Game of Drones

Drones. Much like the majority of Game of Thrones characters, are something most people would safely place in the “morally dubious” category. Which is why John Snow is most probably dead. Not even in the dead-but-will-surely-be-back-as-a-White-Walker sense dead that we’re all hoping for. But actually dead-dead. Even worse, winter is coming and with it assignments and exams and for many parts of the world – even more focus on drones.

Unfortunately for most, morally dubious and illegal are not mutually exclusive. And thanks to the murky nature of international law, the use of drones receives little oversight.

In recent years, drone use has increased in both volume and controversy. The Obama administration took just two years to outstrip the number of authorised strikes commissioned by the entire Bush administration. States such as China, Iran, Iraq, Israel, Nigeria, Pakistan, South Africa, the United Kingdom, and as discussed the United States, all currently possess armed drones. To make matters worse, those states without drones continue to actively pursue them. Good thing that all of these countries have a deep and abiding respect for international law…right?

Wrong.

States that oppose contentious drone programs describe them as a convenient way to skirt pesky international laws. Their proponents favour them for their practical appeal. Indeed, at face value, the appeal seems obvious. From a logistical standpoint the craft is usually smaller, can remain airborne for longer and doesn’t require the sort of safety features that a piloted aircraft requires. From a political standpoint, a government can be seen as taking a tough stance on terrorism without risking the disapproval that comes with ‘boots on the ground’ policies and the inevitable causalities that they bring. (Let’s not bring discuss the number of civilians’ lives drone attacks have “accidentally” taken. That’s an article for another day.)

The legality of drone use regarding targeted killing is considered to be a vacuum in the existing international law framework. Even so, I’ll attempt to break down the implications of these strikes, ambiguous nature of international law notwithstanding.

Any defence for the legal use of armed unmanned aerial vehicles (UAVs) begins at Article 51 of the United Nations Charter. The article affirms a state’s “inherent right of individual or collective self-defence.” This clause is crucial, as it creates a legal basis for the reactive, not proactive, use of force. Herein lies the crux of the problem, as when assessing the legality of a drone strike, all relevant government intelligence is critical. Unfortunately, governments consistently refuse to provide intelligence on the grounds under the guise that such disclosures are a threat to national security. It is therefore unsurprising that the most controversial strikes are those most shrouded in secrecy.

For instance, the United Kingdom (UK) was able to give a clear justification to the Security Council for drone strikes carried out on the 7th of September 2015 that killed two of their own citizens. (I know I mentioned I wouldn’t talk about civilian deaths – but this is crucial to the story.) The UK stated that the strike “was a necessary and proportionate exercise of the individual right of self-defence” as there was threat of imminent attack. Note that the charter includes nothing regarding pre-emptive strikes or imminent threats. Thus we arrive at the crux of the matter: in what manner of conflict did the strike occur?

In essence, a distinction must be made between armed conflict and law enforcement. Broadly speaking, international armed conflict is defined as one between two states, whether or not there has been an official declaration of war. A non-international armed conflict, on the other hand, is one between a state and an armed non-state actor, for instance terrorists. Unfortunately for some, more trigger-happy nations, certain parameters must be met in order to classify a non-international conflict.

Namely:

  1. There must be an on-going conflict.
  2. To be classed as a “conflict,” there must be a minimum level of intensity.
  3. Legal non-state groups are those that have an organisational structure, the capacity to sustain military operations and some form of territorial control.

If these conditions are met, then the use of UAVs against another nation by a nation to defend itself from an imminent threat could be classified as a crime of aggression. Why? Under international criminal law, the UAV attack (often initiated without consent) would be considered an invasion of a state’s jurisdiction. Nonetheless, the vague nature of these laws, provides for the use of drones by governments to further military objectives and target assets, of which military personnel are a part and unfortunately fails to provide an explicit offence. A decision must then be made as to who, or what, constitutes a legitimate “asset”. More importantly, international law must amend this vacuum that currently exists and provide an answer to the legality of drone strikes.

However, if these conditions are not met, international human rights laws apply, imposing the slightly higher standard of “imminence,” as referred to in the UK’s earlier statement addressed to the Security Council. In times of peace, it is expected that nations are not freely waltzing around the globe, gunning down anyone that poses a threat – whether it be through UAVs or otherwise. There is a legal obligation for states to provide a fair trial rather than assassinate, as stated under article 14 of the International Covenant of Civil and Political Rights.

For obvious reasons, whether or not these fuzzy legal stipulations are satisfied is held close to a government’s chest. Unfortunately, for us non-government folk, the best chance these programs have to continue is for the government to do exactly that and keep getting away with it. Governments that play hard to get with information on their military operations make it increasingly difficult for those annoying people who are determined to uphold ‘the law,’ when establishing the legality of a particular strike.

Like a true Game of Thrones episode, I’ll end on a slightly more pessimistic note. The Australian government currently condones drone strikes against it’s own citizens. The legal reasoning for this? I’ll leave the explanation to the Australian Department of Foreign Affairs and Trade (DFAT): “…The department spokesman defended the strike, saying Australians could not expect to engage in “potentially criminal activity” without consequences…”

Yes, you read that correctly. “Potential criminal activity.”

Certainly one way for the Australian government to deal with scourge of shop-lifting.

Bremer Moore is a second-year Business Law and Political Science & International Relations student at UWA whose interests include music, politics, and long romantic walks to the fridge.

 

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