 73 74

75 76

77 78

https://​docs.google.com/​spreadsheets/​d/​1NAfjFonM-​Tn7fziqiv33HlGt09wgLZDSCP​ -BQaux51w/​pubhtml#, accessed on 7 March 2016. C. Woods, “US covert actions in Somalia: Somalia targeted in US ‘drone war’,” Bureau of Investigative Journalism, 30 June 2011, at:  https://​ www.thebureauinvestigates.com/​ 2011/​06/​30/​somalia-​targeted-​in-​us-​drone-​war/​. bbc, “US drone ‘kills 150 Somali militants’,” 7 March 2016, at: http://​www.bbc.com/​news/​ world-​africa-​35748986. S. Ackerman, “White House to reveal death toll of US drone strikes for first time,” Guardian, 7 March 2016, at:  http://​www.theguardian.com/​us-​news/​2016/​mar/​07/​ us-​drone-​strikes-​death-​toll. S. Ackerman, “Obama claims US drones strikes have killed up to 116 civilians,” Guardian, 1 July 2016. Associated Press, “US:  Up to 116 civilians killed in drone, other air attacks,” Fox News, 1 July 2016, at:  http://​www.foxnews.com/​politics/​2016/​07/​01/​us-​up-​to-​116-​civilians​ -killed-​in-​drone-​other-​air-​attacks.html.

22 Casey-Maslen and civilians while the United States affirmed that the dead were only al-​ Shabaab militants.79 There is doubt as to whether the United States has used drones to fire missiles against counterterrorism targets in the Philippines. In 2012, a Philippines Armed Forces spokesman denied The New York Times report that the United States conducted a drone strike on the southern Philippines island of Mindanao in 2006 in a failed attempt to kill Bali-​bomber Umar Patek. The spokesman insisted that us forces only shared information and training and that Philippines law does not allow the United States or any foreign nation to conduct military operations in the country. Earlier, President Benigno Aquino had said that the Philippines only allowed us drones to conduct reconnaissance flights over its territory.80 Drone Strikes in the Conduct of Hostilities As noted above, the first us Predator drone strike targeted Mullah Mohammed Omar, the head of the Taliban regime in Afghanistan on 7 October 2001. The strike against the government facility in Kandahar, where Omar had been spotted, missed its target, hitting a vehicle outside the camp instead.81 Since that strike more than a decade and a half ago, us drone use in Afghanistan has expanded and increased across the country to the extent that by 2015 more remotely piloted strikes occurred over the course of the year than strikes by manned combat aircraft.82 One media outlet specialising in reporting on drone strikes assessed total strikes for 2016 in Afghanistan at 1,071, killing between 1,389 and 1,597 people of whom 65 to 105 were reported as civilians.83 In May, a us drone strike killed the Afghan Taliban leader, Mullah Akhtar Mansoor, in neighbouring 79

80 81

82

83

J. Purkiss, “US covert actions in Somalia: US accused of killing 22 Somali soldiers and ­civilians,” Bureau of Investigative Journalism, 11 October 2016, at: https://​www​.­thebureauinvestigates. com/​2016/​10/​11/​us-​accused-​killing-​22-​somali-​soldiers-​civilians/​. “Philippines denies claims of US drone strike,” ABC News (Australia), 9 July 2012, at: http://​ www.abc.net.au/​news/​2012-​07-​09/​an-​philippines-​us-​drone/​4119604. C. Woods, “The Story of America’s Very First Drone Strike,” The Atlantic, 30 May 2015, at: http://​www.theatlantic.com/​international/​archive/​2015/​05/​america-​first-​drone​-strike​ -​afghanistan/​394463/​. Reuters, “Exclusive:  Afghan drone war—​data show unmanned flights dominate air campaign,” 20 April 2016, at:  http://​www.reuters.com/​article/​us-​afghanistan-​drones-​exclusive​ -idUSKCN0XH2UZ. J. Serle, P. Sargand, and J. Purkiss, “US strikes in Afghanistan: Get the data: A list of US air and drone strikes, Afghanistan 2016,” Bureau of Investigative Journalism, accessed on 16 January 2017 at:  https://​www.thebureauinvestigates.com/​2016/​01/​07/​get-​the-​data​ -a-list-​of-​us-​air-​and-​drone-​strikes-​afghanistan-​2016/​.

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Pakistan.84 On 23 October, a senior al-​Qaeda leader, Faruq al Qatani, was killed in a drone strike in Kunar province, in an operation confirmed by the Pentagon. A second strike the same day is believed to have killed Bilal al Utabi, another senior al-​Qaeda leader.85 But strikes were also responsible for significant civilian casualties. The Bureau of Investigative Journalism identified 15 civilians killed by a single us drone strike in Nangarhar province on 28 September, the biggest loss of civilian life in one strike since the (piloted) attack on the Médecins sans Frontières hospital in October 2015.86 The United States claimed to have conducted a counterterrorism missile strike against Islamic State fighters. But the next day the un Assistance Mission in Afghanistan (unama) issued a statement saying the strike had killed 15 and injured 13 other civilians; the victims had gathered at a house to celebrate a tribal elder’s return from a pilgrimage to Mecca.87 In its statement, unama reiterated the need for “all parties to the conflict to adhere to their obligations under international humanitarian law” and called on the Afghan Government and international military forces “to launch a prompt, independent, impartial, transparent, and effective investigation into this incident.”88 The Iraq conflict in 2003 saw considerable, and initially under-​reported, use of armed drones. Indeed, based on the Iraqi experience, a Predator ground controller, Major Mark Lilly of the Air Force 46th Expeditionary Reconnaissance Squadron, claimed that:  “It won’t be too many more years before pilots are flying this thing and probably nothing more.”89 Lieutenant-​Colonel T.  Mark 84

85

86

87 88 89

A. Gul and C. Babb, “Afghan Intel: Afghan Taliban Leader Killed in US Drone Strike,” Voice of America, 22 May 2016, available at: http://​www.globalsecurity.org/​military/​library/​news/​ 2016/​05/​mil-​160522-​voa01.htm?_​m=3n%2e002a%2e1724%2ezi0ao04fz6%2e1l23; see also J. Boone and S. E. Rasmussen, “US drone strike in Pakistan kills Taliban leader Mullah Mansoor,” Guardian, 22 May 2016, at:  https://​www.theguardian.com/​world/​ 2016/​may/​21/​us-​airstrike-​taliban-​leader-​mullah-​akhtar-​mansoor. J. Purkiss and J. Serle, “US strikes in Afghanistan: Al Qaeda leader killed in US strike in Afghanistan,” Bureau of Investigative Journalism, 11 November 2016, at:  https://​www​ .thebureauinvestigates.com/​2016/​11/​11/​al-​qaeda-​afghanistan-​drones/​. J. Purkiss and R. Khapalwak, “US strikes in Afghanistan: The Bureau identifies 15 civilians killed in a single US airstrike,” Bureau of Investigative Journalism, 4 November 2016, at:  https://​www.thebureauinvestigates.com/​2016/​11/​04/​bureau-​identifies-​15-​civilians​ -killed-​single-​us-​airstrike/​. unama, “UNAMA condemns killing of at least 15 civilians in airstrike,” 29 September 2016, at: https://​unama.unmissions.org/​unama-​condemns-​killing-​least-​15-​civilians-​airstrike. Ibid. B. Cosgrove-​Mather (Associated Press), “Pilotless Warriors Soar to Success,” CBS News, 25 April 2003, at: http://​www.cbsnews.com/​news/​pilotless-​warriors-​soar-​to-​success/​.

24 Casey-Maslen McCurley, a drone operator during the conflict (and later a drone squadron commander) notes that by 2005 unmanned aircraft were “integrated into the operational scheme.”90 Reflecting on their inability to prevail in dogfights, though, McCurley relates the shooting down of a Predator by an Iraqi air force MiG during the invasion. Unusually, the drone was equipped with aim-​ 92 Stinger air-​to-​air missiles.91 It is claimed that during the initial period of the invasion, some older Predators were stripped down and used as decoys to entice Iraqi air defences to reveal their positions by opening fire.92 us drone strikes in Libya and Syria began much later as armed violence followed peaceful protest in the Arab Spring. In Libya, drone use epitomised Obama’s decision to “lead from behind,” although famously a us drone strike on Gaddafi’s convoy out of Sirte was instrumental in the former leader’s capture.93 There were reports that in June 2016, a drone strike had killed Islamic State leader Abu Bakr al-​Baghdadi in Syria.94 At the end of 2016, though, the us Department of Defense acknowledged that he was still alive and “in charge.”95 In June and July 2017, it was reported by a variety of sources that al-​Baghdadi had been killed, possibly in a Russian air strike.96 In December 2017, an Iraqi commander claimed, though, that he was still alive and hiding in desert border areas between Iraq and Syria.97

90 91 92 93

94

95

96

97

Lt.-​Col. T. M. McCurley with K. Maurer, Hunter Killer, Allen & Unwin, UK, 2016, p. 94. Ibid., p. 43. Cosgrove-​Mather, “Pilotless Warriors Soar to Success.” “U.S. Drone Involved in Final Qaddafi Strike, as Obama Heralds Regime’s ‘End’,” Fox News, 20 October 2011, at:  http://​www.foxnews.com/​politics/​2011/​10/​20/​obama-​qaddafi​ -death-​ends-​long-​and-​painful-​chapter-​in-​libya.html. “US military officials ‘skeptical’ of reports ISIS leader al-​Baghdadi killed,” Fox News, 14 June 2016, at: http://​www.foxnews.com/​world/​2016/​06/​14/​us-​military-​officials​-skeptical​ -reports​-isis-​leader-​al-​baghdadi-​killed.html. “Isis leader Abu Bakr al-​Baghdadi is still alive and in charge, says Pentagon,” The Independent, 30 December 2016, at: http://​www.independent.co.uk/​news/​world/middle​ -east/​isis-​latest-​abu-​bakr-​al-​baghdadi-​alive-​pentagon-​terror-​us-​a7502966.html. See, e.g., B.  McKernan, “Abu Bakr al-​Baghdadi dead:  ‘Highly likely’ Isis leader killed in airstrike, Russian foreign ministry claims,” Independent, 22 June 2017, at:  http://​www​ .independent.co.uk/​news/​world/​middle-​east/​abu-​bakr-​al-​baghdadi-​dead-​latest-​news​ -isis-​russian-​airstrike-​islamic-​state-​a7802796.html; and B.  McKernan, “Abu Bakr Al-​ Baghdadi: Isis leader killed, says Syrian Observatory for Human Rights,” The Independent, 11 July 2017, at:  http://​www.independent.co.uk/​news/​world/​middle-​east/​abu-​bakr-​al​ -baghdadi-​dead-​isis-​leader-​killed-​latest-​news-​updates-​a7835271.html. M. Ebraheem, “Islamic State chief al-​Baghdadi still alive, says commander,” Iraqi News, 3 December 2017, at: https://​www.iraqinews.com/​iraq-​war/​islamic-​state-​chief/​.

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In autumn 2014, at the beginning of the air campaign in Syria, President Obama relaxed98 the “near certainty of no civilian casualties” requirement that he had established for drone strikes.99 He had shifted responsibility for drone strikes from the cia to the Joint Special Operations Command (jsoc) under the control of the us military and headquartered in Fort Bragg, North Carolina,100 a decision reversed, in part, by President Donald Trump in March 2017. Both jsoc and the cia are carrying out drone strikes, as was the case early in President Obama’s administration.101 Indeed, as of September 2017, the Trump administration was said to be contemplating policy changes that would further expand the cia’s authority to conduct drone strikes in a number of countries, both within and outside war zones.102 Restrictions on Transfer The United States has, in the past, been careful to minimise the risk of proliferation of drone technology. It has, for example, declined to provide its close ally in the Arab world, Saudi Arabia, with armed unmanned aircraft, despite repeated requests to do so (and notwithstanding the alleged presence of a cia drone base in the Middle East kingdom). Ultimately, Saudi Arabia turned to China in order to procure armed drones.103 In early October 2016, the United States and 48 other states issued a joint declaration seeking limitations on the export and use of armed unmanned aircraft.104 In the declaration, the 49 nations committed to a number of principles, 98 J. Acosta and K. Liptak, “White House exempts ISIS strikes from civilian casualty guidelines,” CNN, 2 October 2014, at: http://​edition.cnn.com/​2014/​10/​01/​politics/​wh-​isis-​civilians/​. 99 Associated Press, “No drone strikes without ‘near certainty’ of no civilian casualties: Obama,” Dawn, 23 May 2013, at: http://​www.dawn.com/​news/​1013289/​no-​drone-​strikes​ -without-​near-​certainty-​of-​no-​civilian-​casualties-​obama. 100 M. Zenko, “Donald Trump Is Pushing America’s Special Forces Past the Breaking Point,” Foreign Policy, 1 August 2017, at:  http://​foreignpolicy.com/​2017/​08/​01/​donald-​trump​ -is-pushing-​americas-​special-​forces-​past-​the-​breaking-​point-​jsoc-​navy-​seal/​. 101 M. Evans, “CIA wins back control of drone strikes,” The Times, 15 March 2017, at: https://​ www.thetimes.co.uk/​article/​b83732e0-​08e3-​11e7-​bb41-​9f8b57468927. 102 K. Dilanian and C.  Kube, “Trump Administration Wants to Increase CIA Drone Strikes,” NBC, 18 September 2017, at:  https://​www.nbcnews.com/​news/​military/​trump​ -​admin-​wants-​increase-​cia-​drone-​strikes-​n802311. 103 D. Axe, “Now the Saudis Have Killer Drones, Too,” Daily Beast, 14 September 2016, at: http://​ www.thedailybeast.com/​articles/​2016/​09/​14/​now-​the-​saudis-​have-​killer-​drones-​too.html. 104 Joint Declaration for the Export and Subsequent Use of Armed or Strike-​Enabled Unmanned Aerial Vehicles (uav s), 28 October 2016. Available at:  https://​www.state.gov/​r/​pa/​prs/​ ps/​2016/​10/​262811.htm. The Joint Declaration was issued by the United States and

26 Casey-Maslen which included recognition of the “applicability of international law, including both the law of armed conflict and international human rights law, as applicable, to the use of armed or strike-​enabled uav s” and that “the export of armed or strike-​enabled uav s should be done consistent with the principles of existing multilateral export control and non-​proliferation regimes, taking into account the potential recipient country’s history regarding adherence to its relevant international obligations and commitments.” The deputy spokesperson for the us Department of State stated that the declaration was a step toward the development of “comprehensive international standards for the transfer and subsequent use of uav s.”105 In October 2017, however, a report by Reuters claimed that the United States was poised to loosen export controls with a view to competing more effectively with China and Israel on the international market.106 Fully Autonomous Weapons Systems The United States remains the leader in aerial drone technology107 but in parallel with ever-​increasing drone use, it has been conducting extensive R&D into fully autonomous weapons systems. This is, in part, due to the fact that although drones do not carry pilots, their maintenance and use require a high number of personnel. Shane affirms that each remotely piloted Predator requires a team of more than 100 to operate it: Not just a pair of hands-​on operators but intelligence officers to guide its movements, video analysts to assess what it saw, ground mechanics to maintain its engine and other gear, another team to load its weapons the Governments of Albania, Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Chile, Colombia, Czech Republic, Denmark, Estonia, Finland, Georgia, Germany, Greece, Hungary, Iraq, Ireland, Italy, Japan, Jordan, Kosovo, Latvia, Lithuania, Luxembourg, Malawi, Malta, Mexico, Montenegro, Netherlands, New Zealand, Nigeria, Norway, Paraguay, the Philippines, Poland, Portugal, the Republic of Korea, Romania, Serbia, Seychelles, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Ukraine, the United Kingdom, and Uruguay. 105 M. C.  Toner, Daily Press Briefing, US Department of State, Washington, dc, 5 October 2016, at: https://​www.state.gov/​r/​pa/​prs/​dpb/​2016/​10/​262821.htm. 1 06 M. Spetalnick and M. Stone, “Game of Drones: U.S. poised to boost unmanned aircraft exports,” Reuters, 10 October 2017, at: https://​www.reuters.com/​article/​us-​trump-​effect​ -drones-​exclusive/​exclusive-​game-​of-​drones-​u-​s-​poised-​to-​boost-​unmanned-​aircraft​ -exports-​idUSKBN1CG0F4. 107 R. Farley, “The Five Most Deadly Drone Powers in the World,” National Interest, 16 February 2015, at: http://​nationalinterest.org/​feature/​the-​five-​most-​deadly-​drone-​powers-​the-​world​ -12255.

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and launch it, and a string of satellite communications technicians to make sure the complex controls and video download worked right. Most of those jobs were worked in shifts around the clock, pushing the total manpower much higher.108 How much easier would it be for the military if the weapon system could do all the work? This view applies equally to defensive and offensive weapons systems. In March 2016, Deputy us Secretary of Defense, Robert Work, said that “authoritarian regimes” might find weapons that can act independently “more attractive because it consolidates the ability to take action among a handful of leaders.” He claimed that the Department of Defense “will not delegate lethal authority to a machine to make a decision. The only time we will … delegate a machine authority is in things that go faster than human reaction time, like cyber or electronic warfare.”109 But as three military experts have observed, “the superior decision speed of fully autonomous systems and the vulnerability of networks in future wars … are likely to drive players in the game to embrace full autonomy.”110 As noted in the Introduction to this book, an explicit exception allowing for a particular example of an autonomous weapon system was already included in the 2008 Convention on Cluster Munitions where a munition container dispensed explosive submunitions “designed to detect and engage a single target object.”111 A  subsidiary of Textron Systems was producing the cbu-​ 105 sensor-​fuzed cluster munition system. Each of the system’s ten blu-​108 canisters disperses four submunitions equipped with infrared sensors configured to identify a target such as an armoured vehicle, which the munition then engages.112 According to Human Rights Watch, reporting on their use in 108 Shane, Objective Troy, p. 72. 109 D. Lamothe, “Pentagon examining the ‘killer robot’ threat,” Boston Globe, 30 March 2016, at:  https://​www.bostonglobe.com/​news/​nation/​2016/​03/​30/​the-​killer-​robot​-threat​ -pentagon-​examining-​how-​enemies-​could-​empower-​machines/​sFri6ZDifwIcQR2UgyXlQI/​ story.html. 110 J. Brecher, H. Niemi, and A. Hill, “My Droneski Just Ate Your Ethics,” War on the The Rocks, 10 August 2016, at:  https://​warontherocks.com/​2016/​08/​my-​droneski-​just-​ate-​your​ -ethics/​. 111 Art. 2(2)(c), 2008 Convention on Cluster Munitions. 112 Textron Defense Systems, “BLU-​108 Submunition,” 2010, at: http://​www.textronsystems​ .com/​sites/​default/​files/​pdfs/​product-​info/​blu108_​datasheet.pdf. See also N.  R. Jenzen-​ Jones, “US CBU-​97/​CBU-​105 ‘Sensor Fuzed Weapon’ cluster munition,” ARES, 5 August 2017, at: http://​armamentresearch.com/​us-​cbu-​97cbu-​105-​sensor-​fuzed-​weapon-​cluster​ -munition/​.

28 Casey-Maslen Yemen, the submunitions explode above the ground and project an explosively formed jet of metal and fragmentation downward.113 At the end of August 2016, Textron, the last us company building cluster munitions, announced that one of its subsidiaries would no longer produce the cbu-​105, citing dwindling demand.114 In July 2017, the Russian weapons manufacturer, Kalashnikov Group, announced that they had completed development of a “fully automated” system based on “neural networks.” The weaponised “combat module” is said to identify targets and make decisions on its own.115 The Phalanx Close-​in Weapon System is a ship-​based 20mm gun system that autonomously detects, tracks, and attacks targets. The Counter Rocket, Artillery, and Mortar System is a land-​based fixed weapon system that employs the same technology as the Phalanx to target and attack rockets, artillery, and mortars.116 Indeed, as a “mapping” report published by the Stockholm International Peace Research Institute (sipri) in November 2017 observes, existing weapon systems that can acquire and engage targets autonomously are mostly defensive systems. These are operated under human supervision and are intended to fire autonomously only in situations where the time of engagement is deemed too short for humans to be able to respond.117 To date, loitering weapons are the only “offensive” type of weapon system known to be capable of acquiring and engaging targets autonomously. The loitering time and geographical areas of deployment, as well as the category of targets they can attack, are determined in advance by humans.118 113 Human Rights Watch, “Yemen: Cluster Munitions Wounding Civilians,” 14 February 2016, at: https://​www.hrw.org/​news/​2016/​02/​14/​yemen-​cluster-​munitions-​wounding-​civilians. 114 T. Gibbons-​Neff, “Why the last U.S. company making cluster bombs won’t produce them anymore,” The Washington Post, 2 September 2016, at: https://​www.washingtonpost.com/​ news/​checkpoint/​wp/​2016/​09/​02/​why-​the-​last-​u-​s-​company-​making-​cluster-​bombs​ -wont-​produce-​them-​anymore/​?utm_​term=.56ecbcef6b1c. 115 R. Haridy, “Kalashnikov’s new autonomous weapons and the ‘Terminator conundrum’,” New Atlas, 21 July 2017, at:  https://​newatlas.com/​kalashnikov-​ai-​weapon-​terminator​ -conundrum/​50576/​. 116 “Autonomous Weapon Systems, Technical, Military, Legal and Humanitarian Aspects, Expert Meeting, Geneva, 26–​28 March 2014,” International Committee of the Red Cross (ICRC), Geneva, November 2014, p. 65, available at: http://​www.icrc.org; see also http://​ www.msl.army.mil/​Pages/​CRAM/​cram.html. 117 “Autonomous weapons are already here. How do we control how they are used?,” World Economic Forum, 14 November 2017, summary at:  https://​www.weforum.org/​agenda/​ 2017/​11/​autonomous-​weapons-​are-​already-​here-​but-​humans-​are-​still-​needed-​on-​the​ -battlefield. 118 Ibid.

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Over the longer term, however, miniaturisation, as with drone technology, will be an important facet of fully autonomous weapons systems. Thus, the us Army’s 2010–​35 roadmap for unmanned aerial vehicles foresees nano-​drone swarms with autonomous capability to cooperate with each other.119 As the sipri report observes, a swarm of small unmanned aerial systems is an emerging capability that has been tested through various R&D projects and could be used for a variety of missions. More importantly, “it might require a new paradigm in terms of human—​machine command-​and-​control relationships.”120 Scientists are increasingly drawing attention to the potential perils of fully autonomous weapons systems. In July 2015, at the opening of the International Joint Conference on Artificial Intelligence (ijcai) in Buenos Aires, an Open Letter signed by several thousand ai/​Robotics researchers declared that: Just as most chemists and biologists have no interest in building chemical or biological weapons, most ai researchers have no interest in building ai weapons—​and do not want others to tarnish their field by doing so, potentially creating a major public backlash against ai that curtails its future societal benefits. Indeed, chemists and biologists have broadly supported international agreements that have successfully prohibited chemical and biological weapons, just as most physicists supported the treaties banning space-​based nuclear weapons and blinding laser weapons. In summary, we believe that ai has great potential to benefit humanity in many ways, and that the goal of the field should be to do so. Starting a military ai arms race is a bad idea, and should be prevented by a ban on offensive autonomous weapons beyond meaningful human control.121 Development, Use, and Export by Israel Israel was quicker than the United States to appreciate the potential military applications of drones; indeed, Air Force 200 squadron was established in 1971 specifically to operate unmanned reconnaissance vehicles.122 After losing 119

us Army uas Center of Excellence, “ ‘Eyes of the Army’, US Army Unmanned Aircraft Systems Roadmap 2010–​2035,” p. 65. 120 V. Boulanin and M. Verbruggen, Mapping the Development of Autonomy in Weapon Systems, sipri, November 2017, p.  55, at:  https://​www.sipri.org/​sites/​default/​files/​2017​-11/​siprireport_​mapping_​the_​development_​of_​autonomy_​in_​weapon_​systems_​1117​_1.pdf. 1 21 “Autonomous Weapons: an Open Letter from AI & Robotics Researchers,” Future of Life Institute, 28 July 2017, at: https://​futureoflife.org/​open-​letter-​autonomous-​weapons/​. 122 See, e.g., http://​www.israeli-​weapons.com/​weapons/​aircraft/​uav/​heron/​Heron.html.

30 Casey-Maslen many of their piloted planes to surface-​to-​air missiles, Israel used Vietnam-​era reconnaissance drones procured from the United States to locate anti-​aircraft sites during the Yom Kippur War with Egypt and Syria.123 The aerial drones proved to be vital assets during combat and as a consequence Israel began to develop its own unmanned aircraft.124 It used drones to effect in Lebanon, beginning in the 1980s, with unmanned aircraft playing a significant role in the destruction of the Syrian integrated air-​defence system in Lebanon.125 One authority suggests that armed Israeli drones may have attacked ground targets by dive-​bombing into them126 in a precursor to the Harpy, an autonomous weapons platform whose integrated sensors identify and target radar sites by detecting electromagnetic emissions from radar equipment.127 In 1996, during Operation Grapes of Wrath in Lebanon, drones equipped with video cameras relayed pictures and coordinates back to command posts in northern Israel where the information was computerised and used to direct artillery and aircraft attacks.128 123 See J. F. Kreis, “Unmanned Aircraft in Israeli Air Operations,” Air Power History, Vol. 37, No. 4 (Winter 1990), p. 46. 124 D. Tepper, V. Mentasti, and J. Raab, “Discover How Drones Are Made,” Time, 23 October 2015, at: http://​time.com/​4001016/​discover-​how-​drones-​are-​made/​; D. Rodman, “Unmanned Aerial​ Vehicles in the Service of the Israel Air Force,” Rubin Center, 7 September 2010, at: http://​ www.rubincenter.org/​2010/​09/​rodman-​2010-​09-​07/​. 125 Rodman, “Unmanned Aerial Vehicles in the Service of the Israel Air Force.” 126 R. A. Gabriel, Operation Peace for Galilee: Israeli/​Palestine Liberation Organization War in Lebanon, Hill & Wang, United States, 1985, p.  99; see D.  Rodman, Sword and Shield of Zion: The Israel Air Force in the Arab—​Israeli Conflict, 1948–​2012, Sussex Academic Press, United Kingdom, 2014, Ch. 4, esp. pp. 85–​86. 127 According to one report, “After the rocket-​assisted launch, the drone flies autonomously en route to its patrol area, predefined by a set of navigational waypoints. Due to its low speed and economical fuel consumption, the drone can sustain a mission of several hours over the target area. Its radar seeker head constantly search for hostile radars, both along and across the flight track. Once suspicious radar is acquired, Harpy compares the signal to the library of hostile emitters, and prioritizes the threat. If the target is verified, the drone enters an attack mode, as it transitions into a near vertical dive, homing on the signal. The drone is set to detonate its warhead just above the target, to generate the highest damage to the antennae, and surrounding facilities. If the radar is turned off before Harpy strikes, the drone can abort the attack and continue loitering. If no radar was spotted during the mission, the drone is programmed to self-​destruct over a designated area.” “Harpy Air Defense Suppression System,” Defense Update, Last updated 4 March 2006, at: http://​defense-​update.com/​directory/​harpy.htm. 128 J. Cusack, “ ‘Operation Grapes of Wrath’ is a virtual war Israel is waging on computer screens,” Irish Times, 26 April 1996, at:  http://​ www.irishtimes.com/​ news/​ operation​ -grapes-​of-​wrath-​is-​a-​virtual-​war-​israel-​is-​waging-​on-​computer-​screens-​1.43309.

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Israel is secretive about its drone programme but it is believed that armed variants exist of both the Heron and the subsequent larger and more powerful Heron tp, known as Eitan, whose wingspan is the length of a Boeing 737.129 Both unmanned systems are produced by Israel Aerospace Industries (iai). The iai Heron is capable of operating at a maximum altitude of 10 kilometres for up to 52 hours. The Eitan, which is supposedly able to carry a one-​ton bomb,130 can fly at 230 miles per hour for more than 35 hours (some sources claim 70 hours).131 In a November 2014 interview on Eitan use in Gaza, an Israeli drone commander by the assumed name of “Major Yair” admitted to making some “wrong calls.”132 In April 2017, it was announced that 10 armed Eitans were about to be delivered to India.133 In June 2017, Germany’s Social Democratic Party blocked a €580 million deal to lease up to five Eitan drones from iai.134 Miniaturisation is also a feature of drone technological development. In November 2015, it was reported that Israel was marketing a 7lb drone, the Hero 30, a low-​speed loitering aircraft that could crash-​bomb into an identified target with its 1lb explosive warhead.135 Launched by air pressure from a canister, the Hero can fly on its electrical engine for up to 30 minutes. In June 2016, it was announced that Israeli defence company UVision had teamed up with us defence corporation Raytheon to adapt the Hero 30 to us military requirements.136 Israel has been the single biggest exporter of drones for many years, responsible for 60 per cent of the international market since 1985 according 1 29 Rodman, “Unmanned Aerial Vehicles in the Service of the Israel Air Force.” 130 Ibid. 131 iai, “Heron TP MALE UAV System,” at: http://​www.iai.co.il/​Sip_​Storage//​FILES/​6/​35766​ .pdf; and “Heron/​Machatz 1 Unmanned Aerial Vehicle (UAV), Israel,” Airforce Technology, 2017, at: http://​www.airforce-​technology.com/​projects/​heron-​uav/​. 132 D. Blair, “Israeli drone commander:  ‘The life and death decisions I  took in Gaza’,” The Daily Telegraph, 19 November 2014, at:  http://​www.telegraph.co.uk/​news/​worldnews/​ middleeast/​israel/​11234240/​Israeli-​drone-​commander-​The-​life-​and-​death-​decisions​-I​ -​took-in-​Gaza.html. 133 M. Pubby, “India all set to get missile armed drones from Israel,” Economic Times, 3 April 2017, at: http://​economictimes.indiatimes.com/​articleshow/​57980098. 134 G. Cohen and Reuters, “German Lawmakers Block Israeli Drone Deal After Discovering They’re Armed,” Haaretz, 29 June 2017, at: http://​www.haaretz.com/​israel-​news/​1.798475. 135 D. Hambling, “Israel Is Already Selling Kamikaze Micro-​Drones That Will Change Modern Warfare,” Popular Mechanics, 3 November 2015, at: http://​www.popularmechanics.com/​ flight/​drones/​a18032/​hero-​30-​uvision-​israeli-​drone/​. 136 Y. Lappin, “US army may soon use Israeli-​designed ‘suicide drones’,” Jerusalem Post, 1 June 2016, at: http://​www.jpost.com/​Israel-​News/​US-​army-​may-​use-​soon-​Israeli-​designed-​suicide​ -drones-​455572.

32 Casey-Maslen to one source.137 This leading position is now under threat from China. Thus, Israel has expressed serious doubts about the 2016 us initiative to restrict transfer of armed drones. A  prominent Israeli industry executive, cited anonymously in the media, said that his government was unlikely to actively oppose the United States’ combat drone initiative, but he hoped that it would drag its feet until the new Administration took over.138 Tal Inbar, head of uav and Space Programs at Israel’s Fisher Institute for Strategic Air and Space Studies, said that: “There’s no vacuum in the field of military exports in general and of armed drones in particular. The limitations the us has imposed on itself is what led to the rise of Chinese strike uav s in the world.”139 In August 2017, the Defense Export Controls Agency of Israel’s Ministry of Defence blocked exports by Aeronautics Defense Systems of its Orbiter 1K kamikaze drone, first introduced in 2015, after reports it was used in a live demonstration against a manned Armenian military post in Nagorno-​ Karabakh. Aeronautics Defense Systems vehemently denied the claim, saying that only the buyer operates the device, and the company “never carries out demonstrations on live targets, as is true in this case as well.”140 The Orbiter 1K is launched from a catapult and can fly for up to three hours, carrying a multi-​ sensor camera with day-​and-​night channels. The loitering system is controlled from a personal ground control station but when given a specific waypoint, the Orbiter can detect and destroy a moving or stationary target.141 Development and Transfer by China China’s unmanned systems production is entrusted to the China Aerospace Science and Technology Corporation (casc). To date, the Cai Hong (“Rainbow”) 137 G. Arnett, “The numbers behind the worldwide trade in drones,” The Guardian datablog, 3 March 2015, at:  http://​www.theguardian.com/​news/​datablog/​2015/​mar/​16/​numbers​ -behind-​worldwide-​trade-​in-​drones-​uk-​israel; D.  Tepper, V.  Mentasti, and J.  Raab, “Discover How Drones Are Made,” Time, 23 October 2015, at: http://​time.com/​4001016/​ discover-​how-​drones-​are-​made/​. 138 B. Opall-​Rome, “Israel Wary of US Armed Drone Initiative,” Defense News, 1 September 2016, at: http://​www.defensenews.com/​articles/​israel-​wary-​of-​us-​armed-​drone-​initiative. 139 Ibid. 140 G. Cohen, “Israeli Firm Loses Kamikaze-​drone Export License After Complaint It Carried Out Live Demo on Armenian Army,” Haaretz, 31 August 2017, at: https://​www.haaretz​ .com/​israel-​news/​1.809635. 141 A. Egozi, “Aeronautics introduces Orbiter 1K loitering munition,” FlightGlobal.com, 21 May 2015, at:  https://​www.flightglobal.com/​news/​articles/​aeronautics-​introduces-​orbiter-​1k​ -loitering-​munition-​412651/​.

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series comprises the ch-​1142 and ch-​2, both of which are unarmed, and ch-​3, ch-​4 and ch-​5, each of which can be used for surveillance and/​or offensive operations. The ch-​3, a small drone with a width of seven metres and a length of eight metres, was initiated in 2008, though its capabilities have since been upgraded. The ch-​3A can carry at least 130lb of missiles and bombs under its wings and possibly an ever heavier weapons payload. Its ability to loiter in the air is, though, limited to around six hours, roughly half of the original model.143 The ch-​4 is similar in size and aspect to the Predator. It has an operational ceiling of 8 kilometres, a maximum range of 3,500 kilometres, and can fly continuously for up to 14 hours when operating to maximum payload and fully fuelled. It can carry up to six ar-​1 semi-​active laser-​guided missiles, or ft-​9 satellite-​guided bombs or conventional gravity ordnance (or, alternatively, a mix of bombs and missiles).144 Singer and Lin argue that until a technological advance in the remote operation of the ch-​4, “Chinese-​made armed drones could not truly conduct what is known as a ‘remote split operation’. … Up to this point, Chinese-​made drones relied on direct line-​of-​sight communications with their ground control station, which dramatically limits their range to within a few hundred kilometres of their base.”145 The ch-​5 is twice as big as its predecessors, can stay in the air for up to 60 hours, with a maximum operating ceiling of 10 kilometres. The ch-​5 can carry up to 1.1 tons of equipment and weapons. Its largest capacity is said to be 24 missiles in a single flight. Designers are reportedly planning to develop a variant capable of staying in the air for up to 120 hours, with a 20,000 kilometre range.146 Its public unveiling was reported by a British tabloid newspaper in November 2016 with the rather hyperbolic headline: “China unveils ‘world’s most powerful drone’ armed with terrifying high-​tech missiles and a bombing 142

143

144 145

146

The ch-​1 dates back to the 1980s. E. Kania and K. W. Allen, “Inside the Secret World of Chinese Drones,” The National Interest, 26 May 2016, at: http://​nationalinterest.org/​blog/​ the-​buzz/​inside-​the-​secret-​world-​chinese-​drones-​16360. “CASC CH-​3 Rainbow Unmanned Aerial Vehicle (UAV) (2012),” Military Factory, 13 April 2016, at: http://​www.militaryfactory.com/​aircraft/​detail.asp?aircraft_​id=1378; and A. Rawnsley, “Meet China’s Killer Drones,” Foreign Policy, 14 January 2016, at: http://​foreignpolicy.com/​2016/​01/​14/​meet-​chinas-​killer-​drones/​. “CASC CH-​4 Unmanned Combat Aerial Vehicle,” SinoDefence 13 December 2015, at: https://​sinodefence.com/​2015/​12/​13/​ch-​4-​uav/​. J. Lin and P. W. Singer, “Chinese Drones Make Key Breakthrough, Firing On Command By Satellite. Dial one to a CH-​4 for missile delivery,” Popular Science, 8 June 2016, available at: http://​www.popsci.com/​. Z. Lei, “Unmanned combat drone to be exported,” China Daily, Updated 11 January 2016, at: http://​www.chinadaily.com.cn/​china/​2016-​11/​01/​content_​27233618.htm.

34 Casey-Maslen range of 12,500 miles.”147 In July 2017, China announced that it was ready to mass-​produce the ch-​5 following its debut flight that month at an airport in Hebei province in the north of the country. It is said to rival the performance of the Reaper, but at around half the cost.148 The ch-​5 is also said to be capable of detecting underwater targets, including submarines, when mounted with certain devices.149 China’s role as an exporter of armed drones came to light in January 2015, when a ch-​3 model crashed in Nigeria’s Borno province, the heart of the Boko Haram insurgency (see further below). The ch-​4 was exported to Iraq in early 2015, whose air force is believed to have used them in strikes against Islamic State in Anbar province.150 In August 2015, China announced restrictions on export of certain “high performance” drones over concerns they could compromise national security.151 Nonetheless, in November 2016, the chief designer Shi Wen said: “Several foreign nations have expressed intentions to purchase the ch-​5 and we are in talks with them.”152 Then in July 2017, Ou Zhongming, project manager of the Caihong series of drones at the China Academy of Aerospace Aerodynamics in Beijing, said after the ch-​5’s test flight that several nations, including current users of other ch models and new clients, were discussing procurement of the ch-​5.153 China’s future intentions with respect to unmanned weapons systems in its own army and naval forces are clear. Between 2014 and 2023, China could produce an estimated 41,800 or more land-​and sea-​based unmanned systems, and 147 M. Willey, “China unveils ‘world’s most powerful drone’ armed with terrifying high-​tech missiles and a bombing range of 12,500 Miles,” The Sun, 3 November 2016, at: https://​ www.thesun.co.uk/​news/​2107855/​china-​unveils-​worlds-​most-​powerful-​drone-​armed​ -with-​terrifying-​high-​tech-​missiles-​and-​a-​bombing-​range-​of-​12500-​miles/​. 148 S. Chen, “China unveils its answer to US Reaper drone—​how does it compare?,” South China Morning Post, Updated 18 July 2017, at: http://​www.scmp.com/​news/​china/​diplomacy​ -defence/​article/​2103005/​new-​chinese-​drone-​overseas-​buyers-​rival-​us-​reaper. 149 “Powerful drone ready for global market,” People’s Daily Online, 16 July 2017, available at:  http://​www.globalsecurity.org/​wmd/​library/​news/​china/​2017/​china-​170716-​pdo02​ .htm?_​m=3n%2e002a%2 e20 65%2ezi0ao04fz6%2e1wel. 150 D. Hambling, “The Iraqi Army Is Flying Chinese-​Made Killer Drones,” Popular Mechanics, 6 June 2016, at:  http://​www.popularmechanics.com/​military/​a21197/​the-​iraqi-​army-​is​ -flying-​chinese-​made-​killer-​drones/​. 151 Mangi and Pearson, “Pakistan kills three with Burraq armed drone experts say is based on China’s CH-​3.” 152 Willey, “China unveils ‘world’s most powerful drone’ armed with terrifying high-​tech missiles and a bombing range of 12,500 Miles.” 153 “Powerful drone ready for global market,” People’s Daily Online, 16 July 2017.

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thousands of these systems will probably be deployed by the People’s Liberation Army, according to a 2015 report by the us Department of Defense.154 The Lijian (“Sword”), which first flew on 21 November 2013, is said to be China’s first stealth unmanned combat aircraft.155 China is also engaged in the development of swarm drones. As the Cipher Brief reported in October 2017, the sw-​6 is a small “marsupial” drone with folding wings that can be dropped en masse from cargo chutes or helicopters. Although the drone is currently unarmed, it could “network with other sw-​6s to hunt, swarm, and even dive-​bomb enemy targets. This would allow Beijing to project power within its sphere of influence with a lower probability of outright military confrontation—​the presence of unarmed drones do not trigger escalation in the same way that fighter jets or aircraft carriers do.”156 The report cited a former Deputy Director of the us Defense Intelligence Agency who said:  “Should a u.s. warship all of sudden get swarmed by hundreds if not a thousand small unarmed drones, it could have disruptive and distracting effects—​impacting electronics and target acquisition for u.s. weapons systems by blinding them.”157 Development and Use by the United Kingdom The Royal Air Force (raf)’s use of Reapers in Afghanistan began in 2008158 and until 2014 remotely piloted aircraft were only deployed in support of operations there. In October 2014, however, following the end of uk combat operations in Afghanistan, Reapers were transferred to the Middle East for operations in Iraq and Syria.159 An raf Reaper killed two uk nationals in Syria on 21 August 2015, the first time a British military asset had been used to conduct a strike in a state 154

Military and Security Developments Involving the People’s Republic of China, 2015 Annual Report to Congress, Office of the Secretary of Defense, 7 April 2015, p. 35, at: https://​ www.defense.gov/​Portals/​1/​Documents/​pubs/​2015_​China_​Military_​Power_​Report.pdf. 155 Ibid., p.  37; and see “Hongdu Lijian (Sharp Sword) Stealth Unmanned Combat Air Vehicle (UCAV) (2018),” Military Factory, Updated 11 November 2016, at:  http://​www​ .­militaryfactory.com/​ aircraft/​detail.asp?aircraft_​id=1156. 1 56 L. Maxey, “Will China Start Selling the ‘AK-​47’ of Drones?,” The Cipher Brief, 15 October 2017, at: https://​www.thecipherbrief.com/​chinese-​drone-​swarms-​overwhelm-​u-​s-​sea. 157 Ibid. 158 uk missions using armed drones began in May 2008. Royal Air Force (raf), “Reaper MQ9A RPAS,” at: http://​www.raf.mod.uk/​equipment/​reaper.cfm. 159 L. Brooke-​Holland, “Overview of military drones used by the UK armed forces,” Briefing Paper No. 06493, House of Commons Library, 8 October 2015, p. 23, citing Parliamentary Question hl5185 on Unmanned Air Vehicles, at:  http://​www.parliament.uk/​written​ -questions-​answers-​statements/​written-​question/​lords/​2015-​02-​24/​HL5185.

36 Casey-Maslen in which the United Kingdom was not previously involved as a enemy party to an armed conflict.160 sipri has reported that in 2010–​14 the United Kingdom was the largest single importing state of unmanned aircraft, buying 55 (unarmed) drones from Israel and 6 armed drones from the United States, amounting to more than one third of global deliveries.161 In May 2016, it was announced that the United Kingdom was planning to double its fleet of armed drones with the new upgraded generation of Predator aircraft, Certifiable Predator B, a modified version of the Reaper. The new aircraft will be able to fly for nearly twice as long, equipped with more bombs and missiles, and able to fly in bad weather and survive ice, lightning, and bird strikes.162 The new General Atomics aircraft is expected to be named “Protector” when used by the raf from the end of the decade: defence chiefs have reportedly suggested the new name “in an attempt to change public perceptions that drones are unaccountable killing machines.”163 British Aerospace Systems (bae) s Taranis, named after the Celtic god of thunder, a technology demonstrator like the Northrop Grumman x-​47,164 is a stealth combat aircraft that can travel at 700 miles per hour and, according to one media report, “could technically fly autonomously,” though during flight tests it has been controlled by a human operator. The Taranis is also capable of targeting threats within a preselected search area on its own and fire on that target, albeit after a remote pilot gives the go-​ahead. In an email, bae stated its belief that “with regard to unmanned aircraft systems there will always be a need for a man in the loop, in particular with regard to any use of weapons, both now and in the future.”165

160 Brooke-​Holland, “Overview of military drones used by the UK armed forces,” p. 23, citing Hansard on House of Commons Debate of 7 September 2015, c30. 161 sipri figures reported in G. Arnett, “The numbers behind the worldwide trade in drones,” Guardian, 16 March 2015, at: https://​www.theguardian.com/​news/​datablog/​2015/​mar/​ 16/​numbers-​behind-​worldwide-​trade-​in-​drones-​uk-​israel. 162 B. Farmer, “Ministry of Defence unveils new armed drone that can spy on targets for twice as long to double RAF fleet,” Daily Telegraph, 1 May 2016, at: http://​www.telegraph.co.uk/​ news/​2016/​05/​01/​ministry-​of-​defence-​unveils-​new-​armed-​drone-​that-​can-​spy-​on-​targ/​. 163 Ibid. 164 See, e.g., “x-​47B ucas Makes Aviation History … Again!,” at: http://​www.­northropgrumman. com/​Capabilities/​X47BUCAS/​Pages/​default.aspx. 165 G. M. Del Prado, “This drone is one of the most secretive weapons in the world,” Business Insider, 29 September 2015, at: http://​uk.businessinsider.com/​british-​taranis-​drone-​first​ -autonomous-​weapon-​2015-​9.

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In May 2017, it was reported that bae was working with French defence contractors Dassault and Thales and others on a prototype within the unmanned Future Combat Air System (fcas), building on technology developed for the Taranis, which could fly within ten years.166 The aim is to produce an operational system by 2030.167 In August 2017, however, it was suggested in the media that France and Germany might plough on without the United Kingdom to develop a stealthy manned fighter flying with “swarm drones” to protect it and act as off-​board sensors.168 Acquisition and Use by Pakistan In September 2015, Pakistan became the fourth state known to have used an armed drone in combat, joining Israel, the United Kingdom, and the United States. The strike was confirmed in the Twitter account of the head of the Pakistani military’s media branch, Inter Services Public Relations, Major-​ General Asim Bajwa. A tweet on 7 September reported the first “ever use of Pak made Burraq Drone today. Hit a terrorist compound in Shawal Valley killing 3 high profile terrorists.” The Shawal Valley in North Waziristan is the scene of a Pakistan military operation to clear out the last pockets of the Pakistani Taliban (ttp) and affiliated terrorist groups from Pakistani soil as part of the wider Operation Zarb-​e-​Azb.169 Pakistan claimed that the Burraq, named after a flying steed ridden by the Prophet Muhammad, was developed at home. Many analysts, however, assert it is based on China’s ch-​3 drone, perhaps manufactured under license from casc.170 166 A. Tovey, “Brexit won’t harm Anglo-​EU defence co-​operation on drones, says BAE,” Daily Telegraph, 10 May 2017, at: http://​www.telegraph.co.uk/​business/​2017/​05/​10/​brexit-​wont​ -harm-​anglo-​eu-​defence-​co-​operation-​drones-​says-​bae/​; and see also “Thales to start work on the UK-​French Future Combat Air System,” undated but accessed on 26 July 2017, at: https://​www2.thalesgroup.com/​mobile/​read.php?topic=180&news=429220. 167 B. Stevenson, “UK and France agree on interim FCAS work,” FlightGlobal, 20 December 2016, at:  https://​www.flightglobal.com/​news/​articles/​uk-​and-​france-​agree-​on-​interim​ -fcas-​work-​432509/​. 168 C. Pocock, “France and Germany To Develop New Fighter Without UK?,” AIN online, 2 August 2017, at:  https://​www.ainonline.com/​aviation-​news/​defense/​2017-​08-​02/​ france-​and-​germany-​develop-​new-​fighter-​without-​uk. 169 Cited in U.  Ansari, “Pakistan Surprises Many With First Use of Armed Drone,” Defense News, 8 September 2015, at:  http://​www.defensenews.com/​story/​defense/​air-​space/​ strike/​2015/​09/​08/​pakistan-​surprises-​many-​first-​use-​armed-​drone/​71881768/​. 170 F. Mangi and N. O. Pearson, “Pakistan kills three with Burraq armed drone experts say is based on China’s CH-​3,” Sydney Morning Herald, 11 September 2015, at: http://​www.smh​ .com.au/​world/​pakistan-​kills-​three-​with-​burraq-​armed-​drone-​experts-​say-​is-​based-​on​ -chinas-​ch3-​20150911-​gjkjq3.html.

38 Casey-Maslen There are reports that the first drone strike was actually considerably e­ arlier. Senior security officials reportedly told a local newspaper that a long time before the ‘Burraq’ was publicly showcased it had been tested in live combat against militants in the Tirah Valley. The officials would not say how many targets have been taken out with the help of Burraq, but they claimed vwthat senior militant commanders, including those from Mangal Bagh’s Lashkar-​e-​Islam (LeI) and the ttp, were killed in Pakistani drone strikes.171 Acquisition and Use by Nigeria Nigeria is the fifth state known to have used armed drones. According to sipri, Nigeria received—​likely in 2014—​an unidentified number of ch-​3 armed drones from China.172 Nigeria subsequently used the unmanned weapons systems against Boko Haram fighters and bases, though the date of the first drone strike is not known. Its first publicly acknowledged strike seemingly occurred in early February 2016. The Nigerian Air Force’s Director of Public Relations and Information, Group Captain Ayodele Famuyiwa, said in a statement: “The Nigerian Air Force Unmanned Combat Aerial Vehicle (uav) has destroyed a logistics base used by members of the Boko Haram Terrorists (bht) group. The uav was on intelligence, surveillance and reconnaissance (isr) mission when it came across the gathering of bht s at Garin Moloma, about one kilometre north of the Sambisa Forest. At the time of the uav attack, the location, though under surveillance for quite a while, had a large gathering of bht s and vehicles. The multiple explosions and huge fire ball from the location strongly suggests that it may be either an ammunition/​fuel storage or weapons/​technical workshop.”173 Acquisition, Manufacture, and Use by Saudi Arabia Following the repeated refusal by the United States to allow Saudi Arabia to purchase armed drones from General Atomics, the Kingdom turned to 171 J. Baghwan, “Drone war:  ‘Burraq’ turned the tide in Tirah battle, say officials,” Express Tribune, 26 March 2015, at:  http://​tribune.com.pk/​story/​859152/​drone-​war-​burraq​ -turned-​the-​tide-​in-​tirah-​battle-​say-​officials/​. 172 P. D. Wezeman and S. T. Wezeman, “Trends in International Arms Transfers, 2014,” SIPRI Fact Sheet, March 2015, p. 3 (Box 2). 173 See, e.g., Air Force drone hits Boko Haram’s base in Sambisa, Nation, 3 February 2016, at: http://​ thenationonlineng.net/​air-​force-​drone-​hits-​boko-​harams-​base-​in-​sambisa/​; “Drone ‘destroys Boko Haram base’ in Nigeria (Video),” RT News, 3 February 2016, at:  https://​www.rt.com/​ news/​331186-​boko-​haram-​drone-​video/​.

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China, reportedly to procure its Reaper look-​alike, the ch-​4.174 In September 2016, it was reported in the media that Saudi Arabia had signed a contract with China to purchase an unspecified number of Pterodactyl unmanned systems, which closely resembles the smaller Predator.175 In March 2017, it was reported that ch-​4 drones would be manufactured in Saudi Arabia.176 In addition to Saudi use of surveillance drones over Yemen,177 there are also unconfirmed reports of it having launched drone strikes on its war-​torn neighbour.178 Development of Autonomous Weapons Systems in South Korea As noted above, fully autonomous systems currently deployed are mostly defensive systems, such as machine guns that use sensors to detect intruders. Already in the 2000s, Samsung Techwin (now Hanwha Techwin), a corporate identity better known for the production of smart phones, had developed the sgr-​A1 autonomous sentry gun jointly with Korea University. Its integrated system of surveillance, voice-​recognition, tracking, and firing capabilities is said to have been deployed to support South Korean troops in the Demilitarized Zone (dmz) with North Korea.179 In 2011, it was reported that a South Korean company, DoDAAM Systems, had developed an automated, turret-​based weapon platform capable of locking onto a human target three kilometres or more away. The Super aEgis ii was billed at the time as one of the most advanced weapons systems ever built. The system, which supports a variety of weapons, from a standard machine-​gun to 174 C. Clover and S.  Fei Ju, “Beijing missile makers cash in on Mideast and African wars,” Financial Times, 28 October 2016, at:  https://​ www.ft.com/​ content/​ ba0708dc​ -9996-​11e6-​8f9b-​70e3cabccfae. 175 “Saudi Arabia buys high-​tech China drones,” Arab News, 1 September 2016, at:  http://​ www.arabnews.com/​node/​978446/​saudi-​arabia. 176 “China’s Saudi drone factory compensates for US ban,” Middle East Eye, Updated 30 March 2017, at:  http://​www.middleeasteye.net/​news/​china-​build-​factory-​saudi-​arabia​ -fill-​drone-​shortage-​1200657135. 177 See, e.g., “Houthis down Saudi surveillance drone in Yemeni border province,” The New Arab, 31 December 2016, at:  https://​www.alaraby.co.uk/​english/​news/​2016/​12/​31/​ houthis-​down-​saudi-​surveillance-​drone-​in-​yemeni-​border-​province. 178 See, e.g., “China’s Saudi drone factory compensates for US ban,” Middle East Eye, Updated 30 March 2017. 179 “Samsung Techwin SGR-​A1 Sentry Guard Robot,” Global Security, Last updated on 7 November 2011, at:  https://​www.globalsecurity.org/​military/​world/​rok/​sgr-​a1.htm; and J.  Rabiroff, “Machine gun-​toting robots deployed on DMZ,” Stars and Stripes, 12 July 2010, at: https://​www​ .stripes.com/​news/​pacific/​korea/​machine-​gun-​toting-​robots-​deployed-​on-​dmz-​1.110809.

40 Casey-Maslen a surface-​to-​air missile, uses thermal imaging software and camera systems to lock onto a human-​sized target even in the dead of night. The system requires no human presence. DoDAAM Systems Vice-​President Park Sung-​ho said: North and South Korea are confronting each other and currently soldiers are operating a lot of military equipment. If the job can be replaced by non-​human guarding and monitoring robots, it could reduce the number of labour forces and military forces. And it could also reduce human losses under real combat situations.180 Subsequently, the Super aEgis ii was reconfigured to require a human operator to enter a password into the computer system to unlock the turret’s firing ability and manually “permit” it to shoot. Jungsuk Park, a senior research engineer for DoDAAM, explained that the original version “had an auto-​firing system. But all of our customers asked for safeguards to be implemented. Technologically it wasn’t a problem for us. But they were concerned the gun might make a mistake.”181

Acquisition, Development, and Use of Armed Drones by Non-​State Actors Whether non-​state actors will join the ranks of those who possess and use sophisticated unmanned weapons systems is not yet clear, though it has been cautioned by several commentators that this is a question of when, not if.182 To date, there has been some use of drones to deliver explosives. In September 2014, for instance, the Fars News Agency reported that Hezbollah had achieved its first successful drone strike in Syria, killing an estimated 23  “Syrian rebels.”183 In August 2016, the Times of Israel reported on video footage released 180 T. Cleary, “South Korean ‘super gun’ packs hi-​tech killing power,” Reuters, 14 February 2011, at:  http://​www.reuters.com/​video/​2011/​02/​14/​south-​korean-​super-​gun-​packs-​hi​ -tech-​kil?videoId=187406842&videoChannel=2602; see also http://​www.dodaam.com/​ eng/​sub2/​menu2.php. 181 S. Parkin, “Killer robots: The soldiers that never sleep,” BBC, 16 July 2015, at: http://​www​ .bbc.com/​future/​story/​20150715-​killer-​robots-​the-​soldiers-​that-​never-​sleep. 182 W. Zwijnenburg, “Terrorist Drone Attacks Are Not a Matter of ‘If’ but ‘When’. Hobbyist drones strapped with explosives or chemical weapons could be used by ISIS,” Newsweek, 29 April 2016, at: http://​europe.newsweek.com/​drones-​isis-​terrorist-​attacks-​453867. 183 See, e.g., Hostile Drones:  The Hostile Use of Drones by Non-​State Actors Against British Targets, Remote Control Project, Oxford Research Group, London, January 2016, p. 11, at: http://​remotecontrolproject.org/​wp-​content/​uploads/​2016/​01/​Hostile-​use-​of-​drones​ -report_​open-​briefing.pdf.

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by Hezbollah that appeared to show cheap drones being used to drop Chinese-​ made mzd-​2 submunitions over Syria.184 In October 2016, it was reported that Islamic State was developing ­weaponised drones after a workshop was discovered in Iraq. On 2 October, Islamic State fighters were said to have used a drone rigged with explosives to kill two Kurdish fighters after flying it towards Peshmerga troops and French soldiers in Iraqi Kurdistan.185 In January 2017, as Islamic State was being progressively forced out of Mosul, its fighters were using drones to drop individual grenades on the advancing Iraqi forces.186 This use of ­rudimentary unmanned weapons systems followed a chilling warning in April 2016 by the then uk Prime Minister, David Cameron, at a summit on nuclear terrorism in Washington dc, that Islamic State was planning to kill thousands by using drones to deliver radioactive material over Western cities.187 Development by Russia Russia appears, so far at least, to have lagged behind in unmanned weapons systems development, though in September 2016, Russian Deputy Foreign Minister Yuri Borisov Borisov told the Rossiya 24 broadcaster in an interview on the sidelines of an army international military forum that the country had “almost caught up” on its foreign rivals in its manufacture of unmanned aerial weapons systems.188 At the end of October, though, the 184 J. A. Gross, “Video appears to confirm use of attack drones by Hezbollah,” Times of Israel, 11 August 2016, at:  http://​www.timesofisrael.com/​video-​appears-​to-​confirm-​use-​of​ -attack-​drones-​by-​hezbollah-​in-​syria/​. 185 L. Dearden, “Revealed:  Isis developing weaponised drones in secretive programme,” The Independent, 20 October 2016, at:  http://​ www.independent.co.uk/​ news/​ world/​ middle​-east/​isis-​weapons-​drones-​uav-​programme-​development-​weaponised-​explosives​ -surveillance-​terrorist-​groups-​a7371491.html. 186 See, e.g., S. White, “ISIS use drones to drop grenades on Iraq forces in Battle of Mosul’s desperate last stand,” The Daily Mirror, 19 January 2017, at: http://​www.mirror.co.uk/​news/​ world-​news/​isis-​use-​drones-​drop-​grenades-​9653557. 187 “Cameron warns ISIS could use drones to spray nuclear material over Western cities,” Fox News, 2 April 2016, at:  http://​www.foxnews.com/​world/​2016/​04/​02/​cameron​ -warns-​i sis- ​c ould-​u se- ​d rones-​to- ​s pray-​n uclear-​m aterial- ​over-​western- ​c ities.html; D. Hambling, “Could ISIS Really Attack the West With a Dirty Drone?,” Popular Science, 8 April 2016, at:  http://​www.popularmechanics.com/​military/​weapons/​a20334/​isis​ -dirty-​drone/​. 188 “Russia Catching Up on Rivals in Military Drone Manufacturing,” Sputnik, 7 September 2016, at: https://​sputniknews.com/​military/​201609071045060394-​russia-​drones/​.

42 Casey-Maslen nation’s Deputy Prime Minister stated that the Russian President, Vladimir Putin, had ordered his military to modernise and create “intelligent weapons.”189 The following month, it was reported in the media that the Russian arms company Zavod Electromash had developed a stealth unmanned system designed to detect and destroy other nations’ armed drones. The system was due to be in full use by the Russian Armed Forces in the course of 2017. According to Valery Pyatkin, of Zavod Electromash, the weapons system has a detection range of 20 kilometres and a radar accuracy zone of 10 metres.190 In March 2017, it was reported that the developer of the Grad, Uragan, and Smerch systems has designed an unmanned aerial vehicle to be launched from the front of the Smerch multiple launch rocket system. The drone is said to be aimed at foreign markets and will not go into service with the Russian military.191 The progress announced by the Kalashnikov Group in autonomous ­weapons has been noted above. In at least one commentator’s opinion, though, the United States, China, and Israel will almost certainly be among the leaders in drone technology ten years from now. Each of these three states has developed the industrial capacity and human capital for drone development, and each has good reasons for staying on the edge of innovation. Iran and Russia may struggle to stay [sic] on top. Boxers can only punch above their weight for so long, and notwithstanding the creative ways that Iranians have employed drones thus far, a basic lack of industrial and innovative capacity relative to larger military-​industrial complexes may eventually hamstring them.192 189 D. Collins, “Robot Wars:  Vladimir Putin’s Russia is preparing an army of robots and drones to take on its enemies, Deputy PM Dmitry Rogozin admits,” Sun, 31 October 2016, at:  https://​www.thesun.co.uk/​news/​2082976/​vladimir-​putins-​russia-​preparing-​army-​of​ -robots-​and-​drones-​deputy-​pm-​dmitry-​rogozin-​admits/​. 190 R. O’Donoghue, “Russia reveals Drone Hunter that will make US and European weapons useless,” Daily Star, 24 November 2016, at: http://​www.dailystar.co.uk/​news/​latest-​news/​ 564870/​russia-​army-​drone-​hunter-​putin-​nuclear-​weapons-​train-​us-​military-​world-​war​ -three. 191 I. Rozin, “New Russian military drone launches directly from missiles,” Russia Beyond The Headlines, 1 March 2017, at:  https://​www.rbth.com/​defence/​2017/​03/​01/​new-​russian​ -military-​drone-​launches-​directly-​from-​missiles_​711756. 192 R. Farley, “The Five Most Deadly Drone Powers in the World,” National Interest, 16 February 2015, at:  http://​nationalinterest.org/​feature/​the-​five-​most-​deadly-​drone-​powers-​the-​world​ -12255?page=2.

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Use of Drones in Law Enforcement Operations In 2014, one commentator was cautioning about the future of drone use in law enforcement—​a “dronified form of policing”: Perhaps, in the cities of our future, many of the police drones will be weaponized. While attaching lethal missiles may appear a distant reality, what about Tasers? In 2015, North Dakota became the first state to legalize less-​than-​lethal weaponized drones: flying robots fitted with tear gas, rubber bullets, Tasers, or beanbags. Whether this opens the door to other police forces remains to be seen.193 Shaw noted that police in Tokyo have established the first “drone squad” tasked with capturing nuisance drones flown by the public, as well as patrolling important government buildings. He warned that “a landscape of ultra-​ secured government and corporate headquarters fitted with anti-​drone shields and patrolled by police drones might very well be a permanent feature of our future urban landscapes.”194 In the spring of 2015, it was reported that police in the northern Indian city of Lucknow were trialling small drones equipped with up to two kilograms of pepper spray for use during violent protests.195 More significantly, though, in July 2016, Dallas police used an unmanned ground vehicle loaded with explosives to kill a shooting suspect who was in a standoff with officers. Police had cornered the suspect in a parking garage after multiple snipers shot cops and transit officers who were overseeing a rally downtown protesting recent police-​involved shootings in Louisiana and Minnesota. At least twelve officers and two civilians were shot in Dallas, with five officers left dead.196 “We cornered one suspect, and we tried to negotiate for several hours,” Dallas Police Chief David O. Brown said in a press conference. “Negotiations broke down, and we had an exchange of gunfire with the suspect. We saw no other option but to use our bomb robot and place a device on it for it to detonate 1 93 Shaw, “The Rise of the Predator Empire: Tracing the History of US Drones.” 194 Ibid. 195 S. Docherty, “Drone Mounted Pepper Spray Used to Control Crowds,” Police Oracle, 9 April 2015, at: http://​www.policeoracle.com/​news/​Drone-​mounted-​pepper-​spray-​used-​to​-control​ -​crowds_​87740.html#comments. 196 P. Engel, “Dallas police used a robot bomb to kill one of the shooting suspects,” Business Insider, 8 July 2016, at:  http://​uk.businessinsider.com/​robot-​bomb-​dallas-​shooting​ -suspect-​2016-​7?r=US&IR=T.

44 Casey-Maslen where the suspect was. Other options would have exposed our officers to grave danger. The suspect is deceased as a result of the detonating of the bomb.”197 In October 2016, reportedly “inspired” by Dallas police’s use of an unmanned weapons system for law enforcement, Taser International began discussing with us law enforcement officials about mounting stun guns on small, quadcopter-​style drones for police to deploy for potential use-​of-​force scenarios.198 And, as noted above, in September 2015, North Dakota became the first us state in which lawmakers sought to formally legalise the use of unmanned aerial weapons systems by police. Only lethal weapons, such as firearms, were excluded from the authorisation.199 Thus, a year later, following the adoption of bill, it was announced that North Dakota’s police would be using unmanned systems equipped with less-​lethal weapons such as tear gas, rubber bullets, beanbags, pepper spray, and Tasers.200 Other states have been considering following North Dakota’s lead, but without restricting the options for law enforcement to use lethal weapons.201 In March 2017, the Connecticut state legislature’s judiciary committee approved legislation that could allow the police to use drones equipped with firearms and a flamethrower. The draft law was proceeding to the state House of Representatives for consideration.202 At the beginning of May 2017, however, it was announced that the state Public Safety and Security Committee had decided to take no action on Bill hb-​7260, at least to the extent that it would allow police use of weaponised drones.203 197 Ibid. 198 Z. Elinson, “Taser Explores Concept of Drone Armed With Stun Gun for Police Use,” Wall Street Journal, 20 October 2016, at: http://​www.wsj.com/​articles/​taser​-​explores​-​concept​ -​of-​drone-​armed-​with-​stun-​gun-​for-​police-​use-​1476994514. 199 H. Austin, “North Dakota becomes first US state to legalise use of armed drones by police,” Independent, 8 September 2015, at:  http://​www.independent.co.uk/​news/​world/​americas/​north-​dakota-​becomes-​first-​us- ​state-​to-​legalise-​use- ​of-​armed- ​drones-​by-​police​ -10492397.html. 200 B. Weinberg, “North Dakota to Get Armed Police Drones,” High Times, 9 September 2016, at: http://​hightimes.com/​news/​north-​dakota-​to-​get-​armed-​police-​drones/​. 201 A. Blake, “Lawmakers ponder armed drones for Connecticut,” The Washington Times, 2 March 2016, at:  http://​www.washingtontimes.com/​news/​2016/​mar/​2/​lawmakers​ -ponder-​armed-​drones-​connecticut-​police/​. 202 Reuters, “Connecticut Could Be First State to Allow Armed Police Drones,” Newsweek, 31 March 2017, at: http://​www.newsweek.com/​connecticut-​drones-​police-​police-​drones​ -armed​-drones-​577648. 203 See, e.g., M.  McNabbon, “Connecticut Decides Against ‘Weaponized’ Drones for Law Enforcement,” Drone Life, Blog entry, Posted on 2 May 2017, at:  http://​dronelife.com/​ 2017/​05/​02/​connecticut-​decides-​weaponized-​drones-​law-​enforcement/​.

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Also in May 2017, Dubai announced the deployment of its first robotic police officer. The unarmed robot officer is tasked with patrolling the city’s shopping centres and tourist attractions. People will be able to use it to report crimes, pay fines, and obtain information, by tapping a touchscreen on its chest. The government said the aim was for one quarter of the police force in Dubai to be robotic by 2030 but that they would not replace humans.204 The days of “Robocop” are not yet here, but they may be coming.205

204

bbc, “Robot police officer goes on duty in Dubai,” 24 May 2017, at: http://​www.bbc.co.uk/​ news/​technology-​40026940. 205 See, e.g., J.  Smith iv, “Taser is considering a flying, autonomous police drone armed with a stun gun,” Tech.Mic, 21 October 2016, at:  https://​mic.com/​articles/​157330/​ taser-​is-​considering-​a-​flying-​autonomous-​police-​drone-​armed-​with-​a-​stun-​gun.

Chapter 2

Legality of Use of Armed Unmanned Systems in Law Enforcement Stuart Casey-​Maslen Introduction It is a common misconception that the legality of the use of drones or other armed unmanned systems falls to be adjudged by the application of either international human rights law or the law of armed conflict (loac). Since international human rights law applies at all times, including during the conduct of hostilities during a situation of armed conflict, it cannot be an either/​or choice (see further, on this issue, Chapter 6). In all instances outside hostilities, international law primarily determines the legality of a state’s employment of force against a suspected criminal by reference to the rules laid down by the law of law enforcement. This body of international law is composed of general principles of law, reflecting core principles of national criminal law across democratic nations and the tenets of customary international law. The rules are derived from international criminal justice standards, especially those reflected in the 1979 Code of Conduct for Law Enforcement Officials1 and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.2 The rules of the 1 Adopted by un General Assembly Resolution 34/​169 of 17 December 1979. Nils Melzer affirms that it is “widely recognized as an authoritative guide for the use of force by state agents engaged in law enforcement activities.” N. Melzer, Targeted Killings in International Law, Oxford Monographs in International Law, Oxford University Press (oup), 2009, p. 196. 2 Adopted by the Eighth un Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990. A  un General Assembly resolution adopted the same year welcomed the Basic Principles and invited governments “to respect them and to take them into account within the framework of their national legislation and practice.” un General Assembly Resolution 45/​166, adopted without a vote on 18 December 1990, §4. In the view of the un Special Rapporteur on extrajudicial, summary or arbitrary executions, these standards are “authoritative statements of international law that set out the principles on the use of force by the police.” Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, annexed to un doc. A/​66/​330, 30 August 2011, §36. Both the European Court of Human Rights (ECtHR) and the Inter-​American Court of Human Rights (IAmCtHR) view the 1990 Basic Principles as authoritative statements of

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_004

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law of law enforcement in turn inform and infuse fundamental human rights, especially the rights to life, to liberty, and to freedom from torture and other inhumane treatment or punishment, helping to determine whether state action (or inaction) has amounted to a violation.

Core Principles of the Law of Law Enforcement

The two fundamental principles governing any use of force under the law of law enforcement are necessity and proportionality. The principle of necessity holds that any force used must be no more than the minimum necessary in the circumstances. The principle of proportionality dictates that even when necessity is respected the force used must be proportionate to the threat. The two principles are cumulative. In addition, during law enforcement operations, international human rights law imposes on the state and its law enforcement agencies a duty of precaution: to plan operations so as to minimise the risk of recourse to force, especially force that may have lethal consequences.3 The Principle of Necessity As Article 3 of the 1979 Code of Conduct recalls, law enforcement officials “may use force only when strictly necessary.” When some force is strictly necessary, that force must be only the minimum reasonably necessary in the circumstances and no more.4 In addition, each necessary use of force must be for a legitimate purpose. Use of force must therefore never be meted out vindictively or gratuitously or as ex post facto punishment for acts committed earlier, nor applied against an individual offering no resistance. In any event, the use of force must cease when the need for has passed: for example, when a suspect is safely and lawfully detained.

law governing use of force in law enforcement. See, e.g., ECtHR, Benzer v. Turkey, Judgment (Former Second Section), Rendered final on 24 March 2014, §90; IAmCtHR, Cruz Sánchez and others v. Peru, Judgment (Preliminary Objections, Merits, Reparation, and Costs), 17 April 2015, §264. The Court refers to the 1979 Code of Conduct in the same paragraph. 3 “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,” un doc. A/​HRC/​26/​36, 1 April 2014, §63–​64; see the European Court of Human Rights’ judgment in the McCann case. ECtHR, McCann and others v. uk, Judgment (Grand Chamber), 27 September 1995, §194. 4 See Commentary (a) on Art. 3, 1979 Code of Conduct; and “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,” un doc. A/​HRC/​26/​36, 1 April 2014, §59.

48 Casey-Maslen Furthermore, suspects, even of serious criminal offences such as terrorism, must be arrested where it is reasonably possible to do so. In the 1982 case of Guerrero v. Colombia, the Human Rights Committee found that the state had acted unlawfully in shooting to death suspected terrorists instead of arresting them as they could reasonably have done in the circumstances of the case.5 The Principle of Proportionality The principle of proportionality as it applies to use of force for law enforcement is much misunderstood. Proportionality does not mean that force must be used by a law enforcement official in strict accord with a force continuum or as a “tit-​for-​tat” response to violence. Instead, it sets a ceiling as to what is lawful use of force in accordance with the threat posed by an individual or group of individuals and the offence that has been or is about to be committed. According to the commentary on Article 3 of the 1979 Code of Conduct: National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.6 Proportionality is only to be assessed when some use of force is already necessary and when the force used is no more than the minimum necessary (meaning that the principle of necessity is being respected). It may act to render such necessary level of force unlawful in the circumstances. As the European Court of Human Rights’ Grand Chamber held in the Nachova case, an escaping suspect may not be shot “where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost.”7 5 N. S. Rodley, “Integrity of the Person,” in D. Moeckli et al. (eds.), International Human Rights Law, oup, 2010, p. 223. 6 Commentary (b)  on Art. 3, 1979 Code of Conduct. Similarly, according to Basic Principle 5, “Whenever the lawful use of force and firearms is unavoidable, law enforcement officers shall … act in proportion to the seriousness of the offence and legitimate objective to be achieved.” 7 ECtHR, Nachova v. Bulgaria, Judgment (Grand Chamber), 6 July 2005, §95.

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Thus, proportionality holds that the threat an individual poses, whether to a law enforcement official or to the general public, as well as the seriousness of the offence an individual is suspected of committing (or is about to commit), will determine the maximum level of force that may lawfully be used. This is particularly important when force that may have lethal consequences is used. As the European Court of Human Rights has stated: “the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence.”8

Use of Firearms

In addition to the general principles of necessity and proportionality, which apply to any use of force, specific provisions of both the 1979 Code of Conduct and the 1990 Basic Principles cover the use of firearms. The commentary on Article 3 of the 1979 Code of Conduct provides, in part, that “Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender.” These guiding principles are elaborated in the 1990 Basic Principles, with Principle 9 providing, in part, that: Law enforcement officials shall not use firearms against persons except in self-​defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.9 These are the specific law of law enforcement rules that govern “shooting to stop.” 8 ECtHR, Nachova v. Bulgaria, Judgment (Grand Chamber), 6 July 2005, §95. 9 For Sir Nigel Rodley, Principle 9 “impose[s]‌a principle of proportionality.” N. Rodley with M. Pollard, The Treatment of Prisoners Under International Law, 3rd Edn, Oxford University Press, 2011, p. 499.

50 Casey-Maslen The foremost scenario permitting recourse to firearms is where such use is necessary owing to an imminent threat of death or serious injury “and only when less extreme means are insufficient to achieve these objectives.” This exists whether the threat is to a law enforcement official or to a member of the public. According to the United Nations (un) Special Rapporteur on extrajudicial, summary or arbitrary executions, “an imminent or immediate threat” should be considered “a matter of seconds, not hours.”10 It may be the case that imminence, under the law of law enforcement rules governing potentially lethal force, should be limited to a second or even a split ­second.11 Serious injury should be construed narrowly to mean potentially fatal injuries. Intentional Killing A distinct standard applies when law enforcement officials “shoot to kill.” It is clear that in certain operations death is the deliberate intention. According to the final sentence of Basic Principle 9, In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. The purpose of this provision is to address situations where a hostage taker is about to kill his hostage or a suicide bomber is about to detonate explosives strapped to his or her body and total incapacitation is needed in an instant. According to the Metropolitan Police Authority, writing in 2005, for instance: “It has become clear … that ‘neutralising the threat’ may involve shooting dead a suspected suicide bomber without warning.”12 The un Special Rapporteur on extrajudicial, summary or arbitrary executions has termed the specific rule on intentional lethal use of force the “protect 10

11 12

“Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,” un doc. A/​HRC/​26/​36, 1 April 2014, §59, citing un docs. A/​68/​382 (§§33–​37) and A/​HRC/​14/​24. See further on this issue S.  Casey-​Maslen and S.  Connolly, Police Use of Force under International Law, Cambridge University Press, 2017, Chaps. 3 and 4. mpa, Suicide Terrorism Report, No. 13, 27 October 2005. Cited by Ian Gordon in I. Gordon and S. Miller, “The Fatal Police Shooting of Jean Charles de Menezes: Is Anyone Responsible?,” Ch. 10 in S.  Bronitt, M.  Gani, and S.  Hufnagel, Shooting to Kill. Socio-​ Legal Perspectives on the Use of Lethal Force, Hart, 2012, p. 220. The version of the cited report now online no longer contains the quoted sentence. See:  http://​policeauthority​ .org/​Metropolitan/​committees/​mpa/​2005/​051027/​13/​index.html. (The mpa was later replaced by the Mayor of London’s Office for Policing and Crime.)

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life” principle, whereby “a life may be taken intentionally only to save another life.” This he describes as “the guiding star of the protection of the right to life”:13 The “protect life” principle demands that lethal force may not be used intentionally merely to protect law and order or to serve other similar interests (for example, it may not be used only to disperse protests, to arrest a suspected criminal, or to safeguard other interests such as property). The primary aim must be to save life. In practice, this means that only the protection of life can meet the proportionality requirement where lethal force is used intentionally, and the protection of life can be the only legitimate objective for the use of such force.14 The Special Rapporteur has further affirmed that:  “A common sense understanding of the scope of application of Principle 9 suggests that all weapons that are designed and are likely to be lethal should be covered, including heavy weapons such as bombs and (drone) missiles, the use of which constitutes an intentional lethal use of force.”15 Thus, armed drones and fully autonomous weapons systems dropping or firing bombs, missiles, or rockets are regulated by the law of law enforcement rules governing intentional lethal use of force, unless they are used in the conduct of hostilities in a situation of armed conflict. Any use for law enforcement will therefore only be lawful when strictly unavoidable in order to protect life. As Philip Alston, the then un Special Rapporteur on extrajudicial, summary or arbitrary executions, wrote in 2010: Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal. A targeted drone killing in a State’s 13 14 15

“Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,” un doc. A/​HRC/​26/​36, 1 April 2014, §70. Ibid., §72. Ibid., §71. See also, e.g., ECtHR, Esmukhambetov and others v.  Russia, Judgment (First Section), 29 March 2011 (as rendered final on 15 September 2011). Landmines should also be considered as such weapons according to jurisprudence before the European Court. In its judgment in the Alkin case, the Court affirmed that injury resulting from landmines is a violation of Art. 2 of the 1950 European Convention on Human Rights because the very nature of the weapon makes their use unlawful: “the Court considers that the laying of such indiscriminate and inhumane weapons as anti-​personnel landmines, which affect the lives of a disproportionate number of civilians and children, amounts to intentional use of lethal force.” ECtHR, Alkin v.  Turkey, Judgment (Second Section), 13 October 2009, §30.

52 Casey-Maslen own territory, over which the State has control, would be very unlikely to meet human rights law limitations on the use of lethal force.16 He further asserted that: “Outside of armed conflict, killings by the cia [United States (us) Central Intelligence Agency] would constitute extrajudicial executions assuming that they do not comply with human rights law.”17

The Use of Armed Drones in Pakistan

Indeed, a valuable case study of applying law of law enforcement standards is the cia’s use of armed drones in Pakistan. According to publicly available information, the United States first used armed drones in Pakistan in 2004 when a cia strike near Wana in South Waziristan killed perhaps as many as eight people, including the target, a local Taliban commander, Nek Muhammad Wazir, as well as two children. The Pakistani army initially claimed responsibility for a “rocket attack.”18 Including that attack, the Bureau of Investigative Journalism has calculated that the cia conducted a total of 51 drone strikes in 2004–​09 (until the end of George W. Bush’s presidency), killing a reported 410 to 595 people, including 102 to 129 children, and injuring a further 175 to 277.19 According to a 2013 report in The New York Times, Mr Wazir was not a top al-​Qaeda operative, but an ally of the Taliban who led a tribal rebellion and was marked by the Pakistani intelligence services as an enemy of the state it wanted eliminated. “In a secret deal, the cia had agreed to kill him in exchange for access to airspace it had long sought so it could use drones to hunt down its own enemies.”20 Unless Mr Muhammad was directly participating in hostilities 16

17 18

19 20

“Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum:  Study on targeted killings,” un doc. A/​HRC/​14/​24/​Add.6, 28 May 2010, §85. Ibid., §70. M. Mazzetti, “A Secret Deal on Drones, Sealed in Blood,” The New York Times, 6 April 2013, at: http://​www.nytimes.com/​2013/​04/​07/​world/​asia/​origins-​of-​cias-​not-​so-​secret-​drone​-war​ -​in-​pakistan.html?pagewanted=all; and see The Bureau of Investigative Journalism, “Get the data: Drone wars. The Bush Years: Pakistan strikes 2004–​2009,” 10 August 2011, https://​ www.thebureauinvestigates.com/​2011/​08/​10/​the-​bush-​years-​2004-​2009/​. The Bureau of Investigative Journalism, “Get the data: Drone wars. The Bush Years: Pakistan strikes 2004–​2009.” Ibid. According to the report, the deal “paved the way for the C.I.A. to change its focus from capturing terrorists to killing them, and helped transform an agency that began as a cold war espionage service into a paramilitary organization.”

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in an ongoing armed conflict at the time of the attack, which does not appear to be the case, this amounts to an extrajudicial execution that invokes the responsibility of both Pakistan and the United States. In fact, there were only very short periods of armed conflict in Pakistan in the decade that followed.21 This was the situation at least until the middle of 2014 when armed conflict broke out in North Waziristan between the Pakistani armed forces and the Pakistan Taliban (Tehrik-​i-​Taliban Pakistan, ttp). The conditions for an armed conflict (sustained and significant armed violence between the state and an organized armed group)22 were then met as a result of combat during the implementation of Operation Zarb-​e-​Azb, which the Pakistani army launched on 9 June 2014. In one of these strikes, on 13 January 2006, and despite their secret deal with the United States, the Pakistani government publicly protested a strike which was said to have killed up to 18 civilians. The main target at an alleged al-​Qaeda and Taliban commanders’ meeting was Ayman al-​ Zawahiri, then al-​Qaeda’s second in command, but he was not present when the strike was conducted. Despite initial claims that all the victims were al-​Qaeda or Taliban figures, later reports by local officials suggested that most of the dead were civilians, including 14 from a single family, of whom as many as six were children. Pakistan’s Ministry of Foreign Affairs  ­summoned the us Ambassador, Ryan Crocker, to deliver an official

21

22

Notably these occurred during Operation Zalzala, which was initiated by the Pakistani armed forces at the beginning of 2008; Operation Black Thunderstorm, which began in the Swat valley on 26 April 2009; and Operation Rah-​e-​Nijat (Path to Salvation), launched against the ttp in South Waziristan on 19 June 2009. Other commentators have sought to argue that armed conflict was ongoing during most, if not all, of the period since 2004. See, e.g., M. E. O’Connell, “Unlawful Killing with Combat Drones: A Case Study of Pakistan 2004–​2009,” Ch. 12 in Bronitt, Gani, and Hufnagel, Shooting to Kill; and L. R. Blank and B. R. Farley, “Characterizing us Operations in Pakistan: Is the United States Engaged In An Armed Conflict?,” Fordham International Law Journal, Vol. 34, No. 2 (2011), at: http://​fordhamilj.org/​ files/​2015/​09/​2.CharacterizingUSOperationsinPakistan-​IstheUnitedStatesEn.pdf. See, further, the definition of an armed conflict discussed in Chapter 4. The armed violence by the ttp is better characterized as terrorist in nature, absent the “protracted, large-​scale violence … between governmental forces and organized insurgent groups” that the Tadić decision requires. icty, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Case No. IT-​94-​1-​A) (Appeals Chamber), 2 October 1995, §71; and, in relation to terrorist violence, see Prosecutor v. Tadić, Opinion and Judgment (Case No. IT-​94-​1-​T) (Trial Chamber ii), 7 May 1997, §562: to “distinguish an armed conflict from banditry, unorganized and short-​lived insurrections, or terrorist activities, which are not subject to international humanitarian law.”

54 Casey-Maslen protest.23 The us Congressional Research Service later described the attack in the following terms: A missile attack on a residential compound in northwest Pakistan near the Afghan border killed up to 18 people, reportedly including numerous women and children. Some reports said the death toll was higher and included up to one dozen Islamic militants. Pakistani officials and local witnesses blamed the attack on us air forces, possibly Predator drones that were targeting top Al Qaeda leader Ayman al-​Zawahiri, who was not at the scene. us officials would not confirm us involvement. The incident led to major public anti-​u s demonstrations.24 Drone strikes not only continued under us President Barack Obama, they increased significantly in frequency. Although all figures are open to dispute, the Bureau’s reported total of 128 cia drone strikes during 2010 is more than double the total reported for President George W. Bush’s entire second term. What also appears true is that the number of civilians reportedly killed dropped significantly. Of the 755 to 1,108 killed by drone strikes in 2010, the number of civilians reported killed was between 89 and 197, of whom 23 were children.25 At the same time, however, it was asserted in 2013, based on a review of classified us intelligence records, that the cia could not confirm the identity of about one quarter of those killed by drone strikes in Pakistan during a period spanning 2010 and 2011.26 In 2014, the first five months of the year went by without a cia drone strike. The pause in attacks coincided with ultimately futile efforts by Pakistan’s government to negotiate a peace settlement with the ttp and came at Pakistan’s request.27 The hiatus ended with the initiation of Operation Zarb-​e-​Azb in 23

24

25 26 27

J. S.  Landay, “US secret:  CIA collaborated with Pakistan spy agency in drone war,” McClatchy DC, 9 April 2013, at: http://​www.mcclatchydc.com/​news/​nation-​world/​world/​ middle-​east/​article24747829.html. K. A.  Kronstadt, “Pakistan:  Chronology of Recent Events,” Updated 7 February 2006, CRS  Report for Congress, available at:  http://​fpc.state.gov/​documents/​organization/​ 61521.pdf. The Bureau, “Get the data: Drone wars. Obama 2010 Pakistan strikes,” 10 August 2011, at: https://​www.thebureauinvestigates.com/​2011/​08/​10/​obama-​2010-​strikes/​. “ ‘America is our worst enemy’: Pakistani victim of US drone strike speaks out,” RT news, 7 June 2013, at: https://​www.rt.com/​news/​drone-​strikes-​attacks-​pakistan-​298/​. The Bureau, “Get the data: Drone wars. Obama 2014 Pakistan strikes,” 11 June 2014, at: https://​www.thebureauinvestigates.com/​2014/​06/​11/​obama-​2014-​pakistan-​drone​ -strikes/​.

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June 2014, with a cia strike that reportedly killed four Uzbek militants and two members of the Punjabi Taliban.28 The last year of Barack Obama’s presidency saw a greatly reduced level of drone strikes. The Bureau of Investigative Journalism believes that only three strikes were conducted during the year, the last occurring in May, as a consequence of which eleven or twelve people were reported killed, among whom only one was believed to be a civilian (an adult). A further three to six people were reportedly injured, although their status is not known.29 The final drone strike of the year, in May, killed Afghan Taliban leader Mullah Akhtar Mansour in the south-​western province of Baluchistan. The Trump presidency began with a small number of strikes. In April 2017, a suspected drone strike, only the second us strike in Pakistan since Donald Trump became president on 20 January, reportedly killed seven ttp militants and three civilian “labourers” in North Waziristan. One regional Pakistani official, though, disputed the location, claiming it was inside Afghanistan. Kamran Afridi, who holds the post of “political agent” in North Waziristan, told Reuters, “It was not on our soil.”30 As of late July, the Bureau of Investigative Journalism had reported at least two and possibly three further cia strikes targeting “militants.” A strike in mid-​ June led to criticism from Pakistan’s Chief of Arms Staff, General Qamar Bajwa. While not referring directly to the attack, the day after he was quoted as calling on the United States to share “actionable intelligence” with Pakistan, remarking that unilateral actions, such as drone strikes, are “counterproductive and against the spirit of ongoing cooperation and intelligence sharing being diligently undertaken by Pakistan.”31 This statement, particularly the call for the sharing of actionable intelligence, would tend to show that the us drone strikes were not strictly unavoidable to protect life as effective action could have been taken by the Pakistani authorities had the information been passed on. This would strongly imply that the strikes were unlawful, unless the United States could be considered a party to an armed conflict with the ttp. 28 29

30 31

Ibid., report for 11 June 2014. Bureau of Investigative Journalism, “Pakistan:  Reported US strikes 2016,” accessed on 27 July 2017, at: https://​www.thebureauinvestigates.com/​drone-​war/​data/​obama-​2016​ -pakistan-​drone-​strikes. S. Mehsud, “Suspected U.S. drone strike targets Pakistani Taliban militants: sources,” Reuters, 27 April 2017, at: http://​www.reuters.com/​article/​us-​pakistan-​drones-​idUSKBN17T1Y6. Bureau of Investigative Journalism, “Pakistan:  Reported US strikes 2017,” accessed on 27 July 2017, at: https://​www.thebureauinvestigates.com/​drone-​war/​data/​pakistan-​covert​ -us-​reported-​actions-​2017.

56 Casey-Maslen In early 2018, following a tweet by us President Donald Trump accusing Pakistan’s security forces of covertly supporting terrorists, it was reported in the media that the covert drone war in Pakistan that had been scaled back by President Obama had escalated again. The Times observed that the United States “is supposed to alert Pakistan before any drone strike in its territory. … Such is the current level of mistrust between the two governments, however, that there is concern in Islamabad that the us could discard the arrangement and act of its own accord, as it did with the assassination of Osama bin Laden in 2011. Last month Pakistan threatened to shoot down American drones violating its air space.”32

The Use of Fully Autonomous Weapons Systems

Fully autonomous weapons systems have not yet been used in law enforcement,33 though their availability appears to be looming large on the horizon. As noted in the Introduction to this book, South Korea is reported to have set up “sentry robots” (the sgr-​1 system) along the dmz with North Korea that can detect people entering the zone through heat and motion sensors. Although the sentry is believed to be configured so that the decision to fire must be taken by a human, it has an automatic mode, which, if activated, would allow it to fire independently on intruders.34 As Marco Sassòli has affirmed, outside armed conflict, lethal robots (by which he means fully autonomous weapons systems using potentially lethal weapons) “could only be used if they were able to arrest a person, which is, 32

33

34

H. Tomlinson, M. Evans, W. Khan, “Trump is the liar, says Pakistan after foreign aid row,” The Times, 3 January 2018, at:  https://​www.thetimes.co.uk/​article/​d047295e-​eff5-​11e7​ -89aa-​dfdca00d3076 (subscription needed). For a brief discussion of how unarmed robots could be used in law enforcement, see, e.g., L. J. Bertomen, “Looking to the future of police robotics,” PoliceOne.com, 7 July 2014, at:  https://​www.policeone.com/​explosives-​eod/​articles/​7354042-​Looking-​to-​the-​future-​ of-​police-​robotics/​; L.  Calderone, “Robotics in Law Enforcement,” Robotics Tomorrow, 15 March 2013, at:  http://​www.roboticstomorrow.com/​article/​2013/​03/​robotics-​in-​law​ -enforcement/​132/​. E. Pilkington, “ ‘Killer robots’ pose threat to peace and should be banned, UN warned,” The Guardian, 29 May 2013, at: http://​www.theguardian.com/​science/​2013/​may/​29/​ killer-​robots-​ban-​un-​warning. See also J. Gardner, “As Early as 2016, Robot Cops Will Be Patrolling Your Streets…….No, Seriously,” Free Thought Project, 14 February 2015, at: http://​thefreethoughtproject.com/​early-​2016-​robot-​cops-​patrolling-​streets-​no/​ #WJK3u4uUPTbMgBje.99.

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as opposed to the use of lethal force, always the solution preferred by human rights law.”35 Similarly, the un Special Rapporteur on extrajudicial, summary or arbitrary executions has stated that: “The possibility of lar [lethal autonomous robot] usage in a domestic law enforcement situation creates particular risks of arbitrary deprivation of life, because of the difficulty lars are bound to have in meeting the stricter requirements posed by ihrl [international human rights law].”36 Christof Heyns warned that: On the domestic front, lar s [lethal autonomous robotics] could be used by States to suppress domestic enemies and to terrorize the population at large, suppress demonstrations and fight ‘wars’ against drugs. It has been said that robots do not question their commanders or stage coups d’état.37

Law Enforcement during Armed Conflict

Distinguishing Law Enforcement from the Conduct of Hostilities What amount to an armed conflict under international law is discussed in detail in Chapter 4. Distinguishing law enforcement from the conduct of hostilities is challenging, but it is undisputed that law enforcement continues to occur during a situation of armed conflict. Banks continue to be robbed (often using firearms), people continue to threaten law enforcement officials with potentially lethal force, acts of terrorism are planned and carried out, and neighbours resolve disputes violently, all without any nexus to an ambient armed conflict. The rules governing law enforcement continue to apply to such incidents and are not displaced by loac rules. Thus, as 1990 Basic Principle 8 stipulates: “Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.” In 2016, the United Kingdom (uk) Secretary of State for Defence’s oral evidence to the Parliamentary Joint Committee on Human Rights on the legality of armed drones included the assertion that “the military force we 35

36 37

M. Sassòli, “Autonomous Weapons and International Humanitarian Law:  Advantages, Open Technical Questions and Legal Issues to be Clarified,” International Law Studies, Naval War College, Vol. 90 (2014), p. 318. “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,” un doc. A/​HRC/​23/​47, 9 April 2013, §85. Ibid., §84.

58 Casey-Maslen use is governed by humanitarian law [i.e., the Law of War].” The Committee reported that he “made no distinction in this respect between military force used in an area of armed conflict, and force used outside of armed conflict. In the Secretary of State’s view, all uses of military force are governed by the Law of War, and the applicable legal standards are therefore those of the Law of War.”38 If the Committee’s summary does indeed reflect the Secretary of State’s views, such claims are incorrect as a matter of international law. The 1990 Basic Principles on the Use of Force and Firearms confirm that in states “where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.” The contradistinction is not an easy one to make. As the United States has observed: Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-​specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-​international armed conflicts occurring within a State’s own territory.39 A Case Study in Syria A case that concerns intentional lethal use of force during law enforcement taking place during ongoing armed conflict involved the United Kingdom’s first drone strike outside the conduct of hostilities. This occurred in August 2015 when British-​born Islamic State fighter Reyaad Khan was killed in a strike by a Royal Air Force (raf)-​piloted drone in the group’s then stronghold of Raqqah in Syria. The action was ostensibly justified on the grounds of national self-​ defence.40 The uk Prime Minister at the time, David Cameron, told Parliament on 7 September 2015 that Mr Khan was:

38

39

40

Parliamentary Joint Committee on Human Rights, “The Government’s policy on the use of drones for targeted killing,” 9 May 2016, §3.17, at:  http://​www.publications.parliament.uk/​pa/​jt201516/​jtselect/​jtrights/​574/​57402.htm. Fourth Periodic Report of the United States under the 1966 International Covenant on Civil and Political Rights, 30 December 2011, §507, available at: http://​www.state.gov/​j/​ drl/​rls/​179781.htm#art4. M. Wilkinson, P. Dominiczak, and S. Swinford, “David Cameron: Britain mounted fatal air strike in Syria,” Daily Telegraph, 7 September 2015, at:  http://​www.telegraph.co.uk/​ news/​uknews/​terrorism-​in-​the-​uk/​11848600/​David-​Cameron-​Britain-​mounted-​fatal​ -air-​strike-​in-​Syria-​live.html.

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involved in actively recruiting isil [Islamic State of Iraq and the Levant; another name for Islamic State] sympathisers and seeking to orchestrate specific and barbaric attacks against the west, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high profile public commemorations, including those taking place this summer. We should be under no illusion; their intention was the murder of British citizens, so on this occasion we ourselves took action. Today, I can inform the House that in an act of self-​defence and after meticulous planning, Reyaad Khan was killed in a precision airstrike carried out on 21 August by an raf remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqa in Syria. In addition to Reyaad Khan, who was the target of the strike, two isil associates were also killed, one of whom, Ruhul Amin, has been identified as a uk national. They were isil fighters, and I can confirm that there were no civilian casualties. We took this action because there was no alternative. In this area, there is no Government we can work with; we have no military on the ground to detain those preparing plots; and there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home, so we had no way of preventing his planned attacks on our country without taking direct action.41 It was unclear to some whether this was a law enforcement action or an act in the conduct of hostilities occurring in one of the armed conflicts ongoing in Syria at the time. In the same statement before Parliament, the Prime Minister said, “I want to be clear that the strike was not part of coalition military action against isil in Syria; it was a targeted strike to deal with a clear, credible and specific terrorist threat to our country at home.” When ratifying the 1977 Additional Protocol I to the Geneva Conventions, the United Kingdom entered a declaration whereby ‘the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation’.42 41

Hansard, 7 September 2015, Cols. 25–​26, at: http://​www.publications.parliament.uk/​pa/​ cm201516/​cmhansrd/​ cm150907/​debtext/​150907-​0001.htm. 42 Declaration of 28 January 1998, available at:  https://​ ihl-​ databases.icrc.org/​ applic/​ ihl/​ ihl.nsf/​Notification.xsp?action=openDocument&documentId=0A9E03F0F2EE757CC1256402003FB6D2; see S.  Sivakumaran, The Law of Non-​International Armed Conflict, Oxford University Press (oup), 2012, p. 233. See also e.g. International Criminal Tribunal

60 Casey-Maslen Mr Cameron also referred to the lack of personnel “on the ground to detain those preparing plots,” arguably only a law enforcement requirement, not one required by loac rules. At the same time, the then Prime Minister said: “The strike was conducted according to specific military rules of engagement, which always comply with international law and the principles of proportionality and military necessity. The military assessed the target location and chose the optimum time to minimise the risk of civilian casualties. This was a very sensitive operation to prevent a very real threat to our country.”43 Despite the seemingly contradictory position as set out by the Prime Minister, this should be considered a law enforcement action. As Harriet Moynihan has written, “If the strike were part of an existing armed conflict, international humanitarian law would apply, including rules on targeting which permit the killing of fighters in a ‘non-​international’ armed conflict. But one military strike in self-​ defence does not give rise to the intensity of action required to meet the threshold for a non-​international armed conflict. For an isolated act of self-​defence, only human rights law applies.”44 This returns us to the law of law enforcement standard for intentional lethal use of force. As Nehal Bhuta has argued, Self-​evidently, killing Khan was not the only way of disrupting his planned attacks because British security services are also stated to have foiled more than one attack on the uk or its allies. So the concept of imminence here is not in the sense of “interception” of an unfolding plot. Rather, the Prime Minister’s language intimates that killing Khan was necessary because it was the only way to stop him trying again. As such, evaluating the “imminence” of the threat posed by Khan would appear to be in the nature of a probabilistic risk assessment of his (high) propensity to plan and direct another terrorist attack in the uk; by virtue of his pattern of activity, his very continued life constituted an imminent risk. Also included in this extended concept of imminence is whether other opportunities to kill the target will present themselves, should he not be targeted now.45

43 44

45

for the former Yugoslavia (icty), Prosecutor v. Slobodan Milošević, Decision on Motion for Judgment of Acquittal (Rule 98bis Decision) (Trial Chamber) (Case No. IT-​02-​54-​T), 16 June 2004, §26; and uk Ministry of Defence, The Manual of the Law of Armed Conflict, §5.21.1. Ibid., Col. 27. H. Moynihan, “UK Drone Strike on ISIS Raises Legal Questions,” Chatham House, 15 September 2015, at:  https://​www.chathamhouse.org/​expert/​comment/​uk-​drone-​strike​-isis​ -raises-​legal-​questions?gclid=CJTLpbSu1skCFUK4GwodossJ0Q#sthash.ajKzJi6e.dpuf. N. Bhuta, “On Preventive Killing,” EJIL Talk!, Blog entry, 17 September 2015, at: http://​ www.ejiltalk.org/​on-​preventive-​killing/​.

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Bhuta effectively demonstrates how the situation with Reyaad Khan fails to meet the requirements of international law. It was not strictly unavoidable in order to protect life, as 1990 Basic Principle 9 requires. This is also the standard for determining “use of force which is no more than absolutely necessary … in defence of any person from unlawful violence,” as set out in the European Convention on Human Rights, a treaty to which the United Kingdom is party.46 In December 2017, the newly installed Secretary of State for Defence, Gavin Williamson, declared to The Daily Mail that there would be no “safe space” abroad for British fighters for Islamic State in Iraq who had fled to other countries: “We have got to make sure that as (they) splinter and as they disperse across Iraq and Syria and other areas, we continue to hunt them down,” he said.47 Defence sources “made clear” to the newspaper that uk terrorists in Iraq and Syria would either be taken out in airstrikes by warplanes or drones operated from raf Waddington in Lincolnshire.48 Reacting to the Secretary of State’s declaration, John Donnelly, retired Brigadier and former Director of Personal Services for the British Army, affirmed that the “ill-​judged comments advocating illegal assassinations are not only wrong—​they’re dangerous.” He concluded that the task of combatting terrorism in a liberal democracy “has just got harder if Mr Williamson is proposing to tear up the rule book. ‘Sow the wind, reap the whirlwind’.”49 Philippe Sands qc told The Guardian newspaper: “It sounds as though we have, or are on the cusp of having, on his terms, some sort of shoot-​to-​kill policy.” He said that a policy of targeting and killing British Islamic State fighters would be “inconsistent with English, European and international law” and called for confirmation from the Prime Minister that the United Kingdom “is committed to the totality of its legal obligations in domestic law and international law and it does not operate shoot-​to-​kill policy in relation to people who violate criminal law.”50 46 47

48 49

50

Art. 2(2)(a), European Convention on Human Rights. L. Brown, “Defence Secretary is accused of dreaming up a Netflix-​style plot by threatening to ‘eliminate’ UK jihadis before they can return to Britain,” The Daily Mail, Updated 7 December 2017, at:  http://​www.dailymail.co.uk/​news/​article-​5153613/​ Gavin-​Williamson-​Brits-​fighting-​be.html. Ibid. “Retired Brigadier: In the UK we believe in the rule of law, not vigilante justice,” Liberty blogpost, Posted by John Donnelly on 8 December 2017, at: https://​www.liberty-​human​ -rights.org.uk/​news/​blog/​retired-​brigadier-​uk-​we-​believe-​rule-​law-​not-​vigilante-​justice. J. Elgot and H. Watt, “Call for troops to kill UK Isis fighters is illegal and immoral, say critics,” The Guardian, 7 December 2017, at:  https://​www.theguardian.com/​politics/​2017/​ dec/​07/​defence-​secretarys-​kill-​uk-​jihadists-​call-​causes-​widespread-​outrage.

Chapter 3

Armed Unmanned Weapons Systems under Jus ad Bellum Stuart Casey-​Maslen Introduction Jus ad bellum, the law on inter-​state use of force, is the body of international law that determines the legality of use of force by one state against another or on another state’s territory. If a drone strike does not comply with ad bellum rules this will amount to an internationally wrongful act engaging the responsibility of the state for unlawful use of force.1 This could, with respect to certain strikes by unmanned weapons systems, even amount to an act of aggression. Historically, as its Latin moniker suggests, the focus was on restricting recourse to war, albeit with its now obsolete insistence on a formal declaration as a pre-​requisite for legality. In the seventeenth century, Hugo Grotius penned De iure belli ac pacis, his magisterial work on the law of nations governing war and peace. Writing amid the ravaging of continental Europe by the Thirty Years’ War, he expressed the hope that certain limits might be imposed by law on when war’s misery could be wrought. Grotius’ observation that not all war is “repugnant to the law of nature” could, he argued, “be more amply proved from sacred history.”2 He acknowledged that “war is not condemned by the voluntary law of nations,”3 and that it is “proper” that sovereigns “should have the sole authority to devise and execute the operations of war.” But, he went on to affirm, in its application this general rule “must always be limited by equity and discretion.”4 1 See, in particular, the Draft Articles on the Responsibility of States for Internationally Wrongful Acts concluded and presented to states by the International Law Commission in 2001. The bulk of these rules represent customary international law binding all states. 2 H. Grotius, De Jure Belli ac Pacis, 1625 (Transl. A. C. Campbell, London, 1814), Ch. 2, s. ii, at: http://​oll.libertyfund.org/​titles/​553#Grotius_​0138_​104. 3 Ibid., Ch. 2, s. iv. 4 Ibid., Ch. 3, s. iv, §2.

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_005

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The 1648 Treaty of Westphalia, a set of peace agreements widely seen as the genesis of modern international law,5 nominally ended the Thirty Years’ War in the Holy Roman Empire as well as the Eighty Years’ War between Spain and the Dutch Republic.6 It derives its significance also from two key principles of international law that are espoused within the constituent agreements: respect for the territory of sovereign states (the so-​called Westphalian system), and a duty of non-​interference in the domestic affairs of states. These principles underpin the outlawing of warfare under international law since they preclude both the legitimate accretion of sovereign territory as a result of conquest and the mutation of regime in another state by stealth and subterfuge. Three centuries later, the Second World War would occur as a set of armed conflagrations across, first, Europe, and then Asia, North Africa, and the Americas in the course of which more than 50 million, and perhaps as many as 70 million people would be killed. It became, and remains, the most devastating period of dedicated destruction in human history. Prior to its outbreak, the most important treaty of jus ad bellum was the 1928 Kellogg-​Briand Pact.7 The Pact, which comprises only three articles, condemns war as “the solution of international controversies” and renounces its conduct “as an instrument of national policy” between states. The second article orders that only “pacific means” may be sought to settle “all disputes or conflicts of whatever nature or of whatever origin they may be.” On the basis of the adoption of the Pact, Yoram Dinstein has described 1928 as a “watershed date in the history of the legal regulation of the use of inter-​State force.”8 By the time the Second World War broke out in 1939, 63 states had become party to the Kellogg-​Briand Pact. Controversially, it would be used as the international legal basis for prosecuting senior Nazi figures for having waged a war of aggression (“crimes against peace”) at the Nuremburg trials held after the War. Serious doubts exist, though, as to whether either the Pact or customary international law had indeed criminalised aggression, implying that prosecutions of senior Nazi officials for crimes against peace were in violation of the 5 G. Heathcote, “Feminist Perspectives on the Law on the Use of Force,” Ch. 5 in M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law, Oxford University Press (oup), 2015, 114–​28, at p. 127. 6 R. Cavendish, “The Treaty of Westphalia,” History Today, Vol. 48, No. 10 (November 1998), at: http://​www.historytoday.com/​richard-​cavendish/​treaty-​westphalia. 7 General Treaty for Renunciation of War as an Instrument of National Policy, adopted at Paris and signed by France, Germany, and the United States (us), 27 August 1928. 8 Y. Dinstein, War, Aggression and Self-​Defence, 6th Edn, Cambridge University Press (cup), 2017, p. 87, §236.

64 Casey-Maslen criminal law principle of nullum crimen sine lege.9 This issue is further discussed in Chapter 8. Dinstein makes four principal criticisms of the Kellogg-​Briand Pact. First, it did not address self-​defence. Second, there was no clarification of when war as an instrument of international as opposed to national policy might be lawful. Third, the Pact’s abnegation of war did not extend to every state but only to those that formally adhered to its provisions. And fourth, forcible measures “short of war” were not addressed.10 To some extent these weaknesses would be remedied in the Charter of the United Nations (un Charter), adopted in 1945, and which has superseded it. But perhaps more fatal still was the lack of a mechanism to enforce the Kellogg-​Briand Pact’s high-​minded aims.11 Although the Pact remains nominally in force today, its failure to prevent the Second World War critically undermines its legitimacy. The Un Charter’s Prohibition on Inter-​State Use of Force The un Charter, the foundational document of modern jus ad bellum which was formulated in the immediate aftermath of the Second World War, generally prohibits each un member state from threatening or employing force in its international relations. It constitutes an unambiguous prohibition of naked aggression. The “cornerstone” of the law, in the words of the International Court of Justice (icj),12 is Article 2(4) of the Charter, which famously provides that: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. The nature of the undertakings set out in Article 2(4) is unequivocal—​“shall refrain in their international relations from”—​and the prohibitions reflect 9 10 11 12

See, e.g., Art. 22, Statute of the International Criminal Court (icc), adopted at Rome, 17 July 1998; entry into force, 1 July 2002. Dinstein, War, Aggression and Self-​Defence, 6th Edn, p. 87, §238. N. Schrijver, “The Ban on the Use of Force in the UN Charter,” Ch. 21 in Weller, The Oxford Handbook of the Use of Force in International Law, 465–​87, at p. 468. icj, Armed Activities on the Territory of Congo, Judgment, International Legal Materials, Vol. 45 (2006), p. 271.

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customary international law.13 But there is, as Christine Gray observes, no agreement on their exact scope.14 With respect to the use of force (as opposed to the threat of its use, which lies beyond the scope of this chapter),15 there are three separate cases to consider. First, use of force against the territorial integrity of any state. Second, use of force against the political independence of any state. Third, use of force “in any other manner inconsistent with the Purposes of the United Nations.” These prohibitions are addressed in turn. Use of Force against a State’s Territorial Integrity Territorial integrity is “fundamental to the Westphalian State system.”16 As the 1933 Montevideo Convention on the Rights and Duties of States illustrates, it is inherent in the definition of a state that it possess “a defined territory.”17 This does not mean that the existence of a border dispute with another state invalidates statehood. The notion of territorial integrity, however, does, at least according to prevailing legal doctrine,18 preclude one state from adding to its own sovereign territory by force, such as through military occupation of foreign land.19 The rule prohibiting use of force against a state’s territorial integrity also prevents force being used on the territory of another state even absent any intent on the part of the foreign state to augment the extent of its own territory. This is despite the lack of a reference in Article 2(4) to “the inviolability 13

icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 (hereafter, Wall Advisory Opinion), §88. 14 C. Gray, International Law and the Use of Force, 3rd Edn, oup, 2008, p. 30. 15 For a thoughtful discussion of threat of use of force, see N. Hayashi, “Legality under jus ad bellum of the threat of use of nuclear weapons,” Ch. 2 in G. Nystuen, S. Casey-​Maslen, and A.  Golden Bersagel (eds.), Nuclear Weapons Under International Law, cup, 2014, pp. 31–​58. 16 M. Wood, “Territorial Integrity,” The Princeton Encyclopedia of Self-​ Determination, at: https://​pesd.princeton.edu/​?q=node/​271. 17 Art. 1, Montevideo Convention on the Rights and Duties of States, signed at the International Conference of American States in Montevideo on 26 December 1933; entry into force, 26 December 1934. This provision is widely though by no means universally accepted as a statement of customary international law. For a critical review of the Convention criteria and their status under international law see, e.g., T. D. Grant, “Defining Statehood:  The Montevideo Convention and Its Discontents,” Columbian Journal of Transnational Law, Vol. 37 (1998–​99), 403–​57. 18 un General Assembly Resolution 2625 (xxv), the “Declaration on Principles of International Law concerning Friendly Relations and Co-​ operation among States,” adopted without a vote on 24 October 1970, notes that: “No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” 19 Wood, “Territorial Integrity.”

66 Casey-Maslen of the territory,” wording that was added in the corresponding prohibition on use of force in the 1948 Charter of the Organization of American States.20 A priori, the un Charter rule would preclude a drone strike on a foreign state’s territory. In 2010, at the first review conference of the 1998 Rome Statute of the International Criminal Court (icc Statute), the states parties to the icc Statute adopted an amendment on the definition of aggression. The amendment includes among the listed acts of aggression, reflecting un General Assembly Resolution 3314 (xxix), “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.”21 In its 1949 judgment in the Corfu Channel case, the icj affirmed that:  “Between independent States, respect for territorial sovereignty is an essential foundation of international relations.”22 It reiterated this principle in the later Nicaragua case, noting also that the United States (us) had made a reservation to the 1933 Montevideo Convention on the Rights and Duties of States wherein it declared its opposition to “interference with the freedom, the sovereignty or other internal affairs, or processes of the Governments of other nations.”23 Christian Tams describes how state practice has confirmed the broad scope of the un Charter prohibition.24 Among the examples he cites is the reaction to Israel’s 1985 raid on the Palestine Liberation Organization (plo) headquarters outside Tunis, a military operation that the un Security Council “condemn[ed] vigorously,” declaring it an “act of armed aggression … in flagrant violation” of the un Charter. The Council urged other states “to take measures to dissuade Israel from resorting to such acts against the sovereignty and territorial integrity of all States.”25 In so doing, they implicitly rejected Israel’s argument before the Council that a state “cannot claim the protection of sovereignty when it knowingly offers a piece of its territory for terrorist activity against other nations.”26 20 21 22 23 24 25 26

Art. 24, Charter of the Organization of American States, signed at Bogota, 30 April 1948; entry into force, 13 December 1951. Art. 8bis(2)(b), icc Statute. icj, The Corfu Channel Case, Judgment (Merits), 9 April 1949, p. 35. icj, Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Judgment (Merits), 27 June 1986, §204. C. J. Tams, “The Use of Force against Terrorists,” European Journal of International Law, Vol. 20, No. 2 (2009), 359–​97, at p. 367. un Security Council Resolution 573 (1985), §§1, 3. Fourteen Council members voted in favour of the resolution, while the United States abstained. un doc. S/​PV.2615, p. 87; see Tams, “The Use of Force against Terrorists,” p. 393.

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This is not necessarily, though, the end of the matter. As Tams suggests, how the un Security Council would respond were it to hear the same argument again today “remains a matter for speculation.” He notes, though, that “the underlying legal claim argument—​that states aiding and abetting terrorists abuse their sovereignty and must accept some form of counter-​action—​has become a standard formula of modern debates and would probably meet with approval of some and tacit agreement of many states.”27 As discussed below, the 2005 African Union Non-​Aggression Pact expressly qualifies the harbouring of terrorists, as well as any support to them, as an act of aggression.28 Moreover, since Tams’ article was published in 2009, states parties to the icc Statute have reiterated the language of un General Assembly Resolution 3314 (xxix) that an act of aggression is constituted by: “The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State.”29 Of course, as discussed below, if an extraterritorial drone strike against an individual deemed such action may be deemed to fall within the scope of the general prohibition on use of force, it may yet be justified as a measure of self-​defence. Use of Force against a State’s Political Independence In the words of Michael Wood, political independence is “the central element of statehood in the modern (post-​Westphalia) system of international law.”30 Indeed, independence is “the essence of sovereignty,” with the result that the two terms “are often used more or less interchangeably,” although independence is sometimes described as a basic criterion of statehood while sovereignty “is an incident or consequence thereof.”31 An egregious violation of the rule prohibiting use of force against a state’s political independence—​indeed a manifest act of aggression—​would be regime change by force of arms or the killing of the head of state by a foreign power. As well as potentially violating the prohibition on use of force against a state’s territorial integrity, extraterritorial use of force by a state against a non-​state actor without the consent of the territorial state could also 27 28 29 30 31

Tams, “The Use of Force against Terrorists,” p. 393. Art. 1(c)(xi), au Non-​Aggression and Common Defence Pact, adopted 1 January 2005; entry into force, 18 December 2009. Art. 8bis(2)(f), icc Statute. M. Wood, “Independence,” The Princeton Encyclopedia of Self-​Determination, at:  http://​ pesd.princeton.edu/​?q=node/​251. Ibid.

68 Casey-Maslen amount to unlawful use of force against a state’s political independence. For instance, the Abbottabad Commission formed by the Pakistani government in June 2011 to investigate the circumstances surrounding the killing of Osama bin Laden by us forces found that the operation in Abbottabad showed “contemptuous disregard of Pakistan’s sovereignty, independence and territorial integrity in the arrogant certainty of … unmatched military might.”32 In a Presidential Statement immediately following the raid, the President of the un Security Council reaffirmed that member states “must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law.”33 Later the same year, on 20 October, the Libyan head of state, Colonel Muammar Gaddafi was killed by rebel forces, seemingly in cold blood, following a drone strike on his convoy. A us Predator drone operated from Creech air force base in Nevada, allegedly under the control us air force personnel, hit the convoy of more than 70 vehicles close to Gaddafi’s stronghold of Sirte.34 Other manned aircraft continued the assault. North Atlantic Treaty Organization (nato) representatives claimed not to have known that Gaddafi was in the convoy, but asserted that: “The vehicles were carrying a substantial amount of weapons and ammunition posing a significant threat to the local civilian population. The convoy was engaged by a Nato aircraft to reduce the threat.”35 Foreign military intervention in Libya had been authorised by the un Security Council in its Resolution 1973 of March 2011, but this Chapter vii resolution had limited the scope of the authorisation to “all 32 33

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Reported in A. Hashim, “US Bin Laden raid was act of war, report says,” Aljazeera, 10 July 2013, at: http://​www.aljazeera.com/​news/​asia/​2013/​07/​2013798131293327.html. un, “Security Council Presidential Statement, Welcoming End of Osama bin Laden’s Ability to Perpetrate Terrorist Acts, Urges States to Remain Vigilant,” un doc. SC/​10239, 2 May 2011, at: http://​www.un.org/​press/​en/​2011/​sc10239.doc.htm. See, e.g., J.  Griffin and Associated Press, “US Drone Involved in Final Qadaffi Strike, as Obama Heralds Strike, as Obama Heralds Regime’s ‘End’,” Fox News, 20 October 2011, at:  http://​www.foxnews.com/​politics/​2011/​10/​20/​obama-​qaddafi-​death-​ends-​long-​and​ -painful-​chapter-​in-​libya.html. The report claimed that us forces conducted a total of 145 drone strikes during the Libyan conflict. “Nato strike led to Gaddafi capture,” The Independent, 21 October 2011, at:  http://​www​ .independent.co.uk/​news/​world/​africa/​nato-​strike-​led-​to-​gaddafi-​capture-​2374025​.html. The nato statement issued shortly after the attack further stated that: “At approximately 08.30 local time today, Nato aircraft struck two pro-​Gaddafi forces military vehicles which were part of a larger group manoeuvring in the vicinity of Sirte.” Cited in J.  Blitz and H. Carnegy, “Confusion over Nato role in Gaddafi death,” The Financial Times, 20 October 2011, at: http://​www.ft.com/​cms/​s/​0/​af362fc0-​fb2e-​11e0-​8756-​00144feab49a.html.

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necessary means to protect civilians and civilian-​protected areas under threat of attack.”36 It is not certain that nato’s actions that day were in compliance with the terms of the resolution. At the beginning of October 2015, Walid Muallem, Syria’s Minister of Foreign Affairs, affirmed that French and United Kingdom (uk) airstrikes against Islamic State on Syrian territory violated international law:  “What Britain and France are doing in the Syrian airspace flies in the face of international law and is a flagrant violation of the national sovereignty of the Syrian Republic.”37 Six months later, Russia termed the United States’ deployment of 150 soldiers to Rumeilan in north-​eastern Syria, without the consent of the Syrian government, a “violation of the country’s sovereignty.” Russia’s Deputy Foreign Minister, Sergey Ryabkov, told the tass news agency that “such actions are being carried out by the United States without the consent of the legitimate government of the Syrian Arab Republic.” He emphasised that Syria’s government had come to “a similar political assessment.”38 Use of Force Contrary to the Purposes of the United Nations The inclusion of the phrase “or in any other manner inconsistent with the Purposes of the United Nations” was intended to ensure that the scope of the prohibition on use of force is broad and that it extends beyond the two example rules discussed above. These purposes, as set out in Article 1(1) and (2) of the un Charter, include:  maintenance of international peace and security; settlement of international disputes by peaceful means; and development of friendly relations between states. This clearly requires that states eschew the use of force to resolve their differences and respect the customary law principle of non-​intervention. Thus, the 1970 Declaration on Friendly Relations among States included the following paragraph: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention … [is] in violation of international law.39 36 37

38

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un Security Council Resolution 1973, 17 March 2011, §4. “Damascus Accuses US-​Led Coalition of Breaking International Law, State Sovereignty,” Sputnik, 1 October 2015, at: http://​sputniknews.com/​middleeast/​20151001/​1027841733/​ syria​-​coalition-​airstrikes-​violation.html. rt, “ ‘Violation of sovereignty’: Moscow slams Obama decision to send 250 more US troops to Syria,” Infowars, 29 April 2016, at: http://​www.infowars.com/​violation-​of-​sovereignty​ -moscow-​slams-​obama-​decision-​to-​send-​250-​more-​us-​troops-​to-​syria/​. un General Assembly Resolution 2625 (xxv).

70 Casey-Maslen While not a formal enunciation of us government policy, the influential Operational Law Handbook issued by the us Army’s Judge Advocate General’s Legal Center & School in Charlottesville, Virginia, notes that: “Put simply, non-​ intervention stands for the proposition that States must respect each other’s sovereignty. … us policy statements have frequently affirmed the principle of non-​intervention.”40 Notwithstanding the broad contours of the prohibition on inter-​state use of force, in 2003 Nico Schrijver asked rhetorically who could provide “the ultimate interpretation of what exactly” the phrase “inconsistent with  the Purposes of the United Nations” means.41 Gray has questioned whether the rescue of nationals abroad could be an exceptional instance wherein use of force would not violate this catch-​all prohibition set out in Article 2(4).42 Schrijver himself stated that “it has convincingly been argued that the right of a State to rescue its nationals, if necessary by military coercion, is unaffected by the un Charter.”43 The classic example proffered in evidence of the existence of such a circumscribed exception is Israel’s rescue of nationals from a hijacked plane at Entebbe airport near Uganda’s capital, Kampala, in 1976. The crisis began on 27 June44 when four terrorists, two from the Popular Front for the Liberation of Palestine (pflp) and two from the Baader-​Meinhof gang, seized an Air France flight with 250 people on board, en route from Israel to Paris. The plane was diverted to Entebbe airport following which Uganda’s President, Idi Amin, arrived at the airport to perorate in support of the pflp. On 1 July, the hijackers released many hostages but kept captive the remaining 100 passengers, who were Israelis or Jews. On 4 July, Israeli commandos rescued 100 hostages held by the hijackers who were protected (and had been supplied with extra weapons) by Ugandan soldiers. With little prospect of a peaceful outcome, Israel sent three planes holding some 200 elite troops 2,500 miles to Entebbe. The troops stormed the airport building and during a 35-​minute battle killed 40 41

42 43 44

Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s Legal Center & School, us Army Charlottesville, Virginia, 2015. N. Schrijver, “The Use of Force under the UN Charter: Restrictions and Loopholes,” The acuns 2003 John W. Holmes Memorial Lecture, 2003, at: http://​acuns.org/​wp-​content/​ uploads/​2012/​09/​WebPageSchrijver_​UseofForce.pdf. Gray, “The Use of Force and the International Legal Order,” in M.  D. Evans (ed.), International Law, 4th Edn, oup, 2014, p. 622. Schrijver, “The Use of Force under the UN Charter: Restrictions and Loopholes.” Unless otherwise stated, the facts of the case are taken from bbc, “1976: Israelis rescue Entebbe hostages,” at:  http://​news.bbc.co.uk/​onthisday/​hi/​dates/​stories/​july/​4/​newsid​ _2786000/​2786967.stm.

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twenty Ugandan soldiers and all seven hijackers; three hostages also died. The only Israeli soldier to die in the raid was Yonatan Netanyahu, the brother of Israeli Prime Minister Benjamin Netanyahu.45 Before leaving, the Israeli forces also destroyed 11 MiG fighters, which amounted to one quarter of Uganda’s air force. A more recent example occurred on 4 July 2014 in Syria.46 us air strikes were targeting an Islamic State military base known as the “Osama bin Laden Camp” while some 25 us special operations soldiers parachuted from helicopters to rescue a number of hostages, including the journalist James Foley (who was killed by Islamic State afterwards), and engaged in a three-​hour battle with Islamic State fighters. us troops quickly concluded that the hostages were no longer at the site—​according to one source, they had been moved out a day before—​and abandoned the rescue attempt. At least five Islamic State fighters were killed and one us soldier was wounded. The operation, which “kicked over a hornet’s nest” according to one press report, took place in the then is stronghold of Raqqa.47 If these hostage rescue operations did not violate jus ad bellum—​and I  would argue that they did not48—​this is because their aims were strictly 45

46

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S. David, “Israel’s raid on Entebbe was almost a disaster,” The Daily Telegraph, 27 June 2015, at:  http://​www.telegraph.co.uk/​news/​worldnews/​middleeast/​israel/​11701064/​ Israels-​raid-​on-​Entebbe-​was-​almost-​a-​disaster.html. Unless otherwise stated, the facts of the case are taken from R. Sherlock and C. Malouf and J. Ensor, “The failed US mission to try and rescue James Foley from Islamic State terrorists,” The Daily Telegraph, 21 August 2014, at: http://​www.telegraph.co.uk/​news/​worldnews/​ middleeast/​syria/​11049814/​The-​failed-​US-​mission-​to-​try-​and-​rescue-​James-​Foley-​from​ -Islamic-​State-​terrorists.html. See P. Szoldra, “The Operation to Rescue American Hostages in Syria was Much Larger than we Realized,” Business Insider, 21 August 2014, at: http://​www.businessinsider.com/​ syria-​rescue-​mission-​2014-​8?IR=T, citing an ABC news report. Thus, I do not fully concord with Dinstein’s assertion that the correct interpretation of Article 2(4) is that any use of inter-​state force by (at least) un member states “for whatever reason” is unlawful, “unless explicitly allowed by the Charter.” Dinstein, War, Aggression and Self-​Defence, 6th Edn, p. 94, §258. One of the purposes of the United Nations is to “achieve international cooperation in … promoting and encouraging respect for human rights and for fundamental freedoms for all,” while the organisation is obliged to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Arts. 1(3) and 55(c), un Charter. The us Department of Defense argues that operations to rescue one’s nationals fall within a state’s inherent right of self-​defence. See us Department of Defense, Law of War Manual, June 2015 (Updated December 2016), §1.11.5.3. This is unpersuasive as a matter of international law.

72 Casey-Maslen limited to protecting the life of the hostages and a serious and direct threat to the lives of the hostages undoubtedly existed. Indeed, the operations appear to have respected the concomitant principles of necessity and proportionality that also constrain this limited exception to the general prohibition on the extraterritorial use of force without the consent of the territorial state. Under the relevant principle of necessity, it must be necessary to use force, in particular because mediation or negotiation is unlikely to be successful49 and the lives of the hostages are at risk of impending and serious harm.50 Under the principle of proportionality, the action taken must be limited to ensuring the rescue of the hostages and their safe escape along with the intervening forces. Purely punitive action would therefore be unlawful.51 Respect for the General Prohibition on Use of Force As Gray recalls, there is broad agreement among states on the core of international law governing the use of force.52 Unquestionably, notwithstanding doubts as to whether particular acts would infringe Article 2(4), the provision has undoubtedly “been breached many times.”53 Thomas Franck even claimed 49

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This does not imply, of course, that payment must be offered or other concessions that are potentially unlawful under domestic law need to be made in order to satisfy the principle of necessity. This standard of “impending” threat of harm should not be confused with the highly restricted notion of imminence under the law of law enforcement as discussed in the previous chapter, which means a split second or matter of seconds. In the Entebbe rescue it is asserted that certain Israeli troops were tasked with destroying the squadron of MiG fighter jets in order to prevent interceptions by the Ugandan Air Force. See, e.g., “Rescue at Entebbe: An Interview With the Chief Pilot,” Israeli Defense Forces, Blogpost, 5 July 2012, at:  https://​www.idfblog.com/​blog/​2012/​07/​05/​rescue-​at​ -entebbe-​an-​interview-​with-​the-​chief-​pilot/​. In this case, the destruction of the MiGs would appear not to have been a punitive act. C. Gray, “The Use of Force and the International Legal Order,” p. 619. M. Mancini, “The Effects of a State of War or Armed Conflict,” Ch. 46 in Weller, The Oxford Handbook of the Use of Force in International Law, 988–​1013, at p. 996. Writing in 2003, Anthony Arend cited the following cases as violations of the prohibitions on use of force: the Soviet action in Czechoslovakia (1948); the North Korean invasion of South Korea (1950); us actions in Guatemala (1954); the Israeli, French, and British invasion of Egypt (1956); the Soviet invasion of Hungary (1956); the us-​sponsored Bay of Pigs invasion (1961); the Indian invasion of Goa (1961); the us invasion of the Dominican Republic (1965); the Warsaw Pact invasion of Czechoslovakia (1968); the Arab action in the 1973 Six-​Day War; North Vietnamese actions against South Vietnam (1960–​75); the Vietnamese invasion of Kampuchea (1979); the Soviet invasion of Afghanistan (1979); the Tanzanian invasion of Uganda (1979); the Argentine invasion of the Falklands (1982);

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back in 1970 that the provision “mocks us from the grave.”54 In 2003, in the aftermath of the invasion of Iraq, Franck asserted that “Article 2(4) has died again, and, this time, perhaps for good.”55 But, as has been observed, persistent violation of a rule does not obviate its existence, just as the regular occurrence of murder in everyday life does not somehow render killing lawful under domestic law.56 In Schrijver’s words, “Obviously, these rules have been violated many times but they did not fade away.”57 An imperfect system of enforcing international law does not imply there is no system at all, much less that in use of force “anything goes.” There is also, as discussed in Chapter 8, potential individual accountability under international criminal law for certain international crimes, which is intended to prevent as well as to punish. Aggression is understood to be a very serious violation of the general prohibition on use of force—​the “supreme international crime,” in the words of the International Military Tribunal at Nuremburg.58 However, securing agreement on when aggression has occurred is always challenging. The icc has used as its basis for the actus reus of the crime the un General Assembly’s 1974 definition of aggression, which adapts the language of Article 2(4) of the un Charter. Thus, it proscribes “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of

54 55

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the us invasion of Grenada (1983); the us invasion of Panama (1989); the Iraqi attack on Kuwait (1990); and the nato/​u s actions against Yugoslavia in the Kosovo situation (1999). A. C. Arend, “International Law and the Preemptive Use of Military Force,” The Washington Quarterly, Vol. 26, No. 2 (Spring 2003), p. 100. T. M. Franck, “Who killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States,” American Journal of International Law, Vol. 64 (1970), 809–​37, p. 835. T. M. Franck, “What happens now? The United Nations after Iraq,” American Journal of International Law, Vol. 97 (2003), 607–​20, at p. 610. See, similarly, Arend, “International Law and the Preemptive Use of Military Force,” pp. 100–​01. Arend states that though he believes there is a “customary prohibition on the use of force for pure territorial annexation, as witnessed by the international community’s reaction to the Iraqi invasion of Kuwait in 1990, such minimal prohibition is a far way from the broad language of the charter prohibition contained in Article 2(4). For all practical purposes, the un Charter framework is dead.” Ibid., p. 101. See L.  Henkin, “The Reports of the Death of Article 2(4) Are Greatly Exaggerated,” American Journal of International Law, Vol. 64 (1971), 544–​48, at p. 547; Dinstein, War, Aggression and Self-​Defence, 6th Edn, pp. 100–​02, §§271–​78. Schrijver, “The Use of Force under the UN Charter: Restrictions and Loopholes.” International Military Tribunal, Trial of German Major War Criminals, Cmd 6964, hmso, London, 1946, p. 13.

74 Casey-Maslen the United Nations….”59 In December 2017, states parties to the ICC took the decision to allow the Court to try cases of aggression arising on or after 17 July 2018.60

Exceptions to the General Prohibition on Inter-​State Use of Force

Aside from the highly circumscribed rescue of foreign nationals, two exceptions to the general prohibition on the use of force by one state against another are the subject of general acceptance. One is the “inherent” right of states to forcible action in individual or collective self-​defence if an armed attack occurs, as reflected, at least partially, in the text of Article 51 of the un Charter.61 The second is forcible action taken in accordance with a un Security Council resolution, adopted by the Council acting under Chapter vii of the un Charter.62 59

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Art. 1, Definition of Aggression, annexed to unga (1974), a resolution adopted by consensus. The acts that would constitute aggression are set out in Art. 3. A requirement for the jurisdiction of the icc to be exercisable is that any crime of aggression must be a “manifest violation” of the un Charter by virtue of its “character, gravity and scale,” and any accused must be in a position “effectively to exercise control over or to direct the political or military action” of the state that has engaged in aggression. See, for a discussion of the role of the icc in determining that an act of aggression has occurred, D. Akande and A. Tzanakopoulos, “The Crime of Aggression in the ICC and State Responsibility,” Blog entry, Harvard International Law Journal, 11 April 2017, at:  http://​www.harvardilj​.org/​ 2017/​04/​the-​crime-​of-​aggression-​in-​the-​icc-​and-​state-​responsibility/​. According to Art. 15bis(1) of the Statute of the icc, the Court could only exercise jurisdiction over crimes of aggression that are committed one year after 30 states parties have formally accepted the amendments. As at the end of May 2018, 35 states parties had done so, with the 30th ratification—​Palestine—​occurring on 26 June 2016. ICC, “Assembly activates Court’s jurisdiction over crime of aggression”, Press release ICC-ASP20171214-PR1350 15 December 2017, at: https://www.icc-cpi.int/Pages/item.aspx?name=pr1350. See also D. Akande, “The International Criminal Court Gets Jurisdiction Over the Crime of Aggression”, 15 December 2017, at: https://www.ejiltalk.org/theinternational-criminal-court-gets-­ jurisdiction-over-the-crime-of-aggression/. For concern about earlier alleged delaying tactics by France and the United Kingdom, see, e.g., S. Maupas, “After 15 years, ICC States still debating crime of aggression,” JusticeInfo.net, 15 February 2017, at: http://​www.justiceinfo.net/​en/​frontpage/​after-​15-​years,-​icc-​states-​ still-​debating-​crime-​of-​aggression.html. See, e.g., A. D. Sofaer, “Terrorism, the Law, and the National Defense,” Military Law Review, Vol. 126 (1989), pp. 89–​123, at 94: “The United States rejects the notion that the u.n. Charter supersedes customary international law on the right of self-​defense. Article 51 characterizes that right as ‘inherent’ in order to prevent its limitation based on any provision in the Charter.” As the us Operational Law Handbook observes, “While States have made numerous claims, using a wide variety of legal bases to justify uses of force, it is generally agreed

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Forcible action taken by a foreign state within, but with the express consent of, the territorial state63 is not an exception to Article 2(4): it simply does not contravene the prohibitions in that provision.64 In contrast, extant international law does not recognise a right of humanitarian intervention.65 According to the Judge Advocate General’s Operational Law Handbook, “The emerging concept of humanitarian intervention, however, has placed pressure on the principle of non-​intervention and respect for State sovereignty in circumstances when a State is unable or unwilling to avert a humanitarian catastrophe, or is itself responsible for massive violations of human rights against its citizens.”66 The us Department of Defense has noted that, “Although the United Kingdom and certain other States have argued that intervention for humanitarian reasons may be a legal basis for the resort to force, the United States has not adopted this legal rationale.”67

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that there are only two exceptions to the Article 2(4) ban on the threat or use of force: (1) actions authorized by the un Security Council under Chapter vii of the un Charter, and (2)  actions that constitute a legitimate act of individual or collective self-​defense pursuant to Article 51 of the un Charter and/​or customary international law (cil).” Operational Law Handbook, Ch. 1, p. 2. Who, though, is entitled under international law to give such consent is controversial when the identity of the lawful head of state is contested is disputed. For some, it is the notional head even if he/​she wields no effective power (and may, “coincidentally,” be present on the territory of the state to which consent to use force is given). This could legitimise (under jus ad bellum, though not human rights law) the actions of Russia in the Crimean region of Ukraine and Saudi Arabia in Yemen. The better view is that the individual who best commands the executive, including the armed forces of the state, and effectively controls territory is entitled to give consent, even if he or she may serve in violation of domestic law provisions, including the Constitution. Though with respect to Yemen see also Dinstein, War, Aggression and Self-​Defence, 6th Edn, p. 128, §344. The reference to un Security Council Resolution 2216 of February 2015, however, is temporarily limited, as consent must be maintained to be valid and President Abdrabbuh Mansour Hadi fled Yemen for Riyadh the following month. Dinstein also sidesteps who could lawfully consent to Russia’s occupation of Crimea. us Department of Defense, Law of War Manual, June 2015 (Updated December 2016), §1.11.4.3. See also Operational Law Handbook, Ch. 1, p. 2, footnote 7. Of course, consent must be maintained: it can be withdrawn, as Schrijver observes. Schrijver, “The Ban on the Use of Force in the UN Charter,” p. 482. Gray, International Law and the Use of Force, pp. 33–​51; Schrijver, “The Ban on the Use of Force in the UN Charter,” pp. 475–​76. Operational Law Handbook, Ch. 1, p. 2. us Department of Defense, Law of War Manual, June 2015 (Updated December 2016), §1.11.4.4. See also Operational Law Handbook, Ch. 1, p.  2, footnote 7, citing Prime Minister’s Office, “Guidance:  Chemical weapon use by Syrian regime:  uk government

76 Casey-Maslen Moreover, as recalled below, while the un Security Council is required to determine whether there exists any threat to the peace, breach of the peace, or act of aggression, on a strict reading of the un Charter it is not legally obliged to do anything about it, over and above the issuing of “recommendations.”68 Thus, a serious challenge to the effectiveness of the existing order will come from Council inaction when confronted by a manifest threat to international peace and security resulting from flagrant violations of human rights. As Schrijver observes, “There is a tension, if not a clash among the key principles.”69 In Kosovo, for instance, Russia blocked the Council from authorising the use of force to protect ethnic Albanians against ethnic Serb forces in the southern province of the former Federal Republic of Yugoslavia. In 1999, however, nato member states decided to take military action anyway: thus, the military intervention is best seen as a violation of international law despite its humanitarian intent.70 Six years later, the doctrine of “responsibility to protect” was endorsed

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legal position,” 29 August 2013. It is noteworthy that in 2003, despite several statements by senior uk government politicians attesting to the brutality of Sadaam Hussein’s regime in Iraq, and notwithstanding the lack of an otherwise solid legal basis for the invasion of Iraq, the uk Attorney General, Lord Goldsmith, noted in written advice to the Prime Minister, Tony Blair, that he saw no grounds for self-​defence or humanitarian intervention providing the legal basis for military action. See The Report of the Iraq Inquiry, Report of a Committee of Privy Counsellors, Publication hc 264, 6 July 2016, s. 5: “Advice on the Legal Basis for Military Action, November 2002 to March 2003,” §168. Art. 39, un Charter, provides that: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Added emphasis. Schrijver, “The Ban on the Use of Force in the UN Charter.” A. Clapham, Brierly’s Law of Nations, 7th Edn, oup, 2012, pp. 455–​56. The us Department of Defense has written that: “… the United States did not adopt this theory [humanitarian intervention] as a legal rationale for nato’s military action to address the humanitarian catastrophe in Kosovo in 1999, but rather expressed the view that such action was justified on the basis of a number of factors.” us Department of Defense, Law of War Manual, June 2015 (Updated December 2016), §1.11.4.4. Nonetheless, the Manual cites evidence by David Andrews, Legal Adviser at the us Department of State, which refers to: “The serious violation of international humanitarian law and human rights obligations by forces under the control of the Federal Republic of Yugoslavia.” This is humanitarian intervention by the back door. The other factors Clapham cites (“The resolutions of the Security Council, which have determined that the actions of the Federal Republic of Yugoslavia constitute a threat to peace and security in the region and, pursuant to Chapter vii of the Charter, demanded a halt to such actions”) do not amount to adequate international legal justification for nato’s forcible actions.

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by the un General Assembly at the World Summit,71 but the doctrine fails to address head-​on the situation where the Council is unable to act effectively where any of the five permanent members is prepared to veto a resolution that authorises forcible action. The Right of Self-​Defence Famously, the un Charter preserves a state’s “inherent” right of self-​defence in the event of an armed attack. By inherent is meant a pre-​existing right under customary law that continues to exist side by side with Article 51 of the Charter, as the provision makes explicit: Nothing in the present Charter shall impair the inherent right of individual or collective self-​defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. As Schrijver recalls, the primacy of the Charter over other international treaty obligations72 is here restrained by the words “Nothing in the Charter shall impair the inherent right….”73 The existence of Article 51 remedies one of the lacunae in the Kellogg-​Briand Pact, which failed to address the right of self-​defence, though it is critical to remember that the ad bellum principles of necessity (for the use of force) and of proportionality (of the force actually used) substantially limit which acts in self-​defence will be lawful. By necessity is meant that other measures short of the use of force (diplomacy, sanctions, and international legal avenues) have been unsuccessful in resolving the issue or would be doomed to prove fruitless. Proportionality concerns the possibility that the force may be of sufficient intensity to repel the threat (it is not restricted to “tit-​for-​tat” exchange of fire), but cannot lawfully rise to the level of regime change, a measure that would not be acceptable in self-​defence and which would itself violate the general prohibition on the use of force.74 71 72

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un General Assembly Resolution 60/​1: “2005 World Summit Outcome,” 16 September 2005, §§138–​39. According to Art. 103 of the un Charter, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Schrijver, “The Ban on the Use of Force in the UN Charter.” Author’s added emphasis. Jus ad bellum rules do not apply to forcible action by the territorial state “in self-​defence” in an armed conflict of a strictly non-​international character, wherein the state (sometimes

78 Casey-Maslen An issue particularly relevant to the use of armed drones, however, is the extent to which the right to self-​defence may be exercised not against another state (which is uncontroversial), but against an armed attack by a non-​state actor. Contemporary doctrine, as reflected in the icj’s judgment in the Nicaragua case, would seem to limit forcible action in self-​defence on the territory of another state to situations where the attack by a non-​state actor could be attributed to the state on the basis that it exercised “effective control” over the non-​state actor.75 The icj maintained this position in its 2004 Advisory Opinion in the Palestinian Wall case, asserting that Article 51 of the Charter recognises the existence of an inherent right of self-​defence only in the case of armed attack by one state against another.76 But as Judge Rosalyn Higgins observes in a separate opinion appended to the Court’s judgment in that Wall Advisory Opinion, there is, with respect, nothing in the text of Article 51 that … stipulates that self-​defence is available only when an armed attack is made by a state. That qualification is rather a result of the Court so determining in Military and Paramilitary Activities in and against Nicaragua.77 Tams opines that in 2001 it was generally agreed that the United States could resort to measures of self-​defence in response to the 9/​11 attacks.78 The attacks were planned and launched by al-​Qaeda, possibly even without the knowledge of the ruling Taliban regime in Afghanistan. The position of the United States is that the inherent right of self-​defence recognised in Article 51 of the Charter applies in response to any “armed attack” not just attacks originating with States.79

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with the support of others) engages in regular hostilities against an organized armed group on its territory. They also do not apply to a situation when a state attacks its own civilian population in circumstances where it is unwilling or unable to defend itself. Acts committed within the context of a widespread or systematic attack directed against a civilian population may amount to crimes against humanity. (See Art. 7, Statute of the icc.) These equate to gross and systematic violations of human rights rather than to any violation of jus ad bellum. icj, Nicaragua case, op. cit., §§109, 115, and 195; see Tams, “The Use of Force against Terrorists,” p. 368. icj, Wall Advisory Opinion, §139. icj, Wall Advisory Opinion, Separate Opinion of Judge Higgins, §33. Tams, “The Use of Force against Terrorists,” p. 378. us Department of Defense, Law of War Manual, June 2015 (Updated December 2016), §1.11.5.4.

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Whether or not the Taliban leadership did know in advance of the attacks,80 then a legal point of reference is the 2005 African Union Non-​Aggression and Common Defence Pact, which expressly qualifies the harbouring of terrorists, as well as any support to them, as an act of aggression.81 Indeed, before initiating Operation Enduring Freedom in October 2001, the United States called on the Taliban to hand over Osama Bin Laden or face military action.82 At the same time, however, it is clear that states’ use of “anti-​terrorist force” has occurred in very different situations, ranging from “on the spot” reactions to cross-​ border violence to long-​term campaigns with broadly defined objectives (notably Operation Enduring Freedom). In addition to repelling attacks, their use of force has typically served non-​defensive purposes, notably as a means of retaliation (e.g., in the United States’ raid on Baghdad) or as a means of enforcing international rules against terrorism (e.g., Russia’s attacks on Georgian territory). Given this diversity, it is interesting to note that, almost inevitably, states seeking to justify their conduct have invoked the right of self-​defence. In contrast, they have not re-​opened debates about the permissibility of armed reprisals, even where their actions seemed to follow the logic of retaliation.83 Tams concludes that state practice in countering non-​state actors supports Christine Gray’s more general observation that references to self-​defence today may almost amount to the “ritual incantation of a magic formula.”84 Nonetheless, it appears that international law has been changing to admit that, in certain circumstances, the right to self-​defence will also be available to a state where an armed attack originates purely from a non-​state actor. In its 80

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According to the report of the us 9/​11 Commission, “As final preparations were under way during the summer of 2001, dissent emerged among al Qaeda leaders in Afghanistan over whether to proceed. … Although facing opposition from many of his senior lieutenants, Bin Ladin effectively overruled their objections, and the attacks went forward.” The 9/​11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States, Executive Summary, at: http://​www.9-​11commission.gov/​report/​ 911Report_​Exec.htm. Art. 1(c)(xi), au Non-​Aggression and Common Defence Pact, adopted 1 January 2005; entry into force, 18 December 2009. See, e.g., bbc, “The US refuses to negotiate with the Taliban,” at: http://​www.bbc.co.uk/​ history/​events/​the_​us_​refuses_​to_​negotiate_​with_​the_​taliban. Tams, “The Use of Force against Terrorists,” p. 382. Ibid., citing C. Gray, International Law and the Use of Force, p. 119.

80 Casey-Maslen 2005 judgment in the contentious case between Uganda and the Democratic Republic of the Congo (drc), the icj rejected Uganda’s reliance on self-​ defence as a response to armed attacks by a rebel movement operating from within the drc on the basis that they could not be attributed to the drc. But in finding that the “legal and factual circumstances for the exercise of a right of self-​defence by Uganda against the drc were not present” the Court went on to state that it had “no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-​defence against large-​scale attacks by irregular forces.”85 In his separate opinion in the case, Judge Bruno Simma accepted that the icj’s restrictive reading of Article 51 in the Wall Advisory Opinion “might well have reflected the state, or rather the prevailing interpretation, of the international law on self-​defence for a long time.”86 But in light of “more recent developments not only in State practice but also with regard to accompanying opinio juris, it ought urgently to be reconsidered, also by the Court. As is well known, these developments were triggered by the terrorist attacks of September 11 [2001]….”87 He asserted that un Security Council Resolutions 1368 (2001) and 1373 (2001) “cannot but be read as affirmations of the view that large-​scale attacks by non-​State actors can qualify as ‘armed attacks’ within the meaning of Article 51.”88 Thus, the preamble to Resolution 1368, adopted the day after the 9/​11 attacks, recognised “the inherent right of individual or collective self-​ defence in accordance with the Charter”—​a right reaffirmed in the preamble to Resolution 1373 adopted eight days later. Simma endorsed the view expressed by Judge Kooijmans in a separate opinion whereby the conduct of the attacked state in the face of an armed attack by a non-​state actor must be put to the same test as that applied in the case of a claim of self-​ defence against a State, namely, does the scale of the armed action by the irregulars amount to an armed attack and, if so, is the defensive action by the attacked State in conformity with the requirements of necessity and proportionality?89 85 86 87

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Case concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), Judgment, 19 December 2005, §147. Ibid., Separate Opinion of Judge Simma, §11. Similarly, Tams argues that: “Given the Court’s new uncertainty and the amount of new state practice, the better view indeed is that the traditional rules have been modified.” Tams, “The Use of Force against Terrorists,” p. 384. Separate Opinion of Judge Simma, §11. Ibid., §13, citing with approval Separate Opinion of Judge Kooijmans, §31.

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Thus, the bar to forcible extraterritorial action that may be taken in accordance with international law in the event of an armed attack by a non-​state actor is high, as it should be. It is fully consistent with the un Charter, in particular Article 51, as it must be. Clarifying the law helps to ensure respect for it. Leaving jus ad bellum in a “fog”90 means that states may be able to exploit uncertainty. Un Security Council-​Authorised Military Action With a view to restraining war as “vigilantism,” in 1945 the un Charter set up and mandated the un Security Council with primary responsibility for maintaining international peace and security. Chapter vii of the Charter (Articles 39 to 51)  explicitly addresses “action with respect to threats to the peace, breaches of the peace, and acts of aggression.” Under Article 39, the Council is obliged to determine—​thus, it is not a voluntary undertaking—​“the existence of any threat to the peace, breach of the peace, or act of aggression.” Article 41 entitles the Council to authorise measures short of war, such as sanctions and arms embargoes, and the interruption of diplomatic relations to remediate the situation. Should, however, the Council consider that such measures “would be inadequate or have proved to be inadequate” Article 42 permits “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” The power to authorise the use of force under Chapter vii is the teeth that were so woefully lacking in the League of Nations. In November 2015, the Security Council adopted Resolution 2249 in which it unequivocally condemned “in the strongest terms” the terrorist attacks perpetrated by Islamic State and which took place on 26 June 2015 (in Sousse Tunisia), on 10 October 2015 in Ankara, on 31 October 2015 over the Sinai, on 12 November 2015 in Beirut, and on 13 November 2015 in Paris.91 The resolution called on un member states with the capacity to do so “to take all necessary measures, in compliance with international law, in particular with the United Nations Charter … on the territory under the control of [Islamic State] …, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically” by Islamic State.92 Despite suggestions to the contrary, the resolution, which omits any reference to the Council acting under Chapter vii of the un Charter, did not authorise military action in Syria without the consent of the Syrian government. 90 91 92

M. J. Glennon, “The Fog of Law: Self-​Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter,” Harvard Journal of Law & Public Policy, Spring 2002. un Security Council Resolution 2249, 20 November 2015, §1. Ibid., §5.

82 Casey-Maslen Indeed, the explicit reference to the need to comply with the un Charter served to iterate that the general prohibitions on the use of force set out in Article 2(4) remained applicable. This was implicitly acknowledged by the then uk Prime Minister, David Cameron, who told the House of Commons two days before the passing of Resolution 2249 that: “It is always preferable in these circumstances to have the full backing of the United Nations Security Council but I have to say what matters most of all is that any action we would take would … be legal.”93 This could only be on the basis of an asserted right of self-​defence.

Jus ad Bellum Rules and the Use of Armed Drones

In 2010, a former us Central Intelligence Agency (cia) lawyer asserted that “killer drones” are “the future of warfare.” A year later, a doctrine note by the uk Ministry of Defence asserted that it was “essential that, before unmanned systems become ubiquitous (if it is not already too late) that we consider this issue and ensure that, by removing some of the horror, or at least keeping it at a distance, that we do not risk losing our controlling humanity and make war more likely. For example, the recent extensive use of unmanned aircraft over Pakistan and Yemen may already herald a new era.”94 On 21 August 2015, for the first time, the United Kingdom launched a drone strike outside an area of hostilities in which it was involved as a party to an armed conflict. As discussed in the previous chapter, British-​born Islamic State fighter Reyaad Khan was killed in a strike by an raf-​piloted drone in Raqqah. This action was justified on the grounds of national self-​defence.95 Prime Minister Cameron, who acknowledged that the strike amounted to a “new departure,” told Parliament on 7 September 2015 that Mr Khan was 93 94

95

Hansard, Vol. 602, 18 November 2015, Col. 669, at:  https://​hansard.parliament.uk/​ Commons/​2015-​11-​18/​debates/​15111852000011/​PrimeMinister. uk Ministry of Defence, The UK Approach to Unmanned Aircraft Systems, Joint Doctrine Note 2/​11, Development, Concepts and Doctrine Centre, Shrivenham, 2011, p. 5–​9, §517, at:  https://​www.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​33711/​ 20110505JDN_​211 _​UAS_​v2U.pdf. M. Wilkinson, P. Dominiczak, and S. Swinford, “David Cameron: Britain mounted fatal air strike in Syria,” The Daily Telegraph, 7 September 2015, at: http://​www.telegraph.co.uk/​ news/​uknews/​terrorism-​in-​the-​uk/​11848600/​David-​Cameron-​Britain-​mounted-​fatal-​ air-​strike-​in-​Syria-​live.html. In the words of the Prime Minister: “I want to be clear that the strike was not part of coalition military action against isil [Islamic State] in Syria; it was a targeted strike to deal with a clear, credible and specific terrorist threat to our country at home.”

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killed in an act of self-​defence because he was involved in actively recruiting Islamic State “sympathisers” and was seeking to orchestrate “specific and barbaric attacks against the west, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high-​profile public commemorations, including those taking place this summer.”96 The recruitment of “sympathisers” clearly does not give rise to a right of self-​defence under international law. The question is whether the planning of terrorist attacks could be sufficient to justify the forcible action in Syria justified by the United Kingdom on the basis of self-​defence. Subsequently, it was alleged that Mr Khan’s plans included an attack on an Armed Forces Day parade in London in June, which had been foiled by the security services.97 He was reportedly killed after a phone call to British friends was tracked by the uk intelligence services revealing his location.98 His name and location were known to the uk authorities and presumably his communications were monitored. At the same time, Mr Khan was reportedly killed on the basis that the threat posed to life in the uk was “imminent.” Following the killing, a non-​ governmental organisation (ngo), Rights Watch (uk), warned that it would initiate proceedings against the uk government for failing to publish the legal advice from the Attorney General that was used to justify the drone strike.99 The issue was taken up first by Green Party mp, Caroline Lucas, and then by the uk parliamentary joint select committee on human rights.100 The uk government declined to provide detailed information to the select committee justifying how, under international law, its actions could be considered lawful, 96

Hansard, 7 September 2015, Cols. 25–​26, at: http://​www.publications.parliament.uk/​pa/​ cm201516/​cmhansrd/​cm150907/​debtext/​150907-​0001.htm. 97 J. Blanchard, “Islamic State jihadi Reyaad Khan ‘was plotting to attack the Queen on VJ Day’,” Wales Online, 8 Sep 2015, at:  http://​www.walesonline.co.uk/​news/​wales-​news/​ islamic-​state-​jihadi-​reyaad-​khan-​10009326. 98 R. Mosalski, “Khan was ‘killed after phone call to British friends was tracked’,” Wales Online, 20 September 2015, at:  http://​www.walesonline.co.uk/​news/​wales-​news/​ cardiff-​jihadi-​reyaad-​khan-​killed-​10044761. 99 Rights Watch (uk), “Rights Watch (uk) Commences Proceedings Against Government for Failing to Publish Legal Advice Justifying Drone Strikes in Syria,” 8 September 2015, at: http://​rwuk.org/​uk-​ngo-​rights-​watch-​uk-​commences-​proceedings-​against-​government​ -​for-​failing-​to-​publish-​legal-​advice-​justifying-​drone-​strikes-​in-​syria/​. See also O. Bowcott, “Human rights group brings legal action against government over drone strike,” The Guardian, 8 September 2015, at:  http://​www.theguardian.com/​politics/​2015/​sep/​08/​ human-​rights-​group-​legal-​action-​uk-​government-​syria-​isis-​drone-​strike. 100 Parliamentary Joint Committee on Human Rights, “The Government’s policy on the use of drones for targeted killing,” 9 May 2016, at: http://​www.publications.parliament.uk/​ pa/​jt201516/​jtselect/​jtrights/​574/​57402.htm.

84 Casey-Maslen but it did send an important memorandum to the committee that included the following assertions: Individual terrorist attacks, or an ongoing series of terrorist attacks, may rise to the level of an “armed attack” for these purposes if they are of sufficient gravity. This is demonstrated by un Security Council resolutions 1368 (2001) and 1373 (2001) following the attacks on New  York and Washington of 11 September 2001. Whether the gravity of an attack is sufficient to give rise to the exercise of the inherent right of self-​defence must be determined by reference to all of the facts in any given case. The scale and effects of isil’s campaign are judged to reach the level of an armed attack against the uk that justifies the use of force to counter it in accordance with Article 51.101 As the discussion above suggests, this may be considered an accurate restatement of the law. What is not persuasive is the application of the law to the facts in the final sentence. Islamic State had not conducted an armed attack against the United Kingdom. Implicitly accepting that this is the case, the Memorandum then goes on to offer two alternative justifications. First, it refers to an “imminent” attack as the basis for the bombing in Syria: It has been the long-​held position of successive Governments that force may be used in self-​defence, not only where an armed attack is underway, but also where an armed attack is imminent. Where the uk determines that it faces an imminent armed attack from isil, it is entitled to use necessary and proportionate force to repel or forestall that attack in exercise of the inherent right of individual self-​defence. After claiming that in fact an armed attack had not occurred but one was imminent, it then suggested that the justification was actually the uk’s exercise of the right to collective self-​defence by Iraq: “The us and other members of the Coalition (including the uk) have therefore asserted the right to take action against isil in Syria on the basis of the collective self-​defence of Iraq. The uk asserted this right in its letter to the un Security Council of 25 November 2014.”102 In that letter, the uk referred to the international efforts to protect Iraq against isis the purpose of which 101 Government Memorandum to the jchr, at: http://​www.parliament.uk/​documents/​joint-​ committees/​human-​rights/​Government_​Memorandum_​on_​Drones.pdf. 102 Ibid.

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is to end the continuing attack on Iraq, protect Iraqi citizens and enable Iraqi forces to regain control of the borders by striking isil sites and military strongholds, as necessary and proportionate measures.103 Given that Islamic State actually began its operations in Iraq, having taken control of Fallujah in early January 2014 (under the earlier name of the Islamic State of Iraq and the Levant—​isil), this is simply not coherent. Indeed, it could be argued on the basis of the uk position that since Islamic State began in Iraq and moved to Syria it is Syria that would be entitled to use force against Islamic State positions in Iraq in self-​defence. In sum, though, there has been no armed attack on the United Kingdom.104 No evidence has been offered publicly, either, of imminent threats against the United Kingdom that would rise to the level of an armed attack. In its conclusions, the Parliamentary Joint Committee on Human Rights surprisingly accepted, “as does the un Security Council,” that “the attacks on the uk already mounted” by Islamic State “satisfy the requirement that there must be an armed attack on the uk which entitles it to invoke the right to self-​defence.”105 The Committee, though, cited Resolution 2249 as its evidence for this unsustainable conclusion. As we have seen, this resolution simply does not constitute such evidence. In February 2017, The Sunday Times reported the views of a British intelligence official opposed to the strike who said that while Khan had gone on to become a poster boy for Islamic State and a prolific Twitter user who acted as a propagandist, there was no evidence that he posed an imminent threat: The imminence related to inspiring attacks around the world but there was not a specific attack to pin them down. … Many intelligence officials were opposed to the extrajudicial killing, not because we’re opposed to defeating Isis but because we weren’t convinced that drone strike reached the legal threshold.106 103 See Identical letters dated 25 November 2014 from the Permanent Representative of the uk addressed to the un Secretary-​General and the President of Security Council, un doc. S/​2014/​851, 26 November 2014, available at: http://​www.securitycouncilreport.org/​atf/​ cf/​%7B65BFCF9B-​6D27-​4E9C-​8CD3-​CF6E4FF96FF9%7D/​s_​2014_​851.pdf. 104 In contrast, the right of self-​defence might have been available to France after the attacks on 13 November 2015 if the various elements of causality could be clearly demonstrated. 105 Parliamentary Joint Committee on Human Rights, “The Government’s policy on the use of drones for targeted killing,” May 2016, §3.29. 106 R. Kerbaj and T.  Shipman, “Spies told to come clean on Cameron’s order to kill,” The Sunday Times, 19 February 2017, at: https://​www.thetimes.co.uk/​article/​4ae27454-​f62b​ -11e6-​82b6-​6615ea199c33.

86 Casey-Maslen The newspaper reported that another intelligence official familiar with the “discussion and debates” in the lead-​up to the attack who said that “several officials from MI5 and gchq had questioned the imminence of the threat posed by Khan.”107 In April 2017, the Intelligence and Security Committee of Parliament (isc) published its Report into uk Lethal Drone Strikes in Syria. The isc Chair, former Attorney-​General Dominic Grieve, stated the view of the Committee that: We are in no doubt that Reyaad Khan posed a very serious threat to the uk. There is nevertheless a question as to how the threat is quantified and in this instance whether the actions of Khan and his associates amounted to an “armed attack” against the uk or Iraq….108

Jus ad Bellum Rules and the Use of Fully Autonomous Weapons Systems

While the application of the rules to the use of armed drones is of direct and practical import, their corresponding application to the use of fully autonomous weapons systems is, to date, largely one of theoretical doctrine. We have not yet seen such systems used between states, although it is surely only a matter of time before this occurs. In its future assessment of autonomous us military capacity, the us Department of Defense noted that in the far term such weapons platforms could operate autonomously or alongside manned aircraft in support of ground forces.109 By 2025, the Department of Defense expects technological advances in artificial intelligence to enable unmanned systems to “make and execute complex decisions,” which would include targeting and firing, but only if “legal and policy decisions authorize these advances.”110 In a report published by the Center for a New American Security in 2014, Paul Scharre asserts that the ability to field “fully autonomous, cooperative 107 108

109 110

Ibid. isc Press Release, 26 April 2017, p.  2, at:  https://​b1cba9b3-​a-​5e6631fd-​s-​sites.googlegroups.com/​a/​independent.gov.uk/​isc/​files/​20170426_​press_​release_​on_​UK_​Lethal​ _Drone_​Strikes_​in_​Syria.pdf. us Army, U.S. Army Unmanned Aircraft Systems, Roadmap 2010–​2035, Alabama, 2010, §8.2.1. Ibid., §8.3, p. 65.

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vehicles and munitions” may be achieved sooner than some have expected.111 He estimates that global spending by the military on autonomous weapon systems would have reached us$7.5 billion a year by 2018.112 But he cautions that autonomous systems “will not lead to bloodless wars of robots fighting robots, with humans sitting safely on the sidelines. Death and violence will remain an inescapable component of war, if for no other reason than that it will require real human costs for wars to come to an end.”113 A key concern from the perspective of jus ad bellum is that the fact that fully autonomous weapon systems, such as unmanned aircraft, may put frontline personnel at less direct risk than in manned operations might cause states to resort more easily to the use of force.114 Marco Sassòli, however, counters by arguing that many weapons and technologies across history have made it easier to make war and to use force beyond a state’s borders: “it was true for new weapons in the Middle Ages, and it was true when the first artillery, airplanes, and modern navies were developed. Compared with person-​to-​person fighting, all of these technologies made it easier to wage war.”115 Another concern is that it could prove well-​nigh impossible to determine precisely who is responsible for the use of force. The technology will allow warfare to be conducted by stealth and with a very high degree of anonymity in the same way as it is being wrought in cyberspace. Again, Sassòli is not persuaded. While he accepts that “the (possibility of) secrecy around the use of automated weapons and the resulting difficulties of attribution” may make state responsibility more difficult, he points out that “the fact that computer systems register everything makes an enquiry regarding criminal accountability easier, at least when undertaken by the party using the automated weapon.”116 111

P. Scharre, Robotics on the Battlefield Part ii:  The Coming Swarm, Center for a New American Security, Washington dc, October 2014, p. 47, at: http://​www.cnas.org/​sites/​ default/​files/​publications-​pdf/​CNAS_​TheComingSwarm_​Scharre.pdf. 112 Ibid., p. 18. 113 Ibid., p. 48. 114 N. Weizmann, “Autonomous Weapon Systems under International Law,” Academy Briefing No. 8, Geneva Academy of International Humanitarian Law and Human Rights, Geneva, November 2014, p. 9, citing Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, un doc. A/​HRC/​23/​47, 9 April 2013, §58. 1 15 M. Sassòli, “Autonomous Weapons—​Potential advantages for the respect of international humanitarian law,” phap, Geneva, 2 March 2013, p. 1, at: https://​phap.org/​system/​files/​ article_​pdf/​Sassoli-​AutonomousWeapons.pdf. 1 16 Ibid.

88 Casey-Maslen While advocating far greater expenditure by the us military on autonomous weapons systems, Scharre acknowledges that increased autonomy in the use of force raises the dangerous specter of “flash wars” initiated by autonomous systems interacting on the battlefield in ways that may be unpredictable. While militaries will need to embrace automation for some purposes, humans must also be kept in the loop on the most critical decisions, particularly those that involve the use of force or movements and actions that could potentially be escalatory in a crisis.117 In 2015, more than 1,000 artificial intelligence (ai) experts and researchers signed an open letter, referred to already in Chapter 1, warning of a “military artificial intelligence arms race” and calling for a ban on “offensive autonomous weapons.”118 The letter, presented at the International Joint Conference on Artificial Intelligence in Buenos Aires, was signed by Elon Musk of Tesla, Apple co-​founder Steve Wozniak, Google DeepMind chief executive Demis Hassabis, and Professor Stephen Hawking, along with 1,000 ai and robotics researchers. The letter states that: ai technology has reached a point where the deployment of [autonomous weapons] is—​practically if not legally—​feasible within years, not decades, and the stakes are high: autonomous weapons have been described as the third revolution in warfare, after gunpowder and nuclear arms.119 But this stark warning notwithstanding, as Ronald Arkin observed in 2010: “The trend is clear:  warfare will continue and autonomous robots will ultimately be deployed in its conduct.”120 117 Scharre, Robotics on the Battlefield Part ii: The Coming Swarm, p. 7. 118 At: https://​futureoflife.org/​open-​letter-​autonomous-​weapons/​. 119 Ibid. See S. Gibbs, “Musk, Wozniak and Hawking urge ban on warfare AI and autonomous weapons,” Guardian, 27 July 2015, at:  https://​www.theguardian.com/​technology/​2015/​ jul/​27/​musk-​wozniak-​hawking-​ban-​ai-​autonomous-​weapons. 120 R. C. Arkin, “The Case for Ethical Autonomy in Unmanned Systems,” Georgia Institute of Technology, at:  https://​www.cc.gatech.edu/​ai/​robot-​lab/​online-​publications/​Arkin​ _ethical_​autonomous_​systems_​final.pdf.

Chapter 4

Armed Drones and the Law of Armed Conflict Nathalie Weizmann Introduction Developments in weapon technology have long been enhancing targeting precision and accuracy, while in parallel significantly diminishing the role of humans on the battlefield and “depersonalizing”1 armed conflict. While the first uses of an armed unmanned aerial vehicle during armed conflict appears to date back to the mid-​1800s when hot-​air balloons were mounted with bombs,2 as described in the Introduction to this book the first direct attack by aerial drone took place in 2001. Unmanned aircraft are held to entail lower acquisition and maintenance costs;3 to have greater endurance and persistence; and to initiate force faster after target identification than their manned equivalents, all at significant distances from, and vastly reduced risk to, the operator.4 Despite these perceived advantages, there has also been concern about the compliance of armed drones with international law,5 including under the law of armed conflict (loac).6 This chapter explains when an armed conflict exists, 1 M. Wagner, “Unmanned Aerial Vehicles” in R.  Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press (oup), §23, available at: http://​papers.ssrn​ .com/​sol3/​papers.cfm?abstract_​id=2584652. 2 See I.  Henderson and B.  Cavanagh, “Unmanned Aerial Vehicles:  Do They Pose Legal Challenges?,” in H. Nasu and R. McLaughlin (eds.), New Technologies and the Law of Armed Conflict, tmc Asser, 193–​212 at p.  195, available at:  http://​papers.ssrn.com/​sol3/​papers​ .cfm?abstract_​id=2283528. 3 Wagner, “Unmanned Aerial Vehicles,” §5. 4 “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” un doc. A/​68/​382, 13 September 2013, §12; “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” un doc. A/​68/​389, 18 September 2013, §25; Wagner, “Unmanned Aerial Vehicles,” §11; W. Boothby, Conflict Law, The Influence of New Weapons Technology, Human Rights and Emerging Actors, tmc Asser Press, The Hague, 2014, pp. 98–​99. 5 See, e.g., K. J. Heller, “One Hell of a Killing Machine: Signature Strikes and International Law,” Journal of International Criminal Justice, Vol. 11, No. 1 (2012), p. 91. 6 loac is often referred to as international humanitarian law (ihl) or, particularly in the United States (us), as the law of war.

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_006

90 Weizmann describes the fundamental loac rules governing the conduct of hostilities in an armed conflict, and assesses the ability of armed drones to comply with those rules. As discussed in Chapter 2, the rules governing the use of force for law enforcement purposes are considerably more protective than loac rules on the conduct of hostilities. As reviewed in the previous chapter, jus ad bellum is the law governing the resort to force by one state against another. The ad bellum legal regime does not displace loac rules, which apply independently and irrespective of whether the resort to force is lawful under jus ad bellum.

The Use of Force under the Law of Armed Conflict

loac regulates attacks on individuals and objects (including specific areas of land) during an armed conflict. The underlying aim of loac is to limit the effects of armed conflict by striking a balance between the “necessities of war” on the one hand and the “requirements of humanity” on the other.7 As a result, it protects persons who are not, or are no longer, participating in hostilities, and imposes limits on means and methods (in other words, weapons and tactics) of warfare. loac governing the conduct of hostilities applies only in situations of armed conflict and imposes obligations on all parties to a conflict, whether they are a state or an organised non-​state armed group. The rules governing the conduct of hostilities are found in the 1899 and 1907 Hague Conventions and their annexed Regulations, the 1977 Additional Protocols to the Geneva Conventions, as well as a number of additional treaties that cover a range of topics including weapons, children, cultural property, and the environment.8 loac treaty rules that apply to the conduct of hostilities in international armed conflict (iac) are more extensive than those that apply in non-​ international armed conflict (niac), though most iac treaty provisions are considered to reflect customary loac applicable to all armed conflicts and to each party to those conflicts, regardless of treaty adherence.9 7 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November-​11 December 1868, available at: https://​ www.icrc.org/​ihl/​INTRO/​130?OpenDocument. 8 For a full list of loac instruments, see:  https://​www.icrc.org/​eng/​resources/​ihl-​databases/​ index.jsp. 9 See Customary International Humanitarian Law, Volume I: Rules (hereafter, icrc Customary Law Study) Cambridge University Press (cup), Cambridge, 2005, available at: https://​www​ .icrc.org/​customary-​ihl/​eng/​docs/​home.

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What is Armed Conflict? International Armed Conflict An iac exists when two or more states resort to armed force against each other. According to Article 2 common to the 1949 Geneva Conventions, this can happen in cases of “declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”10 Jean Pictet’s Commentary to the 1949 Geneva Convention i states that “any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.”11 The International Committee of the Red Cross (icrc) repeats this position in its 2016 commentary on Geneva Convention i:  “For international armed conflict, there is no requirement that the use of armed force between the Parties reach a certain level of intensity before it can be said that an armed conflict exists.”12 The International Criminal Tribunal for the former Yugoslavia (icty) has likewise concluded that such an armed conflict “exists whenever there is a resort to armed force between States.”13 Nevertheless, some debate persists with respect to this low threshold, with a number of authorities arguing that a certain threshold of force must be met before it can qualify as an iac.14 10 11

12

13 14

See Art. 2 common to the 1949 Geneva Conventions. See also icrc Commentary on Geneva Convention i, 2016. J. Pictet (ed.), Commentary to the First Geneva Convention, icrc, Geneva, 1952, p.  32 (added emphasis). The icrc Commentaries to the 1949 Geneva Conventions and on the 1977 Additional Protocols offer guidance and clarification on how to interpret their provisions, mainly on the basis of the work of diplomatic conferences and other preparatory work. For more on the definition of an iac, see icrc, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?,” Opinion Paper, March 2008, at:  https://​ www.icrc.org/​eng/​assets/​files/​other/​opinion-​paper-​armed-​conflict.pdf. icrc Commentary on Geneva Convention i, 2016, §236, at:  https://​ihl-​databases.icrc​ .org/​applic/​ihl/​ihl.nsf/​Comment.xsp?action=openDocument&documentId=BE2D518CF5DE54EAC1257F7D0036B518#_​Toc452041593. icty, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Case No. IT-​94-​1-​A), 2 October 1997, §70. The International Law Association has written, “The violence must be organized and intense—​even between sovereign states—​before the otherwise prevailing peacetime rules are suspended.” See:  http://​www.ila-​hq.org/​en/​committees/​index.cfm/​cid/​1022. Moreover, some experts would argue that targeting non-​state armed groups in a foreign state without its consent does not automatically amount to an iac. For a discussion of this question, see, e.g., D. Akande, “Classification of Armed Conflicts: Relevant Legal Concepts,” in E. Wilmshurst (ed.), International Law and the Classification of Conflicts, oup, 2012, pp. 70–​79.

92 Weizmann In iac, loac is generally understood to apply wherever hostilities or the effects of armed conflict (e.g. displacement, detention, or humanitarian relief operations) occur in the territory of the parties to the conflict (as opposed to a more limited area of active hostilities),15 but experts today disagree as to whether its application can extend beyond the territory of the parties to the conflict.16 In favour of a wide geographic scope of application, Schmitt has written: even if the forces of the attacking state are present in another state’s territory unlawfully (i.e., in violation of neutrality law during an international armed conflict or without justification under the law of self-​defense during a non-​international armed conflict), an individual’s targetability depends on his or her status under international humanitarian law, not his or her location. This is the us legal position.17 In addition, as explained by Tristan Ferraro, “most of the protections conferred by ihl [international humanitarian law] to persons affected by the iac are not based on territorial considerations. Any other interpretation would entail a manifestly absurd and unreasonable result since it would suffice for instance to transfer detainees outside the territory of belligerents to deprive them of the protection given by ihl.”18 In contrast, however, the Netherlands has argued 15 16

17

18

icty, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Case No. IT-​94-​1-​A), 2 October 1997, §70. On the application of loac to a neutral state’s territory, see Art. 4, 1949 Geneva Convention i; Art. 5, 1949 Geneva Convention ii; Art. 4(B)(2), 1949 Geneva Convention iii; and Art. 19, 1977 Additional Protocol i. For more on the question, see, e.g., J.  Pejic, “Extraterritorial targeting by means of drones:  Some legal implications,” International Review of the Red Cross, 2015, pp.  32–​35, at:  https://​www.icrc.org/​en/​document/​jelena-​pejic-​extraterritorial​ -​targeting-​means-​armed-​drones-​some-​legal-​implications; M.  Schmitt, “Charting the Legal Geography of Non-​International Armed Conflict,” International Legal Studies, Vol. 90, No. 1 (2014), p. 5, available at: https://​www.usnwc.edu/​getattachment/​cfd48fdc-​6c14-​4dfb-​a501​ -​2af07cac203c/​Charting-​the-​Legal-​Geography-​of-​Non-​International-​.aspx. M. Schmitt, “Extraterritorial Lethal Targeting:  Deconstructing the Logic of International Law,” Columbia Journal of Transnational Law, Vol. 52, No. 77 (2013), pp. 97–​99, at: http://​ jtl.­columbia.edu/​extraterritorial-​lethal-​targeting-​deconstructing-​the-​logic-​of-​international​ -​law/​. T. Ferraro, “Geographic Scope of Application of IHL,” Bruges Colloquium, 18–​19 October 2012, p.  108, available at:  https://​www.coleurope.eu/​sites/​default/​files/​uploads/​page/​ collegium_​43_​webversie.pdf. See also N.  Melzer, “Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare,” European Parliament, May 2013, p.  21, at:  http://​www.europarl.europa.eu/​RegData/​etudes/​etudes/​join/​2013/​410220/​ EXPO-​DROI_​ET%282013%29410220_​EN.pdf.

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that the application of loac in iac is limited to “the territory of the warring states.”19 In support of this view, Jelena Pejic has written that there are “valid legal and policy reasons for this reading.”20 Non-​International Armed Conflict A niac occurs when one or more organised non-​state armed groups are involved in intense combat, either between themselves or, more commonly, against state armed forces. Vague definition of what amounts to a niac can be found in Article 3 common to the 1949 Geneva Conventions (hereafter, Common Article 3) and Article 1 of the 1977 Additional Protocol ii,21 but all definitions of niac share two common criteria: an intensity of fighting and a minimum level of organisation of armed groups.22 A niac may involve more than one organised armed group and more than one state as parties to the conflict (but if states are opposing each other, this can qualify as a separate iac). As will be argued below, a niac can take place on the territory of more than one state. The classification of a situation as a niac does not affect the possibility of a state under its domestic law to prosecute non-​state actors for their acts of hostilities.23

19

20 21

22

23

Netherlands Advisory Committee on Issues of Public International Law, “Report on Armed Drones,” July 2013, p.  3, at:  http://​cms.webbeat.net/​ContentSuite/​upload/​cav/​doc/​CAVV​ _advisory_​report_​on_​armed _​drones_​%28English_​translation_​-​_​final%29_​%282%29.pdf. Pejic, “Extraterritorial targeting by means of drones: Some legal implications,” p. 32. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (Additional Protocol ii); adopted, 8 June 1977; entry into force, 7 December 1978. See also icrc Commentary on Geneva Convention i, 2016. For more on the definition of a niac, see icrc, “How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?” Opinion Paper, March 2008. See also D. Schindler, “The different types of armed conflicts according to the Geneva Conventions and Protocols,” Collected Courses of the Hague Academy of International Law, Tome 163, 1979-​ii, 125–​56 at p.  147. See also Art. 1, 1977 Additional Protocol ii; icty, Prosecutor v. Fatmir Limaj, Judgment (Case No. IT-​03-​66-​T), 30 November 2005, §§94–​170. See also Prosecutor v. Haradinaj, Judgment (Case No. IT-​04-​84-​T), 3 April 2008, §§49 and 60. See the final paragraph of Common Article 3: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict”; and Art. 3(1) of the 1977 Additional Protocol ii: “Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-​establish law and order in the State or to defend the national unity and territorial integrity of the State.” The commentary on Common Article 3 explains (at p. 44): “Article 3 resembles the rest of the Convention in that it is

94 Weizmann Under Common Article 3, “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties” include armed conflicts in which one or more non-​state armed groups are involved, either between themselves or against government armed forces. Under the traditional view, niac s require a higher intensity of fighting than an iac: In the first place, the hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, that is, they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organization. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements.24 The collective character referred to here can be understood as requiring coordination.25 Consistent with this, the icty has held that a niac under Common Article 3 must meet the following two criteria: 1) the non-​state armed group must possess organised armed forces that are under a certain command structure and have the capacity to sustain military operations;26 and 2) the hostilities must meet a minimum threshold of intensity.27

24

25 26

27

only concerned with the individual and the physical treatment to which he is entitled as a human being without regard to his other qualities. It does not affect the legal or political treatment which he may receive as a result of his behaviour.” At: https://​ www.icrc.org/​applic/​ihl/​ihl.nsf/​1a13044f3bbb5b8ec12563fb0066f226/​be12c9954ac2aec2c12563 cd0042a25c. The commentary on Art. 3(1), 1977 Additional Protocol ii, says: “all mention of parties to the conflict had been deleted from the text, precisely so as not to give any semblance of recognition to any sort of international status of the insurgent party. … Thus it is perfectly clear that the application of international humanitarian law in situations of non-​international armed conflict has no effect whatever on the qualification of relations between the parties.” Commentary on 1977 Additional Protocol ii, §4499. D. Schindler, “The different types of armed conflicts according to the Geneva Conventions and Protocols,” Collected Courses of the Hague Academy of International Law, Vol. 163, 1979-​i i, 125–​56, at p. 147. See commentary on Art. 1, 1977 Additional Protocol ii, §4460. See icty, Prosecutor v. Fatmir Limaj, Judgment (Case No. IT-​03-​66-​T), 30 November 2005, §§84, 94–​134; and Prosecutor v. Boškoski, Judgment (Case No. IT-​04-​82), 10 July 2008, §§175 and 197–​205. See Prosecutor v. Limaj, §§135–​70; see also Prosecutor v. Haradinaj, Judgment (Case No. IT-​04-​84-​T), 3 April 2008, §49.

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Article 1(1) of the 1977 Additional Protocol ii28 is more limiting than Common Article 3 in the niac s to which the Protocol applies:  conflicts must be between the state’s own armed forces and dissident armed forces or other organised armed groups on the territory of the state. Thus, niac s in which armed groups fight between themselves are excluded from the treaty’s purview. The provision also requires that the armed groups exercise “such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol” (emphasis added). The icrc commentary on Additional Protocol ii recognises that control over territory can be “relative, for example, when urban centres remain in government hands while rural areas escape their authority.” There needs to be “some degree of stability in the control of even a modest area of land.”29 The additional criteria found in Additional Protocol ii do not modify the scope of Common Article 3, which “retains an independent existence.”30 It is therefore possible that a conflict will meet the criteria for a common Article 3 niac but not those of Additional Protocol ii. However, any conflict that meets the elements of the Protocol will also be governed by Common Article 3. The icty has added that a niac exists whenever there is “protracted” armed violence between governmental authorities and organised armed groups or between such groups within a State,31 but has clarified that “protracted” refers “more to the intensity of the armed violence than to its duration.”32 The icty has said there are no other criteria than intensity and organisation.33 And 28 29

30

31 32 33

As of 1 January 2018, 168 states were party to 1977 Additional Protocol ii. Y. Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, icrc/​Martinus Nijhoff, Geneva/​The Hague, 1987, §4467. See commentary on Art. 1(1), 1977 Additional Protocol ii, §4454: “Keeping the conditions of application of common Article 3 as they are, and stipulating that the proposed definition will not apply to that article, meant that the Protocol was conceived as a self-​ contained instrument, additional to the four Conventions and applicable to all armed conflicts which comply with the definition and are not covered by common Article 2. Keeping the Protocol separate from common Article 3 was intended to prevent undercutting the scope of Article 3 itself by laying down precise rules. In this way common Article 3 retains an independent existence.” icty, Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, §70. icty, Prosecutor v. Haradinaj, Judgment, 3 April 2008, §49. icty, Prosecutor v. Fatmir Limaj, Judgment, 30 November 2005, §170.

96 Weizmann yet, borrowing the term “protracted” from the icty, the 1998 Rome Statute of the International Criminal Court (icc Statute)34 appears to complicate the distinction between Common Article 3 and Additional Protocol ii niac s by establishing jurisdiction over certain war crimes only in “armed conflicts that take place in the territory of a State when there is a protracted armed conflict between governmental authorities and organized armed groups or between such groups.”35 Whether a distinct “protracted” criterion applies to all niac s, only to niac s covered by the icc Statute, or at all, is the subject of as yet unresolved debate. In support of a distinct “protraction” criterion for all niac s, Dinstein has noted that the icc Pre-​Trial Chamber in the 2009 Gombo Decision36 “separated the requirements of the intensity of the violence and its protracted nature. Violence that is protracted but not intense, or intense but not protracted, does not amount to a niac.”37 Protraction must be more than a few hours or a few days.38 For many experts, the icc Statute reference simply mirrors a Common Article 3 type of niac requiring intensity of fighting and organisation of the parties.39 Under a third view, the icc Statute formulation would fall midway 34 35

36 37 38 39

As of 1 January 2018, 138 states were party to the icc Statute. See: https://​treaties.un.org/​ pages/​ViewDetails.aspx?src=IND&mtdsg_​no=XVIII-​10&chapter=18&lang=en. For an interpretation of this phrase in Art. 8(2)(f) of the Rome Statute, see Prosecutor v. Lubanga Dyilo, Decision on the confirmation of charges (Pre-​Trial Chamber I) (Case No. ICC-​01/​04-​01/​06-​803), 29 January 2007, §§229–​37 (added emphasis), at:  http://​www​ .icc-​cpi.int/​iccdocs/​doc/​doc266175.PDF. icc, Prosecutor v. Gombo, Decision on the Charges (Pre-​Trial Chamber), 15 June 2009, §235, at: http://​www.icc-​cpi.int/​iccdocs/​doc/​doc699541.pdf. Y. Dinstein, Non-​International Armed Conflicts in International Law, cup, 2014, p. 35. Ibid., p. 33. See Akande, “Classification of Armed Conflicts: Relevant Legal Concepts,” p. 56; T. Meron, “The Humanization of Humanitarian Law,” American Journal of International Law, Vol. 94, No. 239 (2000), p. 260, available at: http://​users.polisci.wisc.edu/​kinsella/​meron%20 humanization.pdf; C.  Kress, “War Crimes Committed in Non-​ International Armed Conflict and the Emerging System of International Criminal Justice,” Israel Yearbook on Human Rights, Vol. 30, No. 103 (2001), p.  118; A.  Cullen, “The Definition of Non-​ international Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f),” Journal of Conflict & Security Law, Vol. 12, No. 3 (2008), 419–​45, at pp. 435–​40, at: http://​jcsl.oxfordjournals. org/​content/​12/​3/​419.full.pdf; M. Bothe, “War Crimes,” in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 379–​426 at p. 423; M. Sassòli and A. Bouvier (eds.), How Does Law Protect in War, 3rd Edn, Vol. 1 (2011), p. 23; W. A. Schabas, An Introduction to the International Criminal Court, 4th Edn, cup, 2011, p. 143.

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between common Article 3 and Additional Protocol ii niac s, as the addition of a distinct and compulsory time factor “seems to define a field of application that is stricter than that of common Article 3, as it requires the fighting to take place over a certain period of time. It is, however, broader than that of Additional Protocol ii as it does not require the armed group(s) concerned to exercise territorial control. The category of conflict targeted here is therefore half way between the categories referred to in common Article 3 and in Additional Protocol ii.”40 Whatever the precise test may be, determining the existence of a niac requires an assessment of the facts on the ground.41 Intensity of fighting can be determined by several indicators, including the number, duration, and intensity of armed confrontations, whether the fighting is widespread, the types of weapons and equipment used, the number and calibre of munitions fired, the number of fighters and type of forces participating in the fighting, the number of military and civilian casualties, the extent of material destruction, and the number of civilians fleeing combat zones.42 The threshold of violence in a niac must be distinguished from acts of terrorism.43 To illustrate, when the United Kingdom ratified 1977 Additional Protocol i, it stated its understanding “that the term ‘armed conflict’ of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.”44 Nevertheless, in the Boškoski case, the icty Trial Chamber stated: “national courts and un bodies have not discounted acts of a terrorist nature in their consideration of acts amounting to armed conflict … while isolated acts of terrorism may not reach the threshold of armed conflict, when

40

41 42

43 44

S. Vité, “Typology of armed conflicts in international humanitarian law: legal concepts and actual situations,” International Review of the Red Cross, Vol. 91, No. 872 (2009), p. 82, at: https://​www.icrc.org/​eng/​assets/​files/​other/​irrc-​873-​vite.pdf. icty, Prosecutor v. Limaj, Judgment (Case No. IT-​03-​66-​T), 30 November 2005, §90. icty, Prosecutor v.  Boškoski and Tarčulovski, Judgment (Case No. IT-​04-​82-​T), 10 July 2008, §§177–​93. See also icty, Prosecutor v. Haradinaj, Judgment, 3 April 2008 §49; and Prosecutor v. Boškoski and Tarčulovski, Judgment (Appeals Chamber) (Case No. IT-​04-​82​ -A), 19 May 2010, §§22–​24; Prosecutor v. Limaj, Judgment, 30 November 2005, §§168–​ 72; icc, Prosecutor v. Thomas Lubanga Dyilo, Judgment (Case No. ICC-​01/​04-​01/​06), 14 March 2012, §538. See icty, Prosecutor v. Delalić, Mucic, Delic and Landzo, Judgment, 16 November 1998, §184. uk Understanding of Arts. 1(4) and 96(3), 1977 Additional Protocol i, available at: https://​ www.icrc.org/​ihl/​NORM/​0A9E03F0F2EE757CC1256402003FB6D2?OpenDocument.

98 Weizmann there is protracted violence of this type [i.e. terrorism], especially where they require the engagement of the armed forces in hostilities, such acts are relevant to assessing the level of intensity with regard to the existence of an armed conflict.”45 The organisational criterion is an independent requirement for the existence of a niac. Even if the level of violence in a given situation is very high (in a situation of mass riots, for example), a niac will not exist unless the armed group has a certain level of organisational structure and capacity. While it is presumed that government forces meet a minimum level of organisation,46 the icty has identified five indicators for assessing the level of organisation of non-​state armed groups: (1) the existence of a hierarchical command structure; (2) the ability of the group to plan and launch coordinated military operations; (3) the capacity to recruit, train, and equip combatants; (4) the existence of an internal disciplinary system; and (5) the group’s ability to act on behalf of its members.47 Geographically, a “traditional” niac occurs within the borders of a single state.48 Nevertheless, there is growing recognition that a niac can extend to the territory of another state whose armed forces may not necessarily be 45 46 47

48

icty, Prosecutor v. Boškoski and Tarčulovski, Judgment (Case No. IT-​04-​82-​T), 10 July 2008, §190. icty, Prosecutor v. Haradinaj, Judgment, 3 April 2008, §60. See Prosecutor v. Boškoski and Tarčulovski, Judgment, 10 July 2008, §§194–​205; Prosecutor v.  Limaj, Judgment, 30 November 2005, §§94–​103 and 171; Prosecutor v.  Haradinaj, Judgment, 3 April 2008, §60. This “traditional” territorial scope of a niac would appear to be explicitly recognised in Common Article 3, which refers to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties” [added emphasis]. A strict interpretation that the scope of Common Article 3 is limited to truly internal conflicts and excluding any situation that crosses a state party’s borders could entail that a loac vacuum would arise as soon as a conflict extends across a border. Instead, there is some debate over whether the wording of Common Article 3 might simply mean that the state on whose territory the conflict is occurring must be a party to the Geneva Convention for Common Article 3 to apply (and today the Geneva Conventions have been universally ratified). Indeed, Sassòli interprets the language of common Article 3 as “simply recalling that treaties apply only to their state parties. If such wording meant that conflicts opposing states and organized armed groups and spreading over the territory of several states were not ‘non-​international armed conflicts’, there would be a gap in protection, which could not be explained by states’ concerns about their sovereignty.” M.  Sassòli, “Transnational Armed Groups and International Humanitarian Law,” Program on Humanitarian Policy and Conflict Research, Harvard University, Occasional Article Series, Winter 2006, p. 9.

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involved in the armed conflict.49 The most typical scenario is the “spill-​over,” where government forces are pursuing an organised armed group from their territory to that of an adjacent state. Other scenarios in which niac s extend beyond one state’s territory include:  states or multinational forces fighting alongside a government’s forces against one or more organised armed groups on that government’s territory; organised armed groups fighting each other across contiguous state borders; and the armed forces of a state engaging in cross-​border hostilities against an organised armed group operating in a neighbouring state without that state’s control or support.50 Finally, the purported transnational “war on terror” has elicited much debate on how to delineate the geographic scope of a niac, as discussed below. niac s are to be distinguished from lesser forms of violence to which loac does not apply. These include internal disturbances and tensions such as riots, isolated and sporadic acts of violence and acts of a similar nature.51 The icrc commentary on Article 1(2) of the 1977 Additional Protocol ii explains the difference between internal disturbances and tensions as follows: there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.52 The icrc has further described internal disturbances as situations in which: “there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These 49

50 51

52

See ibid. The Statute of the International Criminal Tribunal for Rwanda granted the Tribunal jurisdiction to enforce the law governing niac to neighbouring states where genocide and other international crimes were committed. Available at: http://​www.icls​ .de/​dokumente/​ictr_​statute.pdf. See icrc Challenges Report. Art. 1(2), 1977 Additional Protocol ii distinguishes these situations from niac s. The icrc commentary on this provision says (at §4474), “internal disturbances and tensions may be illustrated by giving a list of examples of such situations without any attempt to be exhaustive: riots, such as demonstrations without a concerted plan from the outset; isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups; other acts of a similar nature, including, in particular, large scale arrests of people for their activities or opinions..” The commentary on Art. 3, 1949 Geneva Convention i (at p. 50) distinguishes a niac from “a mere act of banditry or an unorganized and short-​lived insurrection.” Commentary on Art. 1(2), ap ii, §4477.

100 Weizmann latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order.”53 In contrast, internal tensions are said to include: situations of serious tension (political, religious, racial, social, economic, etc.), but also the sequels of armed conflict or of internal disturbances. Such situations have one or more of the following characteristics, if not all at the same time: large scale arrests; a large number of “political” prisoners; the probable existence of ill-​treatment or inhumane conditions of detention; the suspension of fundamental judicial guarantees, either as part of the promulgation of a state of emergency or simply as a matter of fact; allegations of disappearances.54 Principal Rules of Loac Law of Armed Conflict Rules Specific to Weapons The law of armed conflict contains specific prohibitions and restrictions on the use of certain weapons. Some rules, derived from the fundamental rule of distinction described below, prohibit the use of weapons which are by nature indiscriminate55 or which are intended, or may be expected, to cause widespread, long-​term and severe damage to the natural environment.56 Another specific rule aims to protect combatants by prohibiting means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.57 Flowing from these basic rules are a number of additional prohibitions and restrictions that can be found both under customary international law58 and treaty law, such as the 1972 Biological Weapons Convention, the 53

54 55 56 57 58

icrc, Protection of Victims of Non-​International Armed Conflicts, Document presented at the Conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, Vol. V, Geneva, 24 May-​12 June 1971, p. 79. See also commentary on ap ii, Art. 1(2), §4475. Ibid., §4476. See Rule 71, icrc Customary Law Study; and Art. 51(4), 1977 Additional Protocol i. See Rule 76, icrc Customary Law Study, at:  https://​www.icrc.org/​customary-​ihl/​eng/​ docs/​v1_​rul_​rule76; and Arts. 35(3) and 55, 1977 Additional Protocol i. See Rule 70, icrc Customary Law Study, at:  https://​www.icrc.org/​customary-​ihl/​eng/​ docs/​v1_​rul_​rule70; and Art. 35(2), 1977 Additional Protocol i. See icrc Customary ihl Study, Ch. iv on Weapons, at: https://​www.icrc.org/​customary​ -ihl/​eng/​docs/​v1_​cha.

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1992 Chemical Weapons Convention, the 1997 Anti-​Personnel Mine Ban Convention, the 2008 Convention on Cluster Munitions, the 2017 Treaty on the Prohibition of Nuclear Weapons, and protocols annexed to the 1980 Convention on Certain Conventional Weapons. Distinction, Proportionality, and Precautions in Attack Distinction One of the cardinal rules of loac requires parties to an armed conflict to distinguish between civilian persons and civilian objects on the one hand, and combatants and military objectives on the other, demanding they direct their operations only against combatants and military objectives.59 An object is a military objective if, by its nature, location, purpose or use, it contributes effectively to the military action of the enemy and its partial or total destruction, capture, or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Any object that does not fall under the definition of a military objective is a civilian object and must not be attacked.60 In iac, persons who are members of the armed forces of a party to the conflict can be lawfully targeted. In niac, members of such state armed forces can be lawfully targeted, as can members of an organised armed group of a party to the conflict, even when they are not in the midst of fighting.61 Whether any member supporting those engaged in combat can be targeted, or only those who have a “continuous combat function,”62 remains the subject of debate.63 Members playing a supportive role not amounting to a continuous combat function would include recruiters, trainers, financiers, propagandists, as well as those involved in purchasing, smuggling, manufacturing and maintaining 59 60 61

62

63

Art. 48, 1977 Additional Protocol i. See also Arts. 51(2) and 52(1), 1977 Additional Protocol i, and Rules 1 and 7, icrc Customary Law Study. Art. 52(2), 1977 Additional Protocol i. See N.  Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, icrc, Geneva, 2009 (hereafter, dph Interpretive Guidance), at: https://​www.icrc.org/​eng/​assets/​files/​other/​icrc-​002-​0990.pdf. See dph Interpretive Guidance. See also “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” un doc. A/​68/​389, 18 September 2013, §§69–​72. According to the icrc, continuous combat function encompasses the preparation, execution, or command of acts constituting direct participation in hostilities. See M.  Schmitt, “The Interpretive Guidance on the Notion of Direct Participation in Hostilities:  A Critical Analysis,” at:  http://​harvardnsj.org/​wp-​content/​uploads/​2010/​05/​ Vol.-​1_​Schmitt_​Final.pdf.

102 Weizmann weapons and other equipment outside specific military operations, or collecting intelligence of a non-​tactical nature.64 Persons who are not members of the armed forces or targetable members of an organised armed group of a party to the conflict are civilians entitled to protection against direct attack unless and for such time as they directly participate in hostilities. According to the icrc’s Interpretive Guidance on Direct Participation in Hostilities, to qualify as direct participation in hostilities, a civilian’s specific act must be on a spontaneous, sporadic, or unorganised basis, and must meet the following three cumulative criteria: 1. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack; 2. There must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part; and 3. The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.65 Measures in preparation of a specific act of direct participation in hostilities, and the deployment to and the return from the location of the act also form an integral part of that act. When civilians cease their direct participation in hostilities, they regain full civilian protection against direct attack. However, here, too, experts disagree on the proposed test and the temporal scope of direct participation in hostilities.66 In case of doubt, a person will be considered to be a civilian; the same is true for objects.67 While the required degree of certainty is not specified in any legal provision, it has been suggested that it must “reflect the level of certainty that can reasonably be achieved in the circumstances. In practice, this 64 65

66

67

See dph Interpretive Guidance, pp. 34–​35. See dph Interpretive Guidance; see also “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” un doc. A/​68/​389, 18 September 2013, §70. See M. Schmitt, “Deconstructing direct participation in hostilities: the constitutive elements,” New York University Journal of International Law and Politics, Vol. 42 (2010), at: http://​nyujilp.org/​wp-​content/​uploads/​2012/​04/​42.3-​Schmitt.pdf. Arts. 50(1) and 52(3), respectively, of the 1977 Additional Protocol i.

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determination will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision.”68 The icty has also held that a person or object is protected from attack when “it is not reasonable to believe, in the circumstances of the person contemplating the attack, including the information available to the latter, that the potential target is a combatant [or that the object is being used to make an effective contribution to military action.]”69 Factors such as clothing, activity, age, and gender are considered relevant when deciding whether a person is a civilian, while details relating to the movement, size, shape, colour, spacing, and speed of an object are relevant when deciding if an object is civilian. Proximity to military activity and equipment, prior use of civilian equipment for military purposes, and behaviour or use of an object consistent with military operations are relevant as well.70 In addition to this restraint required by the rule of distinction, it has been submitted that the guiding principles of military necessity and humanity together serve to “reduce the sum total of permissible military action from that which ihl does not expressly prohibit to that which is actually necessary for the accomplishment of a legitimate military purpose in the prevailing circumstances.”71 In practical terms, this proposes that not all fighters should be attacked: “it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.”72 Nevertheless, experts have challenged this approach on a number of grounds.73 In particular, the ability 68 69 70

71 72

73

dph Interpretive Guidance, p. 76. icty, Prosecutor v. Galić, Judgment (Case No. IT-​98-​29-​T), 5 December 2003, §§50, 51. See ibid., §§50, 251, 256, and 283; Committee Established to Review the nato Bombing Campaign against the Federal Republic of Yugoslavia, 2000, §§65, 67, at: http://​www.icty​ .org/​sid/​10052. dph Interpretive Guidance, Ch. ix, p. 79. Ibid., p. 82. For policy consistent with this, see us Presidential Policy Guidance, 23 May 2013: us policy is to use lethal force “only to prevent or stop attacks against us persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively.” At:  https://​www.whitehouse.gov/​sites/​default/​ files/​uploads/​2013.05.23_​fact_​sheet_​on_​ppg.pdf. See D.  Akande, “Clearing the fog of war? The icrc’s Interpretive Guidance on Direct Participation in Hostilities,” International and Comparative Law Quarterly, Vol. 59, No. 1 (January 2010), pp.  180 and 191; M.  Schmitt, “Military necessity and humanity in international humanitarian law: preserving the delicate balance,” Virginia Journal of International Law, Vol. 50, No. 4 (2010), pp. 795 and 835.

104 Weizmann or opportunity to capture rather than kill may not be available in large-​scale confrontations.74 The law of armed conflict clearly prohibits attacks on persons who are recognised as hors de combat (or “out of the battle”), and, in other words, defenceless.75 Reflecting customary law,76 Article 41 of the 1977 Additional Protocol i states that a person is hors de combat if: .

(a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. As another manifestation of the rule on distinction, loac prohibits attacks of a nature to strike military objectives and civilian persons or objects without distinction (as opposed to deliberate attacks against civilian persons or objects). Such indiscriminate attacks are described as: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required (by 1977 Additional Protocol i).77 Schmitt has explained:  “the requisite mens rea is not intent to harm civilians, but instead ‘reckless disregard’ of such consequences.”78 As explained by Dinstein, such attacks “differ from direct attacks against civilians in that ‘the attacker is not actually trying to harm the civilian population’: the injury/​ 74

75 76 77 78

See icrc and tmc Asser Institute, Summary Report, Fourth Expert Meeting on the Notion of Direct Participation in Hostilities, 27–​28 November 2006, at: https://​www.icrc​ .org/​eng/​assets/​files/​other/​2006-​03-​report-​dph-​2006-​icrc.pdf. Commentary on Art. 41, 1977 Additional Protocol i, §1630. See icrc Customary Law Study, Rule 47. See Art. 51(4), 1977 Additional Protocol i. M. N.  Schmitt, “Precision attack and international humanitarian law,” International Review of the Red Cross, Vol. 87 (2005), p. 455, at: https://​www.icrc.org/​eng/​assets/​files/​ other/​irrc_​859_​schmitt.pdf.

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damage to civilians is merely a matter of ‘no concern to the attacker’.”79 Dinstein adds that: The key to a finding that a certain attack has been indiscriminate is the nonchalant state of mind of the attacker. Any reconstruction of that state of mind must, however, factor in the habitual “fog of war,” recalling that the information available to the attacker in real time may have been faulty or incomplete.80 Under loac, the following are considered to be indiscriminate attacks: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.81 For instance, in the 2007 Martić case before the icty, the Trial Chamber found that launching unguided rockets at their maximum operational range to release cluster munitions over a densely populated area constituted an indiscriminate attack.82 In the Gotovina case, an icty Trial Chamber was tasked with examining the lawfulness of the Croatian Army’s shelling of four Serb towns. With respect to shelling in the town of Knin, the Trial Chamber found that any shell that had fallen more than 200 metres from a legitimate military target was evidence of an unlawful indiscriminate attack. Concerned about the Trial Chamber’s finding, an amicus curiae brief was submitted to the Appeals Chamber by twelve 79

80 81 82

Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd Edn, p.  127, citing H.  M. Hanke, “The 1923 Hague Rules of Air Warfare,” International Review of the Red Cross, Vol. 33, No. 12 (1993), p. 26: “the fact that in the case of indiscriminate bombing the attacker is not actually trying to harm the civilian population, as opposed to terror bombing or attacks on an entire urban area as such.” Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd Edn, p. 127. See Art. 51(5), 1977 Additional Protocol i. See icty, Prosecutor v. Martić, Judgment (Case No. IT-​95-​11), 2007, §463.

106 Weizmann experts on the relationship between military operational practice and loac, many of whom were retired military legal advisors. In it, the experts elaborated on the accuracy that can realistically be achieved when applying the rule of distinction: even the most scrupulous compliance with ihl [international humanitarian law, a synonym for the law of armed conflict] cannot produce and does not require absolute perfection in the execution of an attack. Artillery and other indirect fire assets, by their very nature, involve a range of variables that will inevitably produce effects beyond the intended target. Even when using the most precise attack capability, such as precision-​ guided munitions, there is no guarantee that each and every effect will be registered against (and only against) the intended object of attack. ihl recognizes such reality by imposing an obligation on commanders to take all good faith efforts to mitigate risk to civilians and civilian objects resulting from this inevitable risk of error and from the ever present reality that attacks properly directed against lawful military objectives may occasion collateral damage or incidental injury to civilians and/​or civilian property. The Amici submit that the Appeals Chamber should recognize that no operational commander can guarantee absolutely perfect execution of even the most legally compliant targeting plan.83 Consistent with this expert opinion, the Appeals Chamber ruled that the Trial Chamber’s 200-​metre standard was supported neither by law nor by evidence in the trial record.84 Even though the rule against indiscriminate attacks is formulated distinctly from the prohibition of direct attacks against civilian persons or objects and the attacker’s state of mind is perceived differently, the icty has held that “attacks which strike civilians or civilian objects without distinction … may qualify as direct attacks against civilians.”85 Proportionality Even when the fundamental rule on distinction is respected, civilian persons and objects who are in the vicinity of a military objective may at times become incidental victims of an attack targeted against it. While it is legally accepted 83 84 85

Amicus Curiae Brief, 12 January 2012 (Case No. IT-​06-​90-​A), §5. Prosecutor v. Gotovina, Judgment (Appeals Chamber) (Case No. IT-​06-​90-​A), 16 November 2012. icty, Prosecutor v. Galić, Judgment (Case No. IT-​98-​29-​T), 5 December 2003, §57.

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that civilian persons and objects may be incidentally harmed in this way, the rule of proportionality dictates an additional targeting restriction:  expected “incidental loss” of civilian life or property may not be “excessive” in relation to the concrete and direct military advantage anticipated from such an attack. Attacks that do not comply with the rule of proportionality are considered indiscriminate and are forbidden.86 The icrc commentary on 1977 Additional Protocol i explains: The danger incurred by the civilian population and civilian objects depends on various factors: their location (possibly within or in the vicinity of a military objective), the terrain (landslides, floods, etc.), accuracy of the weapons used (greater or lesser dispersion, depending on the trajectory, the range, the ammunition used etc.), weather conditions (visibility, wind, etc.), the specific nature of the military objectives concerned (ammunition depots, fuel reservoirs, main roads of military importance at or in the vicinity of inhabited areas, etc.), technical skill of the combatants (random dropping of bombs when unable to hit the intended target). All these factors together must be taken into consideration whenever an attack could hit incidentally civilian persons and objects. Some cases will be clear-​cut and the decision easy to take. For example, the presence of a soldier on leave obviously cannot justify the destruction of a village. Conversely, if the destruction of a bridge is of paramount importance for the occupation or non-​occupation of a strategic zone, it is understood that some houses may be hit, but not that a whole urban area be levelled.87 Nevertheless, debate and difficulties remain with respect to a number of elements in the definition of proportionality. For instance, it is increasingly accepted that, in addition to direct incidental harm, certain reverberating or knock-​on effects must also be taken into account. These are indirect effects, such as the disruption of interconnected essential services (e.g. electricity, water, health, and sanitation) as a consequence of damage caused to critical civilian infrastructure. On the causal link required to determine which reverberating effects to factor into a proportionality 86 87

Art. 51(5)(b), 1977 Additional Protocol i; Rule 14, icrc Customary Law Study. Commentary on 1977 Additional Protocol i, §§2212–​14.

108 Weizmann assessment, expert opinions diverge, ranging from a “foreseeability” standard to a stricter “but for” test.88 To illustrate another question of debate, some loac experts maintain that the term “excessive” is a relative or “comparative”89 concept rather than an absolute one, requiring an evaluation of the dissimilar notions of civilian loss and military advantage.90 However, recognising the difficulty in assessing the proportionality between loss and damage on the one hand, and anticipated military advantage on the other, the icrc commentary on the relevant provision (Article 51 of the 1977 Additional Protocol i) argues that in case of doubt, “the interests of the civilian population should prevail.” At the extreme end of civilian loss and damage, the commentary rejects the idea, held by others,91 that “extensive” civilian loss and damage could ever be justified, even where the military advantage is great: “The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.”92 A number of states consider that the term “military advantage” encompasses the advantage anticipated from the attack as a “whole” as opposed to specific parts of it. The icc Statute would support this interpretation, as it refers to “the concrete and direct overall military advantage anticipated.” The Elements of Crimes of the icc Statute interpret this expression as a “military advantage that is foreseeable by the perpetrator at the relevant time. Such advantage may or may not be temporally or geographically related to the object of the attack.”93 While the icrc commentary on 1977 Additional Protocol i explains that “it goes without saying that an attack carried out in a concerted manner in numerous places can only be judged in its entirety,” it adds that the “concrete and direct military advantage” must be “substantial and relatively close, and … advantages which are hardly perceptible and those which would only appear in the long term should be disregarded.”94 88

89 90 91 92 93 94

See I. Robinson and E. Nohle, “Proportionality and precautions in attack: The reverberating effects of using explosive weapons in populated areas,” International Review of the Red Cross, Vol. 98, No. 901 (2016), 107 at pp. 117–​18, at: https://​www.icrc.org/​en/​international​ -review/​article/​proportionality-​and-​precautions-​attack-​reverberating-​effects-​using. Schmitt, “Precision attack and international humanitarian law,” p. 457. See Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd Edn, p. 131; Schmitt, “Precision attack and international humanitarian law,” p. 457. See Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd Edn, p. 131. Commentary on 1977 Additional Protocol i, §1980. Elements of Crimes of the Rome Statute of the icc, p. 19, footnote 36. Commentary on 1977 Additional Protocol i, §§2209 and 2218.

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As for whose perspective is relevant in implementing the rule, the icty has said, “in determining whether an attack was proportionate it is necessary to examine whether a reasonably well-​informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”95 It is based on information reasonably available at the time of attack that a proportionality assessment must be carried out. As Dinstein has put it, “the linchpin is what is mentally visualized before the event.”96 Finally, because precision technology is expected to help prevent collateral harm, Schmitt has stated that, in practice, “the more capable one is of avoiding collateral damage and incidental injury, the more critically the attack will be assessed, both by one’s own forces and others.”97 Precautions in Attack In addition to the rules on distinction and proportionality and outside the scope of indiscriminate attack, loac foresees that, in the conduct of military operations, constant care must be taken to spare the civilian population, individual civilians, and civilian objects. As a result, parties to an armed conflict must take “feasible” precautions in carrying out attacks in order to avoid and minimize incidental loss of civilian life, injury to civilians, and damage to civilian objects. Feasible precautions are “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.”98 Key precautionary measures99 include: –– d​ oing everything feasible to verify that targets are military objectives. –– ​taking all feasible precautions in the choice of means and methods of warfare with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects. –– ​doing everything feasible to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to 95 96 97 98 99

icty, Prosecutor v. Galić, Judgment (Case No. IT-​989-​29-​T), 5 December 2003, §58. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd Edn, p. 132. M. Schmitt, “Precision attack and international humanitarian law,” pp. 457–​58. ccw Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-​Traps and Other Devices as amended on May 3 1996, Art. 3(10). See Art. 57, 1977 Additional Protocol i; and Rules 16–​21, icrc Customary ihl Study.

110 Weizmann civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. –– ​doing everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. –– ​giving effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit. –– ​when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected must be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. The term “feasible” is relative, namely to the technology that is available to the attacker. As Schmitt has written, “belligerents bear different legal burdens of care determined by the precision assets they possess.” The Commentary on 1977 Additional Protocol i also recognises that “some belligerents might have information owing to a modern reconnaissance device, while other belligerents might not have this type of equipment.”100 In case of doubt, additional information must be obtained before an attack is launched.101 Taking precautions requires paying close attention to the gathering, assessment and rapid circulation of information on potential targets, which, in turn, depends on the availability and quality of the party’s technical resources. As with the rule of proportionality, the applicable test here is what a “reasonable attacker” would do in similar circumstances, with the information available at the time of the decision.102 It has been proposed that “Decisional factors might include such matters as the time necessary to gather and process the additional information, the extent to which it would clarify any uncertainty, competing demands on the [intelligence, surveillance and reconnaissance] system in question, and risk to it and its operators.”103 1 00 Commentary on 1977 Additional Protocol i, §2199. 101 J.-​ F. Quéguiner, “Precautions under the law governing the conduct of hostilities,” International Review of the Red Cross, Vol. 88, No. 864 (December 2006), p. 798. 102 Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd Edn, 2010, p. 139. 103 Schmitt, “Precision attack and international humanitarian law,” p. 461.

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A party must use the most effective and reasonably available means to obtain the most reliable information possible before an attack, as well as the most precise weapons reasonably available in carrying out an attack that might cause incidental civilian harm. While there is no legal obligation to acquire the most modern and sophisticated weapons available, it is asserted that loac does require that they be used “as soon as they form part of a state’s arsenal and their use is practically possible.”104 Operational concerns may, though, legitimately limit their use.105 With respect to such practical concerns, Schmitt has written, “A wise commander considers his or her weapons inventory in light of the possible length and intensity of the conflict before deciding on the weapon to be employed in particular strikes. The commander will at the same time estimate the relative gain in precision offered by the options available … if fighting in population centres is expected, it makes sense to retain the most precise weapons for urban settings in which targets are intermingled with civilians and civilian objects.”106 While there is a growing movement against the use of explosive weapons with a wide impact area in densely populated areas because of the likelihood of indiscriminate effects,107 it is premature to assert that a general rule applies to the use of these weapons in such settings. Legal Reviews of Weapons It is widely agreed that international law applies to the use of both old and new as well as to emerging weapons.108 The law of armed conflict recognises this in Article 36 of the 1977 Additional Protocol i, which provides that: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party. 104 Quéguiner, “Precautions under the law governing the conduct of hostilities,” pp. 797–​98 and 802–​03. 105 Henderson and Cavanagh, “Unmanned Aerial Vehicles: Do They Pose Legal Challenges?,” p. 209. 106 M. N. Schmitt, “Precision attack and international humanitarian law,” p. 461. 107 See, e.g., icrc, “icrc alarmed over unacceptable use of explosive weapons in urban areas,” 13 October 2014, at: https://​www.icrc.org/​en/​document/​weapons. 108 In the context of armed conflict, a weapon has been defined as “an object, device, munition, or equipment used to apply an offensive capability.” W. H. Boothby, Weapons and the Law of Armed Conflict, oup, 2009, p. 344.

112 Weizmann It has been submitted that the aim of this provision is to “prevent the use of weapons that would violate international law in all circumstances and to impose restrictions on the use of weapons that would violate international law in some circumstances, by determining their lawfulness before they are developed, acquired or otherwise incorporated into a State’s arsenal.”109 As explained in the icrc’s Guide to the Legal Review of New Weapons, Means and Methods of Warfare, first published in 2006, all states have an interest in carrying out such assessments. A state’s respect for its international law obligations would require that it ensure that the use of new weapons and means and methods of warfare also complies with these obligations.110 Moreover, it has been suggested that a component of the obligation formulated in Article 36 is of customary nature: “the obligation to conduct legal reviews of new means of warfare before their use is generally considered … reflective of customary international law.”111 The United States (us), which is not a party to Additional Protocol i and therefore not legally bound by Article 36, nevertheless requires legal reviews of weapons as a matter of policy.112 Although the icrc has not included any component of the obligation in its Study of Customary International Humanitarian Law, its position is that “[t]‌he requirement that the legality of all new weapons, means and methods of warfare be systematically assessed is arguably one that applies to all States, regardless of whether or not they are party to Additional Protocol 1.”113 The 109

icrc, Guide to the Legal Review of New Weapons, Means and Methods of Warfare, icrc, Geneva, 2006, p. 4. 110 Ibid. 111 M. Schmitt, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics,” Harvard National Security Journal, Features Online (2013), p. 28, at: http://​ harvardnsj.org/​wp-​content/​uploads/​2013/​02/​Schmitt-​Autonomous-​Weapon-​Systems​ -and-IHL-​Final.pdf. Boothby has also written: “It seems highly likely that there is a customary rule requiring all states to review new weapons to determine whether they comply with the law that applies to the relevant State” although “[s]‌ome may find the customary status of this proposition questionable.” Boothby, Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors, pp.  170–​71. The 2009 Air and Missile Warfare Manual (available at: http://​www.ihlresearch.org/​amw/​manual) states that: “States are obligated to assess the legality of weapons before fielding them in order to determine whether their employment would, in some or all circumstances, be prohibited”; and the Tallinn Manual on the International Law Applicable to Cyber Warfare of 2013 contains a similar provision: “All States are required to ensure that the cyber means of warfare that they acquire or use comply with the rules of the law of armed conflict that bind the State.” 1 12 See, e.g., us Department of Defense, Law of War Manual, June 2015, s. 6.2. 1 13 icrc, Guide to the Legal Review of New Weapons, Means and Methods of Warfare, icrc, Geneva, 2006, at p. 4.

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Commentary to Article 36 adds: “If these measures are not taken, the State will be responsible in any case for any wrongful damage ensuing.”114 The legal review applies to all types of new weapons as well as the manners in which they are used.115 It has also been submitted that states should examine existing weapons or munitions if they are modified such that their capability or effect would be new or if the state has become a party to a treaty that could affect the weapon’s legality.116 In conducting a legal review, a state should consider all of its treaty and customary obligations under international law, including under international human rights law as well as loac.117 Fundamental loac rules to be considered include the prohibition of the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering,118 the prohibition of the use of means or methods of warfare which are by nature indiscriminate,119 as well as the prohibition of the use of methods or means of warfare which are intended, or may be expected, to cause widespread, long-​term, and severe damage to the natural environment.120 Additional prohibitions and restrictions can be found in other weapon-​ specific treaties to which the relevant state is a party. The Commentary to Article 36 adds, “[t]‌he determination is to be made on the basis of normal use of the weapon as anticipated at the time of evaluation.”121 Schmitt has argued that “the sole context in a determination of whether a weapon is lawful per se is its intended use in the abstract.”122 On how far to anticipate 114 Commentary on Art. 36, 1977 Additional Protocol i, §1466. 115 icrc, Guide to the Legal Review of New Weapons, Means and Methods of Warfare, 2006, p. 9. 116 Ibid., s. 1.1. 117 The rules governing law enforcement contain a narrower norm relating to the evaluation of “non-​lethal” incapacitating weapons in Principle 3 of the 1990 Basic Principles on the Use of Force and Firearms: “The development and deployment of non-​lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.” 118 Art. 35(2), 1977 Additional Protocol i; Rule 70, icrc Customary ihl Study. The icj recognised this as a cardinal principle of loac in its Nuclear Weapons Advisory Opinion, §78. 119 Art. 51(4)(c), ap i; Rule 71, icrc Customary ihl Study. The icj also recognised this as a cardinal principle of ihl in the Nuclear Weapons Advisory Opinion, §78. 120 Art. 35(3), ap i. 121 icrc, Guide to the Legal Review of New Weapons, s.  1.1; Commentary on Art. 36, ap i, §1466. 122 Schmitt, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics,” p. 30.

114 Weizmann a weapon’s use, it has been submitted that it “is not required to foresee or analyse all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited.”123 The evaluation should take place at various stages of development before entering the production phase, before the weapon system is acquired, and at the earliest possible stage of modifications.124 Reviews should involve experts from various disciplines in order to cover all relevant empirical information, including the weapon’s technical description, actual performance, and effects on health and the environment.125 While the obligation to carry out a legal review requires domestic procedures to review new weapons, it does not require that results of reviews be made public, and states have been reluctant to make them available. As explained by the icrc commentary on the provision: “This reservation is quite understandable, as modern strategy very often relies not on deployment of military means in the traditional ways, but on new possibilities resulting from research and which consists of creating an imbalance of military strength vis-​ à-​vis the enemy precisely by means of superior technology in the form of new weapons.”126

Law of Armed Conflict Rules and the Use of Armed Drones

It is generally agreed that armed drones, as a weapon system category, are not in themselves illegal.127 Even in the absence of rules of international law specific to armed drones, longstanding loac rules govern their use in armed conflict.128 In light of the rapid development of weapons technology, it is important that the study, development, acquisition, or adoption of armed drones be subject to legal review. Over recent years, questions have been raised about the lawfulness of using drones to target persons outside of traditional battlefields and active hostilities. 1 23 124 125 126 127

Commentary on Art. 36, ap i, §1469. icrc, Guide to the Legal Review of New Weapons, s. 2.3.1. Ibid., s. 1.3. Commentary on Art. 36, ap i, §1470. “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” un doc. A/​68/​382, 13 September 2013, §13. 1 28 Restating applicable customary international law; see also the Manual on International Law Applicable to Air and Missile Warfare, Humanitarian Policy and Conflict Research, 2009.

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With respect to the purported “war on terror” against al-​Qaeda and associated forces across many states, the us Department of Justice has classified the “war on terror” as a niac to which loac applies: [T]‌he United States is currently in a non-​international armed conflict with al-​Qa’ida and its associated forces. Any us operation would be part of this non-​international armed conflict, even if it were to take place away from the zone of active hostilities. … There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-​international armed conflict in which one of the parties is a transnational, non-​state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict.129 Nevertheless, general disagreement on this characterisation as a globalised armed conflict persists.130 While this characterisation is not about to disappear,131 a number of legal experts have offered a wide range of views on 129 Department of Justice White Paper, available at:  https://​www.law.upenn.edu/​live/​files/​ 1903-​doj-​white-​paper. 130 In May 2016, the uk Parliamentary Joint Committee on Human Rights reported the position of the United Kingdom on the issue as follows: “The us takes the view that it is in a global armed conflict with isil/​Da’esh, so that the Law of War applies and lethal force can be used against isil/​Da’esh wherever in the world they appear. The Secretary of State for Defence, however, said that the uk Government does not take that view, but regards itself to be in armed conflict with isil/​Da’esh only in Iraq and neighbouring Syria.” House of Lords and House of Commons Joint Committee on Human Rights, The Government’s policy on the use of drones for targeted killing, Second Report of Session 2015–​16, hl Paper 141, hc 574, May 2016, p. 9. 131 As explained by us Department of Defense General Counsel Stephen Preston in April 2015, the “United States’ armed conflict against al-​Qa’ida and associated forces in Afghanistan and elsewhere also continues” and the groups and individuals against which the us military is taking action, including associated forces, are: “al-​Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-​Qa’ida in the Arabian Peninsula (aqap) in Yemen; and individuals who are part of al-​Qa’ida in Somalia and Libya. In addition, over the past year, we have conducted military operations under the 2001 aumf against the Nusrah Front and, specifically, those members of al-​Qa’ida referred to as the Khorasan Group in Syria. We have also resumed such operations against the group we fought in Iraq when it was known as al-​Qa’ida in Iraq, which is now known as isil.” S. W. Preston, “The Legal Framework for the United States’ Use of Military Force Since 9/​11,” Annual Meeting of the American Society of International Law, Washington, dc, 10 April 2015.

116 Weizmann how to properly define the geographical scope of a niac.132 And where the targeting has no connection to any armed conflict, the lawfulness of force needs to be examined under law of law enforcement rules, as discussed in Chapter 2. In armed conflict, drone operators must always comply with the fundamental loac prohibition on attacking civilian persons or civilian objects. Drones’ ability to loiter, their sensors’ advanced capacity to gather intelligence, their continuous video feeds and communication systems to ground forces, imagery analysts, targeting officers and legal officers,133 and the guidance technology they carry all potentially serve to improve military commanders’ situational awareness and target identification, allow for more precise targeting, and reduce the risk of civilian casualties.134 These traits are considered particularly helpful in “asymmetric” conflicts, in which distinguishing between persons who are protected and persons who may be targeted poses a great practical challenge. Because drones possess such sophisticated sensors as video and infra-​red cameras and are able to conduct surveillance over a given area for an extended period of time, they have the potential to help direct attacks more precisely against military objectives and reduce civilian casualties and damage to civilian objects. As the icrc has stated, from the perspective of international humanitarian law, any weapon that makes it possible to carry out more precise attacks, and helps avoid or minimize incidental loss of civilian life, injury to civilians, or damage to civilian objects, should be given preference over weapons that do not. 132 See, e.g., Melzer, “Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare,” May 2013, p.  21; N.  Lubell and N.  Derejko, “A Global Battlefield? Drones and the Geographical Scope of Armed Conflict,” Journal of International Criminal Justice, 2013; C. Kress, “Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts,” Journal of Conflict & Security Law, Vol. 15 No. 2 (2010), pp.  245–​74; M.  Schmitt, “Charting the Legal Geography of Non-​International Armed Conflict,” International Legal Studies, Vol. 90, No. 1 (2014); J. Pejic, “Extraterritorial targeting by means of armed drones:  Some legal implications”; Netherlands Advisory Committee on Issues of Public International Law, “Report on Armed Drones,” 2013, p. 3. One consequence of recognising a wide geographic scope of loac application is the increased risk of incidental harm to civilians. 133 Henderson and Cavanagh, “Unmanned Aerial Vehicles: Do They Pose Legal Challenges?,” p. 204. 134 “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” un doc. A/​68/​389, 18 September 2013, §28.

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Whether the use of armed drones does indeed offer these advantages will depend on the specific circumstances.135 In addition, the fact that armed drones are crewed by both a pilot and payload operator and are supported in real time by intelligence analysts might make them less subject to information overload than, for instance, the pilot of a conventional fighter-​bomber. While there is no legal obligation to acquire the most sophisticated means of intelligence gathering or the most precise weapons available, as affirmed above, loac does require that they be used “as soon as they form part of a state’s arsenal and their use is practically possible.”136 On the other hand, drones’ high altitudes and potentially long engagement ranges can hamper their sensor resolution, posing particular challenges for complying with the rule of distinction. Moreover, limitations in intelligence-​gathering and the varying quality of information provided by drone sensors may not allow targets to be identified correctly and their activities may be mistakenly interpreted as having military significance. Some have argued that abuses are more likely when the operator is disconnected and at a distance from a potential adversary, though there is no evidence that this is either true or that it is more frequent in the case of drone operators. The supervision of more than one system at a time, combined with operators’ limited capacity to process a large volume of potentially contradictory data at any given moment, have also led to questions about operators’ ability to comply with loac in those circumstances. All these factors may lead to mistaken attacks against civilians, as well as excessive incidental civilian harm. For instance, a 2010 report by the us military found that drone operators in Nevada and “poorly functioning command posts” had failed to provide the ground commander with evidence of civilian presence, leading to the mistaken killing of 23 civilians.137 In 2011, an investigation into the first known case of drone friendly-​fire deaths revealed that Marine officers on the ground and Air Force crew controlling the drone were not aware that analysts observing a live video feed from a third location had doubts about the targets’ identity.138 135 icrc, Interview, “The use of armed drones must comply with laws,” 10 May 2013. 136 J.-​F. Quéguiner, “Precautions under the law governing the conduct of hostilities,” pp. 797–​98 and 802–​03. 137 D. Filkins, “Operators of Drones Are Faulted in Afghan Deaths,” The New  York Times, 29 May 2010, at: http://​www.nytimes.com/​2010/​05/​30/​world/​asia/​30drone.html. 138 D. Zucchino and D.  S. Cloud, “US deaths in drone strike due to miscommunication, report says,” The Los Angeles Times, at:  http://​articles.latimes.com/​2011/​oct/​14/​world/​ la-​fg-​pentagon-​drone-​20111014.

118 Weizmann In 2014, as a result of reportedly poor coordination between persons on the ground and drone operators, five Afghan National Army soldiers were killed and eight were wounded by a us drone strike.139 Under loac, drones may also be the object of a lawful attack if they meet the definition of a military objective, and drone operators may also be lawful targets as members of the armed forces of a party to the armed conflict or as direct participants in hostilities, even if they are operating far from actual battlefield hostilities.140 Should they be operating out of a third state rather than the territory of the warring state to which they belong, this will elicit the same challenging questions as those mentioned earlier with respect to the geographic scope of armed conflict and consequent loac application. In a traditional type of conflict occurring within the borders of one state, it is not disputed that loac would allow the enemy to target armed drone operators, whether they are considered members of the armed forces or direct participants in hostilities. However, as described earlier, debate persists over whether persons carrying out hostilities from a third, non-​belligerent state, can be targeted under loac. Despite protective policy justifications for limiting the geography of loac, as Melzer has explained, “humanitarian law was never designed to prevent armed conflicts or to confine them territorially but, rather, to regulate them whenever and wherever they occur. … In the absence of express territorial limitations … humanitarian law applies wherever belligerent confrontations occur, including … the territory of third States, whether hostile, co-​belligerent, occupied or neutral. What is decisive is not where hostile acts occur but whether, by their nexus to an armed conflict, they actually do represent ‘acts of war’ ” (added emphasis). Similarly, Schmitt has submitted, whether a person can be targeted should depend “on his or her status under international humanitarian law, not his or her location.”141 The same reasoning also applies to protections under loac:  As Ferraro has explained, protection should depend on a person’s status rather than his/​her location.142 Another challenge to loac arising in the use of armed drones is the notion of “signature strikes,” according to which persons would be targeted on the 139 C. K. Chumley, “U.S. drone kills 5 Afghan soldiers in friendly fire tragedy,” The Washington Times, 6 March 2014, at: http://​www.washingtontimes.com/​news/​2014/​mar/​6/​us-​drone​ -kills-​5-​afghan-​soldiers-​friendly-​fire-​tra/​. 140 See Henderson and Cavanagh, “Unmanned Aerial Vehicles:  Do They Pose Legal Challenges?,” p. 208. 141 M. Schmitt, “Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law,” Columbia Journal of Transnational Law, p. 99. 142 See T. Ferraro, “Geographic Scope of Application of IHL,” Bruges Colloquium, 2012, p. 108.

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basis of certain characteristics associated with “terrorist” activity, such as their appearance or location, but not necessarily their identity or activity.143 It remains contentious whether the application of these criteria has complied with the above-​described requirement of distinction.144 With respect to armed drones, us President Barack Obama’s written policy standards and procedures adopted in May 2013 are said to “formalize and strengthen the Administration’s rigorous process for reviewing and approving operations to capture or employ lethal force against terrorist targets outside the United States and outside areas of active hostilities” (emphasis added).145 For instance, lethal action may only be taken if: target poses a continuing, imminent threat146 to us citizens; • the there certainty that the terrorist target is present; • there isisnear • killed; near certainty that non-​combatants will not be injured or 143 See Columbia Law School Human Rights Clinic, The Civilian Impact of Drones, September 2012, p. 8. For examples of “signatures” and a discussion of the lawfulness of applying such criteria, see Heller, “One Hell of a Killing Machine: Signature Strikes and International Law”; “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions,” un doc. A/​68/​382, 13 September 2013, §72; “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism,” un doc. A/​68/​389, 18 September 2013, §74. 144 See Heller, “One Hell of a Killing Machine: Signature Strikes and International Law.” 145 us Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities, 13 May 2013, at:  https://​www​ .whitehouse.gov/​sites/​default/​files/​uploads/​2013.05.23_​fact_​sheet_​on_​ppg.pdf. 146 On the meaning of “imminent threat,” the us Administration has articulated a theory of “elongated imminence,” which John Brennan, as Assistant to the President for Homeland Security and Counterterrorism, described in 2011 as a “more flexible understanding of ‘imminence’ ” that may be warranted “when dealing with terrorist groups, in part because threats posed by non-​state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.” us officials have argued that this definition is needed because non-​state actors can be difficult to identify, and may be capable of striking with little notice from distant locations and inflicting significant civilian or military casualties. The us Administration contends that its approach to imminence is gaining acceptance as “an increasing number of our international counterterrorism partners have begun to recognize that the traditional conception of what constitutes an ‘imminent’ attack should be broadened in light of the modern-​day capabilities, techniques, and technological innovations of terrorist organizations.” J.  Brennan, Assistant to the President for Homeland Security and Counterterrorism, Remarks at Harvard Law School, 16 September 2011, at:  http://​www.whitehouse.gov/​the-​press-​office/​2011/​09/​16/​ remarks-​john-​o-​brennan-​strengthening-​our-​security-​adhering-​our-​values-​an.

120 Weizmann is not feasible at the time of the operation; • capture the relevant authorities in the country where action is • contemplatedgovernmental cannot or will not effectively address the threat to us

•

persons; and no other reasonable alternatives exist to effectively address the threat to us persons.

While, in parts, this guidance may appear stricter than what is required under loac, it is not entirely clear in which instances these standards and procedures are being implemented.147 Nevertheless, it is known that they were not being applied to us military operations in Iraq or Syria in 2016,148 or parts of Yemen149 and Somalia150 in 2017. It is also believed that they do not apply to Central Intelligence Agency (cia) operations in Pakistan; instead, a “classified addendum” has exempted cia operations in Pakistan from the requirement that a target pose “a continuing, imminent threat to us persons.”151 147 Moreover, as at late October 2017, the Trump administration was said to be preparing to dismantle certain aspects, while preserving the “near certainty” standard that civilians would not be killed (while reducing the required level of confidence that the intended target was present in a strike zone from “near certainty” to “reasonable certainty”). See C. Savage and E. Schmitt, “Trump Poised to Drop Some Limits on Drone Strikes and Commando Raids,” The New York Times, 21 September 2017, at: https://​www.nytimes.com/​2017/​09/​21/​us/​­politics/​ trump-​drone-​strikes-​commando-​raids-​rules.html; and C. Savage, “Will Congress Ever Limit the Forever-​Expanding 9/​11 War?,” The New York Times, 28 October 2017, at: https://​www​ .nytimes.com/​2017/​10/​28/​us/​politics/​aumf-​congress-​niger.html. 148 M. Isikoff, “White House exempts Syria airstrikes from tight standards on civilian deaths,” Yahoo News, 30 September 2014, at: http://​news.yahoo.com/​white-​house-​exempts-​syria​ -airstrikes-​from-​tight-​standards-​on-​civilian-​deaths-​183724795.html. 149 C. Savage and E.  Schmitt, “Trump Administration Is Said to Be Working to Loosen Counterterrorism Rules,” The New York Times, 12 March 2017, at: https://​www.nytimes​ .com/​2017/​03/​12/​us/​politics/​trump-​loosen-​counterterrorism-​rules.html. 150 C. Savage and E.  Schmitt, “Trump Eases Combat Rules in Somalia Intended to Protect Civilians,” The New York Times, 30 March 2017, at: https://​www.nytimes.com/​2017/​03/​ 30/​world/​africa/​trump-​is-​said-​to-​ease-​combat-​rules-​in-​somalia-​designed-​to-​protect​ -civilians.html. Nevertheless, the head of Africa Command has said he would continue to apply the “near certainty” standard that there would be no civilian deaths. See C. Savage, H. Cooper, and E. Schmitt, “U.S. Strikes Shabab, Likely a First Since Trump Relaxed Rules for Somalia,” The New York Times, 11 June 2017, at: https://​www.nytimes.com/​2017/​06/​ 11/​us/​politics/​us-​airstrike-​somalia-​trump.html. 151 “Obama Kept Looser Rules for Drones in Pakistan,” The Wall Street Journal, 26 April 2015, at:  http://​www.wsj.com/​articles/​obama-​kept-​looser-​rules-​for-​drones-​in-​pakistan​ -1430092626.

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Traditionally, those who plan or decide on an attack will generally base their decisions on indirect information provided by intelligence or reconnaissance (human, aerial, satellite, or other) operations. If, in such instances, a target’s sudden appearance makes it necessary to strike within a very short time, the need for a rapid reaction will require expedited analysis of the military nature of a target and potential incidental damage, thereby affecting the feasibility of certain precautions. Drones’ capacity for enhanced real-​time aerial surveillance, tracking, and information gathering on patterns of activity therefore has the potential to ensure a more robust assessment of potential collateral damage, and widen the range of precautionary measures that may be taken in advance of an attack. For example, adjustments can be set on the timing, location, angle, or axis of an attack such that it would be less likely to cause civilian losses. If, through the use of drones, operators have an increased ability to ­exercise the required caution in the timing, location and precision of an attack, then drones may well—​from a loac point of view—​be a preferred option for certain operations. It has been submitted that “[i]‌f uav s are ­available, and their use is feasible, then the law requires them to be used for this purpose.”152 But this is subject to their availability to a party to a conflict, and there is no legal requirement to acquire them.153 Moreover, even when they form part of an arsenal, operational concerns may limit their use.154

Concluding Remarks

While no specific rule prohibits the use of armed drones, there is no doubt that loac circumscribes their use in armed conflict. In such circumstances, their use must comply with specific prohibitions and restrictions on the use of certain weapons, in addition to respecting the fundamental rules of distinction, proportionality, and precautions in attack. While a protective interpretation 152 Henderson and Cavanagh, “Unmanned Aerial Vehicles: Do They Pose Legal Challenges?,” p. 209. 153 Quéguiner, “Precautions under the Law Governing the Conduct of Hostilities,” pp. 797–​98 and 801–​02; and Henderson and Cavanagh, “Unmanned Aerial Vehicles:  Do They Pose Legal Challenges?,” p. 209. 154 Henderson and Cavanagh, “Unmanned Aerial Vehicles: Do They Pose Legal Challenges?,” p. 209.

122 Weizmann and strict application of the loac framework can help address some common concerns about their use in armed conflict, this is only complementary to the legal frameworks applicable to the resort to force against states and the protection of persons outside of armed conflict, as well as the important ethical, moral, and political debates that must accompany the development and use of such weapon systems.

Chapter 5

Ensuring Fully Autonomous Weapons Systems Comply with the Rule of Distinction in Attack Maziar Homayounnejad Introduction A fully autonomous weapons system is essentially one that, “once activated, can select and engage targets without further intervention by a human operator” .1 Such systems are in early stage development in more than 40 states2 and may well be fielded within the coming decade. For the United States (us), in particular, weapons autonomy is an integral part of its Third Offset Strategy,3 which aims to bolster us conventional deterrence in the face of declining force structures4 vis-​à-​vis capable adversaries.5 Fully autonomous weapons systems are distinct from more traditional means of warfare in that the human operator is kept “out of the loop” in the 1 us Department of Defense (DoD), Directive No. 3000.09: Autonomy in Weapon Systems, 2012, incorporating Change 1, 8 May 2017, p. 13 [emphasis added], at: http://​www.esd.whs.mil/​ Portals/​54/​Documents/​DD/​issuances/​dodd/​300009p.pdf. See also the section below on defining “weapons autonomy.” 2 See Panel Discussion: “What If: Robots Go To War?,” available at: https://​www.weforum.org/​ events/​world-​economic-​forum-​annual-​meeting-​2016/​sessions/​what-​if-​robots-​go-​to-​war. 3 Launched by the then us Secretary of Defense, Chuck Hagel, in a speech at the Reagan National Defense Forum on 14 November 2014. See the DoD Memorandum, The Defense Innovation Initiative, 15 November 2014, available at: http://​archive.defense.gov/​pubs/​OSD013411-​14.pdf. 4 C. Pellerin, “Deputy Secretary: Third Offset Strategy Bolsters America’s Military Deterrence,” DoD News, 31 October 2016, at:  https://​www.defense.gov/​News/​Article/​Article/​991434/​ deputy-​secretary-​third-​offset-​strategy-​bolsters-​americas-​military-​deterrence/​. It should be noted, however, that the current policy of the Trump Administration is to reverse Obama-​era cuts in defence spending. 5 The First Offset Strategy was the build-​up of us nuclear forces during the 1950s; the Second Offset Strategy was the development of precision-​guided munitions, stealth and intelligence, surveillance & reconnaissance capabilities that began in the 1970s. In all cases, the United States sought to develop a force multiplier that “offset” the numerical advantage and/​or rising technical capability of adversaries, thereby securing and maintaining the ability both to win and deter wars. See T. A. Walton, “Securing the Third Offset Strategy: Priorities for the Next Secretary of Defense,” Joint Force Quarterly, No. 82(3) (2016), pp. 6–​15, at p. 6.

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_007

124 Homayounnejad critical functions of the weapon system,6 leaving sensory equipment and software algorithms to determine if, when, and to what extent force should  be applied against specific targets. This raises questions on the capacity of such systems to comply with the law of armed conflict (loac); specifically, though not exclusively, with the rules governing the conduct of hostilities. The key rules, discussed in the previous chapter, are of distinction and proportionality in attack. This chapter focuses on the most fundamental of these rules: distinction in attack. It examines the extent to which autonomous weapons can be deployed and used in a way that distinguishes lawful from unlawful targets and enables the weapon system to engage only the former. The main analysis is in three parts. First, I seek to define fully autonomous weapons systems and clarify their main features. The second section reviews the content of the rule of distinction in attack and how it might be applied to autonomous weapons deployments. Finally, the chapter considers some potential “legal transplants” that could inform a treaty7 or loac manual regulating fully autonomous weapons systems.8

Defining Fully Autonomous Weapons Systems

Arriving at a satisfactory definition of fully autonomous weapons systems for present purposes is challenging but essential.9 This chapter addresses only future weapon systems,10 excluding from its purview currently fielded systems that operate under existing loac rules, such as: 6

That is, to select (find, fix, track) and engage (target, engage, assess) a target. See, e.g., International Committee of the Red Cross (icrc) (2014) Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects, Report on Expert Meeting of 26–​28 March 2014, p. 62, at: https://​www​.icrc.org/​en/​document/​report​-​icrc-​meeting​ -​autonomous-​weapon-​systems-​26-​28-​march-​2014. 7 For an advocate of the treaty route, see, e.g., R. Crootof, “The Killer Robots are Here: Legal and Policy Implications,” Cardozo Law Review, Vol. 36, No. 5 (2015), pp. 1837–​915, at p. 1837. 8 This more flexible, non-​binding approach is the preferred option in, for example, K. Anderson, D. Reisner, and M. Waxman, “Adapting the Law of Armed Conflict to Autonomous Weapon Systems,” International Law Studies, Vol. 90 (2014), pp. 386–​411, at p. 386. 9 M. C.  Horowitz, “Why Words Matter:  The Real World Consequences of Defining Autonomous Weapons Systems,” Temple International & Comparative Law Journal, Vol. 30, No. 1 (2016), pp. 85–​98, at p. 85. 10 See P. Scharre and M. C. Horowitz, “An Introduction to Autonomy in Weapon Systems,” CNAS Ethical Autonomy Series Working Paper, 2015, available at: https://​s3.amazonaws​ .com/​files.cnas.org/​documents/​ Ethical-​Autonomy-​Working-​Paper_​021015_​v02.pdf.

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​piloted systems, such as the Reaper and Predator drones, • Remotelywhich have a “man in the loop” both for selecting and engaging

• •

targets. Semi-​autonomous weapons, such as precision-​guided munitions, which automatically engage specific targets that have been pre-​selected by human operators. Automated weapon systems, such as the Phalanx CIWS and the Iron Dome air and missile defence systems, which both select and engage incoming threats, but usually on simple rules-​based criteria that work in a predictable manner.11

Weapons Autonomy By contrast, “weapons autonomy” encompasses:  a) humans out of the loop, b) in the critical functions of a weapon system; c) with those functions being performed by software controllers that are able to exercise discretion,12 and d) operating in a potentially complex and unstructured environment.13 With these characteristics in mind, the following definition of fully autonomous weapons systems is proposed: A weapon system that, once activated, can select and engage targets without further human intervention and without any human pre-​selection of those specific targets, and, in the process, to exercise discretion and self-​direction to operate in a potentially complex and unstructured environment.14 11

Often, these systems can also be set to operate in supervised-​autonomous mode, where there is a man “on the loop,” ready to override the machine’s operation in the event of any unintended engagements. 12 Discretion in this context does not refer to human-​like intelligence, deliberative reasoning, or free will. It refers to the idea that autonomous weapons systems will: collect (input) data, process it, and, in accordance with that data and pre-​programmed instructions, select one or more (output) options from a range of possible ones. The “discretionary” element comes from the fact that deploying commanders are not always able to foresee the exact output option, mainly due to the complexity of the system and its operating environment. 13 Namely, cluttered environments in which military objectives, civilians, and civilian objects are comingled. 14 For further discussion on this definition and its four constituent parts, see M. Homayounnejad, “Assessing the Sense and Scope of ‘Autonomy’ in Emerging Military Weapon Systems,” TLI Think! Paper 76/​2017, 2017, available at:  https://​ ssrn.com/​ abstract=3027540.

126 Homayounnejad Clarification on the Role of Humans Humans will not be totally out of the loop in the use of any weapons systems that may be fielded in the near future. Instead, commanders will retain full control over a number of important variables, which will be programmed into the systems. As a bare minimum, these will include target parameters,15 geographical/​ spatial boundaries, and temporal boundaries.16 This leaves the weapon system to select and engage specific targets that fall within these general constraints.17 A fourth dimension of (human) command and control is to have a capability to monitor the system, which will enable the commander or weapons operator to detect and shut down any weapons system that appears to be “going rogue.” Only within these limiting parameters will a weapons system offer genuine military utility, while enabling commanders to remain accountable for its actions and responsible for the overall outcome of operations in their own area of command and control. Concretely, such limiting parameters enable commanders to:  fulfil mission objectives in compliance with loac norms and mission-​specific rules of engagement, with full situational awareness,18 and in pursuit of the broader strategic/​political and military purposes of the operation.19 Accordingly, humans will remain in the wider loop of strategic and operational control, while the weapon system operates with relative autonomy within the tactical narrow loop.20 As a corollary, “many key targeting decisions will … be made in earlier phases of the targeting cycle and at locations further removed from the intended strike site.”21 Thus, deliberative human reasoning on the actions of a fully autonomous weapons system 15 16

17 18 19 20

21

That is, the categories or “types” of targets, such as “tank” or “attack helicopter.” All three are detailed in Article 36, Killing by Machine:  Key Issues for Understanding Meaningful Human Control, 6 April 2015. This adds, at p. 4, that the three parameters should be set tightly enough to enable human control over an “individual attack”, which may potentially comprise multiple acts of violence. At:  http://​www.article36.org/​wp​ -content/​uploads/​2013/​06/​KILLING_​BY_​MACHINE_​6.4.15.pdf. Scharre and Horowitz, “An Introduction to Autonomy in Weapon Systems.” This includes the status and movements of one’s own and allied forces, enemy forces, and the civilian population. I am grateful to Wolfgang Richter for pointing out these linkages. aiv and cavv, “Autonomous Weapon Systems: The Need for Meaningful Human Control,” Report No. 97 AIV/​No. 26 CAVV, October 2015, available at: http://​aiv-​advies.nl/​­download/​ 606cb3b1-​a800-​4f8a-​936f-​af61ac991dd0.pdf. J. S.  Thurnher, “Means and Methods of the Future:  Autonomous Systems,” in P.  A. L. Ducheine, M. N. Schmitt, and F. P. B. Osinga, (eds.), Targeting: The Challenges of Modern Warfare, tmc Asser Press, The Hague, 2016, pp. 177–​99, at p. 178.

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may be made in a more abstract setting, with less accurate knowledge of concrete threats or specific civilian risks. This may require commanders to take greater precautionary measures when deploying and using such systems operationally. Weapon Systems Likely to Emerge as Fully Autonomous The kinds of weapon systems most likely to emerge as fully autonomous in the near-​term are the wide-​area search-​and-​attack loitering munition and the drone platform.22 Both will loiter over a predetermined search area, looking for specific targets that fall within the general parameters set by commanders. However, as Horowitz has pointed out, there is also a major difference between the two: munitions are non-​returnable, inherently “one-​way” weapons designed to destroy a single target,23 while platforms are inherently returnable systems that will launch multiple other munitions.24 Thus, a distinction failure with a fully autonomous weapons platform may pose relatively greater risk for civilians than would an autonomous munition, because of the former’s capacity for multi-​target engagement. That said, where munitions operate in a swarm, we will see “large numbers of dispersed individual … [munitions] or small groups [of munitions] coordinating together and fighting as a coherent whole.”25 Hence, multi-​target engagement is possible with these munitions and, in the event of distinction failure, swarms can also inflict more significant civilian harm. Accordingly, in the case of autonomous platforms and swarming munitions, commanders may be obliged to take even greater precautionary measures in their deployment and use relative to stand-​alone munitions, all else being equal. It should be noted that presently, a rather rudimentary autonomous munition exists in the Israeli Harpy. This detects and engages specific radar-​emitting objects, with the option of negative visual confirmation,26 and all within tight 22 23 24 25

26

Scharre and Horowitz, “An Introduction to Autonomy in Weapon Systems.” Horowitz, “Why Words Matter: The Real World Consequences of Defining Autonomous Weapons Systems,” p. 94, analogising this with “an arrow or a bullet fired from a gun.” Ibid., p. 95, giving the examples of combat aircraft, tanks, warships, and submarines. P. Scharre, Robotics on the Battlefield Part ii: The Coming Swarm, cnas, Washington, dc, 2014, p.  26, available at:  https://​s3.amazonaws.com/​files.cnas.org/​documents/​CNAS​ _​TheComingSwarm_​Scharre.pdf. Scharre also discusses (at p. 10) how swarms of robotic systems can bring greater mass, coordination, intelligence, and speed to the battlefield, thereby increasing the chance of gaining a decisive advantage over adversaries. Namely, there is the option to visually zoom-​in on the radar-​emitting object, compare the image with a database of known “friendly” sites; if no match is recognised, the Harpy proceeds to dive-​bomb into its target.

128 Homayounnejad spatial and temporal boundaries within which deploying commanders believe lawful targets exist.27 That said, the Harpy consists of many of the same technologies in today’s semi-​autonomous homing munitions, but with greater range and aerial persistence;28 thus, it is mostly autonomous “by usage.”29 Accordingly, we can expect future incarnations to build on this:  to be more sophisticated, by incorporating stronger artificial intelligence (ai) and automatic target recognition30 (atr) capabilities,31 and to have longer loitering times and greater loitering areas. This will enable those munitions to engage a wider range of targets with improved target accuracy and distinction performance, for example, by loitering longer for more cross-​cueing opportunities.32

The Rule of Distinction in Attack

The rule of distinction, loac’s “most fundamental pillar,”33 requires the parties to any armed conflict to at all times distinguish between civilians and combatants, and between civilian objects and military objectives; and to direct their 27

28 29

30

31

32

33

Scharre, P “Autonomy, ‘Killer Robots,’ and Human Control in the Use of Force—​Part I,” Just Security Blog, 9 July 2014, at:  https://​www.justsecurity.org/​12708/​autonomy-​killer​ -robots-​human-​control-​force-​part/​. Ibid. Horowitz affirms that the operator’s usage can make semi-​autonomous weapons fully autonomous. Horowitz, “Why Words Matter: The Real World Consequences of Defining Autonomous Weapons Systems,” pp. 92–​94. This refers to the “automatic (unaided) processing of sensor data to locate and classify targets,” and is essential for enabling an autonomous weapon to distinguish legitimate military objectives from civilians and other protected persons and objects. See B. J. Schachter, Automatic Target Recognition, Bellingham, Washington: spie Press, 2016, p. 1 [emphasis added]. As an umbrella term, atr can refer to algorithms alone, or to potentially vast combinations of hardware and software designed for particular operational environments. These systems can combine a very broad range of devices, including visual, light (lidar), acoustic, ultrasonic, electromagnetic, and infrared sensors, among others. Cross-​cueing aims to minimise error rates in atr by confirming target detection, either by considering two or more means of search (e.g. combining lidar with acoustic sensing) at a given time or by executing a unique means of search at two consecutive time periods. See C. Simonin, J.-​P. Le Cadre, and F. Dambreville, “A Common Framework for Multi-​Target Search and Cross-​Cuing Optimization,” IEEE Xplore, 2008, at: http://​ieeexplore.ieee.org/​ stamp/​stamp.jsp?arnumber=4632269. Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd Edn, Cambridge University Press, Cambridge, 2016, p.  72, adding that the principle reflects the history of the law of armed conflict as “a sustained effort to ensure that civilians … are protected from the havocs of war.”

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operations only against combatants and military objectives.34 Thus, the rule (which also exists as a principle) imposes a bifurcated obligation:  to refrain from attacking civilian targets and to ensure that all attacks are aimed at military targets. Combatants are generally members of the conventional armed forces,35 which may render them amenable to detection by a fully autonomous weapons system’s atr. This is by virtue of the combination of uniform and insignia, metallic footprint, and their distinctive behaviour and movements, which are a product of military training.36 Thus, traditional combatants permit status-​ based targeting, which affords a relatively robust basis for the lawful deployment and use of fully autonomous weapons systems.37 However, the 1977 Additional Protocol i blurs this category by allowing other persons less amenable to atr, such as paramilitaries and armed police officers, to be combatants.38 Even more challenging is the inclusion of guerrilla fighters wearing no uniform or distinguishing sign, and with relaxed rules on the open carriage of their weapons.39 34

35 36

37

38

39

See the “Basic Rule” in Art. 48, 1977 Additional Protocol i to the 1949 Geneva Conventions; and Rules 1 and 7, icrc Study of Customary International Humanitarian Law, at: https://​ ihl-​databases.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule1; and https://​ihl-​databases​ .icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule7. Art. 43(2), 1977 Additional Protocol i. W. H.  Boothby, “Autonomous Attack—​Opportunity or Spectre?” in T.  D. Gill, (ed.) Yearbook of International Humanitarian Law 2013, Vol. 16 (2015), tmc Asser Press, The Hague, pp. 71–​88. Note, however, that atr systems are not flawless, but are in fact subject to (sometimes fatal) error, which can be aggravated by battlefield smoke and poor weather. That said, the US Army Research Laboratory is currently refining a quantum-​imaging technique known as “ghost imaging,” to remedy this very problem. Ghost imaging aims to derive artificially-​generated, but vastly improved holographic images of a person or object that might be two or so miles away on a smoky battlefield, thereby increasing the likelihood of accurately detecting and perceiving military targets. See “The Newest Thing in Quantum Imaging,” Department of Defense Armed with Science, 3 January 2014, at: http://​science​ .dodlive.mil/​2014/​01/​03/​the-​newest-​thing-​in-​quantum-​imaging/​. Art. 43(3), 1977 Additional Protocol i. This provision makes it clear, though, that the party integrating police or paramilitary personnel into its armed forces must notify the other Parties. This may enable attacking forces to appropriately update the atr algorithms of their autonomous weapons systems, for example, to enable them to recognise police uniform and insignia. Art. 44(3), 1977 Additional Protocol i. A number of states not party to the Protocol, notably the United States and Israel, do not support this provision, much less recognise it as having customary law status. They prefer to use the traditional categories of combatant found in Art. 4A of the 1949 Geneva Convention iii.

130 Homayounnejad In contradistinction to the above, it is strictly prohibited to target civilians, unless and for such time that they take a direct part in hostilities (dph).40 The temporal element complicates matters because to be liable to attack, a civilian must act on a “spontaneous, sporadic or unorganised basis,”41 and must, in the view of the icrc, cumulatively meet its threshold of harm, direct causation, and belligerent nexus tests.42 This creates a conduct-​based targeting challenge that will be very difficult for any fully autonomous weapons system to meet. Concretely, atr systems will find it very difficult to recognise offensive behaviour from a civilian, with no other tangible cues.43 Conversely, some authors argue that robots do not necessarily have a self-​preservation instinct, thus can be programmed for “conservative use of lethal force,”44 meaning, for instance, that it will hold fire on all civilians until fired upon.45 Opening fire on an autonomous weapons system would provide strong evidence of a specific hostile act, which is the essence of dph.46 Thus, being fired upon is one of the most objective indicators of dph: both easily recognisable by a robot,47 and permitting at least a defensive, if not a lethal, response. However, one of the main policy drivers towards greater autonomy is the cost savings that autonomous weapons systems are expected to generate.48 40

41 42 43

44 45 46 47

48

Art. 51(2)-​(3), 1977 Additional Protocol i. See also N. Melzer, Interpretive Guidance on the  Notion of Direct Participation in Hostilities under International Humanitarian Law, icrc, Geneva, 2009 (hereafter icrc dph Study). Ibid., p. 34. See ibid., pp. 46–​64. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd Edn; M.  Wagner, “The Dehumanization of International Humanitarian Law:  Legal, Ethical, and Political Implications of Autonomous Weapon Systems,” Vanderbilt Journal of Transnational Law, Vol. 47 (2014), pp. 1371–​424, at p. 1371, commenting on the complex and contextual reasoning required to accurately assess dph, and to distinguish it from innocuous activity or lawful self-​defence. R. C. Arkin, Governing Lethal Behaviour in Autonomous Robotics, Chapman & Hall/​c rc, Boca Raton, 2009. M. N. Schmitt and J. S. Thurnher, “Out of the Loop: Autonomous Weapons and the Law of Armed Conflict,” Harvard National Security Journal, Vol. 4, No. 2 (2013), pp. 231–​81, at p. 264. icrc dph Study, pp. 43–​45. The us Army’s acoustic detection systems, for example, can pinpoint the nature, location, and direction of gunfire, and rapidly assess whether these are being aimed at friendly forces. A. White, “Fighting Fire with Fire: Technology Finds a Solution to Sniper Attacks,” Jane’s International Defence Review, June 2009, p. 52. D. Burg and P. Scharre, “The $100 Billion Question: The Cost Case for Naval Uninhabited Combat Aircraft,” CNAS 20YY Series, August 2015, at:  https://​s3.amazonaws.com/​files​ .cnas.org/​documents/​CNAS-​Report_​UAV-​Lifecycle-​Costs_​FINAL_​080715.pdf.

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Accordingly, a number of commentators have questioned whether programming such expensive devices for self-​sacrifice is a realistic design choice, given that this might simply offset the initial cost advantage.49 This is not disputed, though it may just mean that conservative use of lethal force becomes a strong candidate for design standards and technical legal criteria.50 Military objectives include objects that make an effective contribution to (the enemy’s) military action by virtue of their nature, location, purpose, or use.51 Arguably, the first two sub-​criteria are the most amenable to detection by an autonomous weapon, via its atr (nature)52 and Global Positioning  System (gps) guidance (location)53 systems. Moreover, recent advances in vision-​based (electro-​optical) guidance systems are sharpening  these capabilities, while eliminating the risk of gps hacking or jamming.54 49 50 51

52

53

54

C. Grut, “The Challenge of Autonomous Lethal Robotics to International Humanitarian Law,” Journal of Conflict and Security Law, Vol. 18, No. 1 (2013), pp. 5–​23, at p. 11. On which, see possible transplants from the 2008 Convention on Cluster Munitions as discussed below. Art. 52(2), 1977 Additional Protocol i. The second criterion for a military objective is that the attack must offer the attacker a definite military advantage in the circumstances ruling at the time. This largely overlaps with the first criterion, though in some (very rare) cases the temporal element may distinguish it. Wagner notes the “quantitative matching” of object characteristics based on size, shape, and dimensions, among others, via the cross-​cueing of multiple data sources. Wagner, “The Dehumanization of International Humanitarian Law: Legal, Ethical, and Political Implications of Autonomous Weapon Systems.” Given that these a) lend themselves to recognition by atr, and b) are unique to large military objects by “nature,” such as combat aircraft, tanks, and warships, it is reasonable to expect fully autonomous weapons systems to reliably distinguish such hardware from civilian objects. On cross-​cueing, see Simonin et al., “A Common Framework for Multi-​Target Search and Cross-​Cuing Optimization.” That said, note the imperfect nature of atr systems, notwithstanding the improvements and the techniques currently being refined (see fn 37, above). W. H. Boothby, Conflict Law: The Influence of New Weapons Technology, Human Rights and Emerging Actors, tmc Asser Press, The Hague, 2014. Significantly, gps guidance systems can also prevent attacks on locations placed on a no-​strike list, such as fixed medical units, non-​defended localities, and demilitarised zones under Arts. 12, 59, and 60 of the 1977 Additional Protocol i, respectively. See “Smart Weapons:  The Vision Thing,” The Economist, 3 December 2016, pp. 67–​68, at p. 67,  available at:  https://​www.economist.com/​news/​science-​and-​technology/​21711012-​ new​-generation-​smart-​weapons-​development-​bombs-​can-​recognise-​their.

132 Homayounnejad In contradistinction to military objectives, it is strictly prohibited to target civilian objects. If an otherwise civilian object is being put to a military use or purpose, though, it can become a military objective.55 However, such pliable concepts will be very difficult for an autonomous system to assess with a sufficient degree of accuracy. On the other hand, the lethal actions of an autonomous weapon could potentially be restricted to more objectively identifiable targets exhibiting high atr confidence levels, while human combatants pursue the more subjective categories.56 It is also prohibited to launch indiscriminate attacks.57 This is where civilians are not specifically targeted, but may nonetheless be directly struck because the attack is not targeted at a military objective. This may or may not pose difficulty for laws, depending on the extent of clutter in the battlefield, the level of sophistication of the atr employed, and the exact parameters programmed into the system’s mission control software. The protection of medical capabilities to treat the sick, wounded and shipwrecked is a particular concern in ihl. To this end, there are specific rules that afford protection against direct attack to medical units,58 civilian medical and religious personnel,59 medical vehicles,60 hospital ships and coastal rescue craft,61 “other” medical ships and craft,62 and medical aircraft.63 That said, additional safeguards exist, which may enable an autonomous weapons attack to effectively distinguish such protected persons and objects. These include: 55 56

57 58 59 60 61 62 63

Art. 52(2), 1977 Additional Protocol i. “Use” means that the enemy is presently using the object for military ends, while “purpose” refers to intended future use. “… if a commander was prepared to forgo some theoretical capability, it is possible … to confine the list of targets that are subject to automatic target recognition to a narrow list of objects that are clearly military objectives by their nature”: A. Backstrom and I. Henderson, “New Capabilities in Warfare: An Overview of Contemporary Technological Developments and the Associated Legal and Engineering Issues in Article 36 Weapons Reviews,” International Review of the Red Cross, Vol. 94, No. 886 (2012), pp.  483–​514, at p. 492. Art. 51(4), 1977 Additional Protocol i. Art. 12, 1977 Additional Protocol i. Art. 15, 1977 Additional Protocol i. Art. 21, 1977 Additional Protocol i. Art. 22, 1977 Additional Protocol i, expanding on analogous provisions in the 1949 Geneva Convention ii. Art. 23, 1977 Additional Protocol i, expanding on analogous provisions in the 1949 Geneva Convention ii. Art. 24, 1977 Additional Protocol i.

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Blue Shield that denotes cultural property64 • The The international special sign (three bright orange circles) for works • and installations containing dangerous forces,65 and The distinctive emblems the Red Cross and Red Crescent,66 denot• ing medical personnel andoffacilities.67 These can all be specifically designed to facilitate detection by the atr of an autonomous weapons system.68 Furthermore, a range of distinctive signals for the exclusive use of medical units and transports exist,69 for example, the distinctive light signal,70 radio signals and radio messages,71 and various forms of electronic identification.72 Each is individually predisposed to relatively reliable detection by technical means. However, in combination with each other and with the distinctive emblems, they offer an invaluable means of cross-​cueing 64 65

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See Arts. 6, 10, 16, 17, and 20, Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954; entry into force, 7 August 1954. Art. 56(7), 1977 Additional Protocol i; and Art. 17, Annex I to 1977 Additional Protocol i: Regulations Concerning Identification, as amended on 30 November 1993, entry into force, 1 March 1994 (hereafter, Amended Annex I). Art. 4, Amended Annex i. Art. 18, 1977 Additional Protocol i, provides that each Party “shall endeavour” to ensure that relevant personnel and facilities are identifiable; and shall implement methods and procedures to enhance recognition, mainly via the distinctive emblems, but also using the distinctive signals in addition or in lieu. For example, Art. 17(4), Amended Annex I, states that in times of reduced visibility, “the [international special] sign may be lighted or illuminated … [and] made of materials rendering it recognizable by technical means of detection.” Art. 5(3) provides the same in relation to the distinctive emblem, suggesting a method of painting the emblem that should “facilitate its identification, in particular by infrared instruments.” This is significant for autonomous attack, as infrared instruments are expected to be a standard feature on fully autonomous weapons systems. Arts. 6–​9, Amended Annex i. Art. 7, Amended Annex I, recommends a distinctive blue light signal with specific boundaries for its chromaticity and flashing rate. This will clearly aid recognition by the visual sensors of an autonomous weapons system. Art. 8, Amended Annex I, provides that the radio signal shall consist of a standardised urgency signal and distinctive signal and requires that any subsequent radio message is transmitted in English and that it convey specific data, such as the call sign of the medical transport, its position, intended route, and so on. This will aid detection by an autonomous weapons system fitted with a radio receiver and speech-​recognition software. Art. 9, Amended Annex I, provides that radar transponders and underwater acoustic signals may be used to identify protected medical aircraft and vessels, via standardised/​

134 Homayounnejad and detection-​confirmation.73 These could further enhance the distinction capabilities of an autonomous weapons system.74 That said, attacking forces must remain vigilant and avoid any over-​reliance on emblems, signs and signals. Indeed, placing too much faith in these safeguards—​and in human efforts to deploy them fully and accurately—​may lead to a watering down of commander-​led targeting efforts and, ultimately an increase in distinction failure. A separate but overlapping set of rules governing precautions in attack under Article 57 of the 1977 Additional Protocol i further underpin the rule of distinction, providing a more concrete set of requirements to enhance implementation of the rule.75 Article 57 generally requires that, during military operations, constant care be taken to spare the civilian population, civilians, and civilian objects. More specifically, those who plan or decide upon an attack are required to do everything feasible to verify that their intended target is neither a civilian nor a civilian object.76 In a range of other weapons treaties and in state practice, “feasible” has been interpreted as that which is “practicable or practically possible, taking into account all the circumstances ruling at the time, including

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agreed upon codes. This will clearly aid detection by autonomous aerial systems installed with the Secondary Surveillance Radar system, or autonomous undersea vehicles installed with, for example, a hydrophone. Simonin et  al., “A Common Framework for Multi-​ Target Search and Cross-​ Cuing Optimization.” Furthermore, to enhance the confidence of attacking forces in their atr assessments, Art. 38 of the 1977 Additional Protocol i prohibits adverse parties to an international armed conflict from making improper use of emblems, signs, or signals. Should such improper use extend to “spoofing” an autonomous weapons system with a view to killing, injuring, or capturing the attacking forces, this might amount to perfidy. On this latter point, Sassòli poses the question as to whether a machine can be “led to believe” that the person or object before it has protected status, or whether it is possible to “invite the confidence” of a fully autonomous weapons system: two constituent elements of perfidy. See M. Sassòli, “Autonomous Weapons and International Humanitarian Law: Advantages, Open Technical Questions and Legal Issues to be Clarified,” International Law Studies, Vol. 90 (2014), pp. 308–​40, at p. 328. For a detailed application of the precautionary rules to the deployment and use of autonomous weapons systems, see, e.g., I.  Henderson, P.  Keane, and J.  Liddy, “Remote and Autonomous Warfare Systems:  Precautions in Attack and Individual Accountability,” in J.  D. Ohlin, (ed.) Research Handbook on Remote Warfare, Edward Elgar, Cheltenham, 2017, pp.  335–​70. Draft chapter available at:  https://​ssrn.com/​ abstract=2850217. Art. 57(2)(a)(i), 1977 Additional Protocol i.

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humanitarian and military considerations.”77 This obligation would very likely require the full use of onboard sensors in all deployments of an autonomous weapons system.78 In some circumstances, however, use of external sensors,79 newer technologies like “ghost imaging” or specific programming techniques such as the “conservative use of lethal force” (see above) may also be needed, where these are available, where they have a mitigating effect, and where it is reasonable to expect their use.80 Finally, effective advance warning must be given to civilians that may be affected by an impending attack,81 unless circumstances do not permit.82 77

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M. N.  Schmitt, “Autonomous Weapons Systems and International Humanitarian Law: A Reply to the Critics,” Harvard National Security Journal Features, 2013, pp.  23–​24. Accordingly, the meaning of the term is highly context-​dependent, and it will morph over time. Thus, after the widespread introduction of fully autonomous weapons systems, it is likely that notions of feasibility will change, both for better and for worse from a civilian protection perspective. For example, where units of highly discriminating autonomous weapons systems are readily available, these may well have to be used in place of less discriminate remotely-​piloted systems. Conversely, where autonomous attack would be less discriminating than manned systems, but would also be more cost-​effective and put fewer service personnel at risk, commanders may deem that resource constraints and force protection render the latter infeasible. Schmitt, “Autonomous Weapons Systems and International Humanitarian Law: A Reply to the Critics.” Y. Sandoz, C.  Swinarski, and B.  Zimmermann (eds.), Commentary on the Additional Protocols of 8 June, 1977, to the Geneva Convention of 12th August 1949, Martinus Nijhoff, Leiden, 1987: (hereafter, icrc Commentary on the Additional Protocols), §2195, noting the example of launching aerial reconnaissance. Here, this may be done via the deployment of surveillance drones transmitting additional sensory data directly to autonomous weapons system units. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd Edn, explains (at p. 170), albeit in the context of precision-​guided munitions—​that mere availability of a mitigating technology, even with full possibility of its use, is not enough. For commanders have limited resources at their disposal and often have to plan multiple missions, where a subsequent use of a particular technology may have a greater overall mitigating effect on civilian harm. Thus, for example, where the deployment of external sensors via surveillance drones will yield marginal additional intelligence, but will also lead to their being shot down and unavailable for subsequent operations (where there may be a greater need to gather new intelligence), commanders may lawfully refuse to deploy them in the current mission. Art. 57(2)(c), 1977 Additional Protocol i. Again, feasibility is an important precondition for Art. 57(2)(c) to apply. Thus, if an element of surprise is necessary for the attack to deliver a military advantage, the obligation to provide a warning may not apply.

136 Homayounnejad These warnings may lead civilians to leave the area, or at least to move away from the radius of expected incidental effects resulting from attacks. Article 58 of the Protocol concerns passive precautions:  precautions against the effects of attack. To the maximum extent feasible,83 the party exercising control over civilians and civilian objects should remove these from the vicinity of military objectives84 and avoid locating military objectives within, or near densely populated areas.85 There may be an interplay between Articles 57 and 58. At a fundamental level, advance warnings under Article 57(2)(c) do not have to relate to specific or impending attacks, but “may also have a general character.”86 Thus, publicly announcing that autonomous systems relying on atr will be deployed, though without necessarily specifying in which particular attacks, may provide additional impetus for the party in control of civilians and civilian objects to take various additional passive precautions in conformity with Article 58. This may include, for example, ensuring that protective emblems, signs, and signals are deployed to assist discriminatory targeting by technical means, and providing gps coordinates to help attacking forces avoid protected objects in fixed locations, which may be difficult to detect solely via atr. That said, the same caveat applies as noted above: attacking forces must remain independently vigilant and avoid any over-​reliance on these safeguards. Moreover, safeguards are in addition to commander-​led targeting efforts, they do not permit or justify a watering down of such efforts.87 To conclude on distinction, it is undoubtedly one of the most important of loac norms, yet it is clearly not easy to comply with the rule in every situation. That said, by using common sense and acting in good faith, commanders can, in principle at least, find suitable restrictions and precautions to deploy autonomous weapons systems appropriately and in a way that 83

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Dinstein points out that this wording again negates the idea that Article 58 is a strict obligation; some commentators tending to view it more as a kind of “recommendation.” Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd Edn. Art. 58(a), 1977 Additional Protocol i. Art. 58(b), 1977 Additional Protocol i. icrc Commentary on Additional Protocol i, §2225, noting the possibility to warn that “­certain types of installations or factories” may be attacked, or even containing “a list of the objectives that will be attacked.” In a similar vein, Art. 12(3) of the 1977 Additional Protocol i calls on parties to an international armed conflict to “notify each other of the location of their fixed medical units,” while also emphasising that “absence of such notification does not exempt any of the Parties from the obligation to [respect and protect medical units at all times, and avoid making such units the object of attack].”

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adequately distinguishes lawful from unlawful targets.88 Of course, this assumes effective training of commanders, their full knowledge of both the capabilities and limitations of prevailing atr systems, combined with a significant degree of self-​restraint amid extraordinary operational pressures. While compliance with the principle of distinction is, in theory, possible, this will only result from assiduous advance decision-​making by genuinely accountable commanders. Thus, as we have seen, the legality of deployment and use of autonomous weapons systems depends on a critical interplay between three factors: system capabilities (especially of atr); the nature of the battlefield; and commander precautions. If any of these aspects poses an unacceptable risk to protected persons and objects, the others may need to be adjusted to mitigate that risk.

Regulating Fully Autonomous Weapons Systems via Legal Transplants

A legal transplant is a movement of law from one legal regime to another via a deliberate process of law-​making; often, the transplanted rules need to be adapted and tailored to account for underlying differences between legal regimes. The term, which was coined by Alan Watson in 1974,89 was originally concerned with moving and adapting laws on analogous issues from one national regime to another. Here, the focus is on finding potential transplants from existing weapons law regimes, which might usefully be applied to a treaty or loac manual governing autonomous weapons systems. The emphasis on transplants has a simple rationale: where certain rules have already been successful in regulating other weapons that share common features with fully 88

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This general approach is established in, for example, Anderson et al., “Adapting the Law of Armed Conflict to Autonomous Weapon Systems”; Schmitt, “Autonomous Weapons Systems and International Humanitarian Law:  A Reply to the Critics”; Schmitt and Thurnher, “Out of the Loop:  Autonomous Weapons and the Law of Armed Conflict”; J.  S.  Thurnher, “No-​One at the Controls:  Legal Implications of Fully Autonomous Targeting,” Joint Force Quarterly, Vol. 67, No. 4 (2012), p. 77; and J. S. Thurnher, “Examining Autonomous Weapon Systems from a Law of Armed Conflict Perspective,” in H. Nasu and R. McLaughlin, (eds.), New Technologies and the Law of Armed Conflict, tmc Asser Press, The Hague, 2014, 213–​28, at p. 213; and Wagner, “The Dehumanization of International Humanitarian Law:  Legal, Ethical, and Political Implications of Autonomous Weapon Systems.” A. Watson, Legal Transplants:  An Approach to Comparative Law, University of Virginia Press, Charlottesville, 1974.

138 Homayounnejad autonomous weapons systems90 they are more likely to be administrable and, therefore, capable of regulating autonomous weapons. General Lessons from Other Weapons Treaties As alluded to above, how other weapons with autonomous characteristics are regulated, specifically on account of their autonomy (or other characteristics they may have in common with fully autonomous weapons systems), may provide important clues on effective and administrable rules for a treaty or loac manual pertaining to fully autonomous weapons systems. In this regard, three specific regimes are worth looking into: landmines, incendiary weapons, and cluster munitions. The Landmines Regime First, with respect to landmines, there are the 1997 Anti-​Personnel Mine Ban Convention91 and the 1996 Amended Protocol ii on Landmines to the Convention on Certain Conventional Weapons (1996 Amended Mines Protocol).92 As its name suggests, the 1997 Convention comprehensively bans anti-​ personnel mines, though several key military states, such as China, Russia, and the United States,93 are not party, on the grounds of military necessity.94 Fully autonomous weapons systems and landmines share the essential characteristic that, once activated, they both “select”95 and engage targets without further human intervention. For example, anti-​vehicle mines incorporate more resistant pressure plates, which give them a basic capacity to discriminate between vehicles and persons based on weight; accordingly, Article 2(1) of the 1997 Anti-​Personnel Mine Ban 90

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For example, where there is an element of “autonomy” in landmines exploding without contemporaneous human control, or uncertainty of future technical developments with cluster munitions. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-​ Personnel Mines and on Their Destruction, adopted at Oslo, 18 September 1997; entry into force, 1 March 1999. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-​Traps and Other Devices (Protocol ii), as amended on 3 May 1996. Though note that the United States now voluntarily complies: it has ceased producing and laying mines, except in the Demilitarised Zone (dmz) between North and South Korea. C. M. Capece, “The Ottawa Treaty and its Impact on US Military Policy and Planning,” Brooklyn Journal of International Law, Vol. 25, No. 1 (1999), 183–​204, at p. 183. Though in the case of landmines, of course, this may be seen as passive target selection, once the target has unknowingly approached the weapon. By contrast, autonomous systems will actively seek out their own targets by acquiring, tracking, and selecting them, often using sophisticated atr and gps guidance systems.

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Convention generally excludes anti-​vehicle mines from the treaty’s purview. Indeed, the extent to which a weapon system can make such a distinction is key to determining whether it complies with the law of armed conflict.96 The 1996 Amended Mines Protocol contains a number of provisions that recognise differences in operational environments and (with a correspondingly graduated approach) imposes requirements on how mines are deployed. For example, it requires either that anti-​personnel mines are able to self-​destruct and self-​deactivate or that they are placed within a confined and marked area, which is monitored by military personnel;97 and it imposes restrictions on the use of remotely-​delivered mines (by air or artillery).98 These (and other) provisions in the landmines regime offer potential transplants and several applications, three of which immediately come to mind. First, Klein has suggested that autonomous weapons systems could be confined to military bases and relatively small combat zones via “kill box” operations. That is, where a geographic area defined by specific three-​dimensional coordinates is designated, within which military objectives can be engaged once properly identified and after weapon release authority is given.99 First conceived by the us Air Force in the late 1980s, and successfully deployed in numerous campaigns since Operation Desert Storm in 1990–​91, kill boxes are a highly effective way of coordinating joint weapons fire; they enable a division of labour between all three branches of the armed forces, to engage enemy targets while ensuring the safety of friendly forces.100 Accordingly, autonomous weapons operations may usefully be confined to kill boxes, with the landmines regime offering a potential framework to make this a legal requirement in appropriate circumstances.101 96

J. Lewis “Comment: The Case for Regulating Fully Autonomous Weapons,” The Yale Law Journal, Vol. 124, No. 4 (2015), 1309–​25, at p. 1309, at: https://​www.yalelawjournal.org/​ pdf/​n.1309.Lewis.1325_​m2jm7kow.pdf. 97 Art. 5(2), 1996 Amended Mines Protocol. 98 Art. 6, 1996 Amended Mines Protocol. 99 J. J. Klein, “The Problematic Nexus: Where Unmanned Combat Air Vehicles and the Law of Armed Conflict Meet,” Air & Space Power Journal, 2004, at: http://​www.airpower.­maxwell​ .af.mil/​apjinternational/​apj-​s/​2004/​2trimes04/​kleineng.html. 100 J. E. Mullin, “The JFA: Redefining the Kill Box,” Fires Bulletin, March-​April 2008, pp. 38–​41. 1 01 This is not to suggest that the landmines regime uses kill boxes, but that there are useful crossovers and administrable rules within the regime, which may be transplanted in order to mandate kill-​box operations in some autonomous weapons deployments.

140 Homayounnejad Following John Canning’s approach, a second application of the landmines regime (specifically in relation to the distinction between anti-​vehicle and anti-​personnel mines) may be to divide autonomous weapons’ targeting functions into anti-​materiel and anti-​personnel, with an obligation to apply stronger precautionary measures to the latter, possibly even extending to man-​ in-​the-​loop obligations in some circumstances.102 Conversely, autonomous weapons deployed in a fully autonomous mode in those circumstances could target “either the ‘bow’ or the ‘arrow’, but not the human ‘archer’ ”;103 that is, to target military objects but not enemy combatants, though of course the latter might still be killed as a secondary consequence. Arguably, the emphasis on the different kinds of mines, on how they are deployed, and on the precautions that must be taken when deploying them, stems from features that these munitions have in common with autonomous weapons:  the ability to engage targets without contemporaneous (tactical and narrow loop) human control. Accordingly, the 1996 Amended Mines Protocol focuses on commander decision-​making, imposing appropriate and graduated constraints to guard against distinction failure and to minimise civilian harm. The treaty effectively tackles the same—​or very similar—​normative challenges posed by autonomous weapons and, in this sense, provides an effective and worthy model for regulating fully autonomous weapons systems.104 Incendiary Weapons Second, with respect to incendiary weapons, the 1980 ccw Protocol iii105 (the 1980 Incendiary Weapons Protocol) is relevant. This instrument also imposes restrictions that can be transplanted into an autonomous weapons systems regulatory treaty or loac manual. For example, it prohibits outright the air-​ delivery of incendiary weapons against military objectives located within a concentration of civilians,106 as these can easily turn into an indiscriminate 102 J. S. Canning, “You’ve Just Been Disarmed. Have a Nice Day!,” IEEE Technology and Society Magazine, Vol. 28, No. 1 (2009), pp. 12–​15; and J. S. Canning, “Weaponized Unmanned Systems: A Transformational Warfighting Opportunity, Government Roles in Making it Happen,” 2009, available at:  http://​sevenhorizons.org/​wp-​content/​uploads/​2015/​04/​ CanningWeaponizedunmannedsystems.pdf. 103 Canning, “You’ve Just Been Disarmed. Have a Nice Day!,” p. 14. For urban deployments, such a requirement may well prove to be invaluable as it would mean any distinction errors are less likely to cause civilian casualties. 104 Lewis, “Comment: The Case for Regulating Fully Autonomous Weapons.” 105 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, adopted, 10 October 1980; entry into force, 2 December 1983. 106 Art. 2(2), 1980 Incendiary Weapons Protocol.

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firestorm that disproportionately harms the latter. It also restricts land attacks of military objectives located within a concentration of civilians to situations where the former is clearly separated from the latter, and where all feasible precautions are taken to limit the incendiary effect to the military objective, avoiding or minimising collateral damage.107 In essence, the 1980 Incendiary Weapons Protocol recognises the indiscriminate tendency of these weapons, once released; the ease with which fire spreads; and its unpredictability, which depends on environmental factors such as the speed and direction of the wind. Consonant with general loac rules, it prohibits any method of delivery that cannot distinguish between military objectives or civilians, or which would lead to excessive loss of civilian life and imposes specific limits on the use and deployment of these weapons. There may be similarities with those autonomous weapons systems that have more basic visual distinction capabilities. Cluster Munitions Third, there is the 2008 Convention on Cluster Munitions108 (ccm), which offers some useful transplants on weapons design, and is worth examining in more detail. As with the 1997 Anti-​Personnel Mine Ban Convention, the ccm imposes a strict and broad set of general obligations in Article 1.109 Interestingly, however, Article 2(2)(c) of the ccm proceeds to exclude cluster munitions with specific technical characteristics, which the chapeau to the sub-​paragraph presumes will “avoid indiscriminate area effects and the risks posed by unexploded submunitions.”110 This it does by excluding from the definition of cluster munition under the Convention weapons that cumulatively possess five specific technical characteristics111 that are expected to improve 1 07 Art. 2(3), 1980 Incendiary Weapons Protocol. 108 Convention on Cluster Munitions, adopted, 30 May 2008; entry into force, 1 August 2010. 109 Specifically, Art. 1(1) states that, “Each State Party undertakes never under any circumstances to: (a) Use cluster munitions; (b) Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions; (c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.” 110 Art. 2(2)(c), ccm. Thus, the chapeau articulates the dual humanitarian problem with cluster munitions:  that they a) have “indiscriminate area effects,” and b) create “risks posed by unexploded submunitions.” 111 Art. 2(2)(c), ccm. Namely, that (i) each munition contains fewer than 10 explosive submunitions; and, in turn, each explosive submunition (ii) weighs more than four kilogrammes, (iii) is designed to detect and engage a single target object, (iv) is equipped with an electronic self-​destruction mechanism, and (v) is equipped with an electronic self-​deactivation feature.

142 Homayounnejad the reliability and accuracy of the munitions.112 Taken together, these characteristics should avoid or sufficiently reduce the likelihood that submunitions will create significant humanitarian problems.113 By articulating the two humanitarian problems that the subsequent technical characteristics are intended, cumulatively, to “avoid,” the chapeau to sub-​ paragraph (c) serves an important dual role: it provides “both a justification for the exclusion of weapons that meet the [… five] technical criteria and also a potential mechanism for determining if these technical criteria function as intended.”114 Put another way, the chapeau links the definition of what is prohibited to the humanitarian effects that are the basis for the weapons’ prohibition and, as such, is an important legal innovation.115 While cluster munitions are not designed to create these humanitarian problems, sub-​paragraph (2) (c) stipulates that (sub)munitions must be deliberately designed to avoid such effects if they are to escape prohibition. Accordingly, the sub-​paragraph as a whole takes both a design-​led and an effects-​based approach, via inclusion of the technical criteria and the chapeau, respectively. During the Oslo Process negotiations that led to the adoption of the ccm, this was deemed to be appropriate for the (sensor-​fuzed) weapon, which did not have a lengthy, proven track record of humanitarian effects at the time,116 112 During the Oslo Process negotiations, concrete battlefield evidence was presented on the cbu-​ 97/​cbu-​105 Sensor-​Fuzed Weapons, which had been used extensively in combat in 2003. Each one contained ten blu-​108 units, with each submunition containing four 3.4kg smart skeets; hence, 40 skeets in total. It was found that both cbu variants caused many of the same humanitarian problems as traditional submunitions. Conversely, a number of other sensor-​ fuzed weapons, such as the Swedish 155 bonus and the German SMArt 155 munitions, (which do conform to the CCM’s technical criteria) had not been deployed at the time; thus, they had no record of their humanitarian effects. See A. Breitegger, Cluster Munitions and International Law: Disarmament with a Human Face?, Routledge, Abingdon, 2012, esp. pp. 192–​93. 113 B. Docherty, L. Maresca, R. Moyes, and M. Reiterer, “Article 2: Definitions” in G. Nystuen and S.  Casey-​Maslen (eds.), The Convention on Cluster Munitions:  A Commentary, oup, Oxford, 2010, §2.37 (hereafter, ccm Commentary). Specifically, characteristics (i), (ii), and (iii) address “indiscriminate area effects,” while (i), (ii), (iv), and (v) all address the “risks posed by unexploded submunitions.” Ibid., §§2.123 and 2.127. 114 Ibid., §2.120, citing the statements of Austria and Lebanon, supported by Malta, at the 2008 Dublin Diplomatic Conference on Cluster Munitions that adopted the ccm. 115 Ibid. Innovative in that it takes a robust humanitarian approach, yet provides flexibility to ensure unproven but potentially beneficial nascent technologies are not automatically prohibited. 116 Save for the cbu-​97/​c bu-​105 Sensor-​Fuzed Weapons, which actually had a record of poor humanitarian effects and, therefore, provided baseline technical criteria on what needed to be achieved.

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but did offer the possibility of providing militaries with a needed capability. Arguably, a similar situation may apply to fully autonomous weapons systems, which, though not yet fielded, are considered to be a potential force multiplier. Thus, presuming the lawfulness of such weapons based on predetermined technical standards, but making this presumption rebuttable in the case of concrete humanitarian problems on the battlefield,117 would seem both reasonable and pragmatic. Above all, it would arguably strike a sensible balance between the exigencies of military necessity and humanity.118 The innovative drafting of Article 2(2)(c) might help to allay fears of “indiscriminate” autonomous weapons systems running amok on the battlefield. Currently, academic commentators disagree on how sophisticated and reliable future atr systems will be: some assert that machines may never be able to distinguish between civilians and combatants;119 others are optimistic;120 others still take a more prudent approach, believing that current limitations are a technical challenge to be addressed by roboticists and computer scientists.121 If the last of the three approaches is taken—​and bearing in mind how unpredictable ai development is—​the role of the lawyer is emphatically not to draw pre-​emptively negative conclusions on future technical capabilities; rather, it is to define the legal and humanitarian standards that atr systems and other military technologies must reach in order to comply with loac, which would set the standards engineers must attain in seeking to build new systems. Thus, by drafting a rule similar to Article 2(2)(c) of the ccm, a treaty or loac manual governing fully autonomous weapons systems could bring clarity in several ways. 117

ccm Commentary, §2.38, noting that where formalistic compliance with the technical criteria fails to prevent the humanitarian problems identified in the chapeau, the weapon would still be subject to review under the ccm, for example, at a Meeting of States Parties or a Review Conference. Namely, the purpose articulated in the chapeau takes precedence over mere compliance with the technical criteria; and where the said characteristics are incorporated into a weapon, the chapeau necessitates their “effective functioning.” 118 Breitegger, Cluster Munitions and International Law: Disarmament with a Human Face?, p. 188. 119 Human Rights Watch and the ihrl Clinic, Harvard Law School, Losing Humanity: The Case Against Killer Robots, 2012, p.  30, at:  https://​www.hrw.org/​sites/​default/​files/​ reports/​arms1112ForUpload_​0_​0.pdf. 1 20 For example, Anderson et  al., “Adapting the Law of Armed Conflict to Autonomous Weapon Systems”; and Schmitt and Thurnher, “Out of the Loop: Autonomous Weapons and the Law of Armed Conflict.” 121 T. McFarland, “Factors Shaping the Legal Implications of Increasingly Autonomous Military Systems,” International Review of the Red Cross, No. 900 (2016), pp. 1–​27, at p. 1.

144 Homayounnejad First, an instrument governing fully autonomous weapons systems can articulate the humanitarian risks posed by such systems that are poorly designed or otherwise not fit for purpose. These might include, for example, the risk of indiscriminate attack, distinction failure, and insufficient civilian risk mitigation, among others. In turn, this would provide a legal basis for the presumed permissibility of autonomous systems that are deliberately designed not to pose such risks.122 Second, the rule can set specific technical criteria. Mainly, these will consist of baseline technical requirements for sensory, processing, and computational capabilities, which are deemed necessary to obviate the humanitarian risks identified.123 However, it can also lay down specific context-​based programming requirements;124 stipulate appropriate shut-​off capabilities;125 and mandate intelligent reversion to remote piloting, where the system senses “doubt,”126 notably through the proxy of below-​threshold confidence levels. Finally, as fully autonomous weapons systems are yet to be used in battle, the technical requirements and capabilities can be periodically compared with the statement of humanitarian risks, to ensure that they function as intended.127 If they do not, it may be possible to amend the technical criteria at regular intervals, for example, using evidence-​based data presented to a Meeting of States Parties or Review Conference (in the event of a treaty).128 Arguably, even in the intervening periods, there can be a duty on states parties to do everything feasible to gauge the humanitarian effects of a given system (using onboard sensors), and to refrain from continuing deployments in the face of clear evidence of humanitarian harm. These all reflect the chapeau and the technical criteria of Article 2(2)(c) of the ccm. If adapted and transplanted into an autonomous weapons regime, they would arguably provide states and defence contractors with guidelines and thresholds to ensure the lawful development and continuous (humanitarian) improvement of such weapons systems. On their own, however, the guidelines arguably mask the true complexity of the situation. Two concluding comments are offered in this regard. 1 22 Similar to the first role of the chapeau of sub-​paragraph (c) of Art. 2(2), ccm. 123 Similar to technical requirements (i), (ii), and (iii) of Art. 2(2)(c). 124 Such as “conservative use of lethal force” for any autonomous weapons systems that will be deployed in situations that involve combat with non-​traditional combatants. 125 Similar to technical requirements (iv) and (v) of Art. 2(2)(c), ccm; and also Arts. 5(2) and 6(2) and (3), 1996 Amended Mines Protocol. 126 Arts. 50(1) and 52(3), 1977 Additional Protocol i, regarding persons and objects, respectively. 127 Similar to the second role of the chapeau of sub-​paragraph (c) of Article 2(2), ccm. 128 ccm Commentary, §2.38; see also Breitegger, Cluster Munitions and International Law:  Disarmament with a Human Face?, discussing at pp.  188–​89, the “more nuanced approach” to assessing new weapons which do not have a record of humanitarian effects.

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First, a difficulty remains in seeking to verify compliance with technical requirements, especially those relating to software capabilities and safeguards.129 These are intangible items that are challenging to discern and inspect from the exterior of an autonomous weapons system.130 That said, given that the focus of inspections is on verifying the existence of minimum technical standards, as opposed to the absence of autonomous capabilities, inspection teams may be able to fulfil their role by observing a training exercise or otherwise seeing a practical demonstration of the weapons unit being inspected.131 Yet, such inspections are still imperfect, because of the ease of “throwing a (software) switch,”132 meaning inspectors cannot verify the existence of all technical capabilities at the actual time of a given deployment.133 Second, state compliance with any self-​monitoring/​continuous improvement requirement needs to be verified. As would be expected in an international regime, different states—​with their different national priorities and differing levels of respect for loac and arms control—​tend to respond with varying levels of commitment and compliance. Consequently, the obligation to continuously gauge and act on the humanitarian consequences of their weapons has seen inconsistent levels of compliance with the rules governing cluster munitions and anti-​personnel mines. Here, much of the progress in relation to reluctant states is arguably attributable to the involvement of civil society networks,134 such as the International Campaign to Ban Landmines135 129 Crootof, “The Killer Robots are Here:  Legal and Policy Implications”; M.  Gubrud and J.  Altmann, “Compliance Measures for an Autonomous Weapons Convention,” ICRAC Working Paper #2, May 2013, at: https://​icrac.net/​wp-​content/​uploads/​2016/​03/​Gubrud​ -Altmann_​Compliance-​Measures-​AWC_​ICRAC-​WP2-​2.pdf. 130 Ibid. 131 This would be similar to some of the confidence and security-​building measures that are provided in the Vienna Document adopted in 2011 by the 56 members of the Forum for Security and Co-​operation of the Organization for Security and Co-​operation in Europe (osce). See osce, Vienna Document 2011, fsc.Doc/​1/​11, at: https://​www.osce.org/​fsc/​ 86597?download=true. 132 Namely, some technical capabilities can quickly and easily be downgraded (or upgraded) via a simple software update as soon as inspection teams have left: Gubrud and Altmann, “Compliance Measures for an Autonomous Weapons Convention,” p. 2. 133 Perhaps the one that is most likely to be resisted is “conservative use of lethal force,” due to the increased risk of expensive autonomous weapons units being attacked and damaged, and the resulting cost implications. 134 See the various current and archived resources of the Landmine & Cluster Munition Monitor, which includes the flagship reports, as well as state-​ngo correspondence on issues of compliance, at: http://​archives.the-​monitor.org/​index.php/​LM/​Our-​Research-​Products/​Comments. 135 See: http://​www.icbl.org.

146 Homayounnejad and the Cluster Munition Coalition.136 Thus, while the idea of states monitoring the humanitarian impact of their fully autonomous weapons systems (and refraining from, or adjusting, problematic deployments) may not be totally unrealistic, civil society networks such as the International Committee for Robot Arms Control137 will need to have an integral role, acting as a vital check and balance. “Meaningful Human Control” to Moderate Autonomy So far, the analysis of distinction-​based transplants has been relatively broad. Here, I focus in greater depth on the concept of Meaningful Human Control (mhc); in particular, the extent to which potential transplants can support the application of this concept to moderate the harshness of full autonomy. As alluded to above, a popular and convenient way to consider mhc is as a qualifier to weapons autonomy by way of human-​prescribed target parameters and geographical and temporal boundaries, which are set tightly enough to enable control over “individual attacks.”138 All things being equal, this bounds the effects of autonomous lethal targeting, making it more predictable for the human commander or weapons operator, as well as affording him greater opportunity to adjust autonomous operations to suit changing circumstances.139 A complementary approach can be seen in Horowitz and Scharre, whose primer on mhc discussed three “essential components” of the concept, which are derived from the kind of human control exercised over present-​day weapon systems. These are: operators are making informed, conscious decisions about the • Human use of weapons Human operators have sufficient information to ensure the lawfulness • of the action they are taking, given what they know about the target, the weapon, and the context for action, and

136 137 138

See: http://​www.stopclustermunitions.org. See: https://​icrac.net. Article 36, Killing by Machine: Key Issues for Understanding Meaningful Human Control, noting that “individual attack” may potentially comprise multiple acts of violence. 139 For more detail on the nuances of the mhc concept, see H.  M. Roff and R.  Moyes, “Meaningful Human Control, Artificial Intelligence and Autonomous Weapons,” Briefing Paper Prepared for the Informal Meeting of Experts on Lethal Autonomous Weapons Systems, un Convention on Certain Conventional Weapons, April 2016, at:  http://​www​ .­article36.org/​wp-​content/​uploads/​2016/​04/​MHC-​AI-​and-​AWS-​FINAL.pdf.

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weapon is designed and tested, and human operators are properly • The trained, to ensure effective control over the use of the weapon.140 Notably, it is the absence of human control over the effects that led to the ban on the use of biological and chemical weapons after the First World War,141 in the 1925 Geneva Gas Protocol.142 It was with the same concerns that these bans were reinforced with prohibitions on the development, production, stockpiling and transfer of biological and chemical weapons in 1972 and in 1993, respectively. Both weapons have an uncontrollability problem in that even if they initially strike combatants, the longer-​term effects can spread to the civilian population, because of the very nature of the weapons. Thus, both are inherently indiscriminate143 in that their effects can rapidly extend across spatial and temporal boundaries,144 in a number of possible ways145 that are, crucially, not within the control of deploying commanders. More recently, the 1997 Anti-​Personnel Mine Ban Convention prohibited the use, production, stockpiling, and transfer of anti-​personnel mines.146 Such munitions are victim-​activated and they generally operate on a crude basis (pressure threshold or tripwire), which cannot distinguish between civilians and combatants. Thus, anti-​personnel mines are also seen by some as being 140 M. C. Horowitz and P. Scharre, “Meaningful Human Control in Weapon Systems: A Primer,” CNAS Project on Ethical Autonomy Working Paper, pp.  14–​15 (emphasis added), available at: https://​www.files.ethz.ch/​isn/​189786/​Ethical_​Autonomy_​Working_​Paper_​031315.pdf. 141 Human Rights Watch, “Killer Robots and the Concept of Meaningful Human Control,” Memorandum to Convention on Conventional Weapons (ccw) Delegates, 11 April 2016, citing, at p. 10, “the inability to dictate whom they engage and when” and explaining, at p. 11, that: “After releasing such weapons, humans cannot control where they go or whom they kill” [emphasis added], at: https://​www.hrw.org/​sites/​default/​files/​supporting_​resources/​ robots_​meaningful_​human_​control_​final.pdf. 142 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, adopted at Geneva, 17 June 1925; entry into force, 8 February 1928. 143 Although the primary motivation behind the prohibition in the 1925 Protocol was the inhumane nature of the weapons, with the icrc referring to them in 1918 as “barbarous inventions” that can “only be called criminal.” See, e.g., icrc, “Chemical and Biological Weapons,” 8 April 2013, at: https://​www.icrc.org/​en/​document/​chemical-​biological-​weapons. 144 icrc, Weapons that may Cause Unnecessary Suffering or have Indiscriminate Effects: Report on the Work of Experts, icrc, Geneva, 1973, §48. 145 Ibid., noting wind or drainage, by living carriers of the agent or disease, or via direct transmission between humans, thereby creating the risk of a spreading and persistent epidemic. 146 Article 1, 1997 Anti-​Personnel Mine Ban Convention.

148 Homayounnejad inherently indiscriminate,147 though as others have pointed out, it is more the absence of precautions, warnings, and markings that makes the munitions indiscriminate;148 ostensibly, appropriate human oversight—​whether contemporaneous or pre-​deployment—​might remedy this. The following considers three ways that such human control might help to make autonomous weapons loac-​compliant. In all instances, there are no bright lines, just options that a commander in a given case could consider, in light of the available systems and the prevailing operational context.

Target Parametric and Spatio-​Temporal Limits on Autonomous Weapons Systems First, consider whether limitations on the deployment and use of autonomous weapons systems may be codified in terms of target parameters, the geographical area within which and the time during which such weapons can operate independently of human oversight. Interestingly, similar requirements already exist in the 1996 Amended Mines Protocol. For example, Article 5(2) requires human supervision of landmines within a confined, monitored, and protected area;149 or, for landmines emplaced outside such an area, that the mines self-​ destruct or self-​deactivate within a maximum time period as specified in the Technical Annex.150 Paragraph 6 of the same article relaxes the spatial restrictions in sub-​paragraph (2)(a)151 for a maximum period of 72 hours, so long as certain additional requirements are met.152 The above provisions on self-​destruction and self-​deactivation relate to unsupervised, albeit manually emplaced landmines. Article 6 replicates much 147 The Arms Project, Human Rights Watch, and Physicians for Human Rights, Landmines: A Deadly Legacy, Human Rights Watch, New York/​Washington, dc, 1993. 148 See S. Maslen, Anti-​Personnel Mines under Humanitarian Law: A View from the Vanishing Point, Intersentia, Oxford, 2001, esp. pp. 190–​94. 149 Art. 5(2)(a), 1996 Amended Mines Protocol, laying down the triple requirement of: durable and visible perimeter-​marking; monitoring by military personnel; and fencing or other protection to effectively exclude civilians from the area. 150 Sub-​para. 3(a) of which requires at least 90 per cent of activated mines to self-​destruct within 30 days of emplacement. The provision also requires a back-​up self-​deactivation feature, such that at least 99.9 per cent of activated mines either self-​destruct or self-​ deactivate within 120 days of emplacement. 151 By allowing the munitions to be located in immediate proximity to the military unit that emplaced them, rather than having to be in a perimeter-​marked and fenced area; monitoring by military personnel is still required. 152 Art. 5(6), 1996 Amended Mines Protocol. The additional requirements are: a) the munitions propels fragments in a horizontal arc of less than 90 degrees; and b) they are placed on or above (not below) the ground.

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of this in paragraph 2 in relation to remotely-​delivered mines;153 together with Article 5(2), above, this “in effect prohibit[s]‌all use of long-​lived anti-​personnel mines outside of [confined], monitored and protected areas.”154 Paragraph 1 imposes a number of detailed recording requirements for both anti-​personnel and anti-​vehicle mines,155 so those who deploy them retain all relevant details required to locate and demine the area once the munitions are no longer needed. Importantly, Article 6 also demonstrates a graduated approach, with paragraph 3 on anti-​vehicle mines being less restrictive:156 unlike the very high and quantified reliability standards imposed on anti-​personnel mines, there is no specific reliability standard or timing requirement here; only that anti-​ vehicle mines are, to the extent feasible, designed to cease functioning as a mine when they no longer serve the military purpose for which they were emplaced.157 These rules aim to keep civilians out of the kill zone while a landmine is operational and liable to cause them harm, and they limit the timeframe in which there can be a non-​human controlled threat to the civilian population.158 Accordingly, they bound the independent “operation” of landmines in spatio-​temporal terms, to ensure that accountable humans remain in control.159 Such imperatives are not new, but have been a feature of weapons

153 Art. 6(2), 1996 Amended Mines Protocol. Remotely-​delivered refers to mines delivered by aircraft or artillery. 154 Office of the Under-​Secretary of Defense for Acquisition, Technology, and Logistics, Treaty Compliance: CCW: Article by Article Analysis of the Protocol on Use of Mines, Booby-​ Traps and Other Devices, at:  http://​www.acq.osd.mil/​tc/​treaties/​ccwapl/​artbyart_​pro2​ .htm [emphasis added]. 155 Art. 6(1), 1996 Amended Mines Protocol. This refers to sub-​para. 1(b) of the Technical Annex and applies to both anti-​personnel and anti-​vehicle mines, for which records must be kept on: the location and area of deployment; the number and type of mines laid; the date and time of laying; and self-​destruction time periods. 156 Art. 6(3), 1996 Amended Mines Protocol, only requiring anti-​vehicle mines to have an “effective” self-​destruction or self-​neutralisation mechanism and a back-​up self-​ deactivation feature. 157 Office of the Under-​Secretary of Defense for Acquisition, Technology, and Logistics, Treaty Compliance: CCW: Article by Article Analysis of the Protocol on Use of Mines, Booby-​ Traps and Other Devices. 158 Ibid. 159 M. Brehm, “Defending the Boundary:  Constraints and Requirements on the Use of Autonomous Weapon Systems under International Humanitarian and Human Rights Law,” Geneva Academy Research Brief, Geneva, May 2017, at:  https://​ www.geneva​ -​academy.ch/​joomlatools-​files/​docman-​files/​Defending%20the%20Boundary.pdf.

150 Homayounnejad treaties for more than a century.160 Yet, they continue to be relevant to future weapons and are both suited to, and highly desirable for, the deployment and use of autonomous weapons systems.161 This is so that humans can exercise frequent, or at least periodic, control over potentially lethal engagements by robotic weapons.162 This is particularly needed in order to recognise changing battlefield circumstances that an autonomous weapons system may not perceive, therefore allowing deployments to be adjusted in a timely manner; and also to safeguard the opportunity to shift to a law enforcement model when changing factual circumstances necessitate this.163 There is no way to specify an appropriate set of spatio-​temporal limits in the abstract; rather, these will likely emerge from extensive testing and evaluation prior to fielding, and may also be subject to adjustment by commanders in a given deployment scenario. The landmines regime also contains several provisions that effectively set target parameters in order to retain human control over the kinds of persons or objects that are targeted. Thus, the ‘general obligations’ in Article 1 of the 1997 Anti-​Personnel Mine Ban Convention prohibit “anti-​personnel mines,” while Article 2(1) on definitions confirms that the prohibitions concern devices that are designed to target a “person,” while generally excluding from their scope 160 See, e.g., 1907 Hague Convention viii Relative to the Laying of Automatic Submarine Contact Mines, entry into force, 26 January 1910. Art. 1(1) of the Convention prohibited the laying of unanchored automatic submarine mines, except where these were designed to “become harmless one hour at most after the person who laid them ceases to control them.” The one-​hour time limit was presumed sufficient for the intended purpose of the munitions, while mitigating the risk to commercial shipping. Furthermore, paragraph 2 put an effective “virtual stationary” spatial restriction on anchored automatic contact mines, which had to become harmless as soon as they broke loose from their moorings. 161 At least in the context of naval mine warfare, the San Remo Manual derives some basic principles from the 1907 Hague Convention viii and customary international law that go beyond automatic submarine contact mines, including an obligation that belligerents must retain some control over mines they have deployed; and/​or have the ability to render a mine safe if such control is lost. See L. Doswald-​Beck, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, Cambridge University Press, Cambridge, 1995, pp. 168–​76. 162 Brehm, “Defending the Boundary:  Constraints and Requirements on the Use of Autonomous Weapon Systems under International Humanitarian and Human Rights Law.” 163 Ibid. Namely, where there will be a preference for non-​lethal options, including capture and arrest, which an autonomous weapons system may contribute towards —​e.g., by firing less-​lethal munitions —​but may be incapable of undertaking alone.

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anti-​vehicle mines.164 Similarly, Article 2(3) of the 1996 Amended Mines Protocol, also on definitions, confirms that its more permissive, yet highly precautionary approach only applies to mines that are “primarily designed to be exploded by the presence, proximity or contact of a person ….”165 Articles 4, 5, and 6(2) reflect this by explicitly stating that the restrictions contained therein apply to “anti-​personnel mines.” By contrast, Article 1(1) specifically excludes any application of the Protocol to anti-​ship mines at sea, where (assuming these are not deployed along commercial shipping routes) there is unlikely to be a concentration of civilians and the munitions are likely to encounter only warships. Again, these provisions aim to keep civilians out of harm’s way, but this time by “bounding” the kinds of targets against which mines may be triggered. By imposing relatively permissive rules on anti-​vehicle mines (with more resistant pressure plates)166 or anti-​ship mines (designed for deployment at sea or in inland waterways), lighter regulation governs munitions whose effective target parameters are limited to heavy, durable military objectives. While persons may be killed during these mine deployments, this is a secondary consequence of targeting the military objective; and it is assumed that personnel in a tank or on a ship sailing along certain routes may well be targetable combatants.167 By contrast, anti-​personnel mines, which have potentially broader target parameters via the proxy of more sensitive pressure plates168 or tripwires, carry a greater risk of unintended engagements with civilians, including children.169 This explains the correspondingly greater precautionary requirements. 164 Article 2(1), Anti-​ Personnel Mine Ban Convention, specifically excluding “[m]‌ ines designed to be detonated by … a vehicle as opposed to a person” (emphasis added). 165 Article 2(3), Amended Mines Protocol (emphasis added). 166 While thresholds differ, most anti-​vehicle mines require a weight force of a mass in excess of 100kg for detonation. See, e.g., A. N. Poteet, “Landmine Removal: Technology Review and Design Proposals as Pertaining to Humanitarian Demining with a Focus on Locomotion Across Soft Terrain,” BSc Thesis, mit Department of Mechanical Engineering, 2008, p. 10, available at: https://​pdfs.semanticscholar.org/​cf01/​1d9eb048d1eac1470babba1fd84fd4ef6258.pdf. 167 Though this assumption is not perfect, and it is not inconceivable that a warship might contain medical personnel and/​or chaplains who are not targetable combatants under Article 43(2) of the 1977 Additional Protocol i. 168 Again, thresholds differ, but can be as low as 5–​9  kg of weight force, depending on the munition. Poteet, “Landmine Removal:  Technology Review and Design Proposals as Pertaining to Humanitarian Demining with a Focus on Locomotion Across Soft Terrain,” p. 12. 169 Ibid. Indeed, such a low trigger threshold potentially catches even toddlers from 12 months upwards.

152 Homayounnejad This graduated approach, which links the breadth of target parameters to the normative constraints on the commander, may be desirable for autonomous weapons systems too. Indeed, there is a risk that systems programmed with broad parameters (e.g. “large vehicle,” with a given set of dimensions) may be deployed in areas where civilians and military targets comingle, and where systems may inadvertently engage civilians and civilian objects, such as trucks or buses. In such a case, it would be prudent to narrow the target parameters as much as possible; for example, commanders may specify exact models that are both exclusive to the enemy and recognisable to the atr systems, like “T-​80 tank” or “ah-​64 Apache attack helicopter.” Alternatively, they may impose tighter precautions on the deployment and use of those systems, as discussed above.170 However, it would not be appropriate for a treaty or loac manual that is drafted in the abstract to lay down ex ante “bright lines” on mhc in relation to autonomous weapons systems. More appropriate may be rules of thumb, such as requiring commanders to opt for the narrowest possible target parameters consistent with atr capabilities and military necessity. “Kill Switch” A second way to incorporate mhc into fully autonomous weapons systems may be through the idea of a kill switch.171 This is an extreme form of manual override172 that, combined with a real-​time feedback loop, enables a human operator to detect and shut down a weapons system that may have “gone rogue.”173 The device itself usually works through an inexpensive sim card embedded into the system174 that communicates with nearby mobile-​ network towers.175 This enables remote disabling of the weapon in the event 170 See, above, the discussion on the role of the commander in combining systems capabilities with battlefield context and the precautionary constraints. 171 J. Zittrain, “The Case for Kill Switches in Military Weaponry,” Scientific American, 3  September 2014, at:  https://​www.scientificamerican.com/​article/​the-​case-​for-​kill​ -switches-​in-​military-​weaponry/​. 172 Extreme in the sense that a kill switch destroys the system or shuts it down, whereas manual override may involve any degree of intervention, such as human operators simply vetoing individual targeting actions. 173 K. Egeland, “Lethal Autonomous Weapon Systems under International Humanitarian Law,” Nordic Journal of international Law, Vol. 85, No. 2 (2016), pp. 89–​118, at pp. 102–​03. 174 “Smart Weapons:  Kill Switches and Safety Catches,” The Economist Technology Quarterly: Q4 2013, 30 November 2013, at:  http://​www.economist.com/​news/​technology-​quarterly/​ 21590764-​arms-​control-​new-​technologies-​make-​it-​easier-​track-​small-​arms-​and-​stop-​them. 175 Ibid., noting that this also provides an independent approximation of the machine’s location.

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of civilian targeting, disproportionate attack,176 or enemy hacking and theft.177 Arguably, the rules noted above on automatic self-​destruction and self-​deactivation of landmines and cluster munitions, combined with the legally permissive effects of deliberate remote-​control functions, provide a transplantable normative basis for mandating a kill switch in an autonomous weapons system. The graduated approach to such obligations in the landmines regime may suggest that the extent to which a feedback loop-​ and-​kill-​switch function is required in an autonomous weapon depends on the prevailing risk in a given deployment. On a practical note, four important and potentially limiting points should be made. First, sim-​operated kill switches rely on civilian infrastructure for military control of a weapon system and, as such, may need a backup option in case mobile services are down.178 Second, kill switches clearly require a man-​ on-​the-​loop;179 thus, they may not be suited to all autonomous weapon models or for all deployments, but they do remain an option where man-​out-​of-​the-​ loop functionality is not essential. Third, how responsive a kill-​switch system will be depends on how many independent autonomous weapon units come under the supervision of a single operator, who will inevitably have a limited attention span. Finally, as the Israeli Air Force demonstrated in 2007 when it reportedly deactivated a Syrian radar system to bomb a suspected nuclear site,180 kill switches may be vulnerable to enemy hacking; accordingly, they may also be used to prevent the intended use of an autonomous weapon, and this could well act as a barrier to their adoption.181 1 76 Thurnher, “No-​One at the Controls: Legal Implications of Fully Autonomous Targeting.” 177 Zittrain, “The Case for Kill Switches in Military Weaponry.” Assuming the hackers do not take full control, and the communication and kill switch function remains intact. This may be possible, with stronger levels of encryption in these more critical areas. 178 While modern mobile technologies are generally reliable, civilian infrastructure may be collaterally damaged during an armed conflict, and mobile towers in particular may be targeted if they become military objectives by use or by purpose. 179 This amounts to “supervised autonomy,” whereby the weapon system selects and engages specific targets, but with a human operator monitoring its performance and able to intervene to halt or adapt its operation, if necessary. See Scharre and Horowitz, “An Introduction to Autonomy in Weapon Systems,” p.  16. us DoD, Directive No. 3000.09:  Autonomy in Weapon Systems, p. 14. 180 S. Adee, “The Hunt for the Kill Switch,” IEEE Spectrum, 1 May 2008, at: http://​spectrum​ .ieee.org/​semiconductors/​design/​the-​hunt-​for-​the-​kill-​switch. 181 D. Davidian, “The Programmable Diplomatic Kill Switch,” Modern Diplomacy, 22 January 2017, at: http://​moderndiplomacy.eu/​index.php?option=com_​k2&view=item&id=2168:the​ -programmable-​diplomatic-​kill-​switch&Itemid=156.

154 Homayounnejad Partly to mitigate this risk of hacking, an alternative way to effect a kill-​ switch function is to reverse the onus of initial intervention and operate via gps. Given that any device with onboard electronics can be fitted with timed expiration,182 continued operation of an autonomous weapons system can be made conditional upon regular “check-​in with a human operator” to seek “permission to continue”;183 this could be provided via a coded “renew” signal from an overhead satellite.184 Failure to receive such reiterated approval would result in automatic shut-​down, in effect “treat[ing] ongoing consent as a form of fuel.”185 In addition to mitigating the risk of hacking, this approach may provide a more robust check on the actions of an autonomous weapons system, because in the event that an operator is incapacitated or overwhelmed, systems would shut down rather than continue with potentially unlawful engagements. A potential problem with this option is the risk of communications loss; for example, via enemy jamming or even a kinetic attack on physical nodes. Indeed, the ability of autonomous weapons systems to continue operating in such circumstances is one of their declared military advantages. Thus, making operations dependent on periodic communications refresh will be unattractive to most militaries, unless they are confident of communications superiority. This is currently usually true in asymmetric (low-​intensity) warfare; less so in symmetric battlefields.186 Remote-​Activation to Ensure Discriminate Attack Third, mhc can be effected to a lesser or greater degree by some form of remote control. In that regard, Article 2(5) of the 1996 Amended Mines Protocol refers to devices that “are actuated … by remote control,” while paragraph 13 defines this as “control by commands from a distance.” These are largely Claymore-​type 1 82 183 184 185 186

Zittrain, “The Case for Kill Switches in Military Weaponry.” Crootof, “The Killer Robots are Here: Legal and Policy Implications,” p. 1900. Zittrain, “The Case for Kill Switches in Military Weaponry.” Crootof, “The Killer Robots are Here: Legal and Policy Implications,” p. 1900. That said, see recent efforts by the us Army to develop and field-​test “pseudolites” as an alternative to gps. Pseudolites are intended to provide a localised communications infrastructure, with the result that transmitters are situated closer to their intended receivers, and provide much stronger and more reliable signals. This is being hailed as a robust solution to “gps denial,” and it may offer communications superiority for us and nato forces, thereby making the ‘remote check-​in’ option viable for them in all conflicts. See K.  Bailey, “Pseudolites Preserve Position Information During GPS-​Denied Conditions,” us Army Press Release, 2 June 2016, at: https://​www.army.mil/​article/​169033/​pseudolites​ _​preserve_​position_​information_​during_​gps_​denied_​conditions.

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munitions in command-​detonated mode187 with a soldier-​in-​the-​loop who is “informed by data from on-​site sensors [and] makes a deliberate decision to fire or not to fire”;188 a prime example is the Matrix system, which is remotely detonated by laptop computer.189 While notionally landmines, the addition of deliberative human control effectively removes the principal concern with these weapons. As Maslen has pointed out, “they can more easily be ‘directed’ and hence (potentially) pose less of a threat to the civilian population.”190 Accordingly, command-​detonated directional fragmentation munitions are outside the legal definition of an anti-​personnel mine in both relevant treaties, which focus on victim-​ activation in contradistinction to command activation.191 In the context of an autonomous weapons system, the above examples of remote activation would effectively lead to remotely piloted systems, no different to existing drones, which have been proliferating since the early 2000s. This would legally negate weapons autonomy, just as it legally negates the treaty-​based definition of “anti-​personnel mine.” However, it would also factually defeat the force multiplying effect of an autonomous weapons system, in turn defeating the very purpose for which states wish to develop and field the systems. That said, the legally permissive effects of command-​detonated munitions arguably do not only arise from a binary “all-​or-​nothing” notion of remote-​activation. While it is true that their formal exclusion from the two principal treaties is based on a black-​letter reading of the definition, Maslen appears to add a more purposive layer to the reasoning for legal permissiveness. Namely, that the munitions can more easily be directed, thereby potentially posing a lesser threat to the civilian population. Conversely, he qualifies this idea of civilian risk mitigation in that it only “potentially” occurs. The resulting logic is that command detonation is not necessarily more discriminate, and much depends on other factors that promote mhc, as raised by Horowitz and Scharre (see above), and which can conceivably be absent in the 187 Human Rights Watch, “Claymore-​ Type and OZM-​ 72 Command-​ Detonated Mines,” Landmine Monitor Factsheet, May 2006, at:  http://​the-​monitor.org/​media/​1418623/​ Claymore_​and_​OZM_​May_​2006_​photos.pdf. 188 D. A.  Koplow, Death by Moderation:  The US Military’s Quest for Useable Weapons, cup, Cambridge, 2010 p. 146 (emphasis added). 189 Ibid. 190 Maslen, Anti-​Personnel Mines under Humanitarian Law: A View from the Vanishing Point, p. 57. 191 See Art. 2(1), 1997 Anti-​Personnel Mine Ban Convention; and Art. 2(3), 1996 Amended Mines Protocol, both of which provide that anti-​personnel mines are “designed to be exploded by the presence, proximity or contact of a person.”

156 Homayounnejad case of command-​detonated mines.192 Thus, it may be inaccurate to say that landmines must be fully remote-​controlled in their lethal functions to escape legal prohibition; and that this is all that is required, with any lesser alternative falling back to the treaty-​based landmines regime in some binary sense. Rather, it should be “meaningful” human oversight by a trained and accountable operator, who makes well-​informed, conscious and deliberative decisions on lethal engagement, which has a legally permissive effect on deploying and using the weapons. Accordingly, the focus for autonomous weapons should not be on full versus partial remote control, but on the level of human intervention that—​when combined with other contextual factors, such as spatial restrictions and the prevailing operational environment—​enables the weapon system to be more easily directed such that it poses a lesser threat to the civilian population. Concretely, this might entail a “remote check-​in” by the system, done periodically;193 or when confronted by a potentially ambiguous situation that does not meet the statistical confidence level required for weapons release; or indeed when confronted by any situation that deviates from pre-​programmed images and parameters.194 Alternatively, if there is a way for human operators to detect when potentially unlawful situations might arise, and to actively “check in” with the system and direct it accordingly, it might be that this would also suffice.195 192 In the case of the Matrix mines, there were concerns that sensory hardware might not relay sufficiently clear, reliable, and meaningful information; that operator training might be inadequate; and that too many munitions might come under the supervision of one soldier. See L. Haines, “Introducing the ‘Matrix’ Laptop-​Triggered Landmine,” The Register, 12 April 2005, at:  https://​www.theregister.co.uk/​2005/​04/​12/​laptop_​triggered​ _landmine/​. 193 Similar to Crootof’s suggestion of autonomous weapons systems seeking periodic “permission to continue” from human operators, and treating “ongoing consent as a form of fuel.” Crootof, “The Killer Robots are Here: Legal and Policy Implications.” 194 Boothby suggests that more basic autonomous weapons models may be fed with a range of expected images of the contact zone before deployment, and programmed to hold fire if the observed battlefield differs in any material respect from the pre-​programmed images. However, it may be difficult to predict every lawful battlefield scenario in advance of a deployment. Thus, the extension suggested here is that the system contacts human operators, who may halt the deployment, continue it in remotely-​piloted mode, or indeed they may reason that the unexpected battlefield scenario is still lawful for the system to engage in autonomous mode, thereby authorising it to go ahead. Boothby, “Autonomous Attack—​Opportunity or Spectre?,” p. 83. 195 Admittedly, this is a big ‘if’, and it would very likely require a human to remain on-​the​ -loop, and ready to intervene in the event that a proxy indicator reveals a high risk of an impending and potentially unlawful situation.

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Concluding Remarks

With more than 40 states actively developing fully autonomous weapons systems, and the world’s largest defence bureaucracy (the us Department of Defense) integrating weapons autonomy into its latest offset strategy, it is beyond doubt that these capabilities will soon appear on the battlefield. The consequent substituting of algorithmic targeting for narrow-​loop human targeting sounds bleak, especially when it concerns matters of life and death. However, as this chapter has sought to demonstrate, ways and means exist to make autonomous attack lawful and adequately discriminatory, with both effective and administrable rules. This is certainly true from a black-​letter reading of loac treaties, and assuming that the effective comparator is human targeting performance.196 That said, there are also numerous circumstances in which a relatively “raw” autonomous targeting effort will fall short of the expected levels of distinction. To guard against such potential loac violations, it is vital for commanders to impose appropriate deployment restrictions and to take well-​planned pre-​deployment precautions. Yet, these safeguards themselves are not always obvious—​certainly not to every commander in every potential situation in an armed conflict. Thus, with a treaty regulating fully autonomous weapons systems negotiated by states, or a loac manual formulated by a panel of experts, we may move closer to a common understanding of the development, deployment, and use of autonomous weapons systems in full compliance with the “cardinal” and “intransgressible” principle of distinction.197 196 In that regard, see the numerous incidents of wrongful targeting, which were largely down to human error in competences where machines tend to outperform humans. For example, where war-​weary pilots have failed to check the crucial no-​strike list, and have not paid sufficient attention to clearly visible protective signs and emblems, this has resulted in erroneous attacks on hospitals and icrc facilities. The result has invariably been a reduced capacity to distribute humanitarian supplies and medical services on the ground. Autonomous weapons with sophisticated atr and gps guidance systems would almost certainly have avoided those attacks. See “Kunduz Bombing:  us Attacked msf Clinic ‘In Error’,” BBC News, 25 November 2015, at:  http://​www.bbc.co.uk/​news/​world​ -asia-​34925237; icrc, Press Release 01/​43, 16 October 2001, at:  https://​www.icrc.org/​ eng/​resources/​documents/​news-​release/​2009-​and-​earlier/​57jrcz.htm; and icrc, Press Release 01/​48, 26 October 2001, at:  https://​www.icrc.org/​eng/​resources/​documents/​ news-​release/​2009-​and-​earlier/​57jrdx.htm. 197 The descriptors famously used the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of 8 July 1996 (§§78–​79).

Chapter 6

Unmanned Weapons Systems and the Right to Life Stuart Casey-​Maslen Introduction Going beyond consideration of the law of law enforcement rules applicable to the use of drones and other unmanned weapons systems in Chapter 2, this chapter addresses their regulation under international human rights law. In so doing, there are potential jurisdictional obstacles to the application of the law that must first be considered. The chapter then considers the use of autonomous weapons systems during armed conflict, discussing the inter-​relationship of human rights law with the law of armed conflict (loac) during the conduct of hostilities. The chapter also summarises key cases at domestic level that draw on international human rights law and loac. Finally, it looks at whether human rights law regulates the transfer of autonomous weapons systems.

The Extraterritorial Application of Human Rights Law

A significant potential obstacle to the application of international human rights law to the use of armed drones and fully autonomous weapons systems is whether, in peacetime or in a situation of armed conflict, human rights may apply extraterritorially. It is accepted that human rights apply, first and foremost, to all individuals on territory under the jurisdiction of a state. According to the 1966 International Covenant on Civil and Political Rights (iccpr), each state party “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized” in the Covenant.1 The word “and” found in the phrase “within its territory and subject to its jurisdiction” is, today, almost universally understood not as a cumulative requirement but as an “or.”2 Thus, it is also generally agreed that jurisdiction 1 Art. 2(1), iccpr. 2 See, e.g., S. Joseph, J. Schultz, and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials; and Commentary, 2nd Edn, Oxford University Press (oup), 2004,

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_008

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extends to territory controlled by a state abroad through, for example, military occupation. Two states have traditionally and strenuously opposed all extraterritorial application of the Covenant: Israel and the United States (us). In 2013, in its fourth periodic report under the iccpr, Israel recognised that the applicability of the Covenant to the West Bank “has been the subject of considerable debate in recent years. In its periodic reports under the Covenant, Israel did not refer to the implementation of the Convention in these areas for several reasons, ranging from legal considerations to the practical reality.”3 In its concluding observations, the Human Rights Committee, which considers states parties’ implementation of the iccpr, expressed its regret that Israel “continues to maintain its position on the non-​applicability of the Covenant to the Occupied Territories, by claiming that the Covenant is a territorially bound treaty and does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary” of Article 2(1), which is “supported by the Committee’s established jurisprudence,” the jurisprudence of the International Court of Justice (icj), and state practice.4 In contrast, in recent years the United States has appeared to soften somewhat its opposition to extraterritorial application of the iccpr. In 2011, in its own fourth periodic report under the Covenant, the United States stated that it was “mindful” of the Committee’s view that states parties are required to respect and ensure Covenant rights “to all persons who may be within their territory and to all persons subject to their jurisdiction,” including “anyone within the power or effective control” of a state party, even if not situated within its territory.5 The United States was also “aware” of the icj jurisprudence, which has found the iccpr “applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,” as well as the positions on the issue among other states parties.6 The Human Rights Committee did not acknowledge a seeming shift in position, calling on the United States in its concluding observations on the report to interpret the iccpr “in good faith” and to “review its legal position so as to acknowledge the extraterritorial application of the Covenant under

3 4 5 6

§§4.11–​4.15; S.  Joseph and M.  Castan, The International Covenant on Civil and Political Rights: Cases, Materials; and Commentary, 3rd Edn, oup, 2014, §§4.11–​4.17. Israel’s Fourth Periodic Report under the iccpr, 2013, p. 11, §46. Human Rights Committee, “Concluding observations on the fourth periodic report of Israel,” un doc. CCPR/​C/​ISR/​CO/​4, 21 November 2014, p. 2, §5. us Fourth Periodic Report under the iccpr, December 2011, §505. Ibid.

160 Casey-Maslen certain circumstances.”7 In its revised draft General Comment on the right to life of July 2017, the Human Rights Committee’s Rapporteur wrote as follows: In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are found within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State who are nonetheless impacted by its military or other activities in a [direct], significant and foreseeable manner.8 Further, there are indications that the United States opposes extraterritorial application of the iccpr specifically and not the entire corpus of conventional and customary human rights law. Thus, in 2014, in its concluding observations on the us’s combined third to fifth periodic reports under the 1984 Convention Against Torture, the Committee against Torture welcomed its “unequivocal commitment to abide by the universal prohibition of torture and ill-​treatment everywhere, including at Bagram and Guantanamo Bay detention facilities, as well as the assurances that United States personnel are legally prohibited under international and domestic law from engaging in torture or cruel, inhuman, or degrading treatment or punishment at all times and in all places.”9 The Committee noted accordingly that the United States has reviewed its position concerning the extraterritorial application of the Convention and stated that it applies to “certain areas beyond” its sovereign territory, and more specifically to “all places that the State party controls as a governmental authority,” noting that it currently exercises such control at “the United States Naval Station at Guantanamo Bay, Cuba, and over all proceedings conducted there, and with respect to us-​ registered ships and aircraft.”10 7 8 9 10

Human Rights Committee, “Concluding observations on the fourth periodic report of the United States,” un doc. CCPR/​C/​USA/​CO/​4, 23 April 2014, p. 2, §3(a). General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, Revised draft prepared by the Rapporteur, 7 July 2017, §66. Committee against Torture, “Concluding observations on the combined third to fifth periodic reports of the us,” un doc. CAT/​C/​US/​CO/​3-​5, 19 December 2014, §10. Ibid.

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At regional level, the issue of extraterritorial application of human rights instruments has been somewhat mixed. With respect to the protection of the right to life under the 1981 African Charter on Human and Peoples’ Rights (which does not contain a restrictive clause on jurisdiction), the 2015 General Comment on the right to life issued by the African Commission on Human and Peoples’ Rights observes that: “Home States … should ensure accountability for any extraterritorial violations of the right to life, including those committed or contributed to by their nationals or by businesses domiciled in their territory or jurisdiction.”11 Under the 1969 American Convention on Human Rights, states parties “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction.”12 As Cecilia Medina notes, negotiating states agreed on “a broad criterion that includes not only those actions or omissions attributable to State agents as violations of obligations under the Convention committed or omitted within State territory, but also responsibility for acts or omissions carried out outside State territory but within State jurisdiction, such as the actions of an occupying army or actions taken on diplomatic premises.”13 Medina recalls that the Inter-​American Commission on Human Rights ruled admissible a case that concerned the us bombardment of the Richmond Hill Mental Health Facility during its invasion of Grenada in 1983. The bombardment killed 16 people.14 The case concluded with a friendly settlement: a new hospital was built in 1987 to replace the one destroyed by the bombing and residents of the new facility and the individual petitioners were paid compensation and provided with clothing, food, care, and services.15 The funding was provided by the us Agency for International Development (usaid). The us Government considered it “important to note for the record its longstanding 11

12 13 14

15

General Comment No. 3 on the African Charter on Human and Peoples’ Rights: The Right to Life (Article 4), adopted during the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights held on 4–​18 November 2015 in Banjul, The Gambia, §18. Art. 1(1), 1969 American Convention on Human Rights. C. Medina, The American Convention on Human Rights, Intersentia, Cambridge, 2014, p. 8, §12. Inter-​American Commission on Human Rights (IACmnHR), Case of Disabled Peoples’ International and others v. United States, Report on Admissibility (Case No. 9213), published in IACmnHR, Annual Report 1986–​87. Richmond Hill v.  United States, Case No. 9213, Report No. 3/​96, IACmnHR, Doc. OEA/​ Ser.L/​V/​i i.91 Doc. 7 at 201 (1996), §4, available at: https://​www1.umn.edu/​humanrts/​ cases/​1996/​us3-​96.htm. See also Medina, The American Convention on Human Rights, p. 9, §12.

162 Casey-Maslen position that its actions were entirely in conformance with the law of armed conflict, and that therefore the United States had no legal liability for any damages claimed.”16 Of note, it did not, in this instance, explicitly reject the competence of the Inter-​American Commission to address an issue extraterritorially or an act in the conduct of hostilities in bello.17 In its Concluding Observations on the Fourth Periodic Report of the United States on the iccpr in April 2014, the Human Rights Committee specifically addressed the use of armed drones. The Committee was “concerned about the State party’s practice of targeted killings in extraterritorial counter-​terrorism operations using unmanned aerial vehicles (uav), also known as “drones,” the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for loss of life resulting from such attacks.”18 The position taken by the Inter-​American Commission in the Richmond Hill case should, though, be contrasted with the position taken by the European Court of Human Rights. The Court has held that, potentially, a material difference exists when a state party to the 1950 European Convention on Human Rights (echr), outside its own territory and that of other echr states parties, has a person in its custody and kills him or her, and when a state party kills a person by aerial bombing without ever having custody of the victim. Under Article 1 echr, each state party “shall secure to everyone within their jurisdiction the rights and freedoms” set out in the Convention. Arguably the leading jurisprudence most relevant to a state party’s extraterritorial drone strike not on the territory of any other state party to the echr remains the Grand Chamber’s contentious decision on admissibility 16 17

18

Ibid. In the latest version of its Law of War Manual, though, the us Department of Defense (DoD) stipulates that “the citation of the jurisprudence of the Inter-​ American Commission on Human Rights should not be understood to indicate that the United States has accepted the competence of the Inter-​American Commission on Human Rights to apply the law of war.” The DoD cites in support of this stance the “us Additional Response to the Request for Precautionary Measures—​Detention of Enemy Combatants at Guantanamo Bay, Cuba,” Inter-​American Commission on Human Rights, 15 July 2002, Digest of United States Practice in International Law, 2002, pp.  1008–17, at p. 1009:  “Put simply, the Commission’s jurisdiction does not include the application of the law of armed conflict, the lex specialis governing the status and treatment of persons detained during armed conflict.” DoD, Law of War Manual, Washington, dc, June 2015 (Updated December 2016), §1.2.2.1. Human Rights Committee, “Concluding Observations on the fourth periodic report of the United States,” un doc. CCPR/​C/​USA/​CO/​4, 23 April 2014, §9.

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in the Banković case.19 The application concerned the April 1999 bombing by air forces acting under the North Atlantic Treaty Organization (nato) of the building of Radio Television Serbia (rts) during the Kosovo conflict. Sixteen people were killed and sixteen others were seriously injured, and the building was destroyed. The applicants, all family members of the deceased or individuals injured in the bombing, complained that the bombing of the rts building violated echr Article 2 on the right to life and Article 10 on freedom of expression.20 In its decision on admissibility, the European Court stated that the applicants: claim that the positive obligation under Article 1 extends to securing the Convention rights in a manner proportionate to the level of control exercised in any given extra-​territorial situation. The [respondent] Governments contend that this amounts to a “cause-​and-​effect” notion of jurisdiction not contemplated by or appropriate to Article 1 of the Convention. The Court considers that the applicants’ submission is tantamount to arguing that anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State for the purpose of Article 1 of the Convention.21 The Court declined to extend jurisdiction so far, arguing that the echr is a multilateral treaty “operating … in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The fry [Federal Republic of Yugoslavia] clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.”22 This decision is problematic for a number of reasons. First, other jurisprudence, notably the later al-​Skeini case,23 suggests that if a state party to the

19 20 21 22 23

European Court of Human Rights (ECtHR), Banković and others v. Belgium and 16 other states, Decision as to admissibility (Grand Chamber), 12 December 2001. See, e.g., D. Voorhoof, “Case Banković and Others v. Belgium and Others,” IRIS, 2002-​1:3/​2, at: http://​merlin.obs.coe.int/​iris/​2002/​1/​article2.en.html. ECtHR, Banković and others v. Belgium and 16 other states, §75. Ibid., §80. ECtHR, Al-​Skeini and others v. United Kingdom, Judgment (Grand Chamber), 7 July 2011; see also A. Henderson, “War, power and control: the problem of jurisdiction,” uk Human Rights blog, 14 July 2011, at:  http://​ukhumanrightsblog.com/​2011/​07/​14/​war-​power​ -and-​control-​the-​problem-​of-​jurisdiction/​.

164 Casey-Maslen echr arrests a person outside the borders of any state party to the Convention, or if it kills someone when occupying territory abroad while exercising governmental authority (“public powers”),24 it has human rights obligations under the Convention. In contrast, according to Banković, if it simply bombs him or her into oblivion it has no such obligations. This could be perceived of as an unintended incentive to kill rather than capture. Indeed, in the High Court of England and Wales, in a March 2015 judgment in the Al-​Saadoon case, which arose from the United Kingdom’s military involvement in Iraq between 2003 and 2009, Justice Leggatt stated as follows: I find it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person. Using force to kill is indeed the ultimate exercise of physical control over another human being. Nor as it seems to me can a principled system of human rights law draw a distinction between killing an individual after arresting him and simply shooting him without arresting him first, such that in the first case there is an obligation to respect the person’s right to life yet in the second case there is not….25 As Justice Leggatt concludes, “Making the applicability of a system of human rights law depend on the distance between the gun and a person’s head in a case where a person is shot is not a position which in my view can reasonably be sustained.”26 The Issa case, whose judgment by the European Court of Human Rights intervened four years after its decision in Banković, concerned major military operations deployed by Turkey in northern Iraq (reportedly in excess of 35,000 ground troops, backed up by tanks, helicopters, and F-​16 fighter aircraft).27 According to the judgment of the Court’s Second Section in Issa: Given the degree of control enjoyed by the Turkish armed forces of the area, the Turkish Government had de facto authority over northern Iraq and its inhabitants, as opposed to de jure sovereignty. The circumstances of the applicants’ case were different from those in the Banković case 24 25 26 27

Al-​Skeini and others v. United Kingdom, §135. Al-​Saadoon and others v.  Secretary of State for Defence [2015] ewhc 715 (Admin), 17 March 2015, §95. Ibid., §96. “Turkey:  Anti-​Kurdish Offensive,” Keesing’s Record of World Events, News Digest for March 1995.

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since the deceased shepherds had been deliberately targeted, murdered and mutilated by Turkish armed forces. In their opinion, the fact that the decision-​making process that led to the military operation in northern Iraq took place in Turkey lent further weight to their submission that Turkey exercised jurisdiction at the relevant time.28 The Court held that: “The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place. The fate of the applicants’ complaints in respect of the killing of their relatives depends on the prior establishment of that premise.”29 With all due respect to the European Court, this is not persuasive. Applied in different circumstances, it could be taken to imply that the United Kingdom’s use of armed drones in Libya in 2011 or in Syria since 2015 would still escape legal review, unless the United Kingdom had ground troops occupying Libyan or Syrian territory such as to enjoy de facto authority. Nonetheless, in his judgment in the Al-​Saadoon case Justice Leggatt observed that echr jurisdiction had been expanded by subsequent caselaw: “Another important respect in which the European Court departed from its previous decision in Banković was in reinterpreting the concept of the Convention ‘legal space’. Lord Hope observed that, following the decision in Al-​Skeini, Banković ‘can no longer be regarded as authoritative’ on this point and that it is Issa that should be treated as ‘firmly in the mainstream of the Strasbourg court’s jurisprudence on this topic’.”30 Further evidence for the view that the decision in Banković was poor law can be found in the earlier Nuclear Weapons Advisory Opinion by the icj. Therein the World Court had declared that: “In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities.”31 In that Opinion, the icj did not see any obstacle to the application of the iccpr for use of intercontinental ballistic missiles. It did not make that application of the right to life implicitly, much less explicitly, dependent on whether the target state of a nuclear strike was a party to the Covenant. For, if Banković were a correct statement of international law, it implies that a state party killing foreign nationals outside the territory of any other state party to the echr is, on the basis of jurisdiction, not a human rights issue falling within the scope of the Convention, whereas a

28 29 30 31

ECtHR, Issa and others v. Turkey, Judgment (Second Section), 30 March 2005, §63. Ibid., §76. Smith v. Ministry of Defence [2014] ac 52, §47. icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, §25.

166 Casey-Maslen state that kills them within the territory of any state party is. The logic behind this distinction is extremely hard to fathom. Beyond conventional human rights law, it is important also to assess whether customary international human rights law may also apply extraterritorially. In 2013, in its influential Operational Law Handbook, the us Judge Advocate General’s Legal Center and School provided that international human rights law based on customary international law “binds all States in all circumstances, and is thus obligatory at all times.”32 For official us personnel (i.e., “State actors” in the language of international human rights law) dealing with civilians outside the territory of the us, customary international law “establishes the human rights considered fundamental, and therefore obligatory.” It goes on to argue that “[u]‌nfortunately,” there is “no authoritative source” that articulates which human rights the United States considers customary.33 In its 2015 version of the Operational Law Handbook, the Judge Advocate General affirmed that: “Customary ihrl’s scope of application depends on the type of customary ihrl at issue.”34 It goes on to state that “fundamental customary ihrl binds a State’s forces during all operations, both inside and outside the State’s territory”; such fundamental rights include peremptory norms such as the prohibition against murder/​causing disappearance of individuals.35 The rights to life and to freedom from torture are indubitably fundamental human rights.36 With respect to the right to life, according to the African Commission on Human and Peoples’ Rights: The right to life is universally recognised as a foundational human right. It is guaranteed by Article 4 of the African Charter and all of the other main global and regional human rights instruments. The right not to be arbitrarily deprived of one’s life is recognised as part of customary international law and the general principles of law, and is also recognised as a 32

33 34 35 36

Operational Law Handbook 2013, International and Operational Law Department, Judge Advocate General’s Legal Center and School, Charlottesville, Virginia, 2013, p. 45, available at: http://​www.loc.gov/​rr/​frd/​Military_​Law/​pdf/​operational-​law-​handbook_​2013.pdf. Ibid. Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s Legal Center & School, us Army Charlottesville, Virginia, 2015, p. 47. Ibid., pp. 54, 53. General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, Revised draft prepared by the Rapporteur, 7 July 2017, §2; and N. S. Rodley with M. Pollard, The Treatment of Prisoners Under International Law, 3rd Edn, oup, Oxford, 2011, Ch. 2, esp. p. 81.

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jus cogens norm, universally binding at all times. The right to life is contained in the constitutions and other legal provisions of the vast majority of African and other States. All national legal systems criminalise murder, and arbitrary killings committed or tolerated by the State are a matter of the utmost gravity.37 The first draft General Comment by the Human Rights Committee described the right to life as “the supreme right from which no derogation is permitted.”38 This was reiterated in the revised draft prepared by the Rapporteur in July 2017, which observed that, as a fundamental right, its “effective protection is the prerequisite for the enjoyment of all other human rights and whose content can be informed and infused by other human rights.”39 In conclusion, both customary and conventional human rights would appear to govern a state’s use of armed drones and other autonomous weapons systems, irrespective of whether a strike occurs within its own territory or extraterritorially. The significance of the positions of the United States and Israel on the iccpr, along with the decision of the European Court of Human Rights in Banković with respect to the echr, should not be under-​estimated, but they are widely considered to be outliers, and there has been movement on this issue by both the Court and the United States in recent years.

Regulation of the Conduct of Hostilities

Application of Human Rights Law to the Conduct of Hostilities In the past, certain states have contested whether international human rights law applies to the conduct of hostilities in a situation of armed conflict. In the mid-​1990s, submissions and pleadings were made to the icj in the context of the Advisory Opinion requested by the United Nations (un) General Assembly on the legality of the threat or use of nuclear weapons. A  number of states sought to argue that international human rights law, in particular the iccpr,40 applied only, or primarily, during peacetime. In this regard, in the Advisory Opinion rendered in 1996, the Court noted that:  “It was suggested that the 37 38 39 40

African Commission on Human and Peoples’ Rights, General Comment No. 3, §5. “Draft general comment No. 36 (Article 6: Right to life),” §2. General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, Revised draft prepared by the Rapporteur, 7 July 2017, §2. As at 1 January 2018, 169 states were party to the iccpr. See un Treaty Section, at: https://​treaties.un.org/​pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​4&chapter=4&lang=en.

168 Casey-Maslen Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict.”41 The Court clarified, however, that the Covenant, and specifically the right to life, continued to apply during situations of armed conflict: The Court observes that the protection of the International Covenant of [sic] Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision.42 Despite the view of the Court, the us Department of Defense (DoD) has continued to imply that human rights law has little to contribute to regulation of conduct during armed conflict. In its 2015 Law of War Manual, the DoD observes that: “As a general matter, human rights treaties have been described as primarily applicable to the relationship between a State and individuals in peacetime.”43 It maintained this stance in the December 2016 update of the Manual.44 In support of this position, though, it cited a book by Jean Pictet, the late President of the International Committee of the Red Cross (icrc), published back in 1975: not exactly an authoritative source for a contemporary human rights law issue.45 In contrast, in its fourth periodic report under the iccpr, the United States wrote that: With respect to the application of the Covenant and the international law of armed conflict …, the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of 41

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icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (hereafter, Nuclear Weapons Advisory Opinion), §24. See also Israel’s Fourth Periodic Report under the iccpr (un doc. CCPR/​C/​ISR/​4, 12 December 2013, p. 11, §47), in which it states that: “it is Israel’s view that these two systems-​of-​law, which are codified in separate instruments, remain distinct and apply in different circumstances.” icj, Nuclear Weapons Advisory Opinion, §25. DoD, Department of Defense Law of War Manual, June 2015, p.  22, available at:  http://​ archive.defense.gov/​pubs/​law-​of-​war-​manual-​june-​2015.pdf. DoD, Department of Defense Law of War Manual, June 2015 (Updated December 2016), p. 22, §1.6.3. J. Pictet, Humanitarian Law and the Protection of War Victims, Henry Dunant Institute, Geneva, 1975, p. 15.

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application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.46 In 2004, in its Wall Advisory Opinion the icj “generally” considered that “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation.”47 The right to life is non-​derogable under the iccpr. Writing in 2005, Noam Lubell noted that “there might still be pockets of resistance” to the notion that international human rights law “is not entirely displaced and can at times be directly applied in situations of armed conflict.” He declared, though, that “the resisters are fighting a losing battle and should lay down their arms and accept the applicability of human rights law in times of armed conflict.”48 According to the 2009 European Union (eu) Guidelines on promoting compliance with international humanitarian law (a synonym for the law of armed conflict), “the international laws on human rights may apply both in times of peace and in times of war. They are complementary to international humanitarian law.”49 The nature of the inter-​relationship between international human rights law and the law of armed conflict is discussed below. 46

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us Fourth Periodic Report under the iccpr, 30 December 2011, un doc. CCPR/​C/​US/​ 4, 22 May 2012, §506. Similarly, in 2014 the United States wrote that while it “acknowledges that difficult questions arise regarding the applicability of international human rights law in situations of armed conflict, the draft does not accord sufficient weight to the well-​established principle that international humanitarian law, as the lex specialis of armed conflict, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims.” “Observations of the United States on the Human Rights Committee’s Draft General Comment 35: Article 9,” 10 June 2014, §20, cited in DoD Law of War Manual. The United States still does not, however, accept “the competence of the Inter-​American Commission on Human Rights to apply the law of war.” Department of Defense Law of War Manual, June 2015, p. 3. icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, §106. N. Lubell, “Challenges in applying human rights law to armed conflict,” International Review of the Red Cross, Vol. 87, No. 860 (2005), p. 738, available at: https://​www.icrc.org/​ eng/​assets/​files/​other/​irrc_​860_​lubell.pdf. Updated eu Guidelines on promoting compliance with international humanitarian law, Official Journal C 303 of 15 December 2009, available at: http://​eur-​lex.europa.eu/​legal​ -content/​EN/​TXT/​?uri=uriserv:ah0004.

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Human Rights Law and the Conduct of Hostilities in International Armed Conflict As noted in Chapter 3, jus ad bellum and jus in bello apply distinctly. To comply with international law, therefore, it is not enough to satisfy the requirements of either body of law: a state must comply with the requirements of both. When an act falls within the conduct of hostilities, the primary normative framework is loac, as discussed in Chapter 4. But as just noted, international human rights law continues to apply. The issue is therefore whether international human rights law supplements the humanitarian protection afforded by loac in any way. The icj made its position clear in 1996 on how it appreciates the inter-​ relationship between human rights law and loac rules governing the conduct of hostilities: The test of what is an arbitrary deprivation of life … falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.50 What the Court is effectively saying is that use of a weapon in the conduct of hostilities—​at least in a situation of international armed conflict51—​will violate international human rights law only if that use also constitutes a loac violation. If use does not violate loac rules, it will not violate human rights law, as loac is, allegedly, a more specific source of norms regulating the conduct of hostilities than is international human rights law. Thus, in 2014, in its observations on the Human Rights Committee’s Draft General Comment 35 on Article 9 of the iccpr, the United States stated the following: While the United States acknowledges that difficult questions arise regarding the applicability of international human rights law in situations of armed 50 51

icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, §25. According to §50 of its Advisory Opinion on the legality of the threat or use of nuclear weapons, “The terms of the question put to the Court by the General Assembly in resolution 49/​75K could in principle also cover a threat or use of nuclear weapons by a State within its own boundaries. However, this particular aspect has not been dealt with by any of the States which addressed the Court orally or in writing in these proceedings. The Court finds that it is not called upon to deal with an internal use of nuclear weapons.”

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conflict, the draft does not accord sufficient weight to the well-​established principle that international humanitarian law, as the lex specialis of armed conflict, is the controlling body of law with regard to the conduct of hostilities and the protection of war victims.52 This use of the lex specialis derogat legi generali method of resolving a conflict of norms has, though, been widely criticised. Christian Tomuschat has referred to the Court’s statement as “somewhat short-​sighted”;53 William Schabas has described the icj’s approach as “clumsy at best”;54 while Noam Lubell has deemed it “perhaps an inept approach.”55 Marko Milanović has called for lex specialis to be “abandoned as a sort of magical, two-​word explanation of the relationship between ihl and international human rights law, as it confuses far more than it clarifies.”56 But although the Court may be construed to have rowed back from this absolutist position in the contentious case of Democratic Republic of the Congo v. Uganda,57 given that this jurisprudence did not specifically concern the use of weapons in the conduct of hostilities, arguably the 52 53 54 55

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“Observations of the United States of America on the Human Rights Committee’s Draft General Comment 35: Article 9,” 10 June 2014, §20. C. Tomuschat, “The Right to Life—​Legal and Political Foundations,” in C.  Tomuschat, E. Lagrange, and S. Oeter (eds.), The Right to Life, Brill, Leiden, 2010, p. 11. W. Schabas, “The Right to Life,” in A. Clapham and P. Gaeta (eds.), Oxford Handbook of International Law in Armed Conflict, Oxford University Press (oup), Oxford, 2014. N. Lubell, Extraterritorial Use of Force against Non-​State Actors, Oxford Monographs in International Law, oup, 2011, p. 240. More recently, in submitting an amicus curiae brief to the European Court of Human Rights with Professor Françoise Hampson, Lubell noted that: “The reference to lex specialis is unhelpful, which may account for why the icj did not include the final sentence in its quotation from para. 106 of the Advisory Opinion in the subsequent contentious case [DRC v. Uganda]. Whilst in general terms its meaning is clear, its specific meaning and application appears to be interpreted in a different way by every commentator. Use of this term has served to obfuscate the debate rather than provide clarification. It was designed to deal with a different situation—​a vertical relationship between a general regime and specific regimes … The relationship between loac/​ ihl and human rights law involves a different problem—​the horizontal collision of two separate legal regimes. One is not a more specific form of the other.” “Georgia v. Russia (ii) 38263/​08, Amicus curiae brief submitted by Professor Francoise Hampson and Professor Noam Lubell of the Human Rights Centre, University of Essex,” 2014, §18. M. Milanović, “Norm Conflicts, International Humanitarian Law and Human Rights Law,” in O.  Ben-​Naftali (ed.), Human Rights and International Humanitarian Law, Collected Courses of the Academy of European Law, Vol. xix/​1, oup, 2010, p. 6. icj, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 19 December 2005, §216.

172 Casey-Maslen view it expressed in its 1996 advisory opinion remains authoritative insofar as use of autonomous weapons in such situations is concerned.58 If the Court were correct in its earlier assertion, would this mean that international human rights law offers no added protection in addressing use of weapons in the conduct of hostilities, at least in international armed conflict? This is not the case in my opinion. First, the practical content (as opposed to the formulation)59 of the primary loac rules governing the conduct of hostilities is, to say the least, vague. Further, loac as a body of international law suffers from an especially wanton lack of implementing mechanisms and the very high threshold for prosecutions of war crimes under international criminal law (see Chapter 8) make accountability for violations of that corpus of law wholly inadequate.60 These are two areas in which human rights law may offer additional humanitarian protection, whether directly or indirectly. Targeting in Armed Conflict under the Law of Armed Conflict Seemingly, loac does not distinguish in the application of its primary rules on the conduct of hostilities between situations of international and of non-​international armed conflict. The two most important primary rules are distinction and proportionality in attack.61 While their formulation as rules is clear and largely 58

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See in this regard V.  Gowlland-​Debbas, “The right to life and genocide:  the Court and an international public policy,” Ch. 20 in L. Boisson de Chazournes and P. Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons, Cambridge University Press, 1999. See generally S.  Casey-​Maslen with S.  Haines, Hague Law Interpreted:  The Conduct of Hostilities under the Law of Armed Conflict, Hart, United Kingdom, forthcoming (2018). In December 2015, at the 32nd International Conference of the Red Cross and Red Crescent, states did not agree to support a proposal by Switzerland and the icrc to convene an annual meeting of states parties to the 1949 Geneva Conventions to exchange experiences on challenges and best practices and voluntarily report on compliance. The aim was to enhance compliance with the law of armed conflict. H. Aly, “No deal to strengthen respect for Geneva Conventions,” IRIN, 10 December 2015, at:  http://​www​ .irinnews.org/​report/​102286/​no-​deal-​to-​strengthen-​respect-​for-​geneva-​conventions. In a statement, icrc President Peter Maurer said:  “International humanitarian law is flouted almost every day, in every conflict around the world. By failing to support this initiative, states missed an opportunity to help to protect millions of people.” “No agreement by States on mechanism to strengthen compliance with rules of war,” News release, icrc, Geneva, 10 December 2015, at:  https://​ www.icrc.org/​ en/​ document/​ no-​agreement-​states-​mechanism-​strengthen-​compliance-​rules-​war. Precautions in attack are not discussed here as the failure to respect them does not formally constitute an indiscriminate attack; they were, however, discussed in Chapter 4 of this work.

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uncontested, their practical application is highly contentious, as the Gotovina case before the International Criminal Tribunal for the former Yugoslavia (icty) graphically demonstrated.62 In the Gotovina case, the icty Trial Chamber had found that, on 4 and 5 August 1995, Croatian army artillery units fired artillery shells and rockets at the so-​called “four towns” in the Krajina (Knin, Benkovac, Gračac, and Obrovac) and after carefully comparing the evidence on the locations of impacts in these towns with the locations of possible military targets, it concluded that they had targeted not only military objectives but also areas devoid of such lawful targets. As such, the Chamber found that Croatian forces had treated the towns themselves as targets for artillery fire, holding therefore that the shelling of the towns constituted an indiscriminate attack on the towns and an unlawful attack on civilians and civilian objects.63 In its pre-​trial brief, the prosecution asserted both the unlawful nature of the attack and its “terrifying effect.”64 The defendants were convicted and General Ante Gotovina was sentenced to 24 years in prison for a series of crimes against humanity and violations of the laws and customs of war. General Gotovina appealed against his conviction. The majority in the icty Appeals Chamber argued, wrongly in the present author’s view, that the Trial Chamber had based its entire decision that the attacks were unlawful on the fact that all shells or rockets landing at a distance of more than 200 metres from a lawful military 62

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The Trial Chamber concluded—​arguably incorrectly—​that the attacks took place in the context of an international armed conflict. Indeed, the prosecution in the case appeared at times to argue implicitly that a non-​international armed conflict was in progress in 1995. “The intensity of the conflict between these well-​organized parties … varied but was sufficiently high to distinguish the ‘homeland war’ from ‘banditry, unorganized and short-​lived insurrections, or terrorist activities’.” The Prosecutor v.  Gotovina and others, Prosecution Trial Brief, §469. See “Judgment Summary for Gotovina et al.,” The Hague, 15 April 2011, p. 3, at: http://​ www.icty.org/​x/​cases/​gotovina/​tjug/​en/​110415_​summary.pdf. “Pursuant to Gotovina’s order … civilian population centres in the Krajina were put under artillery fire, including Knin, Benkovac, Obrovac and Gračac. In each of these towns and in outlying villages, shells, and rockets impacted civilian areas, causing civilian deaths and injuries, damage to civilian property, and a mass exodus of the civilian population. Civilians who were the object of the attack, as well as observers from multiple international organisations, uniformly described the terrifying effect of the attack.” icty, Prosecutor v. Gotovina and others, Prosecution’s Public Redacted Final Trial Brief, 2  August 2010 (hereafter, Prosecutor v.  Gotovina and others, Prosecution Trial Brief), §484. The prosecution further cited Croatian army reports whereby 130mm cannons were fired “at a residential area in Knin” and “in irregular intervals … at the general area of Knin.” Prosecutor v. Gotovina and others, Prosecution Trial Brief, §507.

174 Casey-Maslen objective were deemed indiscriminate. The Appeals Chamber unanimously agreed that no such standard existed in loac.65 The majority of the Chamber could not “exclude the possibility” that the shelling was aimed at legitimate targets: The fact that a relatively large number of shells fell more than 200 metres from fixed artillery targets could be consistent with a much broader range of error. The spread of shelling across Knin is also plausibly explained by the scattered locations of fixed artillery targets … along with the possibility of a higher margin of error.66 Accordingly, missing military objectives regularly by 200 metres or more is not a loac violation, in the view of the icty’s Appeal Chamber. This is potentially a huge protection issue for the civilian population, especially in relatively small towns like Knin. An amicus curiae brief, submitted by leading law of armed conflict experts concerned at Gotovina’s conviction at trial, had asserted their understanding that assessing legality of attack effects requires some benchmark of acceptable error and suggested a 400-​metre standard: By substituting 400 meters as the benchmark for assessing attack effects in this case, the Appeals Chamber will send a powerful message that criminal responsibility for allegations of unlawful targeting decisions in future armed conflicts will be imposed only when the totality of the evidence is genuinely sufficient to support such allegations.67 The Appeals Chamber did not make this determination. Indeed, what the Chamber did not go on to do, and for which, among other things, the two dissenting judges, Agius and Pocar, criticised it so heavily, is to articulate the correct standard under loac, as they were required to do under the mandate of the icty.68 Judge Pocar raised three core concerns about the majority 65 66 67

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Prosecutor v. Gotovina, Judgment (Appeals Chamber) (Case No. IT-​06-​90-​A), 16 November 2012, §§58–​61. Ibid., §65. icty, Prosecutor v. Ante Gotovina and Mladen Markac, Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks During Operation Storm, 12 January 2012, §17. “By not articulating the correct legal standard, the Majority falls short of correcting any legal errors in the Trial Judgement and clarifying the law the Trial Chamber should have

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judgment: the failure to determine the standard (and whether that standard should be measured in metres); the basis for the correct legal standard (“Does the Majority consider that a legal standard can be established on a margin of error of artillery weapons?”); and the legal principles the Trial Chamber should have applied. (“Does the Majority consider that the Trial Chamber should have applied the principles of customary ihl in its analysis? If so, which exact ihl principles should the Trial Chamber have applied in assessing whether the artillery attack was lawful?”)69 Thus, hopes that the Gotovina case would become the “Tadić of targeting law”70 were dashed, leaving the degree of care required by loac rules when using artillery or aerial bombing a matter of conjecture. If the accuracy and control of effects required by the rule of distinction is as unclear as it is, how much more opaque is the rule of proportionality? Notably, what expected civilian harm would be “excessive” when compared to the “concrete and direct military advantage anticipated.”71 In the words of Hays Parks, “by American domestic law standards, the concept of proportionality … would be constitutionally void for vagueness.”72 Targeting in Non-​International Armed Conflict The majority of armed conflicts in the modern world are non-​international in character. In such contexts, loac has relatively far less to say, at least in the relevant treaties, than is the case in international armed conflicts. Indeed, Common Article 3 to the 1949 Geneva Conventions does not, by general agreement, regulate the conduct of hostilities at all.73 The 1977 Additional Protocol ii to the

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applied when assessing the legality of an attack directed on civilians and civilian objects. It also fails to consider whether the artillery attacks on the Four Towns were lawful or not when the evidence is assessed in light of the principles of international humanitarian law. …” icty, Prosecutor v. Gotovina, Cermak and Markac, Judgment (Appeals Chamber), Dissenting Opinion of Judge Pocar, §13. Ibid. icty, Prosecutor v. Ante Gotovina and Mladen Markac, Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting that the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks During Operation Storm, 12 January 2012, §2. See Art. 51(5)(b), 1977 Additional Protocol i. W. Hays Parks, “Air War and the Law of War,” Air Force Law Review, Vol. 32, No. 1 (1990), pp. 1–​225, at p. 173. See G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, 2nd Edn, cup, April 2016, pp. 292–​93. See, e.g., N. Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, icrc, Geneva, 2009, p. 28.

176 Casey-Maslen Geneva Conventions,74 which applies to certain non-​international armed conflicts where an armed opposition to the state regime effectively controls territory,75 does include provisions specifically regulating the conduct of hostilities. It provides in its Article 13 as follows: 1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.76 While the rule of proportionality in attack almost certainly applies in all armed conflicts as a norm of customary loac, just as the icrc’s landmark study concluded in 2005,77 this prohibition had not found its way into the final text of the 1977 Additional Protocol ii, nor, with respect to non-​international armed conflicts, into the 1998 Rome Statute of the International Criminal Court (icc Statute).78 Similarly, no prohibition of attacks against all civilian objects (namely 74

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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts (Protocol ii), adopted, 8 June 1977; entry into force, 7 December 1978. As at 1 January 2018, 168 states were party to the Protocol, the most recent adherence being from Palestine in 2015. Art. 1(1), 1977 Additional Protocol ii stipulates that the Protocol applies to “all armed conflicts which are not covered by Article 1 of … [1977 Additional Protocol i] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Art. 13, 1977 Additional Protocol ii. J.-​M. Henckaerts and L. Doswald-​Beck (eds.), Customary International Humanitarian Law, cup, Cambridge, 2005, Rule 14: ‘Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.’ Under Art. 8(2)(b)(iv) of the 1998 Rome Statute, the icc potentially has jurisdiction over “serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law,” including:  “Intentionally

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all objects which are not military objectives) is explicitly included in Additional Protocol ii nor is it included as a war crime in non-​international armed conflicts in the icc Statute.79 Specific protection is, though, afforded to cultural property.80 Arguably, international human rights law has much to bring to the protection of civilians, particularly in non-​international armed conflicts. The difficulty in determining who is a lawful target under the law of armed conflict is typically far greater than in an international armed conflict as armed groups typically operate clandestinely when operating against the government. Though in certain conflicts the members of non-​state armed groups may wear uniforms and bear arms openly, this tends to be the exception that proves the rule. The issue of direct participation in hostilities (dph) is one in which, potentially, international human rights law has an especially important role to play. According to Chapter ix of the icrc’s 2009 Interpretive Guidance on dph, “In addition to the restraints imposed by international humanitarian law on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.”81

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launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-​term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Emphasis added. See Art. 8(2)(e), icc Statute. The 1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property enhances the Convention’s protection by providing that cultural property can only be attacked if it becomes a lawful military objective and no feasible alternative exists. Article 22 specifically applies the Second Protocol to non-​international armed conflicts. Art. 6, 1999 Protocol ii to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The 1954 Hague Convention only required parties to a non-​international armed conflict to respect cultural property. Under Article 16 of 1977 Additional Protocol ii, it was prohibited “to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort.” Interpretive Guidance on Direct Participation in Hostilities under International Humanitarian Law, p. 77. Hays Parks argues that this obligation is not one that is found in the law of armed conflict. See W. Hays Parks, “Part ix of the icrc ‘Direct Participation In Hostilities’ Study: No Mandate, No Expertise, and Legally Incorrect,” New York University Journal of International Law and Politics, Vol. 42 (2010), pp.  770–​830, at:  http://​nyujilp.org/​wp-​content/​uploads/​ 2012/​04/​42.3-​Parks.pdf; but also R.  Goodman, “The Power to Kill or Capture Enemy Combatants,” European Journal of International Law, Vol. 24, No. 3 (2013), pp. 819–​53.

178 Casey-Maslen In determining which other branches of international law are “applicable,” the interpretive guidance specifically cites international human rights law.82 An essential element of law enforcement rules, as discussed above, is that use of potentially lethal force must only be countenanced when it is the minimum force necessary in the circumstances. Arrest is always preferable to use of, for example, firearms, where this is possible. This chimes with the views of the Human Rights Committee in the 1982 case of Guerrero v. Colombia in which the state shot suspected terrorists from an armed opposition group instead of arresting them as they could have done in the circumstances.83 Other examples that the icrc offers of what amounts to direct participation in hostilities include an unarmed civilian sitting in a restaurant using a radio or mobile phone to transmit tactical targeting intelligence to an attacking air force and the situation where large numbers of unarmed civilians who deliberately gather on a bridge in order to prevent the passage of governmental ground forces in pursuit of an insurgent group. Other scenarios are where a fighter is lying on a beach or shopping in a downtown supermarket. Under loac rules, force that was not prohibited in these scenarios could include fully automatic weapons or even explosive weapons, notwithstanding the hortatory content of Chapter ix of the icrc’s interpretive guidance. International human rights law, informed by law of law enforcement rules, would not only protect the individuals to be targeted, requiring them to be arrested if possible (not only where feasible), but would also offer far stronger protection to others in the surrounding area than the vague notion of proportionality in attack. Indeed, international human rights law has been increasingly intruding into the conduct of hostilities in armed conflict, notably in the jurisprudence of the European Court of Human Rights. In Benzer v. Turkey, which concerned the bombing in March 1994 by the Turkish air force of two ethnic Kurdish villages in the south-​east of the country, the European Court embraced an approach using both loac and international human rights law rules in holding that: an indiscriminate aerial bombardment of civilians and their villages cannot be acceptable in a democratic society and cannot be reconcilable with any of the grounds regulating the use of force which are set out in Article 2(2) of 82 83

icrc, Interpretive Guidance on Direct Participation in Hostilities under International Humanitarian Law, p. 82. Colombia denied that an armed conflict was ongoing in the country at the time, although their view was clearly incorrect as a matter of international law.

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the Convention [echr] or, indeed, with the customary rules of international humanitarian law or any of the international treaties regulating the use of force in armed conflicts.84 The application of loac rules is notwithstanding the position of Turkey that no armed conflict existed on its territory at the time. In the Inter-​American Court of Human Rights, relevant case law includes the Case of the Santo Domingo Massacre v. Colombia.85 The Court used its interpretation of the law of armed conflict to determine whether a violation of human rights had occurred. The case concerned use of cluster munitions by the Colombian air force against the village of Santo Domingo, in 1998. According to a report by the Inter-​American Commission on Human Rights of 8 July 2011, it appears that on 13 December 1998 the Colombian air force bombed the hamlet of Santo Domingo in the department (province) of Arauca, Colombia. A helicopter dropped an an-​M1A2 cluster munition containing six submunitions, killing seventeen civilians, including four boys and two girls, injuring twenty-​seven civilians (including five girls and four boys), and causing displacement of the village’s inhabitants. Colombia sought to attribute the deaths to a bomb placed by the Revolutionary Armed Forces of Colombia (farc) guerrillas. In determining that the events took place in the context of an armed conflict, the Inter-​American Court conducted its analysis in part on the basis of loac rules governing the conduct of hostilities. The Court addressed the rules of proportionality86 and of distinction in attack,87 but its analysis focused on the duty on the attacker to take precautionary measures.88 The Inter-​American Court highlighted a range of factors about the cluster munition that was used, including the wide impact area of its six submunitions. It called the cluster munition an imprecise weapon (“una arma imprecisa”) and considered that use of any air-​dropped explosive weapon (“armamento explosivo”) was dangerous, and therefore needed to be strictly controlled to ensure 84

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86 87 88

ECtHR, Benzer v.  Turkey, Judgment (Former Second Section), 12 November 2013 (as rendered final on 24 March 2014), §184, at: http://​hudoc.echr.coe.int/​sites/​eng/​pages/​ search.aspx?i=001-​128036. IACtHR, Case of the Santo Domingo Massacre v. Colombia, Judgment (Preliminary objections, merits and reparations), 30 November 2012, at:  http://​www.corteidh.or.cr/​docs/​ casos/​articulos/​seriec_​259_​ing.pdf. Ibid., §213. Ibid., §212. Ibid., §214.

180 Casey-Maslen that damage would only be caused to the selected target. The Court found that the instructions given for the weapon’s employment were imprecise, especially with respect to the minimum distance of the strike location to the village, and noted that military manuals in use in December 1998 indicated that this type of weapon should not be used in or near a populated area. In view of the weapon’s lethality and its limited accuracy (“capacidad letal y la precisión limitada”), the Court concluded that use of the cluster munition in or near the village of Santo Domingo violated the attacker’s precautionary obligations under the law of armed conflict, and consequently, the attack amounted to a violation, by Colombia, of the rights to life and to physical, mental, and moral integrity under the American Convention.89 This is despite the fact that failure to respect precautionary obligations under the law of armed conflict does not, in and of itself, amount to an indiscriminate attack. A human rights tribunal may thus, in seeking to interpret and apply law of armed conflict rules, use a stricter yardstick than would any unadulterated loac mechanism.

Responsibility under Domestic Civil and Criminal Law

The provisions of loac and human rights principles as they apply to the use of armed drones, together with domestic civil and criminal law, have been tested in several national courts. This section looks at selected jurisprudence to date in the United Kingdom, Germany, and the United States.

Jurisprudence in the United Kingdom R (Khan) v. Secretary of State for Foreign & Commonwealth Affairs In its 2012 judgment in R (Khan) v.  Secretary of State for Foreign & Commonwealth Affairs,90 the High Court rejected an application for permission to apply for judicial review of the uk government’s reported policy of permitting Government Communications Headquarters (gchq) employees to pass intelligence on to the United States for the purposes of drone strikes in Pakistan. Mr Khan’s father was killed during a drone strike in March 2011.91 89 90 91

Ibid., §§210–​30. R (Noor Khan) v.  Secretary of State for Foreign & Commonwealth Affairs [2012] ewhc 3728 (Admin) (21 December 2012). This analysis is based on S. Rahman, “High Court refuses to condemn US drone strikes,” uk Human Rights Blog, 9 January 2013, at: https://​ukhumanrightsblog.com/​2013/​01/​09/​ high-​court-​refuses-​to-​condemn-​us-​drone-​strikes/​

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In his complaint, Mr Khan had alleged that, by assisting us agents with drone strikes, gchq employees could be accomplices to murder under criminal law in England and Wales and complicit in war crimes or crimes against humanity under international law. Lawyers for the Secretary of State objected to the court adjudicating upon the acts of a foreign sovereign state. Lord Justice Moses observed in his judgment that the real aim of the litigation was to persuade the court to do what it could to stop further strikes by armed drones operated by the United States. He affirmed that domestic courts are generally precluded from judging the acts of a foreign state as to do so could imperil international relations. In the case at hand, the court, he felt, was being asked to give an advisory opinion on “a difficult point of criminal law, depending upon sparse and unproven facts.”92 He held that the fundamental objection to the Court allowing an application for judicial review to proceed would involve “an exorbitant arrogation of adjudicative power” in relation to the legality and acceptability of the acts of another sovereign power.93 Any consideration as to whether a gchq employee is guilty of a crime or encouraging or assisting crime in these circumstances would be regarded by the United States as an accusation of murder.94 Lord Justice Moses further intimated that parliamentary committees tasked with monitoring gchq were better placed to address concerns about the dissemination of intelligence to the United States for use in drone strikes.95 Mr Khan sought permission to appeal against the decision. In 2014, the Court of Appeal was asked for a declaration that a uk national who kills a person in a drone strike in Pakistan is not entitled to rely on the defence of combatant immunity. If, however, a defence of combatant immunity did apply, a declaration was sought that the passing of locational intelligence by a gchq officer or other uk government official to an agent of the us Government for use in drone strikes in Pakistan may give rise to an offence under the jurisdiction of the International Criminal Court.96 In endorsing the principle whereby the courts do not pass judgment on the acts of the government of another country (whether they cannot for want of jurisdiction or whether they will not, because those acts are not justiciable), the Master of the Rolls, Lord Dyson, noted that an exception exists when the 92 93 94 95 96

R (Khan) v. Secretary of State for Foreign & Commonwealth Affairs [2012] ewhc 3728, §28. Ibid., §55, citing Lord Justice Simon Brown in R v. (Campaign for Nuclear Disarmament) v. Prime Minister [2003] 3 lrc 335 [43]. R (Khan) v. Secretary of State for Foreign & Commonwealth Affairs [2012] ewhc 3728, §55. Ibid., §49. R (Noor Khan) v.  Secretary of State for Foreign & Commonwealth Affairs, [2014] ewca Civ 24, §6.

182 Casey-Maslen foreign acts of state are in breach of clearly established rules of international law, are contrary to English principles of public policy, or where there is a grave infringement of human rights.97 He assumed that conduct by a gchq official would be unlawful would require the official to both “know and intend that the recipient will use the information in order to commit an act which is part of a widespread or systematic attack against, or a mass killing of, a civilian population and/​or to attack civilians who are not taking a direct part in hostilities in an on-​going armed conflict.”98 In rejecting the request for leave to appeal, Lord Dyson affirmed that there was “no escape from the conclusion that, however the claims are presented, they involve serious criticisms of the acts of a foreign state. It is only in certain established circumstances that our courts will exceptionally sit in judgment of such acts. There are no such exceptional circumstances here.”99 Jurisprudence in Germany In April 2016, Cologne’s Administrative Court was asked to rule on a slightly different legal argument: that allowing us military bases on German territory to support us drone strikes in Somalia violated the German constitution and Germany’s Status of Forces Agreements with the nato under which us forces are granted the right to operate on its territory. The administrative complaint was filed on behalf of the son of an innocent Somali herdsman killed in a drone strike on 24 February 2012. The Court, however, ruled the case inadmissible, finding the link between the inaction of the German government and the constitutional rights of the complainant was insufficient. After the decision, the lawyers for the complainant pledged to appeal the decision.100 A separate criminal complaint filed before the state prosecutor in Zweibrücken, near Ramstein airbase, was awaiting a decision by the prosecutor on whether or not to open an investigation. The Cologne Administrative Court noted that this was a more appropriate forum for the complainant to seek relief. In addition to demonstrating legal violations, both complaints argue that the February 2012 strike did not take place in the context of an armed conflict involving the United States and Germany. The complaint contends that the so-​called “global war on terror” is an unsupportable concept 97 98 99 100

Ibid., §§26, 28. Ibid., §50. Ibid., §53. Open Society Justice Initiative, “Lawyers Say Court Errs in Ignoring German Role in u.s. Drone Strikes,” Press release, 27 April 2016, at: https://​www.opensocietyfoundations.org/​ press-​releases/​lawyers-​say-​court-​errs-​ignoring-​german-​role-​us-​drone-​strikes.

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under international law, and that hostilities involving the United States and Germany were not of sufficient intensity to qualify them as parties to an armed conflict in Somalia.101 Jurisprudence in the United States Anwar al-​Awlaki (Before his Death) In his excellent 2015 work, Objective Troy, Scott Shane, a journalist with The New  York Times, describes how the United States tracked down and killed Anwar al-​Awlaki. Mr al-​Awlaki was the first us citizen to be intentionally killed by an armed drone.102 He was a “complex” figure, someone who had condemned the 9/​11 attacks as “horrible” but who, less than a decade later, was exhorting Muslims over the internet to attack Americans.103 In January 2002, he had given a talk to us Secretary of Defense Donald Rumsfeld as a respected moderate, but at Friday prayers two months later he decried a “campaign” against Muslims in the United States.104 Although causality is not proven, it is noteworthy that Mr Awlaki had been imam in San Diego where three of the future 9/​11 bombers had come to pray at his mosque, while among the audience for his lecture in Dudley in the United Kingdom in December 2003 were three of the four future 7/​7 bombers who killed 52 men and women in London in July 2005.105 His 2005 cd series, Constants on the Path of Jihad, was described in 2011 by one commentator as “maybe the single most influential work of jihadist incitement in the English language.”106 Nidal Hasan, a psychiatrist holding the rank of major in the us army, first contacted Mr al-​Awlaki at the end of 2008 to ask whether certain acts of violence by Muslims were religiously sanctioned or prohibited.107 Major Hasan subsequently disclosed that he had met the imam briefly during when al-​Awlaki was delivering sermons at the Dar el Hijira Islamic Center in Virginia. Mr al-​ Awlaki did not directly incite him to violence, but less than a year later Major Hasan shot dead twelve soldiers and one civilian working for the Department of Defense at Fort Hood. Four days after the shootings, al-​Awlaki praised him 101 102 103 104 105 106 107

Ibid. S. Shane, Objective Troy, Tim Duggan Books, New York, 2015. Ibid., pp. 83. Ibid., pp. 101, 102, 103. Shane, Objective Troy, p. 147. J. M. Berger, “The Enduring Appeal of Al-​Awlaki’s ‘Constants on the Path of Jihad’,” ctc Sentinel, West Point, 31 October 2011, cited in Shane, Objective Troy, p. 159. Shane, Objective Troy, p. 191.

184 Casey-Maslen on his website as a “hero” and a “man of conscience.”108 Among comments on the website, one from a contributor calling himself Abu Mubarak asked the following: When a drone is sent into Afghanistan, or Iraq, or Palestine and kills 13  “suspected terrorists” and injures another 30, as they were walking down the street, or drinking coffee in a café, where is the outcry of Muslims and condemnations from the Americans? So if Nidal was a drone, would that have made it any more acceptable?109 On Christmas Day 2009, a month after Major Hasan’s attack, Umar Farouk Abdulmutallab, a 23-​year-​old Nigerian, attempted to bring down a Detroit-​ bound airliner with a bomb of petn110 explosive sewn into his underpants. In subsequent interviews conducted by the Federal Bureau of Investigation (fbi), he described in detail how Anwar al-​Awlaki had helped plan and direct the attack, including reminding him to detonate the bomb only when he was over us territory.111 In 2010, after Roshonara Choudry stabbed Stephen Timms mp in East London in May she declared to have listened to more than 100 hours of Mr al-​Awlaki’s sermons before deciding that the British Member of Parliament should be punished for voting in favour of the 2003 Iraq War.112 The same year, a Democrat member of the House of Representatives declared that the imam was “terrorist number one in terms of a threat against us.”113 On 5 February 2010, Anwar al-​Awlaki was placed on the us Government’s “kill list.”114 This followed a memorandum by two government lawyers115 to the Attorney General which asserted that prohibitions on assassination did not apply to killings in self-​defence of the nation. According to the memorandum: 108 Ibid., p. 194. 109 Ibid., pp. 194–​95. 110 Pentaerythritol tetranitrate, which belongs to the same chemical family as nitroglycerin, is a major ingredient of Semtex. It is an extremely powerful explosive said to be a favourite among terrorists because its colourless crystals are hard to detect in a sealed container. R. McKie, “PETN: the explosive of choice,” Guardian, 30 October 2010, at: https://​www​ .theguardian.com/​world/​2010/​oct/​30/​petn-​explosive-​choice-​semtex-​terrorists. 111 Shane, Objective Troy, pp. 216–​17. 112 Ibid., p. 189. 113 Ibid., p. 190. 114 Ibid., p. 219. 115 David Barron, acting head of the Office of Legal Counsel, and Martin Lederman from the same Office, in the us Department of Justice.

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Under the conditions and predicates as represented by the cia and in the materials provided to us by the Intelligence Community, we believe that a decision maker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the Assassination Ban in Executive Order 12333 or any applicable constitutional limitations. The Attorney General, Eric Holder, would later claim that the prohibition on deprivation of life without due process of law under the Fifth Amendment to the us Constitution did not necessarily demand a trial.116 A second version of the memorandum was prepared in July 2010 after it had been alleged by a leading international criminal lawyer that a decision to kill Anwar al-​Awlaki, if implemented, would amount to murder under us domestic law.117 This version was released, substantively redacted, after a campaign for its release by The New York Times ended in June 2014 with a federal court of appeals’ judgment in its favour.118 In the view of one commentator, what the memorandum “appears to say is that, as far as the Obama administration and David Barron are concerned, the cia, a civilian intelligence organization with a long record of getting analysis wrong, can carry out the extrajudicial assassination of an American citizen whose guilt has been established solely through cia intelligence.”119 What is also remarkable is the similarity of the memorandum’s argumentation with the United Kingdom’s legal justification for killing Reyaad Khan, discussed in Chapter 2, with its apparent mixing up of loac and law of law enforcement rules. The cia deemed it not feasible to capture al-​Awlaki and set about trying to kill him.120 Djibouti was preventing the United States from using armed drones 116 117

118

119

120

Available at: http://​www.nytimes.com/​interactive/​2014/​06/​23/​us/​23awlaki-​memo.html; see Shane, Objective Troy, pp. 221–​22. K. J. Heller, “Let’s Call Killing al-​Awlaki What It Is—​Murder,” Opinio Juris, 8 April 2010, at: http://​opiniojuris.org/​2010/​04/​08/​lets-​call-​killing-​al-​awlaki-​what-​it-​is-​murder/​. According to 18 usc 1119: “A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished….” C. Savage, “Court Releases Large Parts of Memo Approving Killing of American in Yemen,” The New York Times, 23 June 2014, at:  http://​www.nytimes.com/​2014/​06/​24/​us/​justice​ -department-​found-​it-​lawful-​to-​target-​anwar-​al-​awlaki.html?_​r=0. C. Friedersdorf, “7 Pages That Gave President Obama Cover to Kill Americans,” The Atlantic, 18 August 2014, at:  http://​www.theatlantic.com/​politics/​archive/​2014/​08/​7​ -pages-​that-​gave-​president-​obama-​permission-​to-​kill-​americans/​378651/​. Shane affirms that there was “a legitimate case that a capture mission was unwise, if not quite infeasible.” Shane, Objective Troy, p. 263.

186 Casey-Maslen from an air base on its territory so instead the us military fired off a series of missiles. In May 2010, one of the strikes killed a number of individuals, two of whom may have been al-​Qaeda members, but also killed the “popular” deputy governor of Marib province, Jabir al-​Shabwani. According to Shane, this “unintended” killing “would alienate the tribes of Marib province from the government in Sanaa for years afterward” and make some tribesmen “more hospitable” to al-​Qaeda. “It was, in other words, a disastrous mistake.”121 On 16 July 2010, the us Department of the Treasury formally designated Anwar al-​Awlaki as a Specially Designated Global Terrorist. On 7 December of the same year, a judge in the District Court for the District of Columbia rejected a petition by Nasser al-​Awlaki, Anwar al-​Awlaki’s father, to prevent the us Government from killing his son.122 Anwar al-​Awlaki had been named a Specially Designated Global Terrorist by the us Department of the Treasury after being already placed on a government kill list. Judge John D.  Bates, in dismissing the petition on procedural grounds, held that the fact that Anwar al-​Awlaki did not appear in person to support the lawsuit meant that his father could not assert his fundamental human rights. Judge Bates also decided that the decision to kill in such an instance had to be reserved for the executive and not the judiciary: this Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” … Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of aqap … presents such a threat to national security that the United States may authorize the use of lethal force against him.123 On the night of 4 May 2011, the United States obtained intelligence that Anwar al-​Awlaki was staying in the Yemeni village of Nisab in Shabweh province. Predator operators in Nevada identified a pick-​up truck with Mr  al-​ Awlaki inside and fired at least two missiles at it, but both missed. Shane 121 Shane, Objective Troy, p. 227. 122 District Court for the District of Columbia, Nasser al-​Aulaqi v. Barack H. Obama, Robert M. Gates, and Leon E. Panetta, Memorandum Opinion (Civil Action No. 10–​1469 (jdb)), p. 80, at: https://​ecf.dcd.uscourts.gov/​cgi-​bin/​show_​public_​doc?2010cv1469-​31. 123 District Court for the District of Columbia, Nasser al-​Aulaqi v. Barack H. Obama, Robert M. Gates, and Leon E. Panetta, Memorandum Opinion (Civil Action No. 10–​1469 (jdb)), p. 80, at: https://​ecf.dcd.uscourts.gov/​cgi-​bin/​show_​public_​doc?2010cv1469-​31.

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notes that the performance of Hellfire missiles against “fast-​moving targets was not impressive.”124 Four months later, at the end of September, us government officials revealed that al-​Awlaki’s convoy had been hit by us drone and jet strikes, killing the cleric. Local tribal leaders told the Agence France-​ Presse (afp) news agency that he had been moving around within Yemen in recent weeks “to evade capture.” Local people told the Associated Press he had been travelling between Jawf and Marib provinces when he died.125 Anwar al-​Awlaki (After his Death) After Anwar al-​Awlaki was killed, and following the separate killing a few days later of his 16-​year-​old son, Abdulrahman al-​Awlaki, in another drone strike which was termed an “outrageous mistake” by an unnamed us government official,126 the American Civil Liberties Union (aclu) and the Center for Constitutional Rights (ccr) filed a lawsuit challenging the legality of the us Government’s actions.127 The defendants were former Secretary of State for Defense and Central Intelligence Director (cia) Director, Leon C. Panetta; former Commander of us Special Operations Command, William H. McRaven; former Commander of the Joint Special Operations Command, Joseph Votel; and former cia Director, David Petraeus.128 According to the “Bivens” complaint,129 the killings violated the right to due process under the Fifth Amendment to the us Constitution, the prohibition 124 125

Shane, Objective Troy, p. 282. bbc, “Islamist cleric Anwar al-​Awlaki killed in Yemen,” 30 September 2011, at:  http://​ www.bbc.com/​news/​world-​middle-​east-​15121879. 126 K. DeYoung, “CIA veteran John Brennan has transformed U.S. counterterrorism policy,” The Washington Post, 24 October 2012, at:  https://​www.washingtonpost.com/​world/​ national- ​security/​cia-​veteran-​john-​brennan-​has-​transformed-​us-​counterterrorism​ -​policy/​2012/​10/​24/​318b8eec-​1c7c-​11e2-​ad90-​ba5920e56eb3_​story.html. 127 aclu, “Al-​Aulaqi v.  Panetta—​Constitutional Challenge to Killing of Three U.S. Citizens,” updated 4 June 2014, at: https://​www.aclu.org/​cases/​al-​aulaqi-​v-​panetta-​constitutional​ -challenge-​killing-​three-​us-​citizens. 128 ccr, “Historic Cases:  Al-​Aulaqi v.  Panetta,” at:  http://​ccrjustice.org/​home/​what-​we-​do/​ our-​cases/​al-​aulaqi-​v-​panetta. 129 A Bivens action is a claim against federal officials, sued in their individual capacities, for a violation of a person’s constitutional rights. It comes from Justice Brennan’s opinion in Bivens v.  Six Unknown Agents, 403 us 388 (1971). The judgment in the Bivens case established that the victims of a constitutional violation by a federal agent may have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right, where the plaintiff was deprived of a constitutional right by a federal agent acting under colour of federal authority. E. E. Johnson, “Bivens action,” at: http://​www.eejlaw.com/​courses/​torts_​1011/​Torts_​one-​sheet_​Bivens_​actions.pdf.

188 Casey-Maslen on unreasonable seizures under the Fourth Amendment, and, with respect to Anwar Al-​Awlaki, the ban on extrajudicial death warrants imposed by the Constitution’s Bill of Attainder Clause,130 which prohibits an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without a trial. The killings were also argued to violate international law, which is incorporated into us law through the Constitution.131 On 4 April 2014, Rosemary M. Collyer, us District Judge for the District of Columbia, rendered her opinion in the case.132 She acknowledged that the drone programme was rooted in the powers of the executive and legislative branches of the us Government to “wage war and provide for national security.”133 She rejected government claims that the issue was non-​justiciable on the basis that the plaintiffs had allege a violation of due process under the Fifth Amendment, explaining that a us citizen’s “interest in avoiding the erroneous deprivation of [his or her] life is uniquely compelling.”134 She dismissed the due process claim on behalf of Mr Khan and Abdulrahman al-​Awlaki on the basis that they were not specifically targeted and their deaths were unanticipated. The claim had only asserted negligence—​that the Government should have taken better care to avoid harming them as bystanders. Judge Collyer affirmed that: “Mere negligence does not give rise to a constitutional deprivation.”135 She cited, among others, the authority of the 1998 Supreme Court decision on certiorari in County of Sacramento v. Lewis.136 In that case, the Supreme Court stated that liability for negligently inflicted harm “is categorically beneath the threshold of constitutional due process” but whether something more than negligence but “less than intentional conduct, such as recklessness or ‘gross negligence’,” was a matter “for closer calls.”137 1 30 Art. I, s. 9, us Constitution. 131 Art. I, s. 8, cl. 10, us Constitution gives the power to the us Congress to “define and punish … [o]‌ffenses against the Law of Nations.” 132 District Court for the District of Columbia, Nasser Al-​Aulaqi v. Leon Panetta et al., Opinion (Civil Action No. 12–​1192 (rmc)), 4 April 2014, p.  20, available at:  https://​ecf.dcd​ .uscourts.gov/​cgi-​bin/​show_​public_​doc?2012cv1192-​36; see M.  Danzer, “A Summary of Friday’s Decision in al-​Aulaqi v.  Panetta,” Lawfare, 7 April 2014, at:  https://​www​ .­lawfareblog.com/​summary-​fridays-​decision-​al-​aulaqi-​v-​panetta. 133 District Court for the District of Columbia, Nasser Al-​Aulaqi v. Leon Panetta et al., Opinion, p. 20. 134 Ibid. 135 Ibid., p. 26. 136 us Supreme Court, County of Sacramento v. Lewis, 523 us 833 (1998), at 849. 137 Ibid.

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In the case of Anwar al-​Awlaki, the Court found that the Complaint stated a “plausible” procedural and substantive due process claim.138 But Judge Collyer went on to note that in the delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with aqap generally or Anwar Al-​Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-​targeted us citizen overseas do not call for the recognition of a new area of Bivens relief.139 Bin Ali Jaber Case In June 2015, the families of two Yemeni men killed in 2012 in eastern Yemen sued the United States, alleging they were innocent bystanders hit by missiles from a us drone strike and calling for an acknowledgement of their “unlawful deaths.” In the lawsuit, the families of Salem bin Ali Jaber (an imam) and Waleed bin Ali Jaber (a police officer) said their deaths “violated the laws of war and norms of customary international law” and “provide a case study of the failures of the drone war.” The lawsuit did not seek monetary relief.140 At the end of June 2017, the us federal appeals court for the District of Columbia circuit in Washington confirmed the rejection of the lawsuit. The unanimous ruling by a three-​judge panel upheld the district court’s finding that it lacked the authority to question decision-​making by the us Government over the drone strike.141 It is “the executive, and not a panel of the dc circuit, who commands our armed forces and determines our nation’s foreign policy,” the ruling said.142

138 District Court for the District of Columbia, Nasser Al-​Aulaqi v.  Leon Panetta et  al., Opinion, p. 27. 139 Ibid., p. 34. 140 Reuters, “Yemeni families sue US over drone strike that caused ‘unlawful deaths’,” Guardian, 8 June 2015, at:  https://​www.theguardian.com/​world/​2015/​jun/​08/​yemeni​ -families-​sue-​unlawful-​deaths-​drone-​strike. 141 District Court for the District of Columbia, Salem Bin Ali Jaber and others v. United States and others, No. 1:2015cv00840—​Document 18 (d.d.c. 2016), Memorandum Opinion signed by Judge Ellen S. Huvelle, 22 February 2016. 142 us Court of Appeals for the District of Columbia Circuit, Salem Bin Ali Jaber and others v. United States and others, No. 16–​5093, Decided 30 June 2017, p. 15, available at: http://​ cases.justia​.com/​federal/​appellate-​courts/​cadc/​16-​5093/​16-​5093-​2017​-​06-​30.pdf?ts=​ 1498834969.

190 Casey-Maslen But the circuit judge Janice Rogers Brown, who wrote the decision, also issued a rare separate opinion calling for greater oversight over the drone programme. She said the legal doctrine preventing courts from reviewing the decision-​making by the us President and Congress in foreign policy or national security matters may be “deeply flawed” because it blocks any court supervision of the use of sophisticated military technologies such as drones. “Of course, this begs the question: if judges will not check this outsized power, then who will?” said Brown, who was appointed to the appeals court bench by George W Bush. She called congressional oversight “a joke—​and a bad one at that.”143

Human Rights Law and Restrictions on the Transfer of Autonomous Weapons

Finally, it is worth enquiring as to whether the transfer of armed drones or fully autonomous weapons systems falls within the realm of international human rights law. Clapham and Marks have argued that an obligation may exist under human rights law not to transfer arms when a substantial risk exists that the arms will be used to violate rights by the recipient. Such an obligation is akin to the principle of non-​refoulement that prohibits states from returning individuals to a country where they are at serious risk of being tortured.144 To the extent such an obligation exists, it would also invoke duties under international law for states parties under the 2013 Arms Trade Treaty (att).145 Under Article 6(2) of the att, a state party “shall not authorize any transfer of conventional arms” or related items within the scope of the Treaty “if the transfer would violate its relevant international obligations under international agreements to which it is a Party.” Such agreements could include human rights treaties.146 Both armed drones per se and the bombs and missiles they fire fall within the scope of the att.147 143 Reuters, “US federal court tosses out lawsuit over Yemeni men killed in drone strike,” Guardian, 30 June 2017, at:  https://​www.theguardian.com/​world/​2017/​jun/​30/​yemen​ -​us-​drone-​strike-​lawsuit. 144 “Arms,” in S. Marks and A. Clapham, International Human Rights Lexicon, oup, 2005, p. 13. 145 The att was adopted on 2 April 2013 by un General Assembly Resolution 67/​234B and entered into force on 24 December 2014. As at 1 January 2018, 93 states were party to it. See: https://​treaties.un.org/​pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=XXVI​-​ 8&​chapter=26&clang=_​en. 146 See the commentary on this provision in S. Casey-​Maslen, A. Clapham, G. Giacca, and S. Parker, The Arms Trade Treaty: A Commentary, oup, Oxford, June 2016. 147 See the commentary on Art. 2(1) in ibid.

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Accountability for Violations of International Law In stark contrast to the law of armed conflict, accountability is an area in which international human rights law is relatively strong. The un Human Rights Council (for all its faults); the un human rights treaty bodies and special procedures; as well as the regional human rights courts in Africa, the Americas, and Europe, may each offer valuable opportunities to have alleged violations of international law investigated. An integral (procedural) element of the right to life is the duty to investigate and, where relevant, to prosecute.148 The duty to investigate alleged violations of the right to life applies whether such alleged violations occur in the course of a law enforcement operation or a situation of armed conflict.149 Where an act in the conduct of hostilities violates loac rules, there is a reasonable chance that there will be one or more fora in which a corresponding violation of international human rights law can at least be considered. The Minnesota Protocol on the Investigation of Potentially Unlawful Deaths (2016), a soft-​law instrument published by the Office of the un High Commissioner for Human Rights in Geneva in 2017, stipulates that: Where, during the conduct of hostilities, it appears that casualties have resulted from an attack, a post-​operation assessment should be

148

In Kolevi v.  Bulgaria, for instance, the European Court of Human Rights stated that: “The obligation of States to protect the right to life … requires by implication that there should be an effective official investigation when individuals have been killed. … The investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. … While the obligation to investigate is of means only and there is no absolute right to obtain a prosecution or conviction, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness….” ECtHR, Kolevi v.  Bulgaria, Judgment (Fifth Section), 5 November 2009, §§191, 192. See also The Minnesota Protocol on the Investigation of Potentially Unlawful Deaths (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-​legal, Arbitrary and Summary Executions, Office of the High Commissioner for Human Rights, Geneva, 2017. 149 “… the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict … It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and … concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed. … Nonetheless, the obligation under

192 Casey-Maslen conducted to establish the facts, including the accuracy of the targeting.150 Where there are reasonable grounds to suspect that a war crime was committed, the State must conduct a full investigation and prosecute those who are responsible.151 Where any death is suspected or alleged to have resulted from a violation of ihl that would not amount to a war crime, and where an investigation (“official inquiry”) into the death is not specifically required under ihl, at a minimum further inquiry is necessary. In any event, where evidence of unlawful conduct is identified, a full investigation should be conducted.152 It is further clear that the protection afforded by the right to life encompasses not only situations where the victim is killed; serious injuries resulting from use of lethal force will also be covered. In Benzer v. Turkey, the European Court

Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life. …” ECtHR, Kolevi v.  Bulgaria, §164. See, e.g., also ECtHR, Jaloud v. The Netherlands, Judgment (Grand Chamber), 20 November 2014. 150 See The Public Commission to Examine the Maritime Incident of 31 May 2010, Second Report: Turkel Commission, “Israel’s mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict according to international law,” February 2013, §§48–​50, pp. 102–​03. 1 51 For a discussion of the duty to investigate violations of international humanitarian law (ihl) see icrc Customary ihl Study, Rule 158 (Prosecution of War Crimes): “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory. … They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” In the case of grave breaches of the Geneva Conventions, the exercise of universal jurisdiction is mandatory. See the 1949 Geneva Conventions: Geneva i, Art. 49; Geneva ii, Art. 50; Geneva iii, Art. 129; Geneva iv, Art. 146; the 1977 Additional Protocol i, Art. 85; and see also the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, un General Assembly Resolution 60/​147, 21 March 2006; Report of the un Special Rapporteur on extrajudicial, summary or arbitrary executions, un doc. A/​68/​382 13 September 2013, §101. See also, e.g., Report of the un Special  Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, un doc. A/​68/​389, 18 September 2013, §42. 152 Minnesota Protocol on the Investigation of Potentially Unlawful Deaths (2016), Office of the High Commissioner for Human Rights, Geneva, 2017, §21, available at: www​ .ohchr.org.

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stated that the attack “which caused these three applicants’ injuries, was so violent and caused the indiscriminate deaths of so many people that these three applicants’ fortuitous survival does not mean that their lives had not been put at risk.” The Court was therefore satisfied that “the risks posed by the attack call for examination of their complaints” under the right to life laid down in the Convention.153 The Court held that the right to life of the three seriously injured victims of the bombing had been violated, both in substance and under the procedural aspects of Article 2.154

Concluding Remarks

The nature of the applicable rules under international human rights law depends on the context, specifically whether the relevant acts take place as law enforcement or in the conduct of hostilities. When an armed drone is used outside a situation of armed conflict, this will always be governed by the rules applicable to law enforcement. If the drone drops a bomb or launches an explosive missile, the international legal rule is the one that applies to any intentional lethal use of force. Thus, it will only be lawful when strictly unavoidable in order to protect life. An armed drone cannot lawfully be a simple substitute for a judge and jury. Within a situation of armed conflict, an act may similarly be one of law enforcement and therefore subject to the same international legal rule. This is a test based on the facts. If, however, a given use of an armed drone is taking place in the conduct of hostilities, the primary frame of reference will be loac. Notwithstanding this, the international human rights law duty to investigate will still apply, including in armed conflict. Arguably, and one cannot put it stronger than that in the current state of the law, the rules on distinction and proportionality will be interpreted by a human rights court more tightly than they would if a loac mechanism were assessing the case. This is particularly so in a situation of non-​international armed conflict where loac rules are poorly reflected in treaties and vague in their interpretation, while the risks to civilians may be greater. In addition, if it is feasible to capture an individual and not to kill him or her, international human rights law requires this to be attempted. 153 154

ECtHR, Benzer and others v.  Turkey, Judgment (Former Second Section), 24 March 2014, §143. Ibid., §185. African Commission on Human and Peoples’ Rights, General Comment No. 3, §8.

194 Casey-Maslen In 2014, the Human Rights Committee called on the United States to: (c) Provide for independent supervision and oversight of the specific implementation of regulations governing the use of drone strikes; (d) In armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) Conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) Provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.155

155 Human Rights Committee, “Concluding Observations on the fourth periodic report of the United States,” un doc. CCPR/​C/​USA/​CO/​4, 23 April 2014, §9.

Chapter 7

Corporate Liability: An Alternative Path to Accountability? Hilary Stauffer Introduction This chapter explores a possible alternative method of ensuring that states which choose to use armed drones remain legally and politically accountable for such use: corporate liability. It highlights the problems inherent in applying the existing international legal and regulatory framework to drones (extrapolated to fully autonomous weapons systems), and explains why corporate liability may be a viable alternative. The chapter further surveys the legal system of countries that account for the vast majority of the use, manufacture, and/​or export of armed drones, and compares civil and criminal regimes, including the remedies on offer therein. It concludes by identifying next steps that victims and advocates could take in their efforts to bring drones under control, with the goal of ensuring that political and military leaders who enthusiastically promote their proliferation are held responsible for the consequences of their actions.

The Need for Accountability

An ever-​growing body of legal scholarship and advocacy is devoted to bringing increased scrutiny of states’ choices to use drones in their arsenals (and, potentially, to develop fully autonomous weapons systems for future use). However, the majority of this analysis attempts to shoehorn drone strikes into classic international legal frameworks, which has not as yet resulted in any meaningful remedy for victims. The reasons for this ineffectiveness are summarised below.

Independent Adjudication of International Law is Largely Resisted The states that are the major manufacturers, operators, and exporters of armed drones have, so far, resisted calls for independent adjudication of the law of armed conflict (loac) rules as they apply to their conduct and have even contested whether international human rights law applies. Identifying loac

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_009

196 Stauffer violations can be a technical and painstaking exercise under even the most classic scenarios, such as where the regular army of one nation state is at war against the regular army of another. It is even more complex to assess the effect of loac rules in a situation in which the armed drone of one state (which is being controlled from thousands of miles away) has entered the airspace of another state (with which it is not “at war”) in order to target armed members of a non-​state group who may be sheltering in remote mountainous areas. Viewing drone strikes through the prism of human rights law is theoretically more straightforward (in that “targeted killings” are rarely in accordance with the law), but legal analysis immediately encounters practical complications. The United States (us)—​which has, in the recent past at least, accounted for two-​thirds of the global unmanned aerial vehicle (uav) market1—​maintains that its “counterterrorism operations are precise, lawful and effective.”2 The Obama Administration3 acknowledged on rare occasions that drone strikes had caused civilian casualties,4 but disputed non-​governmental organisation (ngo) or media compilations of civilian casualty tolls. Under the Obama Administration, the White House was always very careful to note that its counterterrorism operations complied with all “applicable” law,5 but its interpretation of which laws are applicable to drone operations differed from that of legal scholars. Even if a claimant could definitively prove that the United States 1 Prof. Keith Hayward, “Unmanned Aerial Vehicles:  A New Industrial System?,” Royal Aeronautical Society, 2013, pp.  5–​6 at:  http://​aerosociety.com/​Assets/​Docs/​Publications/​ DiscussionPapers/​UASDiscussionPaper.pdf. 2 Remarks of White House spokesperson Jay Carney in response to a question about a drone strike in Pakistan that killed a 68-​year-​old grandmother while she was farming. Press Briefing by the Press Secretary, 22 October 2013, at:  http://​www.whitehouse.gov/​the-​press-​office/​ 2013/​10/​22/​press-​briefing-​press-​secretary-​10222013. 3 This chapter was originally drafted during 2015 and early 2016, when both the United States and United Kingdom were governed by different political administrations. It does not examine the policies of either the us or uk governments after March 2016; however, neither the Trump Administration nor the May Government have been more forthcoming than their predecessors regarding their respective use of armed drones. 4 P. Foster, “Not once, but twice ... mistaken killings reveal deep flaws in us drone programme,” The Daily Telegraph, 23 April 2015, at:  http://​ www.telegraph.co.uk/​ news/​ worldnews/​ northamerica/​usa/​11559217/​Not- ​once-​but-​twice...-​mistaken-​killings-​reveal-​deep-​flaws​ -in​-U ​ S-​drone-​programme.html. The article describes the accidental deaths of American and Italian hostages in a drone strike on an al-​Qaeda compound in Pakistan in January 2015. 5 us Department of Justice, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-​Qaeda or an Associated Force,” undated White Paper, p. 1, available at: http://​msnbcmedia.msn.com/​i/​msnbc/​sections/​news/​020413_​DOJ​ _White_​Paper.pdf.

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carried out drone strikes in contravention of international law—​resulting in, for example, a violation of the right to life—​it does not seem at present that an international adjudicative body has the jurisdiction to hear an individual’s complaint against the United States.6 Other states are no more forthcoming regarding their rules of engagement. The former un Special Rapporteur for the promotion of human rights while countering terrorism reported to the General Assembly in October 2013 that United Kingdom (uk) operating procedures dictate that “every remotely piloted aircraft weapons discharge is the subject of internal review involving the senior qualified weapons instructor.” However, “the Ministry [of Defence] does not comment publicly on the use of remotely piloted aircraft in connection with special operations.”7 Israel, a major drone manufacturer and exporter, accounting for nearly 2% of the global drone market8 (compared with European countries, which combined comprise just 4% of the market),9 has, if anything, been even more tight-​ lipped than their uk and us counterparts. According to the former un Special Rapporteur on counter-​terrorism and human rights, Israel has not “publicly acknowledged or explained the role played by remotely piloted aircraft in its counter-​terrorism operations in Gaza.”10 As described in the previous chapter, even cases brought in national court systems alleging violations of loac and/​ or human rights have largely fallen short, as domestic judges feel unwilling or unable to effectively constrain the state’s national security strategies. International Criminal Law is Largely Inapplicable The alternative framework of international criminal law, discussed in the following chapter and embodied most prominently by the 1998 Rome Statute of 6

7

8 9 10

Neither the United States nor any of the states in which it carries out questionable drone strikes (e.g. Pakistan, Somalia, and Yemen) is subject to the jurisdiction of a regional human rights court (although Somalia has signed the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights), and the United States has not ratified Optional Protocol 1 to the International Covenant on Civil and Political Rights that would permit individual complaints by victims or their next of kin. See the September 2013 report by Ben Emmerson qc, Special Rapporteur for promotion and protection of human rights and fundamental freedoms while countering terrorism, un doc. A/​68/​389 (hereafter, Emmerson 2013), §49. Presumably these “special operations” may include uk-​led drone strikes in Iraq and Syria. Hayward, “Unmanned Aerial Vehicles: A New Industrial System?,” p. 5. Ibid. See Emmerson 2013, §50.

198 Stauffer the International Criminal Court (loac Statute),11 is not immediately useful as a tool to increase accountability for drones as many of the states deploying armed drones are not party to the Statute. This exclusive club of non-​member states includes the United States and Israel, as well as China, India, and Russia, all of whom either have developed, or are developing, armed drones.12 Moreover, neither Pakistan, nor Yemen, nor Somalia (the location of us drone strikes outside declared military operations in Afghanistan, Iraq, Libya, and Syria) are party to the icc. Practically speaking, this means that if these states wanted to challenge use of drones on their territory, they would have to hope that a un Security Council referral to the icc could overcome the threat of a us veto (impossible to imagine), or that they themselves would have to specially request the icc to investigate those strikes.13 Palestine’s accession to the icc Statute in early 2015 could conceivably complicate matters for Israel regarding its use of armed drones against militant groups in the Palestinian territories,14 but any future proceedings at the Court are likely to be delayed for years by questions of jurisdiction and competence.15

Voluntary Export Regulations do not Effectively Prevent Proliferation Beyond the binding rules set out in the Arms Trade Treaty, to which Israel and the United States are signatories but not states parties, voluntary regulatory guidelines designed to ensure the responsible procurement and deployment of drones (and related technology) are laudable, but due to their non-​compulsory nature, they lack enforcement mechanisms or consequences should adherents fall foul of stated aspirations. The Missile Technology Control Regime (mtcr)16 is 11 12 13

14 15

16

Rome Statute of the International Criminal Court; opened for signature, 17 July 1998; entry into force, 1 July 2002. World of Drones: Military. Art. 12, icc Statute. The latter scenario is difficult to imagine as Pakistan, Somalia, and Yemen all—​to some extent—​benefit from the us counterterrorism operations against non-​state actors within their borders. Palestine acceded to the icc Statute on 2 January 2015. Questions will be lodged as to whether the Palestinian Authority has “control” over Gaza and can grant the icc jurisdiction in the territory, and whether or not Israel can invoke the principle of complementarity in choosing to try its own soldiers domestically, should a situation ever reach beyond the pre-​trial investigation phase. As per the mtcr website, the “Missile Technology Control Regime is an informal and voluntary association of countries which share the goals of non-​proliferation of unmanned delivery systems capable of delivering weapons of mass destruction, and which seek to coordinate national export licensing efforts aimed at preventing their proliferation.” See: http://​www.mtcr.info/​english/​index.html.

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perhaps the most well-​known of such voluntary schemes. In a factsheet released in 2012 to commemorate the 25th anniversary of the founding of the mtcr, the us Department of State described it as an informal political understanding among states that seek to limit the proliferation of missiles and related technology…. Originally focused on restricting exports of nuclear-​capable ballistic missiles and related technology, the Regime expanded its scope in 1993 to cover unmanned delivery systems capable of carrying all types of [chemical, biological, and nuclear] weapons.17 Drones are covered by the mtcr,18 and both the United Kingdom and the United States are members; Israel is not.19 The us Department of State has stressed that the mtcr “is not a treaty,”20 and one observer has noted that although diplomatic and strategic interests may have a deterrent effect, “there is nothing legally to prevent the United States or other mtcr adherents disengaging from the mtcr.”21 While the United States has continued to maintain its commitment to the mtcr and its existing arms transfer policies and regulations, the us Government’s decision in February 2015 to begin exporting armed drones to allies beyond the United Kingdom22 demonstrates the limits of voluntary schemes. It remains to be seen how effective the voluntary regime on the export and use of armed unmanned aircraft announced in October 2016 will be.23 In the declaration, the United States and 48 other nations committed to a number of principles, which included that “the export of armed or strike-​ enabled uav s should be done consistent with the principles of existing multilateral export control and non-​proliferation regimes, taking into account the potential recipient country’s history regarding adherence to its relevant 17 18

19 20 21 22 23

“MTCR 25th Anniversary Factsheet,” Bureau of International Security and Nonproliferation, 16 April 2012, at: http://​www.state.gov/​t/​isn/​rls/​fs/​187935.htm. mctr Equipment, Software and Technology Annex, 19 October 2017, at:  http://​mtcr​ .info/​wordpress/​wp-​content/​uploads/​2017/​10/​MTCR-​TEM-​Technical_​Annex_​2017-​10​ -19-​corr.pdf. See mtcr 25th Anniversary Factsheet. See ibid. Hayward, “Unmanned Aerial Vehicles: A New Industrial System?,” p. 5. “us Export Policy for Military Unmanned Aerial Systems.” Joint Declaration for the Export and Subsequent Use of Armed or Strike-​Enabled Unmanned Aerial Vehicles (uav s), 28 October 2016. Available at: https://​www.state.gov/​r/​pa/​prs/​ps/​ 2016/​10/​262811.htm.

200 Stauffer international obligations and commitments.” The deputy spokesperson for the us Department of State stated that the declaration was a step toward the development of “comprehensive international standards for the transfer and subsequent use of uav s.”24 China, Israel, Russia, and Saudi Arabia did not endorse the declaration.

Can International Law Apply to Fully Autonomous Weapons Systems? All the above difficulties can be extrapolated to apply to fully autonomous weapons systems, and then compounded. As noted previously, fully autonomous weapons technology is not yet widely deployed, although missile defence systems and radar detection and destruction aircraft such as the Israeli-​made Harpy25 would meet many definitions. Other currently available autonomous weapons systems typically maintain some level of human oversight in their operation.26 But this is seen by many in the international legal community to be due to choice on the part of manufacturers and states, rather than lack of technological wherewithal.27 Observers believe that the temptation to have a high-​tech advantage over adversaries will eventually prove stronger than any moral misgivings governments may currently harbour.28 It is important to remember that fully autonomous weapons systems are not limited to aircraft. There are “numerous land, sea, and submarine systems that might also be armed, as well as fixed defensive systems, such as gun turrets and sentries, and various modes of cyber attack, which might be similarly automated so as to be capable of delivering lethal force without the direct involvement of human beings in selecting targets or authorizing the use of lethal force against a target.”29 24 25

26 27 28 29

M. C.  Toner, Daily Press Briefing, US Department of State, Washington, dc, 5 October 2016, at: https://​www.state.gov/​r/​pa/​prs/​dpb/​2016/​10/​262821.htm. The Harpy was described by a former un Special Rapporteur on extrajudicial, summary or arbitrary executions as an “autonomous weapon system designed to detect, attack and destroy radar emitters,” one of a “[class] of robotic systems with various degrees of autonomy and lethality.” Report of Christof Heyns, un Special Rapporteur on extrajudicial, summary or arbitrary executions, in his April 2013 report, un doc. A/​HRC/​23/​47 (hereafter, Heyns 2013), §45. “Q&A on Fully Autonomous Weapons”; and Heyns 2013, §45. Heyns 2013, §29. Ibid. P. Asaro, “On banning autonomous weapon systems: human rights, automation, and the dehumanization of lethal decision-​making,” International Review of the Red Cross, Vol. 94 (2012), p. 690, at: http://​www.icrc.org/​eng/​assets/​files/​review/​2012/​irrc-​886-​asaro.pdf.

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International legal scholars are understandably apprehensive about the implications of autonomous weapons systems for international law, notably the ability (or lack thereof) of these robots to distinguish between combatants and civilians.30 But accountability anxieties extend further than these traditional areas of concern. The global body of laws and norms around the world are currently written to apply to human beings. If lethal autonomous robots become the soldiers of the future, then “[s]‌tates may be tempted to plead force majeure in order to evade international responsibility for an armed robot’s unforeseen ‘decision’, for example, to attack civilians.”31 Thus, “autonomous weapon systems [could shield] their human commanders from what might have otherwise been considered a war crime.”32 This is an extremely undesirable outcome for the international legal canon. In sum, the existing normative framework applicable to the manufacture, export, and use of armed drones (and, eventually, fully autonomous weapons systems) provides fertile ground for fervent debates from academics and lawyers, but relatively few real-​world remedies for victims. Thus, alternatives must be investigated. Corporate liability, explored below, is a potential avenue for accountability.

The Corporate Connection to Drones

On its most basic level, the story of targeted killings and “killer robots” is one not only of the governments that choose to develop and use armed drones and fully autonomous weapons systems, but of the companies that manufacture such advanced weaponry. It is estimated the annual global value of drone production for military use will more than double in the coming decade, from us$942 million in 2014 to $2.3 billion in 2023.33 Multinational corporations (mnc s) around the world will no doubt enjoy record profits from this rapidly growing industrial sector; unfortunately, making them liable for the use and abuse of such technology is not 30 31

32 33

Ibid., p. 692. N. Melzer, “Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare,” European Parliament, Directorate General for External Policies, Policy Department Study, Brussels, 2013, p. 39, available at: http://​bit.ly/​125ZQWS. Asaro, “On banning autonomous weapon systems,” p. 693. T. Atlas, “U.S. Approves the Sale of Armed Drones,” Bloomberg, 17 February 2015, at: http://​ www.bloomberg.com/​news/​articles/​2015-​02-​17/​u-​s-​approves-​selling-​armed-​drones-​state​ -department-​says.

202 Stauffer straightforward. Tracking down all the possible interlocking and interwoven routes to corporate accountability, in a field where longstanding international legal norms may be habitually violated and government obfuscation is almost routine, is a daunting task. It is not, however, completely unfeasible; moreover, such efforts would tap into the burgeoning legal field of business and human rights, whose influence is extending nearly as fast as drones are proliferating. Moreover, it is necessary, as the communities who are routinely victimised by drone strikes have—​until this point—​been bitterly disappointed by the existing international framework. Corporate liability may prove to be their best bet to reach some measure of justice in this brave new world.

Defence Contractors in the United States, the United Kingdom, and Israel United States By its own admission, the United States is “the world’s technological leader in the development and deployment of military Unmanned Aerial Systems.”34 Drones are big business in the United States; prominent drone manufacturers include defence juggernauts General Atomics, Northrop Grumman, and Lockheed Martin, whose products are both sold to the us military and exported around the world.35 In addition, the United States is at the forefront of developing the precursors to fully autonomous weapons systems, including the Phalanx system, which can “automatically detect, track and engage anti-​ air warfare threats such as anti-​ship missiles and aircraft,”36 manufactured by Raytheon.37 And the us Navy and Northrup Grumman’s x-​47B unmanned aerial combat vehicle was—​in the space of one article—​described by the website Popular Science as an “autonomous warplane,” a “robot,” and an “experimental drone that flies itself.”38 The x-​47B has excited interest for its currently unique ability to autonomously launch and land itself on a moving aircraft carrier.

34 35 36 37 38

“u.s. Export Policy for Military Unmanned Aerial Systems.” See “Who Has Drones?,” available at: http://​dronewars.net/​6-​who-​has-​drones/​. See Heyns 2013, §45. Human Rights Watch, “Losing Humanity: The Case Against Killer Robots,” 2012, p. 9 note 20, at: http://​www.hrw.org/​reports/​2012/​11/​19/​losing-​humanity-​0. K. D. Altman, “The X-​47B Autonomous Warplane Lands in Aircraft Carrier,” Popular Science, 11 July 2013, at: http://​www.popsci.com/​technology/​article/​2013-​07/​autonomous-​drone​​ -​lands-​aircraft-​carrier.

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United Kingdom The United Kingdom previously used us-​manufactured armed Reaper drones in Afghanistan,39 and in November 2014 shifted these assets to Iraq as part of Coalition airpower against Islamic State.40 However, the uk-​based bae Systems is collaborating with industry partners including Rolls-​Royce, QinetiQ, ge Aviation, and selex Galileo to further develop the Mantis,41 an armed drone that can “[fly] autonomously based on a pre-​programmed flight plan.”42 In addition, bae Systems has developed the prototype Taranis combat aircraft, which straddles the line between drone and fully autonomous weapons system. According to Human Rights Watch, the Taranis is not armed, but it includes two weapons bays and could eventually carry bombs or missiles. Similar to existing drones, Taranis would presumably be designed to launch attacks against persons as well as materiel. It would also be able to defend itself from enemy aircraft. At this point, the Taranis is expected to retain a human in the loop…. [However,] Royal Air Force Air Chief Marshal … left the door open to the possibility of greater autonomy in the future.43 In May 2017, it was reported that bae was working with French defence contractors Dassault and Thales and others on a prototype within the unmanned Future Combat Air System (fcas), building on technology developed for the Taranis, which could fly within ten years.44 The aim was to produce an operational system by 2030 (although, as discussed in Chapter 1, by 2017 the uk role in the programme had been cast into doubt).45 39 40 41 42 43 44

45

“Who has drones?” see also Emmerson 2013, §§26 and 29. bbc, “UK drone carries out first strike in Iraq,” 10 November 2014, at: http://​www.bbc​.co​ .uk/​news/​world-​middle-​east-​29992686. Hayward, “Unmanned Aerial Vehicles: A New Industrial System?,” p. 8. “Latest News on British Drones,” 22 June 2012, available at http://​dronewars.net/​2012/​ 06/​22/​latest-​news-​on-​british-​drones/​. See Human Rights Watch, “Losing Humanity: The Case Against Killer Robots,” pp. 17–​18 (citations omitted). A. Tovey, “Brexit won’t harm Anglo-​EU defence co-​operation on drones, says BAE,” Daily Telegraph, 10 May 2017, at:  http://​www.telegraph.co.uk/​business/​2017/​05/​10/​brexit​​ -​wont-​harm-​anglo-​eu-​defence-​co-​operation-​drones-​says-​bae/​; and see also “Thales to start work on the UK-​French Future Combat Air System,” undated but accessed on 26 July 2017, at: https://​www2.thalesgroup.com/​mobile/​read.php?topic=180&news=429220. B. Stevenson, “UK and France agree on interim FCAS work,” FlightGlobal, 20 December 2016, at:  https://​www.flightglobal.com/​news/​articles/​uk-​and-​france-​agree-​on-​interim​​ -​fcas-​work-​432509/​.

204 Stauffer Israel As already noted, Israel is a major drone manufacturer and exporter,46 with a market share that punches far above its small geographic size and population. Leading Israeli uav companies include state-​owned Israel Aerospace Industries (iai), and private companies Elbit Systems, Aeronautics, BlueBird, Innocon, and UVision.47 In addition, iai manufactures the Harpy, mentioned above, which serves as an example of what can constitute a fully autonomous weapons system.

Different Models of Corporate Liability

Two different models of corporate liability could potentially be applied to drone manufacturers: civil and criminal. They are discussed in turn. Civil Liability Filing a lawsuit against aerospace and defence contractors for deaths of civilians caused by their products—​armed drones—​would be one way forward. After all, multinationals can hardly plead ignorance to the fact that civilians in Pakistan, Palestine, and Yemen have died as a result of drone strikes: stories reporting on such deaths have appeared regularly in the media since at least 2009.48 Targeting manufacturers directly would also bypass the sovereign immunity issue present under both international law49 and common law,50 which generally makes it juridically impossible to sue governments 46 47 48

49

50

Who has drones? Hayward, “Unmanned Aerial Vehicles: A New Industrial System?,” p. 8. P. Boghani, “Why the US Doesn’t Always Know Who It’s Killing in Drone Strikes,” Frontline, 23 April 2015, http://​www.pbs.org/​wgbh/​pages/​frontline/​foreign-​affairs-​defense/​why-​the-​u-​s​​ -​doesnt-​always-​know-​who-​its-​killing-​in-​drone-​strikes/​; Open Society Justice Initiative, “Death by Drone,” April 2015, at:  http://​www.opensocietyfoundations.org/​reports/​death​​ -​drone. In a 2012 case, the icj confirmed that “acts carried out [by states] in the exercise of sovereign authority … generally enjoyed immunity, and the fact that such acts were illegal did not alter this fact.” Jurisdictional Immunities of the State (Germany v.  Italy:  Greece intervening), Judgment, icj. Reports 2012, p.  99; summary available at https://​www​ .­chathamhouse.org/​media/​comment/​view/​182109#. B. Kastan, “Autonomous Weapons Systems: A Coming Legal “Singularity”?,” University of Illinois Journal of Law, Technology & Policy, Spring 2013, p. 69, and text accompanying note 213, pointing out that, under common law, governmental entities retain immunity unless waived by statute.

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directly for their military misadventures abroad, unless they have waived such immunity. However, such claims against weapons manufacturers would be subject to several caveats, as discussed below. United States One obvious methodology to hold drones’ producers liable for violations of the right to life or the destruction of property is through civil tort actions like product liability, which has a rich tradition in the United States.51 While suing a corporation for harm caused by its inventions is an appealingly straightforward option, product liability lawsuits are unlikely be applicable to the aerospace and defence industry:  they are in the business, after all, of producing deadly weapons, and their clients (governments) purchase these products hoping they will operate exactly as advertised. The military-​ industrial complex would rapidly collapse if firms feared they could be held strictly liable for any use of their product that violates international law.52 Moreover, even if such strict liability were imposed, the likelihood that civilians from poor, war-​torn regions of the world could successfully navigate the intricacies of the us court system is extremely low.53 Thus, product liability lawsuits would not seem a promising option to provide a comprehensive remedy for victims. However, this does not meant that civil liability for corporations should be ruled out altogether. Any discussion of civil liability for corporations in the United States must incorporate the Alien Tort Claims Act (atca), a 226-​ year-​old law that permits certain federal courts to have jurisdiction over certain claims brought by non-​us citizens for certain violations of international law. Enacted by the us Congress in 1789, the Statute reads: “[t]‌he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”54 This language is very broad, and has never been clarified by Congress. For nearly two centuries, this law was rarely used, but it was revived over the last 25 years with individuals or organisations seeking to sue large multinational corporations for alleged human rights violations committed outside the United 51 52 53 54

J. M. Beard, “Autonomous Weapons and Human Responsibilities,” Georgetown Journal of International Law, Vol. 45 (Spring 2014), p. 648. Ibid. Ibid. G. Hufbauer, “Why Shouldn’t Corporations Be Liable Under the ATS?,” Georgetown Journal of International Law, 2012, p. 1009; 28 usc §1350.

206 Stauffer States. It is also possible to bring a claim under the atca against individuals (for example, corporate officers).55 The most famous atca case in recent years is Kiobel v. Royal Dutch Petroleum Co.56 Nigerian nationals residing in the United States filed suit against Dutch, British, and Nigerian corporations, alleging that these mnc s had aided and abetted the Nigerian Government in committing violations of the “law of nations” (i.e. customary international law) in Nigeria.57 In 2013, the case was decided 9-​0 in favour of Royal Dutch Shell, a decision that left many believing the atca was not an option for future international tort actions. However, subsequent practice has not borne this out, as several atca cases were pending in the lower courts when Kiobel was decided, and its disposition has not resulted in their summary dismissal. Furthermore, as these cases work their way through the us court system, decisions vary greatly between those courts which skew conservative and those with more liberal judges. Observers had predicted that the decision in Kiobel would rest on whether or not there could be corporate liability for human rights violations; in fact, the Justices in Kiobel declined to definitively address that question and instead based its decision on whether the alleged torts in the case were closely-​related enough to the United States to justify hearing the case within us courts. The Court held that the cases must “touch and concern” the United States, ruling out future causes of action “in which there is a foreign plaintiff suing a foreign defendant for acts committed on foreign soil.”58 What exactly is meant by “touch and concern” was not clearly defined, although the “mere corporate presence” of one of the defendant corporations within the United States was deemed insufficient. However, it is not clear under Kiobel what would happen if there were a stronger connection (for example, if a suit were brought against an American company), nor did the Court directly address the issue of corporate liability. Thus, even in a post-​Kiobel landscape, atca claims remain one viable avenue for corporate liability in the us court system. United Kingdom As the native drones and fully autonomous weapons systems industry in the United Kingdom is still very much in its infancy, discussion of civil liability for 55 56 57 58

Kadic v. Karadzic, 70 F.3d 232 (1995). Kiobel v.  Royal Dutch Petroleum Co., 133 sc 1659 (2013); decided 9-​0 in favour of the defendant, Royal Dutch Petroleum. Kiobel, at 1660. O. Hathaway, Kiobel Commentary, SCOTUSblog, 18 April 2013, at: http://​www.scotusblog​ .com/​2013/​04/​kiobel-​commentary-​the-​door-​remains-​open-​to-​foreign-​squared-​cases/​.

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uav manufacturers is theoretical at this point. Yet it is worth examining as a forward-​looking exercise, given the exponential growth the industry as a whole is enjoying,59 and the fact that in 2015 the then British Prime Minister, David Cameron, prioritised drones as a key part of the uk’s strategic defence and security review.60 While the law is not as well-​developed as in the United States, the United Kingdom also has a civil liability regime that could potentially be used to hold aerospace and defence contractors responsible for civilian deaths and property destruction caused by drone strikes. There is no statutory atca equivalent,61 but numerous civil suits have been brought against mnc s for alleged human rights violations committed abroad, which are dependent on some corporate connection to the overseas wrongdoing being shown. Cases in the United Kingdom have centred on claims of “direct negligence” in which a corporation breached a “duty of care” which it owed to individuals affected by its overseas operations.62 Under English law, a three-​stage test is used to determine if a duty arises: (a) Was the harm foreseeable? (b) Was there sufficient proximity between the parties? And: (c) Is it fair, just, and reasonable to impose a duty of care?63 The first two stages of this test likely could be met in the example of a drone strike victim suing a weapons manufacturer:  the harm from weaponised drones on humans is foreseeable, and there is direct proximity: the defence contractor’s product caused the death or injury of the civilian. However, the third stage of the test would be challenging to meet: most judges are unlikely to find that it is “fair, just, and reasonable” to impose a duty of care between an arms manufacturer and the potential victim. Nevertheless, given the rapid

59

60 61 62

63

In 2013, a prominent defence contractor estimated that the global market for drones will almost double in the next decade, from $6.6 billion annually to $11.4 billion a year. See World of Drones: Military. bbc, “Defence review: Spend more on SAS and drones,” 13 July 2015, at: http://​www.bbc​ .co.uk/​news/​uk-​politics-​33500006. B. Mostajelean, “Foreign Alternatives to the Alien Tort Claims,” George Washington International Law Review, Vol. 40, (2008), p. 507. R. Meeran, “Tort Litigation against Multinational Corporations for Violations of Human Rights,” City University of Hong Kong Law Review, Vol. 3, No. 1 (2011), p. 5, at: http://​www​ .cityu.edu.hk/​slw/​CityULR/​doc/​sample/​03.1.01_​Meeran.pdf. Ibid.

208 Stauffer expansion in this canon of law over the past several years (since 1995, at least 10 civil suits have been brought against mnc s in English courts for alleged abuses committed abroad), drone strike victims may want to align themselves with the “business and human rights” community and test the waters of judicial interpretation with just such a claim in the future. Israel Any discussion of remedies available to potential victims in the Palestinian Territories is complicated by the occupation and the fact that Israel and Palestine have been involved in long-​running armed conflicts. Many of the questions that arise are sui generis in nature, necessitating innovative legal reasoning from lawyers and judges alike. However, there are straightforward laws in place which govern consideration of civil claims in the Gaza and the West Bank. The Civil Wrongs (Liability of the State) Law, 5712–​195264 specifically exempts Israel from liability for “an act done in the course of a war operation of the Israel Defense Forces,”65 and extends this law to “state agents.”66 In Israel, many weapons manufacturers are wholly or partially owned by the government,67 and so would almost certainly be included in the latter category. There does not appear to be an obvious exemption to this provision within the law that would allow for corporate liability to be imposed upon Israeli drone manufacturers. Nonetheless, Israel’s legal system is vibrant, and lawsuits are routinely brought against the state (or related entities), including by Palestinians living in the Territories.68 The Civil Wrongs Law has itself been subject to several legal challenges, memorably in the Rachel Corrie case.69 And not all Israeli defence contractors are state-​owned; some are private companies. Given the collective weight of these mitigating circumstances, if an appropriate and sympathetic 64 65 66 67

68

69

Updated in 2005; English translation available at:  http://​www.adalah.org/​uploads/​oldfiles/​features/​compensation/​law-​e.pdf. Civil Wrongs Law, Art. 5. Civil Wrongs Law, Art. 7B. Hayward, “Unmanned Aerial Vehicles: A New Industrial System?,” p. 8; see also A. Harel, “Boss of Israel’s major defense contractor Rafael forced to take leave,” Haaretz, 31 May 2015. G. Horton, “Israel’s High Court Chooses Occupation Over International Law,” 972 Magazine, 16 October 2014, at: http://​972mag.com/​israels-​high-​court-​prefers-​occupation-​over​​ -​international-​law/​97727/​, describing how Palestinians can access the Israeli judicial system in certain circumstances. Rachel Corrie was a peace activist killed by an Israeli bulldozer in 2003; a description of the case and lawsuit is available at:  http://​rachelcorriefoundation.org/​multimedia/​ ­downloads/​2015/​02/​2015-​02-​12-​ENG-​IsraeliSupremeCourtDecision1.pdf.

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case could be found (for example, the deliberate targeting of children by drones, as alleged by Human Rights Watch in 2009),70 an ambitious lawyer could test the limits of what is meant by “state agent” in the Civil Wrongs Law and perhaps provoke changes in official policy or encourage civil settlements with victims’ families. Criminal Liability Corporate criminal liability is a relatively recent legal development, becoming more prevalent over the last 100 years or so. In the United States, the issue first came to prominence in a 1909 case involving corruption by a railroad company.71 However, developments came at a much faster pace from the 1970s onwards (both in the United States and in other jurisdictions), as there was a general perception that:  “[c]‌orporations … lacked accountability to their investors and to society as a whole, [and that] lawless behaviour—​including price-​fixing, illegal political contributions to domestic and foreign governments, environmental damage, and health and safety violations—​was the norm rather than the exception.”72 Over time, “state practice … across a variety of legal systems and traditions … has expanded criminal laws to include ‘legal persons’ ”73 (i.e., corporations). Nevertheless, the concept of corporate criminal liability remains contentious, and “is not a universal feature of modern legal systems.”74 One scholar summed up the polemics thus: Corporate criminal liability is a controversial beast. To a large extent, the controversies surround three core questions: first, whether there is a 70 71

72 73

74

Human Rights Watch, “Precisely Wrong: Gaza Civilians Killed by Israeli Drone-​Launched Missiles,” June 2009, at: http://​www.hrw.org/​sites/​default/​files/​reports/​iopt0609web_​0.pdf. New  York Central & Hudson. R.  R. Co. v.  United States, 212 us 481 (1909) discussed in more depth infra; there had been cases where corporate criminal liability was addressed previously, but most scholars pick the New York case as the beginning of the “modern” corporate criminal liability era. D. R. Fischel and A. O. Sykes, “Corporate Crime,” Journal of Legal Studies, Vol. 25 (1996), pp. 319, 339. See A. Ramasastry and R. C. Thompson, “Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law:  A Survey of Sixteen Countries” Fafo Report No. 536, 2006, p. 13, at: http://​www.fafo.no/​pub/​rapp/​536/​536.pdf. “Corporate Culture as a Basis for the Criminal Liability of Corporations,” prepared by Allens Arthur Robinson for the un Special Representative of the Secretary-​General on Human Rights and Business, February 2008, p.  4, available at:  http://​198.170.85.29/​ Allens-​Arthur-​Robinson-​Corporate-​Culture-​paper-​for-​Ruggie-​Feb-​2008.pdf.

210 Stauffer basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-​existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers.75 The drafters of the icc Statute also found the idea of corporate criminal liability quite controversial, pointedly limiting the jurisdiction of the International Criminal Court to “natural persons.”76 Nevertheless, assuming that possession and use of drones will eventually become the “new normal,” such use will almost inevitably result at some point in the deaths of civilians or others not lawfully targeted, perhaps leading to greater willingness to examine alternative avenues of accountability. There are some isolated historical precedents of corporate criminal liability being imposed for international crimes, although the concept is by no means uniformly accepted, nor its precepts consistently applied. However, two prominent cases illustrate the point:  the “Zyklon B” case is famous for its prosecution of “corporate officers [who sold] the chemicals used to asphyxiate civilians at Auschwitz after World War ii.”77 More recently, two courts in the Netherlands prosecuted “individual arms vendors for complicity in international crimes for knowingly transferring weapons to recipients who use them to perpetrate atrocities.”78 Such examples could potentially be expanded upon with regard to drones and fully autonomous weapons systems. United States Of all the countries discussed herein, the United States has by far the most progressive regime of corporate criminal liability, developed through a century 75 76 77 78

J. G.  Stewart, “A Pragmatic Critique of Corporate Criminal Theory:  Lessons from the Extremity,” New Criminal Law Review, Vol. 16, No. 261 (2013). “Corporate Culture as a Basis for the Criminal Liability of Corporations,” p. 9. Beard, “Autonomous Weapons and Human Responsibilities,” p. 648. The cases were Prosecutor v. Van Anraat, The Netherlands, ljn: BA6734, Gerechtshof’s-​ Gravenhage, 2200050906-​2, 9 May 2007, charging Frans Van Anraat with complicity in genocide and war crimes for selling chemical weapons to Saddam Hussein, which were ultimately used to gas civilians; Prosecutor v. Kouwenhoven, The Netherlands, ljn: AY5160, Rechtbank’s-​Gravenhage, 09/​750001-​05 28 July 2006, charging Guus Kouwenhoven with complicity in international crimes perpetrated by Charles Taylor’s regime in Liberia. All information here taken from note 19 of New Criminal Law Review Vol. 16, p. 261.

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of case law. It follows the “vicarious liability” model, and stems from a famous 1909 Supreme Court case, New York Central & Hudson Railroad v. United States, where the Court “upheld corporate punishment based on the respondeat superior theory of tort law, thereby allowing a corporation to be held criminally liable for its agents’ actions taken within the scope of their employment.”79 According to this theory, three requirements must be met in order to impose liability on a corporation. First, a corporate agent must have committed an illegal act (the actus reus) with the requisite state of mind (the mens rea) … alternatively, mens rea can be shown on the basis of the “collective knowledge” of the employees as a group, even though no single employee possessed sufficient information to know that the crime was being committed. Second, the agent must have acted within his scope of employment. The scope of employment includes any act that “occurred while the offending employee was carrying out a job-​related activity.” Finally, the agent must have intended to benefit the corporation. Under this easily met standard, the employee need not act with the exclusive purpose of benefiting the corporation, and the corporation need not actually receive the benefit.80 The New  York Court suggested that “there are some crimes which in their nature cannot be committed by corporations,”81 but did not elaborate on what those crimes might be, and over the ensuing 100 years, corporate criminal liability in the United States has expanded to include “almost all wrongs except rape, murder, bigamy, and other crimes of malicious intent.”82 Notably, the list of crimes for which corporations have been held criminally liable in the United States includes manslaughter.83 Criminal penalties for corporate liability have evolved over time through a mix of case law and statute, but today are generally considered to include “cash 79 80 81 82 83

E. Luna, “The Curious Case of Corporate Criminality,” American Criminal Law Review, Vol. 46 (2009), pp. 1507–​08. V. S. Khanna, “Corporate Criminal Liability, What Purpose Does It Serve?,” Harvard Law Review, Vol. 109 (1996), pp. 1489–​90 (citations omitted). New York Central & Hudson. R. R. Co. v. United States, at 494. Khanna, “Corporate Criminal Liability, What Purpose Does It Serve?,” p. 1484. To date, at least fifteen states plus the federal government have prosecuted corporations for manslaughter or criminally negligent homicide. See J. W. Harlow, “Corporate Criminal Liability for Homicide: A Statutory Framework,” Duke Law Journal, Vol. 61 (2011), p. 133.

212 Stauffer fines, probation, debarment, and loss of license,”84 among other related remedies. A court can “sanction the organization with forfeiture, restitution, or an order to notify victims; or it can combine any of these punishments.”85 Fines can “run into the hundreds of millions of dollars”;86 and if “debarment” is imposed, “any corporation convicted of a felony may be permanently barred from doing business with government agencies or participating in government programs.”87 Imprisonment “is not applicable in the corporate context,”88 unless of course individual liability is assessed. Alongside criminal penalties, civil and regulatory penalties are available to sanction corporations for their misdeeds, many of which are similar to the criminal remedies on offer.89 However, many observers argue that the corresponding loss of reputation resulting from a criminal conviction provides an additional deterrent.90 In summary, us jurisprudence has evolved to include progressive and broad criminal liability for corporations, up to and including manslaughter. It is, though, unclear how successful a cause of action might be for violations occurring outside us territory. United Kingdom Since 2007, the uk has had one of the most explicit corporate criminal liability statutes of all the jurisdictions assessed in this chapter, in the unambiguously named Corporate Manslaughter and Corporate Homicide Act.91 The Act sanctions a type of “organisational liability,” providing that a company “can be found guilty of corporate manslaughter if the way in which its activities are managed or organised ... causes a person’s death, and ... amounts to a gross 84 85 86 87 88 89 90 91

Khanna, “Corporate Criminal Liability, What Purpose Does It Serve?,” p. 1497. T. Johnson, “Sentencing Organizations After Booker,” Yale Law Journal, Vol. 116 (2006), pp. 632, 641–​42. E. B.  Diskant, “Comparative Corporate Criminal Liability,” Yale Law Journal, Vol. 118 (2008), pp. 140–​41. Ibid. Khanna, “Corporate Criminal Liability, What Purpose Does It Serve?,” p. 1497. Ibid., p. 1499. Harlow, “Corporate Criminal Liability for Homicide: A Statutory Framework,” pp. 142–​43. Corporate Manslaughter and Corporate Homicide Act, 2007, c.  19, at:  http://​www.legislation.gov.uk/​ukpga/​2007/​19/​pdfs/​ukpga_​20070019_​en.pdf (hereafter, Corporate Manslaughter Act). (In England and Wales and Northern Ireland, the new offence is called corporate manslaughter, while in Scotland it is called corporate homicide.) Similar to the situation in the United States, this legislation came about as a result of public outrage to misdeeds by major transportation companies—​here, a series of fatalities through train crashes.

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breach of a relevant duty of care owed by the organization to the deceased.” The Act further stipulates that “senior management must play a substantial role in the breach.”92 These “dual requirements also anticipatorily rebut any argument that a corporate defendant might face criminal liability solely on the basis of a low-​level employee’s unauthorized acts.”93 There is no individual liability available under the Act.94 With regard to remedies, the Act provides that an organisation found guilty will be liable to an unlimited fine, and allows courts to impose a publicity order, requiring the organisation to publicise details of its conviction and fine.95 Courts may also require an organisation to take steps to address the failures behind the offence by means of a remedial order.96 Notably, the Act applies to foreign companies and subsidiaries operating in the uk, as well as subcontractors.97 While the Corporate Manslaughter Act represents a welcome expansion of corporate criminal liability in the United Kingdom, exemptions exist that may make its application to drone and fully autonomous weapons systems manufacturers difficult. Interpretational guidance on the Act provided by the Ministry of Justice notes that “corporate manslaughter will not apply to certain public and government functions where there exist wider questions of public policy.”98 Among these exemptions are “[m]‌ilitary activities, including potentially violent peacekeeping operations and those dealing with terrorism and violent disorder.”99 Although that language seems to rule out the type of legal actions envisioned by this chapter, the law has yet to be rigorously tested, as the convictions garnered so far have largely been as a result of fatal workplace injuries due to industrial accidents.100 Given that the law is specifically applicable to subcontractors (e.g. weapons manufacturers and/​or defence contractors) a creative lawsuit may be able to test any doctrinal inconsistencies in the 92 93 94 95 96 97 98 99 100

Harlow, “Corporate Criminal Liability for Homicide: A Statutory Framework,” pp. 150–​51. Ibid Corporate Manslaughter Act, s. 17. Corporate Manslaughter Act, ss. 1(6) and 10. Corporate Manslaughter Act, s. 9. See generally: http://​www.cps.gov.uk/​legal/​a_​to_​c/​corporate_​manslaughter/​. Ibid. Ibid. See, e.g., “Lion Steel becomes the third company to be convicted of Corporate Manslaughter,” August 2012, at:  http://​ehoganlovells.com/​cv/​e0eb5c9d7604d1d5e3015a39e8da3f1c11354a05/​p=8852798; and http://​www.u.tv/​News/​Firm-​admits-​to​​ -​corporate-​manslaughter/​21180b5d-​b4bb-​4b19-​8c9b-​512f1be0853d.

214 Stauffer language, should appropriate facts occur. Also of note, the Act also largely removes the Crown immunity that applies to the existing common law corporate manslaughter offence.101 It can also cover certain acts by police forces, potentially including their use of armed drones or fully autonomous weapons systems.102 In July 2016, the uk Government rejected a proposed legal change that would have allowed the Ministry of Defence to be prosecuted under the 2007 Corporate Manslaughter and Homicide Act over deaths during hazardous training, such as the Special Air Service (sas) exercise on the Brecon Beacons in 2013 that claimed the lives of three reservists. Members of the House of Commons Defence Committee had called for military exemptions that prevented the possibility of the Ministry of Defence facing prosecution to be scrapped, but the government insisted the current system was sufficient.103 In its response to the defence committee’s report, “Beyond endurance? Military exercises and the duty of care,” published in April 2016, the Government said military training was “inherently hazardous.” It further stated that: “This is especially true where activities involve weapon systems, vehicles or strenuous physical activity.” Israel Israel was influenced by both the American and British systems on the issue of corporate criminal liability, ultimately settling on a form of “organizational liability.”104 However, certain specific statutes may provide for vicarious liability for directors and managers for certain offences,105 though vicarious liability cannot be imposed without “explicit provision in the statute.”106 The Israeli Criminal Code107 provides that a “company may be indicted and bear criminal liability,”108 although it is necessary to show that “the offender acted within the 101

cqms, “Corporate Manslaughter Prosecutions,” at:  http://​ www.cqms-​ ltd.co.uk/​ news/​ landmark_​corporate_​manslaughter_​case.html. 102 Crown Prosecution Service, “Corporate Manslaughter,” at: http://​www.cps.gov.uk/​legal/​a​_​to​​ _​c/​corporate_​manslaughter/​#a11. 103 House of Commons Defence Committee, “Beyond endurance? Military exercises and the duty of care,” HC598, April 2016, pp. 39–​42, available at: https://​publications.parliament​ .uk/​pa/​cm201516/​cmselect/​cmdfence/​598/​598.pdf. 104 Global Practice Guide: Criminal Liability of Companies, Lex Mundi (February 2008), p. 120, at:  http://​www.lexmundi.com/​lexmundi/​Criminal_​Liability_​Companies_​Guide.asp (hereafter, Lex Mundi). 1 05 Ibid. at 131. 1 06 Ibid. 107 Israeli Penal Law, (1977) (as amended in 1994), §23 (3rd Edn, 1999) (English translation). 1 08 Lex Mundi.

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scope of his employment and with the intent to benefit the company.”109 The type of offences for which a firm may be found liable is not explicitly enumerated in the Code, but in practice, criminal liability may be imposed for almost any offence,110 save for those strictly of a human nature, like bigamy, rape, or incest.111 The Israeli Supreme Court has stated that “in principle, there is no reason for failing to impose criminal liability on a corporation for the perpetration of manslaughter.”112 Criminal penalties that may be levied against a corporation include private complaints filed by individuals, criminal mediation proceedings, payment of fines, and cease-​and-​desists orders.113 Civil liabilities that can be imposed for corporate wrongdoing include fines, injunctions, and confiscation of property.114 Additionally, one quirk of the Israeli legal landscape may be particularly apt to the causes of action envisioned by this chapter: the Israeli Ministry of Defense must approve the design, sale, and export of every Israeli-​made uav,115 which could lead to an additional level of culpability for the Government of Israel, assuming no sovereign immunity concerns. The issue of corporate liability in Israel has previously been raised at the un General Assembly. The un Special Rapporteur for the situation of human rights in the Palestinian territories used a 2013 report116 to suggest that two Israeli branches of international corporations (an American real estate firm and a Belgian/​French bank) could be held liable for complicity in breaches of international law related to the building of settlements.117 It does not seem that any immediate action will result from the normative framework he suggested, but it is interesting to note that the idea of corporate criminal liability is being explored in un organs as well.

109 110 111 112

Ibid. at 121. Ibid. at 123 Ibid. E. Lederman, Models for Imposing Corporate Criminal Liability, Buff. Crim. L. Rev. Vol. 4 (2000), p. 646, quoting Cr.A. 3027/​1990 Modiem Constar. & Div. Ltd. v. Israel, 35(4) p.d. 364, 381 (Per cj Aaron Barak) (Hebrew) (Isr.). 113 Lex Mundi, at 121. 114 Ibid. at 127 115 Hayward, “Unmanned Aerial Vehicles: A New Industrial System?,” p. 8. 1 16 See Report by Richard Falk, Special Rapporteur for the situation of human rights in the Palestinian territories, un doc. A/​68/​376, September 2013. 117 See Office of the un High Commissioner of Human Rights, Press release, 31 October 2013, at: http://​www.ohchr.org/​EN/​NewsEvents/​Pages/​DisplayNews.aspx?​ NewsID=13924&LangID=E.

216 Stauffer

Concluding Remarks

Drones are here to stay, and fully autonomous weapons systems are coming. As with all new technologies, a new legal framework will need to be cobbled together to deal with their disruptive impact. Corporate liability does not provide a clear-​cut path to increasing accountability for violations of human rights and loac rules, but it is a pioneering methodology that tackles the problem from what is, perhaps, an unexpected direction. Beyond traditional loac and human rights circles, accountability for using drones and fully autonomous weapons systems is being addressed in other fora as well: in 2013, several states spoke during a session of the un General Assembly’s First Committee (which deals with disarmament and international security), calling for further debate on the development of fully autonomous weapons systems.118 Further discussion has also been taking place in the context of the un Convention on Certain Conventional Weapons (ccw). It will be similarly interesting to note what impact the 2013 Arms Trade Treaty has on the transfer of drones and fully autonomous weapons systems, including under its Article 2(1)(d), which brings combat aircraft (including drones and fully autonomous weapons systems) within the scope of the treaty. After several relatively quiet years of operating in the shadows, the world has finally woken up to the legitimate concerns caused by the existence of drones and fully autonomous weapons systems. Additional examination of these technologies is a necessary measure that has been a long time coming. Investigating corporate liability is an appropriate first step.

118 United Nations, “Delegates Troubled by Trend towards Autonomy in Robotic Weapons,” Press release, 29 October 2013, at: http://​www.un.org/​press/​en//​2013/​gadis3489.doc.htm.

Chapter 8

Autonomous Weapons Systems and International Criminal Law Stuart Casey-​Maslen Introduction This chapter discusses the extent to which use of armed drones and fully autonomous weapons systems may amount to an international crime, particularly a war crime or the crime of aggression. A war crime is a serious violation of the law of armed conflict (loac) that attracts individual criminal responsibility.1 An act of aggression is defined in the 1998 Rome Statute of the International Criminal Court (icc Statute) as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations (un).2 Depending on the alleged crime, international criminal law (icl) either authorises states, or imposes on them an obligation, to prosecute alleged international criminals and to punish the convicted.3 icl is a form of criminal law in which individuals, not states, are subjected to criminal responsibility.4 Thus, in accordance with a general principle of law across domestic legal systems, for an accused to be found guilty of an international crime two elements must be proven beyond reasonable doubt: a culpable act (actus reus), allied to a culpable state of mind (mens rea).5 As a “hybrid” 1 The 1998 Rome Statute of the International Criminal Court (icc Statute) defines war crimes as “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character.” Art. 8(2)(b) and (e), icc Statute. 2 Art. 8bis(2), set out in “Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression,” adopted on 11 June 2010 at the Review Conference of the Rome Statute, Kampala, by Resolution rc/​Res.6. 3 A. Cassese, International Criminal Law, 3rd Edn, Oxford University Press (oup), Oxford, 2013, p. 3. 4 According to Article 25(4) of the icc Statute, none of the provisions in the Statute “relating to individual criminal responsibility shall affect the responsibility of States under international law.” 5 The phrase mens rea comes from the Latin phrase actus non facit reum nisi mens sit rea. W.  A.  Schabas, An Introduction to the International Criminal Court, 4th Edn, Cambridge University Press (cup), Cambridge, 2012, p. 235.

©  Koninklijke Brill NV, Leiden, 2018 | DOI:10.1163/9789004363267_010

218 Casey-Maslen branch of international law, icl draws on loac, international human rights law, and jus ad bellum rules derived from customary and conventional international law as well as from domestic criminal legislation and jurisprudence.6 Based on national criminal law in many states, icl foresees different modes of liability for an international crime, four of which are discussed herein: command responsibility, joint criminal enterprise, joint criminal responsibility (in accordance with control theory), and aiding and abetting.

Use of Armed Drones and Fully Autonomous Weapons as a War Crime

A number of possible uses of an armed drone or a fully autonomous weapon system could amount to a war crime.7 This may result from the type of munition fired, if, for example, the munition chosen were of a nature to cause superfluous injury. A more likely scenario, however, is that either a strike is directed against civilians, violating the rule of distinction, or the strike is conducted in an indiscriminate manner, particularly when it was, prior to the attack taking place, expected to cause excessive incidental civilian harm (thereby violating the rule of proportionality). Use of Unlawful Weapons As noted in Chapter 4, it is prohibited to use weapons that are inherently indiscriminate or which are of a nature to cause superfluous injury or unnecessary suffering. This general prohibition exists in all circumstances and is irrespective of whether the conflict is international or non-​international in character. In addition to the specific weapons whose use is punishable as a war crime in Article 8(2)(b)(xvii)–​(xix) and Article 8(2)(e)(xiii)–​(xv) of the icc Statute,8 6 Cassese, International Criminal Law, pp. 6–​7. 7 A fundamental prerequisite for any possible war crime that involved an armed drone (or any other weapon) is that the use of force must occur as an act in the conduct of hostilities within an armed conflict. Chapter 3 (s. A(1)) describes the constituent elements for an international and a non-​international armed conflict. 8 The weapons whose use under any circumstances is potentially subject to the jurisdiction of the icc are the following: poison or poisoned weapons; asphyxiating, poisonous, or other gases, and all analogous liquids, materials or devices; bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; and, since mid-​December 2017, biological weapons, laser weapons specifically designed to cause blindness to the naked eye, and weapons whose primary effect is to injure by fragments that escape detection by X-​rays.

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the International Criminal Court (icc) is given jurisdiction over weapons that are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate, subject to the conditions set out in Article 8(2) (b)(xx).9 The International Committee of the Red Cross (icrc) has concluded that using “prohibited weapons” is a war crime in any armed conflict.10 Inherently Indiscriminate Weapons The rule of distinction, which is central to loac rules governing the conduct of hostilities, means that the use of any weapon is unlawful when it is, in the words of the International Court of Justice (icj), “incapable of distinguishing between civilian and military targets.” The icj described this as a “cardinal” principle of the law in its 1996 Nuclear Weapons Advisory Opinion.11 In 2005, the icrc study of customary ihl concluded that: “The use of weapons which are by nature indiscriminate is prohibited.”12 The icrc has found that the rule is a customary norm applicable in all armed conflicts.13 According to the United Kingdom (uk)’s 2004 Manual on the Law of Armed Conflict,14 an inherently indiscriminate weapon is one that cannot be targeted against a military objective (for instance, because it has a rudimentary guidance system) or if its effects cannot be limited to a military objective.15 9 10

11

12 13 14

15

To fall within the jurisdiction of the icc, they must also be subject to a “comprehensive prohibition” and listed in an annex to the icc Statute. None has been listed so far. icrc Customary International Humanitarian Law Study, Rule 156 (“Definition of War Crimes”), s.  ii(v) (international armed conflict) and s.  iv(i) (non-​international armed conflict), at: https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule156#Fn_​16_​1. icj, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 (1996 Nuclear Weapons Advisory Opinion), §78. The Court’s formulation is unfortunate, given that it implies there are civilian “targets.” A more legally accurate formulation would have been “incapable of distinguishing between civilians and civilian objects and military objectives.” icrc Study of Customary ihl, Rule 71: “Weapons That Are by Nature Indiscriminate,” available at: www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule71. Ibid. See also W.  H. Boothby, Weapons and the Law of Armed Conflict, oup, Oxford, 2009, p. 82. “It is prohibited to employ weapons which cannot be directed at a specific military objective or the effects of which cannot be limited as required by Additional Protocol i and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction.” uk Ministry of Defence, The Manual of the Law of Armed Conflict, oup, Oxford, 2004, §6.4. The United States (us) Air Force’s 1976 Manual on International Law cites biological weapons as a “universally agreed illustration of … an indiscriminate weapon,” observing that the uncontrollable effects from such weapons “may include injury to the civilian

220 Casey-Maslen Although this understanding is generally accepted, this is not the case when it is sought to apply the rule to a specific weapon. In discussing the customary rule, the icrc refers to a number of conventional weapons and weapons of mass destruction which have been alleged to be of an indiscriminate nature, but found “insufficient consensus” to be able to “conclude that, under customary international law, they all violate the rule prohibiting the use of indiscriminate weapons.”16 Although the precise parameters for what is an inherently indiscriminate weapon are not clear, the strongest argument for a weapon in modern use that cannot be targeted sufficient accurately is probably a “Scud” missile. Early versions of this Soviet missile, which was manufactured during the Cold War until 1984, were equipped with gyroscopes and electronics dating back to the 1950s, and were notoriously inaccurate, with an expectation that half of the missiles fired at a single objective would miss their target by more than one kilometre.17 The issue of the accuracy of missiles and rockets was addressed in the un Commission of Inquiry on the Gaza conflict which took place in July-​August 2014. The Commission noted that the majority of projectiles fired by Palestinian armed groups consisted of rockets that at best were equipped with only rudimentary guidance systems and in the vast majority of cases had none at all. The icrc Commentary on Additional Protocol i describes “long-​range missiles which cannot be aimed exactly at the objective” as the primary example of means of combat which cannot be directed at a specific military objective.18 The rockets available to armed groups in Gaza are unguided and inaccurate. Estimates, confirmed by the commission, indicate that the Fajr-​519 and similar J-​80 and M-​75 rockets can land as far as 3 km from any intended target. The longer range rockets, such as the R-​160, can land as far as 6 km

16 17

18 19

population of other states as well as injury to an enemy’s civilian population.” Cited in us Department of the Navy, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations 10–​21, Naval Warfare Publication 9, 1987 with Revision A (5 October 1989). icrc Study of Customary ihl, Rule 71. See S.  Casey-​Maslen, “The use of nuclear weapons under rules governing the conduct of hostilities” in G. Nystuen et al. (eds.), Nuclear Weapons under International Law, cup, Cambridge, 2014, p. 100. icrc Commentary on Additional Protocol i, §1958. Army Recognition, Fadjr-​5 333mm Multiple rocket launcher system. Indicating that the Fajr-​5 has a circular error of probability of 4 per cent [of range].

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away from the target because their accuracy decreases with range.20 Such rockets cannot be directed at a specific military objective and therefore strikes employing these weapons constitute indiscriminate attacks in violation of the customary rule reflected in article 51(4) of Additional Protocol i.21 The limitations of the military arsenals of Palestinian armed groups was advanced22 as a reason for their failure to attack precisely military targets. The military capacity of the parties to a conflict is irrelevant to their obligation to respect the prohibition against indiscriminate attacks.23 Armed Drones The armed drones, especially the Predator and Reaper variants that are the most common in use today, are typically equipped with laser-​guided Hellfire missiles and/​or Paveway ii bombs. Their level of accuracy is discussed below. The video feed on the drones should further assist the precision of targeting. The development of the Hellfire missile system with which Predator drones are most closely associated began in 1974 with the United States (us) Army’s express requirement for an air-​to-​ground missile to be launched from helicopters against armoured fighting vehicles. Production of the base model agm-​114A started in 1982.24 The missile’s effective range, at least for the agm-​114B/​C variant, is eight kilometres.25 Within this range, its circular error probable (cep: the radius from a given target within which one half of missiles fired at the target are expected to land) is of the order of less than ten metres, depending on the model.26 When fired against targets beyond its eight 20 21 22 23

24 25 26

Amnesty International, Unlawful and deadly. Rocket and Mortar Attacks by Palestinian Armed Groups during the 2014 Gaza/​Israel Conflict, March 2015, p. 10. icrc, Database on customary international humanitarian law, Rule 12. Interview with Ghazi Hamad. “Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-​21/​1,” un doc. A/​HRC/​29/​CRP.4, 22 June 2015 (hereafter, 2014 Gaza Commission of Inquiry), §97, footnotes in original. “AGM-​114 Hellfire ii Missile, United States of America,” army-​technology.com, at: http://​ www.army-​technology.com/​projects/​hellfire-​ii-​missile/​. A. Parsch, “AGM-​114,” Directory of U.S. Military Rockets and Missiles, 2009, at: http://​www​ .designation-​systems.net/​dusrm/​m-​114.html. See, e.g., Metin’s Media and Math, “Missile Accuracy (CEP)—​Excerpt from ‘Statistical Snacks’,” at: https://​metinmediamath.wordpress.com/​2013/​10/​10/​missile-​accuracy-​cep/​; D. Gregory, “Lines of descent,” Open Democracy, 8 November 2011, at: https://​www​.o­ pendemocracy.net/​ derek-​gregory/​lines-​of-​descent.

222 Casey-Maslen kilometre range, though, the overall probability of hit ratio decreases as the distance increases.27 Further, in 2011, a former us Air Force captain affirmed that official claims of the missile’s “pinpoint” accuracy were exaggerated.28 Matthew Nasuti cited the attempted killing of Anwar al-​Awlaki on 5 May 2011, when the United States fired a laser-​guided air-​to-​ground missile against Mr al-​ Awlaki’s convoy. The missile missed its target, however, “either because it lost its missile lock or never acquired one to begin with. Anwar al-​Awlaki stopped his vehicle and switched cars, but the switch was not detected. Two more missiles were fired and they both missed him. Thereafter, due to bad weather and a lack of fuel for some of the aircraft, further strikes were called off. The air strikes on Anwar al-​Awlaki’s convoy were a stunning failure, which should have prompted Congressional hearings, but such never occurred.”29 According to a directory of us missiles and rockets, in good conditions a Paveway ii laser-​guided bomb (lgb) has a cep of about six metres (meaning around one half of missiles fired at a given target will land within a six metre radius of it). However, as the directory notes, laser guidance does not work well in bad weather, “and when the illuminating laser is switched off for any reason, guidance is completely lost.”30 Notwithstanding certain concerns expressed about the accuracy of the Hellfire missiles and Paveway bombs, it is clear that they do not, per se, come close to breaching the prohibition on inherently indiscriminate weapons, much less to amounting to a war crime. As a comparison, German V-​2 rockets used in World War ii had a cep of about 17km31 while in Indochina conventional bombs are said to have had a cep of 130–​140 metres and

27 28 29 30

31

Capt. A. W. Lange, “HELLFIRE: Getting the Most from a Lethal Missile System,” Armor, 1998, p. 26, at: https://​fas.org/​man/​dod-​101/​sys/​missile/​docs/​1helfire.pdf. M. J. Nasuti, “Official claims of ‘pinpoint’ accuracy are exaggerated,” Blog post, Kabul Press, 27 November 2011, at: http://​kabulpress.org/​my/​spip.php?article89242. Ibid. A. Parsch, “Paveway ii,” Directory of U.S. Military Rockets and Missiles, Appendix 5: Guided Bombs, at:  http://​www.designation-​systems.net/​dusrm/​app5/​paveway-​2.html. “To overcome these shortcomings, a gps-​aided inertial add-​on package for Paveway ii lgb s was developed (as was done for Paveway iii). gps/​i ns-​enabled lgb s are frequently referred to as egbu s (E = Enhanced). So far, Raytheon-​built Paveway ii egbu s have primarily been produced for export, and have already been used in combat by the British Royal Air Force over Afghanistan and Iraq.” Missile Accuracy (cep)—​Excerpt from ‘Statistical Snacks’.

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laser-​guided bombs, 22 metres.32 As noted above, certain Scud missiles had a cep of about 1km. In 2007, Milan Martić, the leader of ethnic Serbs in Croatia during the conflict with the Croatian regime, was convicted of both a widespread attack directed against the civilian population of Zagreb and of having wilfully made the civilian population of Zagreb the object of attack.33 The relevant acts took place in early May 1995 and concerned the shelling of Zagreb using cluster munitions. He had done so using the M-​87 Orkan as an indiscriminate weapon in the circumstances, since its use at the limit of its operational range “in densely populated civilian areas, such as Zagreb, will result in the infliction of severe casualties.” The maximum range of the M-​87 Orkan is 50km; when fired from this range the submunitions it disperses may fall up to 1km away from the intended target.34 The International Criminal Tribunal for the former Yugoslavia (icty) Trial Chamber that convicted Mr Martić recalled that a direct attack on civilians may be inferred from the indiscriminate character of the weapon used.35 In dismissing his appeal against conviction, the icty Appeals Chamber rejected Mr Martić’s argument that “many armies had and used in the recent past similar weapons” as irrelevant.36 The Appeals Chamber also confirmed the Trial Chamber’s holding that “a direct attack against civilians can be inferred from the indiscriminate weapon used.”37 In the earlier Blaškić case, the Trial Chamber had inferred from the arms used in an attack carried out against the town of Stari Vitez on 18 July 1993 (artisanal mortars known colloquially as “baby bombs”) that the perpetrators of the attack had wanted to target Muslim civilians,38 since these “blind” arms were difficult to guide accurately, their trajectory was “irregular” and 32

33 34 35 36 37 38

Gregory, “Lines of descent,” citing in relation to the accuracy of cep forecasts: C. Conetta, Disappearing the dead: Iraq, Afghanistan and the idea of a “new warfare,” Commonwealth Institute, Project on Defense Alternatives, Research Monograph, Cambridge ma, 2004, p. 25. International Criminal Tribunal for the former Yugoslavia (icty), Prosecutor v. Milan Martić, Judgment (Trial Chamber) (Case No. IT-​95-​11), 12 June 2007, §§468, 472. Ibid., §§462, 463. Ibid., §472. icty, Prosecutor v.  Milan Martić, Judgment (Appeals Chamber) (Case No. IT-​95-​11-​A), 8 October 2008, §251. Ibid., §260. In the testimony before the icty, it was reported that during their siege of Stari Vitez, Bosnian Croats used at least 1,000 fire extinguishers packed with explosives and metal objects. See iwpr, “Blaškić Trial. Tribunal Update 39: Last Week in The Hague (28 July–​2 August, 1997),” at: https://​iwpr.net/​global-​voices/​blaskic-​trial-​3.

224 Casey-Maslen non-​linear, thus being likely to hit non-​military objects.39 The cep of these mortars is not known, but is likely to have been considerably smaller than was the case with the submunitions dispersed by the Orkan over Zagreb. Whether this is good law is open to question. Indeed, in his own appeal, Mr Blaškić argued that as the “baby bombs” were home-​made mortars and not heavy artillery, such as the howitzer guns which he commanded, use of the bombs was not indicative that the Appellant ordered an attack on Stari Vitez, and that bombs likely to hit non-​military targets was not illegal unless the intent had been to hit non-​ military targets or the use had caused disproportionate damage to civilian structures.40 On the basis of the trial and additional evidence, the Appeals Chamber declared that it was “not satisfied beyond reasonable doubt either that the attack of 18 July 1993 resulted in heavy casualties among Muslim civilians, or that the attack was directed at the Muslim civilian population or civilian property in Stari Vitez.”41 In addition, the Appeals Chamber noted that:  “It need not be decided whether, in general terms, the use of ‘baby bombs’ is illegal.”42 Fully Autonomous Weapons The situation is somewhat different in the case of use fully autonomous weapons as there is no human operator making the decision whom to target and in which circumstances (although they will likely decide with which weapons to equip the weapons system). In the event that a fully autonomous weapon were deployed to the battlefield, and the weapon was not capable of distinguishing between civilians and civilian objects and military objectives and of targeting only the latter, criminal responsibility under icl could, though, attach to the commander if he knew, or ought to have known, that the weapon was inherently indiscriminate. Weapons Causing Unnecessary Suffering The second general loac prohibition on use of a weapon concerns those weapons which are “of a nature to cause superfluous injury or unnecessary suffering.” This is one of the very few loac rules that protect combatants 39 40 41 42

icty, Prosecutor v.  Thomir Blaškić, Judgment (Trial Chamber) (Case No. IT-​95-​14-​T), 3 March 2000, §§501, 512. icty, Prosecutor v. Thomir Blaškić, Judgment (Appeals Chamber) (Case No. IT-​95-​14-​A), 29 July 2004, §462. Ibid., §464. Ibid., §465.

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while they are fighting. Its origins can be traced back to the first modern treaty law prohibition on a conventional weapon: the 1868 Saint Petersburg Declaration on Explosive Bullets. The 1868 Declaration observed that the only “legitimate object” which states should endeavour to accomplish through warfare is “to weaken the military forces of the enemy” and that this  objective “would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.”43 In 1899, the regulations on land warfare annexed to Hague Convention ii stipulated that “it is especially prohibited … [t]‌o employ arms, projectiles, or material of a nature to cause superfluous injury.”44 Today, the rule prohibiting the use of weapons causing superfluous injury is a customary loac rule applicable to all parties to any armed conflict.45 In its Nuclear Weapons Advisory Opinion, the icj defined unnecessary suffering as “harm greater than that unavoidable to achieve legitimate military objectives.”46 Its application to specific weapons is, though, frequently contested. For instance, it is not settled whether it is a violation per se of the customary rule to kill or seriously injure combatants by deliberately burning them out in the open (e.g. using napalm or a flamethrower);47 to deliberately blind 43

44

45

46 47

Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, adopted at the International Military Commission in Saint Petersburg, 11 December 1868. Regulations concerning the Laws and Customs of War on Land annexed to Convention (ii) with Respect to the Laws and Customs of War on Land, adopted at The Hague, 29 July 1899, Art. 23(e). icrc Study of Customary ihl, Rule 70:  “Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering,” at:  https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1​​ _​rul_​rule70#Fn_​78_​25. 1996 Nuclear Weapons Advisory Opinion, §78. According to the icrc, the anti-​personnel use of incendiary weapons is prohibited, unless it is not feasible to use a less harmful weapon to render a person hors de combat. icrc Study of Customary ihl, Rule 85: “Rule 85. The Use of Incendiary Weapons against Combatants,” at: https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule85. The icrc notes that several military manuals and a number of official statements affirm that the use of incendiary weapons against combatants is prohibited because it causes unnecessary suffering. They cite in evidence the military manuals of Belgium, Colombia, and Sweden, and the statements of Norway and the erstwhile ussr. In contrast, Hays Parks has affirmed that, under loac, “military forces engaging enemy forces can, and historically have … [i]‌ncinerate[d] an enemy combatant with a flame thrower or napalm.” W. Hays Parks, “International Legal Initiatives to Restrict Military Small Arms Ammunition,” 2010, p. 3, available at: http://​ www.dtic.mil/​ndia/​2010armament/​TuesdayLandmarkBHaysParks.pdf.

226 Casey-Maslen them (e.g. using a laser);48 or to kill them slowly through the irremediable effects of radiation (e.g. using a nuclear weapon). The icrc has asserted that the following are unlawful as a result of the rule: bullets • Explosive filled with glass • Projectiles Bullets which easily expand or flatten in the human body • Poison and poisoned • aggravate a wound weapons, as well as any substance intended to or deleterious gases • Asphyxiating • Bayonets with a serrated edge and lances with barbed heads.49 Armed Drones One of the Hellfire missile variants, the agm-​114N, is a thermobaric50 warhead “that can suck the air out of a cave, collapse a building, or produce an astoundingly large blast radius out in the open.”51 The thermobaric (“metal augmented charge”) version is “designed to inflict greater damage in multi-​ room structures, compared to the Hellfire’s standard or blast-​fragmentation warheads. The warhead contains a fluorinated aluminium powder that is layered between the warhead casing and the pbxn-​112 explosive fill.52 When the explosive detonates, the aluminium mixture is dispersed and ­rapidly burns.”53 48

49

50

51 52

53

According to the icrc, some states consider that the use of blinding laser weapons would cause unnecessary suffering. icrc Study of Customary ihl, Rule 86:  “Blinding Laser Weapons,” citing Sweden’s declaration upon acceptance of Protocol iv to the Convention on Certain Conventional Weapons and the military manuals of France. Y. Sandoz, C.  Swinarski, and B.  Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, icrc/​Martinus Nijhoff, Geneva, 1987, §1419. The term “thermobaric” is derived from the effects of temperature (the Greek word “therme” meaning heat) and pressure (the Greek word “baros” meaning pressure) on the target. “Thermobaric Explosive,” Global Security, 2011, at: http://​www.globalsecurity.org/​ military/​systems/​munitions/​thermobaric.htm. “US Hellfire Missile Orders, FY 2011–​2016,” Defense Industry Daily, 16 February 2016, at: http://​www.defenseindustrydaily.com/​us-​hellfire-​missile-​orders-​fy-​2011-​2014​​-​07019/​. This is a high-​energy, plastic-​bonded explosive composed of cyclotetramethylenetetranitramine (hmx) and an elastomeric binder. See:  http://​standards.globalspec.com/​std/​ 1360153/​npfc-​mil-​dtl-​82919. “Hellfire ii Missile System,” Defense Update, 2007, at: http://​defense-​update.com/​­products/​h/​ hellfire.htm.

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The resultant and sustained high pressure is said to be “extremely effective against enemy personnel.”54 Those in the directly affected area who are not immediately incinerated die when the overpressure destroys their lungs.55 With respect to the survivors, it has been claimed that contemporary combat medicine is not geared to deal with the damage to lungs and intestines typically inflicted by thermobaric weapons: “diagnosis and treatment of blast injuries may require computed tomography, which might not be readily available in the battlefield.”56 Despite the particular and very severe effects of thermobaric weapons on the human body,57 their manifest military utility does not sustain a claim that they are always unlawful on the basis that they are of a nature to cause superfluous injury or unnecessary suffering. Indeed, when in 2013 the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic referred to use of thermobaric bombs by Syrian government forces, they noted their imprecision but not their infliction of unnecessary suffering.58 In the case of the war crime in international armed conflict of using expanding bullets,59 states parties to the icc Statute have identified the following elements of the crime: 1. The perpetrator employed certain bullets. 2. The bullets were such that their use violates the international law of armed conflict because they expand or flatten easily in the human body. 3. The perpetrator was aware that the nature of the bullets was such that their employment would uselessly aggravate suffering or the wounding effect. 54 55

56

57 58

59

Ibid. D. Majumdar, “Russia’s Lethal Thermobaric Rocket Launchers: A Game Changer in Syria?,” The National Interest, 2 December 2015, at:  http://​nationalinterest.org/​blog/​the-​buzz/​ russias-​lethal-​thermobaric-​rocket-​launchers-​coming-​syria-​14493. A. E.  Wildegger-​Gaissmaier, “Aspects of thermobaric weaponry,” ADF Health, Vol. 4, No. 1 (April 2003), at:  http://​www.defence.gov.au/​health/​infocentre/​journals/​ADFHJ​ _​apr03/​ADFHealth_​4_​1_​03-​06.html#references; see also D.  Hambling, “Thermobaric Foes:  Explosive Threat,” DefenseTech, blog post, 2005, at:  http://​www.defensetech.org/​ 2005/​11/​28/​thermobaric-​foes-​explosive-​threat/​. See also J.  Marcus, “Analysis:  How thermobaric bombs work,” BBC, 4 March 2002, at: http://​news.bbc.co.uk/​2/​hi/​south_​asia/​1854371.stm. See “Report of the Independent International Commission of Inquiry on the Syrian Arab Republic,” un doc. A/​HRC/​23/​58, 4 June 2013, §§21, 104. In §104 they refer to “even less precise weaponry such as … thermobaric … weapons.” Art. 2(b)(xix), icc Statute.

228 Casey-Maslen 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.60 These elements would likely be applied, mutatis mutandis, to weapons that might be the subject of a comprehensive prohibition on the basis that are cause unnecessary suffering and which are later included in an annex to the icc Statute, by amendment in accordance with Articles 121 and 123.61 This directs that the accused would need to be aware that the nature of the weapon in question was such that its employment would uselessly aggravate suffering or the wounding effect. Fully Autonomous Weapons Again, the situation is somewhat different with fully autonomous weapons where it is the machine’s sensors that determine whom to target and in which circumstances. In the event that a fully autonomous weapon were deployed to the battlefield, the weapon would have to be capable of recognising when an injured or sick combatant was hors de combat as continued attack would be unlawful. As the icrc has noted, a person hors de combat is anyone who is in the power of an adverse party; anyone who is defenceless because of unconsciousness, shipwreck, wounds, or sickness; or anyone who clearly expresses an intention to surrender, provided that he or she abstains from any hostile act and does not attempt to escape.62 There is a specific and distinct prohibition on attacking a person hors de combat,63 but a fully autonomous weapon inflicting further wounds on such a person might also be deemed to be engaging in a method of warfare of a nature to cause superfluous injury or unnecessary suffering. Again, in case of the deployment of such weapons, criminal responsibility under icl could attach to the commander or even to an individual who knowingly fitted any weapon to the robot that would uselessly aggravate suffering or the wounding effects it engendered. 60

61 62 63

Art. 8(2)(b)(xix). War crime of employing prohibited bullets: Elements, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–​10 September 2002, Part ii(B). See Art. 2(b)(xx), icc Statute. See, e.g., icrc Study of Customary ihl, Rule 47: “Attacks against Persons Hors de Combat,” at: https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule47. See ibid. The rule is stated as follows: “Attacking persons who are recognized as hors de combat is prohibited.”

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Attacking Civilians using Armed Drones or Fully Autonomous Weapons As the icrc explains, the rule of distinction between civilians and combatants means that parties to an armed conflict “must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”64 The substance of this rule is found in identical terms in 1977 Additional Protocol i (applicable in international armed conflict) and 1977 Additional Protocol ii (applicable in non-​international armed conflict): “The civilian population as such, as well as individual civilians, shall not be the object of attack.”65 According to the icrc, the corresponding war crime under the customary law of armed conflict is “making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack.”66 The un Commission of Inquiry on the Gaza conflict in July-​August 2014 similarly affirmed that a crime occurs if there is an intentional attack directed against civilians.67 It is thus a war crime to attack civilians using an armed drone in any armed conflict. The icc Statute gives the Court potential jurisdiction over the war crime of “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.”68 In the corresponding elements of crime, the following five must be present: 1. The perpetrator directed an attack. 2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities. 3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack. 4. The conduct took place in the context of and was associated with an international armed conflict. 5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.69 64 65 66 67 68 69

icrc Study of Customary ihl, Rule 1: “The Principle of Distinction between Civilians and Combatants,” at: https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule1. Art. 51(2), 1977 Additional Protocol i; and Art. 13(2), Additional Protocol ii. icrc Study of Customary ihl, Rule 156: “Definition of War Crimes,” ii. 2014 Gaza Commission of Inquiry, §21. Article 8(2)(b)(i), icc Statute. “Elements of Crimes,” Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New  York, 3–​10 September 2002, Part ii(B), p. 18. The war crime is set out in Article 8(2)(e)(i) of the icc Statute.

230 Casey-Maslen The same elements are required, mutatis mutandis, for the corresponding war crime of attacking civilians in non-​international armed conflict.70 The icc Statute provides generally that the requisite intent is met if, in relation to a consequence, the accused “means to cause that consequence or is aware that it will occur in the ordinary course of events.”71 Armed Drones With respect to armed drones, for the operator to have intended to target a civilian with a missile or bomb strike, it may be sufficient for jurisdiction under the icc that the military action be conducted recklessly but not when it is the result only of negligence, much less when a civilian is hit by mere mistake.72 The situations foreseen by the icc Statute would potentially cover a number of drone strikes, though proving the requisite intent might fall foul of evidentiary boundaries. Moreover, whether an ordinary drone operator would be of sufficient seniority to justify the intervention of the icc is doubtful.73 Fully Autonomous Weapons Machines cannot be deemed under criminal law as it stands, much less under icl, to possess intent (mens rea). In 2015, it was incorrectly reported in the media that a robot had been arrested for buying drugs online using bitcoin (in fact, it had been confiscated from its owner and programmer, who had been 70 71 72

73

“Elements of Crimes,” p. 34. Art. 30(2)(b), icc Statute. For example, during the armed conflict in Gaza in 2014, in one attack on 8 July a guided bomb hit the Kaware family home in Khan Younis, killing eight or nine people, of whom six were children. Israel’s Military Attorney General (mag) announced that it had examined the case and found that the aerial strike was carried out against the building due to its use for military purposes by Hamas. It noted that before the strike the Israel Defence Forces (idf) warned the residents of the building to vacate the premises. The mag stated that the pilot believed the residents had left the building and subsequently dropped a bomb on the target. A short time afterwards, a number of people were seen returning to the house but there was no technical possibility to divert the bomb or to cancel the attack. The mag found that there was “no fault in the actions of the idf forces involved, and that despite the fact that the attack resulted in a regrettable outcome, it does not affect its legality post facto.” mag, “Operation Protective Edge: Update re Individual Incidents, September 2014,” at:  http://​www.mag.idf.il/​163-​6859-​en/​Patzar.aspx; and 2014 Gaza Commission of Inquiry, §§179, 180. According to Article 17(1)(d) of the icc Statute, the Court shall determine that a case is inadmissible where it “is not of sufficient gravity to justify further action by the Court.”

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arrested, and it was later returned to him).74 However, as two scientific academics argued already in 1999, it is “obvious that if humans can act in ways that mimic machines, then, to that extent, machines can mimic human actions.”75 Moreover, given the advent of autonomous cars (and other machines that could inflict serious harm or potentially kill), this situation may change over time. At the end of June 2016, the Tesla Model S, operating in autopilot mode, which is able to control the car during motorway driving, endured its first fatality when, against a bright spring sky, the car’s sensors failed to distinguish a large white 18-​wheel truck and trailer crossing the highway. The car attempted to drive full speed under the trailer, “with the bottom of the trailer impacting the windshield of the car,” Tesla said in a blogpost.76 In an online post in July 2015 on “robot law” by two legal academics from Bournemouth University, it was argued that thought needs to go into when, and in what circumstances, we make the designer or manufacturer liable rather than the user. Much of our current law assumes that human operators are involved. For example, in the context of highways, the regulatory framework assumes that there is a human driver to at least some degree. Once fully autonomous vehicles arrive, that framework will require substantial changes to address the new interactions between human and machine on the road. As intelligent technology that by-​passes direct human control becomes more advanced and more widespread, these questions of risk, fault and punishment will become more pertinent. Film and television may dwell on the most extreme examples, but the legal realities are best not left to fiction.77 74

See, e.g., A. Kharpal, “Robot with $100 bitcoin buys drugs, gets arrested,” CNBC, 21 April 2015, at:  http://​www.cnbc.com/​2015/​04/​21/​robot-​with-​100-​bitcoin-​buys-​drugs-​gets​​ -​arrested.html. 75 H. M. Collins and M. Kusch, The Shape of Actions: What Humans and Machines Can Do, mit Press, 1999, p. 1. 76 D. Yadron and D. Tynan, “Tesla driver dies in first fatal crash while using autopilot mode,” The Guardian, 1 July 2015, at:  https://​www.theguardian.com/​technology/​2016/​jun/​30/​ tesla-​autopilot-​death-​self-​driving-​car-​elon-​musk. 77 J. Wale and D.  Yuratich, “Robot law:  what happens if intelligent machines commit crimes?,” The Conversation, 1 July 2015, at:  http://​theconversation.com/​robot-​law-​what​​ -​happens-​if-​intelligent-​machines-​commit-​crimes-​44058.

232 Casey-Maslen Under icl, the question “can a robot commit a war crime?” was explicitly raised during a 2008 conference on “The Ethics of Autonomous Military Systems” convened by the Royal United Services Institute (rusi) in the United Kingdom. At the conference, Chris Elliot, a barrister and engineer, cautioned that as systems become more autonomous, they become ­capable  of actions  that are not, in legal terms, “foreseeable.” This, he ­suggested, would  make it hard to blame a human for a robot’s actions: “We’re getting very close to the where the law may have to recognise that we can’t always identify an individual: perhaps an artificial system can be to blame.” In April 2015, a report by Human Rights Watch (hrw) and Harvard Law School’s International Human Rights Clinic argued that while military ­commanders could be found guilty if they intentionally instructed a killer robot to commit a crime, they would be unlikely to face prosecution if they were able to argue that it had acted of its own volition. The report stated that: Existing mechanisms for legal accountability are ill suited and inadequate to address the unlawful harms fully autonomous weapons might cause. These weapons have the potential to commit criminal acts—​unlawful acts that would constitute a crime if done with intent—​for which no one could be held responsible. … A fully autonomous weapon itself could not be found accountable for criminal acts that it might commit because it would lack intentionality. In addition, such a robot would not fall within the “natural person” jurisdiction of international courts. Even if such jurisdiction were amended to encompass a machine, a judgment would not fulfill the purposes of punishment for society or the victim because the robot could neither be deterred by condemnation nor perceive or appreciate being “punished.”78 In 2008, Mr Elliott had argued, correctly, that it would be illegal for any state to deploy a fully autonomous system if it were “intrinsically incapable of distinguishing between civilian and military targets.” But the loac expert, William Boothby, who also gave a presentation at the conference, claimed that it might be possible “to take precautions in the sortie-​planning phase that enable it to

78

Mind the Gap: The Lack of Accountability for Killer Robots, Human Rights Watch, 9 April 2015, at: https://​www.hrw.org/​report/​2015/​04/​09/​mind-​gap/​ lack-​accountability-​killer-​robots.

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be used within the law.”79 Dr. Ronald Arkin, a leading American roboticist and roboethicist, has argued that robots can be programmed to be empathetic and that such machines must learn how to perform complicated, emotionally fraught tasks, such as distinguishing civilians. He is one of a number of experts who believe that armed robots will be more reliable at determining who is a civilian and who is not.80

Indiscriminate Attacks Using Armed Drones or Fully Autonomous Weapons According to 1977 Additional Protocol i, which applies to international armed conflict, an attack that may be expected to cause excessive civilian harm compared to the concrete and direct military advantage anticipated is a form of indiscriminate attack.81 The attacks concerned here are not those directly aimed at the civilian population or individual civilians, but attacks affecting them incidentally.82 The customary rule, which is held to apply in international and non-​international armed conflicts, is described by the icrc as the rule on proportionality in attack. It formulates the rule in the same terms as that set out in the Protocol: Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.83 As the icrc has noted, several (mostly Western) states84 have stated that the expression “military advantage” refers to the advantage anticipated 79

80

81

82 83 84

Reported by T. Simonite, “ ‘Military Turing test’ would make war robots legal,” Technology (New Scientist blog), 28 February 2008, at: https://​www.newscientist.com/​blog/​technology/​2008/​02/​military-​turing-​test-​would-​make-​war.html. Reported in “Army Robots:  The Need for Autonomous Weapons Systems,” at:  https://​ cs.stanford.edu/​people/e​ roberts/​cs201/p ​ rojects/​2010-​11/​ComputersMakingDecisions/​ army-​robots/​index.html. See Art. 51(5)(b), 1977 Additional Protocol i (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol i), of 8 June 1977). Sandoz et  al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, §3477. icrc Customary ihl Study, Rule 14: “Proportionality in Attack,” at: https://​www.icrc.org/​ customary-​ihl/​eng/​docs/​v1_​rul_​rule14. Australia, Belgium, Canada, France, Germany, Italy, the Netherlands, New Zealand, Nigeria, Spain, the United Kingdom, and the United States.

234 Casey-Maslen from the military attack considered as a whole and not only from isolated or particular parts of that attack.85 If this understanding is correct, it would imply that typically there need be very significant civilian harm for the rule to be violated. The standard under icl is contentious. The framing of the war crime under Article 85(3) of 1977 Additional Protocol i, corresponding to the primary rule set out in Article 51(5) of the Protocol, is as follows: launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects….86 The elements of crime also demand that it be committed “wilfully, in violation of the relevant provisions of th[e]‌Protocol, and causing death or serious injury to body or health.”87 This rule applies to the 174 states party to the Protocol (as at 1 June 2018), including China, France, the Russian Federation, and the United Kingdom. According to the icrc, the phrase “in the knowledge that” means that “there is only a grave breach (i.e. a war crime) if the person committing the act knew with certainty that the described results would ensue, and this would not cover recklessness.”88 This is a slightly higher standard than the one generally enunciated in the icc Statute, which defines knowledge as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”89 However, there is a special standard set out in the corresponding elements of crime under the icc Statute whereby: “An evaluation of that value judgement must be based on the requisite information available to the perpetrator at the time.”90 85 86

87 88 89 90

icrc Customary ihl Study, Rule 14. Art. 85(3)(b), 1977 Additional Protocol i. The criterion of proportionality is further defined by reference to Art. 57(2)(a)(ii and iii), which weighs up “the concrete and direct military advantage anticipated” and the obligation of “avoiding, and in any event … minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.” See Sandoz et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, §3478. Art. 85(3) (chapeau), 1977 Additional Protocol i. Sandoz et  al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, §3479. Art. 30(3), icc Statute. Elements of crime: “Article 8(2)(b)(iv): War crime of excessive incidental death, injury, or damage,” p. 19, footnote 37.

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In contrast, the two other formulations rules of the icl standard are substantially more restrictive. In 1998, the icc Statute included potential jurisdiction over the following war crime, but in an international armed conflict only: Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.91 The key differences with the elements of the crime as set out in 1977 Additional Protocol i are, first, that the incidental civilian harm in an intentional attack must be “clearly” excessive. The position of several states, noted above, on the advantage anticipated from the military attack to be considered as a whole is reflected in the added adjective “overall” before military advantage. As the icrc notes, the word “overall” is not contained in Articles 51 and 85 of 1977 Additional Protocol i, nor in the substantive primary rule of customary international law (Rule 14 cited above). The purpose of this addition in the icc Statute “appears to be to indicate that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself. As this meaning is included in the existing wording of Additional Protocol i and the substantive rule of customary international law, the inclusion of the word ‘overall’ does not add an extra element.”92 Surprisingly, though, the icrc formulated the icl standard under customary law differently to the way it was set out in 1977 Additional Protocol. It did not include the word “overall,” as explained above, but it did contain the modifier “clearly” before “excessive.” The extent to which this more restrictive standard reflects customary law is open to serious question. Armed Drones With respect to armed drones, the decision to launch an attack when civilian casualties are expected should normally be made by a commander, not the drone operator. This is implicit in the phrasing of Article 57(2)(a)(iii) of 1977 Additional Protocol i whereby “With respect to attacks, … those who plan or decide upon an attack shall … refrain from deciding to launch any attack which may be expected” to cause excessive incidental civilian harm. The decision is to be made on the basis of the information available at the 91 92

Art. 8(2)(b)(iv), icc Statute. icrc Customary ihl Study, Rule 156, ii(ii).

236 Casey-Maslen time. According to Israel, for the purpose “of a legal analysis, the relevant perspective is not hindsight, but rather that of a ‘reasonable commander’ at the time of the attack.”93 The video feed from a drone should assist the judgment that is made. In the 2014 Gaza Conflict, for example, the Israel Defence Forces (idf) are said to have taken steps to “ensure the collection of all reasonably available, timely information regarding a target’s surroundings, focusing in particular on civilians and civilian objects that may be in its vicinity at the time of the attack, regardless of whether an advance warning has been given.” It was observed that drones flew over “countless targets to monitor the presence of civilians in real time.”94 However, the un Commission of Inquiry on the Gaza conflict noted that: the fact that the targeted buildings except one were residential in nature; that they were located in densely populated areas; that the attacks were carried out when it could be expected that most family members would be at home (in the evening or at dawn when families gathered for iftar and suhhur, the Ramadan meals, or during the night when people were asleep); and that large weapons apparently meant to raze buildings were used; it is possible to conclude that a reasonable commander must have been aware that such an attack was likely to result in a high number of civilian casualties as well as in considerable destruction. Given the absence of information suggesting in each case that the anticipated military advantage at the time of the attack was such that the expected civilian casualties and damage to the targeted and surrounding buildings were not excessive, there are strong indications that these attacks could be disproportionate, and therefore amount to a war crime.95 Fully Autonomous Weapons If it is considered difficult for autonomous machines to respect the rule of distinction, it is all the more difficult to make the commander’s judgment of proportionality in advance of an attack. Human Rights Watch, which is campaigning for a total ban on fully autonomous weapons, has argued that “meaningful human control” over use of weapons promotes compliance with loac, notably the rule of proportionality. It claims that, 93 94 95

Israel Ministry of Foreign Affairs, IDF Conduct of Operations during the 2014 Gaza Conflict, §317, at: http://​mfa.gov.il/​ProtectiveEdge/​Documents/​IDFConduct.pdf. Ibid., §325. 2014 Gaza Commission of Inquiry, §221.

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the ability to weigh civilian harm against military advantage require human qualities that would be difficult to replicate in machines, including fully autonomous weapons. … Assessing proportionality entails a case-​by-​case analysis, traditionally based on a reasonable commander standard. Such an analysis requires “distinctively human judgement” and the application of reason, which takes into account both moral and legal considerations. Meaningful human control guarantees that human perception and judgment inform the decision about whether to use lethal force in a specific instance.96

Modes of Liability for War Crimes

As is the case under domestic criminal jurisdictions, also under icl individual criminal responsibility arises “not only when a person materially commits a crime but also when he or she engages in other forms or modalities of criminal conduct.”97 In the words of Telford Taylor, a us prosecutor at the Nuremburg trials, not under any “known system of criminal law is guilt for murder confined to the man who pulls the trigger or buries the corpse … [N]‌ot only are principals guilty but also accessories, those who take a consenting part in the commission of crime or are connected with plans or enterprises involved in its commission, those who order or abet crime, and those who belong to an organization or group engaged in the commission of crime. These provisions embody no harsh or novel principles of criminal responsibility.”98 The issue of command responsibility is well established under icl. In addition, the icty, in its judgment in 1998 in the Lašva Valley case, affirmed that two types of liability for criminal participation “appear to have crystallised in international law—​co-​perpetrators who participate in a joint criminal enterprise, on the one hand, and aiders and abettors, on the other.”99 The icc, on the other hand, has embraced “control” theory instead of joint criminal enterprise (jce). These modes of liability are addressed below. 96

97 98 99

Human Rights Watch, “Killer Robots and the Concept of Meaningful Human Control,” Memorandum to Convention on Conventional Weapons (ccw) Delegates, 11 April 2016, at: https://​www.hrw.org/​news/​2016/​04/​11/​killer-​robots-​and-​concept-​meaningful-​human​​ -​control. Cassese, International Criminal Law, 2nd Edn, p. 187. Cited in ibid., p. 190. icty, Prosecutor v. Furundžija (“Lašva Valley”), Judgment (Trial Chamber) (Case No. IT-​95-​ 17/​1), 10 December 1998, §216.

238 Casey-Maslen Command Responsibility The 2014 Gaza Commission of Inquiry recalled that a military commander (or another superior) is individually responsible for crimes he may have ordered or instigated as well as for crimes committed by forces under his command or effective control, “when he knew or should have known that such acts were being or were about to be committed and failed to take all necessary measures to prevent, punish or report the perpetrators of these acts.”100 Thus, under loac, there are two potential scenarios: one for ordering acts that constitute war crimes to be committed, and the second for failing to prevent the commission of war crimes when it was reasonably possible to do so. Both are potentially relevant to armed drones and fully autonomous weapons systems. The rule that persons are responsible for war crimes committed pursuant to their orders is contained in the 1949 Geneva Conventions and the 1954 Hague Convention on Cultural Property, which require states to prosecute not only persons who commit grave breaches or other violations, but also persons who order their commission.101 Criminal responsibility arising from the failure of commanders to take measures to prevent or punish the commission of war crimes is, as the icrc has observed, “a longstanding rule of customary international law. It is on this basis that a number of commanders were found guilty of war crimes committed by their subordinates in several trials following the Second World War.”102 More detail on this duty was set out in 1977 Additional Protocol i, which stipulated that the fact that a breach of the Geneva Conventions or the Protocol “was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility,” if they knew or should have known that he was committing or was going to commit a breach and “if they did not take all feasible measures within their power to prevent or repress the breach.”103 Customary Rules Based on treaty law and jurisprudence dating back in some instances to World War I, the icrc identified the following two rules under the customary international law of armed conflict: 100 2014 Gaza Commission of Inquiry, §51, citing Art. 28, icc Rome Statute, Art. 7(2), Statute of the icty; Art. 6(2), Statute of the International Criminal Tribunal for Rwanda (ictr). 101 Art. 49, 1949 Geneva Convention; Art. 50, 1949 Geneva Convention ii; Art. 129, 1949 Geneva Convention iii; Art. 146, 1949 Geneva Convention iv; and Art. 28, 1954 Hague Convention for the Protection of Cultural Property. 102 icrc Study of Customary ihl, Rule 153: “Command Responsibility for Failure to Prevent, Repress or Report War Crimes,” at: https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul​​ _​rule153. 103 Art. 86(2), 1977 Additional Protocol i.

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Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.104 Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.105 Armed Drones As noted above, drone operators will often be subject to the decision of a commander when they are about to fire. While potential icl responsibility lies, of course, with the operator, it may also be a decision of the commander for which he or she may be penally liable. Two scenarios are particularly foreseeable: that a drone strike takes place without sufficient evidence that the target is a lawful military objective, or that the likelihood of significant incidental civilian casualties is high. In the case of the former, it was reported that the United States under President Obama was assuming that any military-​aged male in a strike zone was a combatant, unless explicit intelligence posthumously proved them innocent.106 Counterterrorism officials insisted this approach was one of “simple logic: people in an area of known terrorist activity, or found with a top al-​Qaeda operative, are probably up to no good.”107 After an internal administration review, at the beginning of July 2006 the process of “signature strikes”—​targeting people whose behaviour is assessed to be similar enough to those of terrorists to mark them for death—​was said to have remained in place.108 In April 2015, President Obama announced that a January drone strike on al-​Qaeda in Pakistan had killed two Western hostages. The administration also 104

icrc Study of Customary ihl, Rule 152: “Command Responsibility for Orders to Commit War Crimes,” at: https://​www.icrc.org/​customary-​ihl/​eng/​docs/​v1_​rul_​rule152. 105 icrc Study of Customary ihl, Rule 153: “Command Responsibility for Failure to Prevent, Repress or Report War Crimes.” 106 J. Becker and S. Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” The New York Times, 29 May 2012, at: http://​www.nytimes.com/​2012/​05/​29/​world/​obamas​​ -​leadership-​in-​war-​on-​al-​qaeda.html?pagewanted=1&_​r=2. 1 07 Ibid. 108 S. Ackerman, “US to continue ‘signature strikes’ on people suspected of terrorist links,” The Guardian, 1 July 2016, at:  https://​www.theguardian.com/​us-​news/​2016/​jul/​01/​ obama-​continue-​signature-​strikes-​drones-​civilian-​deaths.

240 Casey-Maslen disclosed that two us members of al-​Qaeda had been killed in strikes that same month, but neither had been identified in advance and deliberately targeted.109 In a speech in 2013 about drones, President Obama declared that no strike was taken without “near-​certainty that no civilians will be killed or injured.” He added that “nevertheless, it is a hard fact that us strikes have resulted in civilian casualties” and said “those deaths will haunt us as long as we live.”110 One former us drone operator, Michael Haas, affirmed that so-​called “no-​doubters,” whose combatant status was certain, rarely existed.111 He describes being rebuked for failing a student who claimed he would act against a group of people on the ground who looked suspicious, purely on the grounds that “they look like they are up to no good.” Senior officers told him that they were short of bodies to keep the drones flying, and ordered him to pass students in future so that there would be a sufficient number trained and ready to go.112 Four former drone operators who talked to The Guardian described how drone operators “would show up to the control station drunk; others would sleep on the job, read comic books or play video games on their secure computers.”113 Fully Autonomous Weapons Systems The commander of an autonomous aerial weapons platform will be at particular risk of prosecution where serious violations of loac occur as a result of their deployment. As noted above, in the event that a fully autonomous weapon were deployed to the battlefield, and the weapon was not capable of distinguishing between civilians and civilian objects and military objectives and of targeting only the latter, criminal responsibility under icl could attach to the commander. Once a violation had occurred, any further deployment of the weapons system would, at least in theory, heighten the risk of prosecution for the commander.

109 S. Shane, “Drone Strikes Reveal Uncomfortable Truth: US Is Often Unsure About Who Will Die,” The New York Times, 23 April 2015, at: http://​www.nytimes.com/​2015/​04/​24/​world/​ asia/​drone-​strikes-​reveal-​uncomfortable-​truth-​us-​is-​often-​unsure-​about-​who-​will-​die​ .html. 110 Cited in ibid. 111 E. Pilkington, “Life as a drone operator:  ‘Ever step on ants and never give it another thought?’,” Guardian, 19 November 2015, at: https://​www.theguardian.com/​world/​2015/​ nov/​18/​life-​as-​a-​drone-​pilot-​creech-​air-​force-​base-​nevada. 112 Ibid. 113 Ibid.

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Joint Criminal Enterprise Every participant in a common criminal plan is criminally responsible, including under icl, when he or she participates in the criminal acts and intends to engage in the common criminal plan. They are all to be treated as principals in the crime, though varying degrees of culpability can be taken into account in sentencing following conviction.114 As the icty Appeals Chamber stated in its judgment in the Tadić case: the doctrine of acting in pursuance of a common purpose is rooted in the national law of many States. Some countries act upon the principle that where multiple persons participate in a common purpose or common design, all are responsible for the ensuing criminal conduct, whatever their degree or form of participation, provided all had the intent to perpetrate the crime envisaged in the common purpose. If one of the participants commits a crime not envisaged in the common purpose or common design, he alone will incur criminal responsibility for such a crime.115 Joint criminal enterprise (jce) is thus a mode of criminal liability that encompasses all the participants in a common criminal plan. It holds all such individuals criminally responsible for all criminal acts foreseen by the plan (whether or not they materially participated in the commission of these acts) as well as, in certain circumstances, criminal acts that fall outside the plan but that might foreseeably result.116 Three categories of criminal liability exist under jce, as set out in the Tadić Appeals Chamber decision:117 a) for a common intentional purpose; b) for participation in a common criminal plan within an institutional framework (such as a prison); and (controversially) c) incidental liability based on foresight and voluntary assumption of risk.118 All three types share 114 115

Cassese, International Criminal Law, 2nd Edn, p. 190. icty, Prosecutor v.  Tadić, Judgment (Appeals Chamber) (Case No. IT-​94-​1-​A), 15 July 1999, §224. 116 Cassese, International Criminal Law, 2nd Edn, p. 191. 117 icty, Prosecutor v.  Tadić, Judgment (Appeals Chamber) (Case No. IT-​94-​1-​A), 15 July 1999, §220 (hereafter, Tadić Appeal Judgment). See Cassese, International Criminal Law, 2nd Edn, p. 191; R. Cryer, H. Friman,‎ D. Robinson, and E. Wilmshurst, An Introduction to International Criminal Law and Procedure, 2nd Edn, cup, 2010, p. 369. 118 Of note, in February 2016 the uk Supreme Court overturned a longstanding decision (dating from 1984) on the common law of joint enterprise in England and Wales, according to which foresight that an accomplice to one crime might go on intentionally to commit another, they could be found guilty of the second offence without having taken part

242 Casey-Maslen a common actus reus, namely that there is a plurality of persons; a common plan, design, or purpose exists that involves the commission of a war crime; and the accused’s participation in the common plan involving the perpetration of a war crime.119 A decision to deliberately kill civilians using drones would clearly amount to a criminal plan that would entail responsibility under jce. The level of proof required for any prosecution, though, is high and evidence is lacking that any drone practice to date would amount to a jce to commit the customary law war crime of “launching an indiscriminate attack resulting in loss of life or injury to civilians or damage to civilian objects,” let  alone the war crime of deliberately attacking civilians.120 Joint Criminal Responsibility The icc has, to date at least, preferred Claus Roxin’s Control Theory of Perpetration to jce as a mode of liability for war crimes. The theory, which dates back to the 1960s, requires a finding that the defendant performed an essential contribution to a crime. This joint criminal responsibility as a mode of liability is set out in Article 25(3) of the icc Statute: In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.

in it. F. FitzGibbon, “Joint Enterprise,” London Review of Books, Vol. 38, No. 5 (3 March 2016), p.  26, at:  http://​www.lrb.co.uk/​v38/​n05/​francis-​fitzgibbon/​joint-​enterprise. For the decision, see R v. Jogee [2016] uksc 8. 119 Tadić Appeal Judgment, §227. 1 20 icrc Study of Customary ihl, Rule 156: “Definition of War Crimes,” ii(vii). According to the icrc: “It is clear that launching an attack knowing that civilian casualties are likely to occur does not in itself necessarily amount to an indiscriminate attack, because incidental injury or damage is not as such prohibited. However, launching an attack without attempting to aim properly at a military target or in such a manner as to hit civilians without any thought or care as to the likely extent of death or injury amounts to an indiscriminate attack. Launching such an attack knowing that the degree of incidental civilian deaths, injuries or damage will be excessive is categorized as a grave breach in Additional Protocol i.”

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In its March 2012 judgment in the Lubanga case, the icc Trial Chamber held that to be liable as a co-​perpetrator the accused must, at a minimum, associate with a group whose purpose entails “a sufficient risk that, if events follow the ordinary course, a crime will be committed.” This appears, however, to be close to the—​much criticised121—​third form of liability for jce (incidental liability based on foresight and voluntary assumption of risk) and is potentially very wide in scope. In terms of the actus reus under Article 25(3)(a) of the icc Statute, the majority of the Chamber concluded that “the commission of a crime jointly with another person involves two objective requirements: (i) the existence of an agreement or common plan between two or more persons that, if implemented, will result in the commission of a crime; and (ii) that the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime.” It asserted that these two requirements “must be assessed on the basis of all the evidence related to the alleged crime.”122 With respect to the requisite mens rea, the majority decided that the standard was “awareness that a consequence will occur in the ordinary course of events,” meaning that “the participants anticipate, based on their knowledge of how events ordinarily develop, that the consequence will occur in the future … A low risk will not be sufficient.”123 In its 2014 judgment in the Katanga case, the icc Trial Chamber declared that “it need not discard the interpretation of the law on individual responsibility founded on the theory of control over the crime.”124 Indeed, the Chamber decided to rely on the criterion of control, considering that under Article 25(3) (a) of the icc Statute, “the perpetrators of a crime are those who control its commission and who are aware of the factual circumstances allowing them to exert such control. Thus, the indirect perpetrator has the power to decide whether and how the crime will be committed125 insofar as that person determines its perpetration.”126 1 21 See, e.g., Cryer et al., An Introduction to International Criminal Law and Procedure, p. 373. 122 icc, Prosecutor v. Thomas Lubanga Dyilo, Judgment (Trial Chamber) (Case No. ICC-​01/​ 04-​01/​06), 14 March 2012, §1006. 123 Ibid., §1012. 124 icc, Prosecutor v. Germain Katanga, Judgment (Trial Chamber) (Case No. ICC-​01/​04-​01/​ 07), 7 March 2014, §1382. 125 icc, Prosecutor v. Germain Katanga, Decision on the confirmation of charges (Case No. ICC-​01/​04-​01/​07), 30 September 2008, §518. See also G. P. Fletcher, Rethinking Criminal Law, oup, 2000, pp. 672–​73; C. Roxin, “Crimes as Part of Organized Power Structures,” Journal of International Criminal Justice, Vol. 9 (2011), pp. 198–​99. 126 icc, Prosecutor v. Germain Katanga, Judgment, §1396.

244 Casey-Maslen This mode of liability could potentially encompass certain members of the very substantial team that is responsible for each armed drone beyond the two operators and their commander(s). As noted in Chapter  1, the operation of each remotely piloted Predator is said to demand some involvement from a team of more than 100 people. This includes, notably, intelligence officers to guide the drone’s movements and video analysts to assess what it is seeing. Again, there would need to be a war crime proven as a prerequisite. Aiding and Abetting Under the icc Statute, the International Criminal Court has potential jurisdiction over anyone who, with respect to a crime within the jurisdiction of the Court, “for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”127 Thus, under icl, as under domestic criminal law, a person may be convicted (as an accessory) of aiding or abetting a crime where he or she assists a principal in the commission of a crime, but without sharing his or her criminal intent to commit that crime. Indeed, as the Appeal Chamber’s decision in the Krstić case implied, the critical difference between jce and aiding and abetting an international crime resides in the mens rea.128 In the Lašva Valley case, the icty Trial Chamber stated that: With regard to mens rea, the Trial Chamber must determine whether it is necessary for the accomplice to share the mens rea of the principal or whether mere knowledge that his actions assist the perpetrator in the commission of the crime is sufficient to constitute mens rea in aiding and abetting the crime. The case law indicates that the latter will suffice.129 In general, the acts of a participant in a jce are “more serious than those of an aider and abettor to the principal offender since a participant in a joint criminal enterprise shares the intent of the principal offender whereas an aider and abettor need only be aware of that intent.”130 In the Ngirabatware case, the International Criminal Tribunal for Rwanda (ictr) Trial Chamber observed that the actus reus of aiding and abetting is constituted by 127 128 129 130

Art. 25(3)(c), icc Statute. Cassese, International Criminal Law, 2nd Edn, p. 211. icty, Prosecutor v. Furundžija (“Lašva Valley”), Judgment, §236. icty, Prosecutor v.  Krnojelac, Judgment (Appeals Chamber) (Case No. IT-​97-​25-​A), 17 September 2003, §75.

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acts or omissions specifically aimed at assisting, encouraging or lending moral support to the perpetration of a certain specific crime, and which have a substantial effect on the perpetration of the crime. Whether a particular contribution qualifies as substantial is a fact-​ based inquiry, and need not serve as condition precedent for the commission of the crime. The contribution may occur before, during or after the principal crime has been perpetrated, and the location where the actus reus takes place may be removed from the location of the principal crime.131 In its judgment in the Katanga case, the Trial Chamber found that Article 25(3) of the icc Statute differentiates between persons whose conduct ­constitutes commission of the crime per se and “those whose conduct is solely connected to the commission of a crime by another person.” This latter scenario “specifically corresponds to various forms of accessoryship.”132 It held that an accessory “can be held criminally liable as such, only where a person commits or attempts to commit a crime within the jurisdiction of the Court. Principal liability, however, imports in essence autonomy as it does not hinge on the liability of a third person.”133 An accessory, it stated, exerts no control over the decision whether and how the crime will be committed.134 The notion of accessory as a mode of liability could, as with joint control, potentially encompass certain members of the team that is responsible for each armed drone flight. Again, intelligence officers guiding the drone’s movements and video analysts assessing what the drone is seeing would be at particular risk, but there would similarly need to be a war crime proven as a prerequisite. This mode of liability could also be particularly relevant in the case of fully autonomous weapons systems, although courts might need to interpret a person as extending to encompass a weapons system with a form of artificial intelligence. Fitting weapons to the weapons platform or indicating an area for the autonomous weapons system to conduct operations could, depending on the circumstances, amount to aiding and abetting a war crime even though the fully autonomous weapons system would lack the requisite intent for a principal. 131 132 133 134

ictr, Prosecutor v.  Ngirabatware, Judgment (Trial Chamber) (Case No. ICTR-​99-​54-​T), 20 December 2012, §1294. icc, Prosecutor v. Germain Katanga, Judgment, §1384. Ibid., §1385. Ibid., §1396.

246 Casey-Maslen Aggression Steven Ratner argues that aggression in international law can be simply defined “as the use of force by one State against another, not justified by self-​defense or other legally recognized exceptions.” He affirms that the “illegality of aggression is perhaps the most fundamental norm of modern international law and its prevention the chief purpose of the United Nations.”135 The us Department of Defense, however, argues that “Not every act of illegal use of force prohibited by Article 2(4) of the [un] Charter constitutes aggression.”136 Crimes against peace, an earlier formulation of the crime of aggression, was described by the Nuremberg Tribunal in 1946 as “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”137 The 1945 Charter of the International Military Tribunal at Nuremberg defined crimes against peace as the “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”138 As Roger Clark has observed, “ ‘ War of aggression’ is left completely undefined. So is the question whether all Germans might be potentially liable for committing the crime or only some of them.”139 As summarised in the introduction to Chapter 3, the Kellogg-​Briand Pact was the central (and controversial)140 basis for the prosecution of senior Nazi officials at Nuremburg. Indeed, as Clark recalls, in its judgment the International 135 S. R.  Ratner, “Aggression,” Crimes of War, at:  http://​www.crimesofwar.org/​a-​z-​guide/​ aggression/​. 136 us Department of Defense (DoD), Department of Defense Law of War Manual, June 2015 (Updated December 2016), §1.11.3.1. The DoD cites in evidence Joseph Sanders, Rapporteur, The Special Committee on the Question of Defining Aggression, Report of the Special Committee on the Question of Defining Aggression, Annex 1: Views expressed by members of the Special Committee at the concluding stage of the Special Committee’s session, un General Assembly Official Records:  Twenty-​Ninth Session Supplement No. 19, un doc. A/​9619, 11 March-​12 April 1974, pp. 22–​23. This appears to be the position of the United States more generally. 137 S. R.  Ratner, “Crimes against Peace,” Crimes of War, at:  http://​www.crimesofwar.org/​a-​z​​ -​guide/​crimes-​against-​peace/​. 138 Art. 6(a), 1945 Charter of the International Military Tribunal. 139 R. S. Clark, “Nuremberg and the Crime Against Peace,” Washington University Global Studies Law Review, Symposium—​Judgment at Nuremberg, Vol. 6, No. 3 (2007), pp. 527–​50, at 529. 140 Ratner, “Crimes against Peace.”

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Military Tribunal gave its opinion that the Pact “was violated by Germany in all the cases of aggressive war charged in the Indictment.”141 To explain why prosecutions since Nuremburg have been all but absent, Ratner notes that because wars are “typically planned by many people in State bureaucracies, drawing a line of guilt might prove difficult.”142 Less persuasively, he also suggests that criminal cases “could encompass complex, politically laden factual inquiries ill-​suited for courts,” although it is certainly true that while some cases of aggression are “as stark” as Iraq’s invasion of Kuwait in 1990, “other incidents demand more careful scrutiny.”143 In July 2017, the High Court of England and Wales blocked an attempt by a private citizen, an Iraqi citizen living in Oman, to prosecute Tony Blair for the uk’s involvement in the 2003 invasion of Iraq, holding that that there was no crime of aggression in English law under which the former prime minister could be charged.144 This followed a 2006 ruling of the uk House of Lords that although the crime of aggression existed under customary international law, that crime had not been incorporated into British domestic law.145 Whether the adoption by states parties to the icc Statute of the 2010 amendment defining the crime of aggression will ever lead to a prosecution by that Court remains to be seen, but the definition of who may be prosecuted has the merit of relative clarity: For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.146 It is further clarified that “act of aggression” means the use of armed force by one state against the sovereignty, territorial integrity, or political independence

141 “International Military Tribunal (Nuremberg), Judgment and Sentences,” American Journal of International Law, Vol. 41 (1947), p. 216. 142 Ratner, “Crimes against Peace.” 143 Ibid. 144 High Court of England and Wales, R. v. Tony Blair and others, [2017] ewhc 1969. See, e.g., O. Bowcott, “Tony Blair prosecution over Iraq war blocked by judges,” The Guardian, 31 July 2017, at: https://​www.theguardian.com/​politics/​2017/​jul/​31/​tony-​blair-​prosecution​​ -​over-​iraq-​war-​blocked-​by-​judges. 145 uk House of Lords, R v. Jones (Margaret), [2006] ukhl 16, esp. §§12–​31. 146 Art. 8bis(1), icc Statute.

248 Casey-Maslen of another, or in any other manner inconsistent with the un Charter.147 The us Department of Defense has recalled the view of the United States that the definition under the icc Statute does not reflect customary law.148 As observed in Chapter  3, a manifest violation of the un Charter would be regime change by force of arms or the killing of a senior government official by a foreign power. The former could be facilitated by the operation of armed drone or a fully autonomous weapon while the latter could be achieved directly through use of either. But it is at least open to question whether killing even the head of a state’s executive who simultaneously commanded the armed forces (such as the us President) would meet the criterion of “scale” included in Art. 8bis(1) of the icc Statute. A series of acts of aggression are set out in the amendment to the icc Statute: a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c) The blockade of the ports or coasts of a State by the armed forces of another State; d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; 147 148

Art. 8bis(2), icc Statute. DoD, Department of Defense Law of War Manual, June 2015 (Updated December 2016), §18.20.3.4, citing Harold Hongju Koh, Legal Adviser, Department of State, Statement at the Review Conference of the International Criminal Court, 4 June 2010: “the definition of aggression does not truly reflect customary international law, i.e., widespread and consistent state practice followed out of a sense of legal obligation.”

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g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.149 What would happen if a fully autonomous weapon went out of control and attacked another state? While there could be state responsibility for any damage caused, and, depending on the circumstances, it could give rise to a right of self-​defence, it would be, at least, highly challenging to mount a prosecution for the crime of aggression. 149

Art. 8bis(2), icc Statute.

Index Abbottabad Commission 68 Abdulmutallab, Umar Farouk 184 Aeronautics Defense Systems 32 Afghanistan 21, 23, 78, 79, 160, 203 African Commission on Human and Peoples’ Rights 161, 166 African Union 67, 79 Aggression 63, 66, 67, 73, 74, 246ff al-​Awlaki, Abdulrahman 187 al-​Awlaki, Anwar 183–​89, 222 al-​Baghdadi, Abu Bakr 24 al-​Harithi, Qaed Salim Sinan 18 al-​Qaeda 11, 18, 19, 21, 23, 52, 54, 78, 115, 186, 240 al-​Shabaab 21 al-​Zawahiri, Ayman 19, 54 Alston, Philip 51 American Civil Liberties Union (aclu) 187 Amin, Idi 70 Ankara (attack) 81 Anti-​personnel mines  (see Landmines) Arkin, Ronald 88, 233 Armed attack 74ff, 84 By non-​state actor 78ff Armed Conflict Chap. 4 Definition of 91ff Globalised 115–​16 International armed conflict 91–​93 Non-​international armed conflict 93–​100 Artificial Intelligence 86, 88, 128 Automatic target recognition (atr) 128, 129, 130, 131, 132, 136, 137, 143, 152 Avenger (drone) 16–​17 Baader-​Meinhof (gang) 70 “Baby” bombs 223, 224 Balloon (hot-​air) 89 Bajwa, General Qamar 55 Beirut(attack) 81 Bhuta, Nehal 60, 61 bin Ali Jaber, Salem 189–​90 bin Laden, Osama 11, 12, 56, 68, 79 Camp 71

“Bivens” complaint 187 Blair, Tony 247 Boothby, William 232 Bosnia and Herzegovina 10 Bureau of Investigative Journalism 20, 23, 52, 55 Burraq (drone) 37 Bush, George W. 52, 54, 190 Cai Hong (drone) 32–​33 Cameron, David 41, 58, 60, 82 Canning, John 140 Center for a New American Security in 2014 86 Center for Constitutional Rights (ccr) 187 China 10, 17, 25, 26, 32–​35, 39, 42, 200 Aerospace Science and Technology Corporation (casc) 32 People’s Liberation Army 35 Clapham, Andrew 190 Clark, Roger 246 Clarke, Richard 11 Cluster Munition Coalition 146 Cluster munitions 27, 141–​43, 145, 179–​80, 223 Colombia 179–​80 Committee against Torture 160 Conduct of hostilities (see also Direct participation in hostilities) 57ff, Chap. 4, 170ff Consent (to use of force by foreign state) 75 n63 Continuous combat function 101 Corporate criminal liability 209ff Corporate manslaughter 212–​14 Counterterrorism 18ff, 68 Crimes against peace  (see Aggression) Criminal law (see also Corporate criminal liability; International criminal law) 46, 61, Chap. 7 Customary international law 46, 90, 112, 166, 238–​39, 247 Dallas 43 Dar-​es-​Salaam 11

252 Index Dassault 37, 203 Democratic Republic of Congo (drc) 80 Dinstein, Yoram 63, 64, 75 n63, 96, 104, 105 Direct participation in hostilities 101, 102, 130, 177ff Distinction, Principle of  (see Law of armed conflict) Djibouti 185 Dubai 45 Duty to investigate 191–​92 Egypt 14, 30 Eighty Years’ War 63 Eitan 31 Elliot, Chris 232 Entebbe 70 European Court of Human Rights 46 n2, 48, 49, 51 n15, 162ff, 167, 192–​93 European Union 169 Fallujah 85 Ferrero, Tristan 92, 118 Firearms, use of 49–​51 First World War 8 France 8, 37, 69 Franck, Thomas 72, 73 Friendly fire (drone) 117 Gaddafi, Muammar 68 Gamey, Gustave 8 Gaza 31, 197, 208, 220–​21 General Atomics 10, 13, 16, 36, 38, 202 Georgia 79 German, Germany 8, 9, 31, 37, 182–​83 Gray, Christine 65, 70, 72, 79 Grenada 161–​62 Grieve, Dominic 86 Grotius, Hugo 62 Guantanamo Bay 160 Haas, Michael 240 Hanwha Techwin 39 Harpy (drone) 30, 127–​28, 202 Hawking, Stephen 88 Hays Parks, Anthony 175 Hellfire (missile) 13–​15, 16, 187, 221, 222, 226 Heron (drone) 31 Heyns, Christof 57

Hezbollah 40, 41 Hasan, Nidal 183 Holder, Eric 185 Horowitz, Michael 127, 146 Human rights 46, Chap. 6 Right to life 47 Right to liberty 47 Right to freedom from torture and other inhumane treatment or punishment 47 Human Rights Committee 159, 162, 167, 170, 178, 194 Human Rights Watch 27, 232, 236 Humanitarian intervention 75 Imminence (in law enforcement) 50 Imminence (in jus ad bellum) 84, 119, 120 Incendiary weapons 140–​41 India 17, 31, 43 Indiscriminate (weapon) 100, 218ff, 223 Inter-​American Commission on Human Rights 161–​162, 179 Inter-​American Court of Human Rights 179 Internal disturbances 99 Internal tensions 100 International Campaign to Ban Landmines 145 International Committee for Robot Arms Control 146 International Committee of the Red Cross (icrc) 91, 116, 219 Interpretive Guidance on Direct Participation in Hostilities 101, 102, 177–​78 International Court of Justice (icj) 64, 66, 80ff, 159, 167, 168, 169, 170, 219, 225 International Criminal Court (icc) 73, 74, 96–​97, 108, 198, 210, 217, 219, 227–​28, 229, 242–​43, 244, 245 International criminal law Chap. 8 International Criminal Tribunal for Rwanda (ictr) 244 International Criminal Tribunal for the former Yugoslavia (icty) 91, 94, 95, 97, 103, 105, 173ff, 223, 237, 241 International humanitarian law (see also Law of armed conflict) 23, 58

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Index International human rights law (see also Human rights) 113, Chap. 6 Duty of precaution 47 Extraterritorial application 158ff Iran 17 Iraq 21, 23, 24, 41, 61, 85, 86, 120, 164–​65, 247 Iron Dome 125 isil  (see Islamic State) Islamic State 14, 23, 41, 59, 69, 71, 81, 83, 84, 85 Israel 14, 26, 29, 31–​32, 42, 66, 70, 159, 197, 200, 204, 208–​09, 214–​15 Israel Aerospace Industries (iai) 31 Israel Defence Forces (idf) 236 Joint Air-​to-​Ground Missile (jagm) 15 Jus ad bellum (see also Consent; Imminence; UN Security Council) 19, 60, Chap. 3 Necessity 77 Proportionality 77 Self-​defence 60, 74, 77ff Kalashnikov Group 28, 41 Karem, Abraham 12 Kettering Bug 8 Khan, Reyaad 58, 59, 60, 61, 82, 83, 85, 86 Kill switch 152ff Kooijmans, P. H. 80 Korea, North 56 Korea, South 14, 39–​40, 56 Kosovo 10, 11, 76, 163 Kuwait 247 Landmines 138–​39, 145, 147ff Laos 10 Law of armed conflict 26, 46, 58, 60, Chap. 4 Distinction, Principle of 101–​06, 128ff Precautions in attack 109–​11, 135–​36 Proportionality, Principle of 106–​09 Law enforcement (see also Law of law enforcement) 43 During armed conflict 57ff Law of law enforcement Chap. 2 Principle of necessity 47–​48 Principle of proportionality 48–​49 Law of war (see Law of armed conflict) 

Lebanon 14, 30 Lex specialis 171–​72 Libya 24 Lockheed Martin 12, 202 Lubell, Noam 169, 171 Lucas, Caroline 83 McCurley, Mark 23–​24 Mansoor, Mullah Akhtar 22, 54 Martić, Milan 223 Maverick (missiles) 9 Meaningful Human Control (mhc) 146ff, 154 Médecins sans Frontières 23 Medina, Cecilia 161 Melzer, Nils 101 n61, 118 Metropolitan Police Authority 50 Milanović, Marko 171 Mines  (see Landmines) Minnesota Protocol on the Investigation of Potentially Unlawful Deaths (2016) 191–​92 Missile Technology Control Regime (mtcr) 198–​99 Moynihan, Harriet 60 Muallem, Walid 69 Muhammad Wazir, Nek 52 Musk, Elon 88 Nairobi 11 Napalm 225 Netanyahu, Benjamin 71 Netanyahu, Yonatan 71 Netherlands, the 92, 210 Nicaragua 66 Nigeria 34, 38 Non-​refoulement, Principle of 190 Non-​state actors 40–​41, 78 North Atlantic Treaty Organization (nato) 68, 76, 163 North Dakota 44 Northrop Grumman 36, 202 Nuremburg trials 63, 73, 246 Obama, Barack 19, 20, 25, 54, 56, 119, 196 Omar, Mullah 12, 22 Operation Allied Force 11 Operation Aphrodite 9 Operation Desert Storm 139 Operation Enduring Freedom 79

254 Index Operation Grapes of Wrath 30 Operation Zarb-​e-​Azb 53, 54 Orbiter 32 Pakistan 12, 14, 18, 20, 37–​38, 52–​56, 68, 82 Armed conflict in 53 Palestine 198 Palestine Liberation Organization (plo) 66 Paris (attacks) 81 Paveway (bomb) 16, 222 Pejic, Jelena 93 Phalanx Close-​in Weapon System 28, 125 Philippines, The 22 Pictet, Jean 91, 168 Pocar, Fausto 174–​75 Popular Front for the Liberation of Palestine (pflp) 70 Precision-​guided munitions 9, 16 Predator (drone) 10, 11, 12, 13, 18, 19, 22, 24, 26, 68, 125, 186, 221, 244 Predator B 36 Predator C (drone)  see Avenger Proportionality, Principle of  (see Jus ad bellum; Law of armed conflict; Law of law enforcement) Protect life principle 50–​51 Raqqa/​Raqqah 58, 71 Ratner, Steven 246 Raytheon 31 Reaper (drone) 15, 125, 203, 221 Responsibility to protect 76–​77 Rights Watch (UK) 83 Robotics 8 Rotax 13 Roxin, Claus 242 Royal United Services Institute (rusi) 232 Rumsfeld, Donald 183 Russia 24, 40–​41, 69, 75 n63, 79, 200 Sassòli, Marco 56, 87 Saudi Arabia 14, 25, 38–​39, 75 n63, 200 Schabas, William 171 Scharre, Paul 86, 88, 146 Schmitt, Michael 92, 104, 109, 110, 111 Schrijver, Nico 70, 73, 77 Scud (missile) 220 Second World War 9, 63

Sentinel (drone) 12 Shane, Scott 12, 14, 20, 26, 183 Shooting to kill 50–​51 Shooting to stop 49–​50 Simma, Bruno 80 Somalia 20, 21, 120 Soviet Union 10 Spain 8 Sperry, Elmer 8 Stari Vitez 223, 224 Stinger (air-​to-​air missiles) 24 Stockholm International Peace Research Institute (sipri) 28, 29, 36 Superfluous injury or unnecessary suffering 100, 218, 224–​25 Surveillance drones 9–​12 Swarms (drones) 17 Syria 21, 24, 30, 35, 58–​61, 69, 84, 85, 120 Taliban (see also ttp) 18, 19, 22, 55 Tams, Christian 66 ttp (Pakistani Taliban) 38, 52 Taranis 36 Territorial integrity 65–​67 Tesla, Nikola 8 Textron Systems 27, 28 Thales 37, 203 Thermobaric 226–​27 Thirty Years’ War 63 Tokyo 43 Tomuschat, Christian 171 Turkey 164–​65 Transfer (restrictions) 25–​26 Trump, Donald 25, 56 Uganda 70, 80 Ukraine 75 n63 United Arab Emirates 15 United Kingdom 8, 35–​37, 58–​59, 69, 75, 84, 85, 86, 97, 180–​82, 197, 199, 203, 206–​08, 212–​14, 219 British Aerospace Systems (bae) 36, 37 House of Lords 247 Ministry of Defence 82, 197, 214 Royal Air Force 35, 58, 59, 82 Secretary of State for Defence 57 United Nations  Assistance Mission in Afghanistan (unama) 23

255

Index Commission of Inquiry on the Gaza conflict 220, 229, 236 General Assembly 77, 167, 215, 216 Resolution 3314 (xxix) 66, 67 Resolution 45/​166 46 n2 World Summit 77 Independent International Commission of Inquiry on the Syrian Arab Republic 227 Office of the High Commissioner for Human Rights 191 Purposes of 65, 69–​72 Security Council 66, 67, 68, 77, 82, 84 Authorisation to use force 74, 81ff Resolution 1368 80, 84 Resolution 1373 80, 84 Resolution 2249 81, 82 Special Rapporteur on extrajudicial, summary or arbitrary executions 46 n2, 50, 51, 57 Special Rapporteur for the promotion of human rights while countering terrorism 197 Special Rapporteur for the situation of human rights in the Palestinian territories 215 United States 8, 10, 22, 23, 25, 26, 29, 36, 38, 42, 53, 55, 66, 69, 79, 112, 115, 119, 123, 159, 160, 167, 170, 183ff, 197, 199, 202, 205–​06, 209, 210–​12 Agency for International Development (usaid) 161 Air Force 10, 13, 16, 17, 23, 117, 139 Army 15, 29 Judge Advocate General 70, 75, 166 Central Intelligence Agency (cia) 11, 18, 25, 52, 54, 55, 82, 120, 185, 187 Constitution 187–​88 Defence Advanced Research Projects Agency (darpa) 17 Department of Defense 14, 21, 24, 27, 58, 75, 86, 157, 168, 246, 248

Department of Justice 115 Department of State 15, 26 Department of the Treasury 186 Federal Bureau of Investigation (fbi) 184 Joint Special Operations Command 25 Marine (Corps) 15, 117 Naval Institute 17 Navy 11, 12, 14, 15 Supreme Court 188 Unnecessary suffering  (see Superfluous injury or unnecessary suffering) Use of Force  (see Jus ad bellum) uss Cole 18 UVision 31 V-​2 (rocket) 222 Vietnam 9, 10 Vietnam War 9, 30 Walleye (bombs) 9 War crimes 218ff Modes of liability 237ff Watson, Alan 137 Waziristan 55 Weapons  (see also Cluster munitions; Incendiary; Indiscriminate; Landmines) Legal review of 111–​14 West Bank 159, 208 Westphalian (system) 63, 65, 67 Williamson, Gavin 61 Wolfowitz, Paul 18 Wood, Michael 67 Yemen 16, 18, 20, 39, 75 n63, 82, 120, 186 Yugoslavia, Federal Republic of 10, 76, 163 Zagreb 223 Zavod Electromash 41 Zyklon B (case) 210