Armed drones : transparency and accountability under international law

Abstract

This dissertation does not challenge the legality of armed drones as weapons in themselves as it has been widely accepted that armed drones may well prove an appropriate and proportionate tool in a number of legitimate civilian and military operations. However, the use of force by States, via armed drones specifically, is the subject of ever-growing controversy and international media scrutiny. Therefore, although the legality of armed drones is not at stake, their use is. Issues have been raised concerning jus ad bello and jus in bello. Regarding jus ad bello, experts have argued that the current armed drone strikes are being conducted on the territory of another State without that State’s consent, without the requisite UN security council authorisation and does not amount to a legitimate use of self-defence and thus amounts to a violation of State sovereignty. Jus in bello relates to the protection of people in times of armed conflict. The troubling absence of transparency and accountability in relation to States’ lethal force policies involving armed drones are just two of the issues which fall under the broader regime of jus in bello. Another important issue which has been raised concerning armed drone strikes is which legal regime applies. In this regard, it is submitted that States are broadening the definitions of self-defence and non-international armed conflicts to suit their own narrow and short-term interests in order to apply international humanitarian law (IHL), which provides less stringent rules for when life may be taken, in situations where the higher standards provided in international human rights law (IHRL) should apply. This may eventually degrade the security of civilians globally as more and more States acquire armed drone technology, they may claim for themselves these expanded rights, and the world may become a stage in which armed drones are used to “police” situations in other States. Concerning IHL, concerns have been raised that armed drone strikes may not always be complying with the principles of distinction, proportionality and precaution. However, since armed drones are not illegal weapons in themselves, the legality of each strike must be assessed on a case by case basis. In terms of accountability, civilian casualties must be determined and should be disclosed and there exists an obligation to investigate and punish those responsible in respect of cases of alleged war crimes. Although an issue facing accountability for violations of IHL using drone strikes is that they are currently only being conducted in non-international armed conflicts (NIACs), in terms of which the rules are very limited, it will be shown that many of the rules pertaining to international armed conflicts (IACs) have been extended to apply to NIACs in terms of customary international law. In terms of IHRL, which applies in times of peace and continues to apply in times of armed conflict, the right to life entails that no one may be arbitrarily deprived of life. Concerns have been raised by NGOs and legal experts alike that the current drone programmes may violate the right to life of those who are targeted. Regarding accountability under IHRL the modern concept of human rights is based on the fundamental principle that those responsible for violations must be held accountable and a failure to investigate and punish those responsible for violations of human rights constitutes a violation of that right in itself. The controversy surrounding the use of armed drones has revealed a degree of public anguish worldwide about this method of targeted killing, which is perceived as being shrouded in secrecy and lacking not only transparency and accountability, but perhaps lacking a legitimate legal basis. This dissertation examines the mechanisms available under international law for holding those responsible for violations of IHRL and IHL involving the use of armed drones accountable. An important aspect of transparency and accountability is investigations into alleged violations and therefore the interplay between IHL and IHRL, specifically regarding the investigation of violations will also be examined to determine which standard is applicable to armed drone strikes.