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Unmanned Aerial Vehicles: A threat to the Principle of Distinction under IHL

While most would agree that drones are not unlawful per se, their growing use during armed conflict have clearly posed the question of the adaptation of IHL to the modern battlefield,[1] their use has sparked a lot of controversies and debates, as to the legality of its usage when placed astride the principles of international humanitarian law. The author examines the scope of the principle of distinction under IHL and then proceed to look into the lethal effect of Drone and juxtapose its effect on the principle of distinction. This will in the end, determine the legality or otherwise of Drones as a replacement of human combatants


THE PRINCIPLE OF DISTINCTION

International humanitarian law is a branch of international law that seeks to regulate the conduct of warfare and prohibit certain methods of warfare and human rights violation in times of conflict. It was originally termed the laws of war and then the laws of armed conflict[2]. The rules of international humanitarian law seek to extend protection to a wide range of persons, but the basic distinction drawn has been between combatants and those who are not involved in actual hostilities[3]. The principle of distinction was originally and conventionally articulated within the preamble to the St. Petersburg Declaration of 186836 . [4] A recent codified expression of this norm is found within Additional protocol 1 to the Geneva Convention. It provides thus:


“In order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”[5]

It is to the effect that parties to an armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives.[6]


The prohibition on directing attacks against civilians is also laid down in Protocol II, Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-personnel landmines.[7] In addition, under the Statute of the International Criminal Court, “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime in international armed conflicts.[8]


These provisions require that military installations and objects be located away from civilian populations and prohibit locating such installations and objects in civilian dense areas in an attempt to “immunize” them from attack.[9] in order to spare civilians and the civilian population from hostilities and their effects, the principle of distinction does not only prohibit combatants from directly targeting civilians, it also requires combatants to distinguish themselves from civilians, “so that, unlike civilians, they may be seen to be combatants and the lawful targets of opposing combatants.”[10] Thus, for example, in order enjoy the status of lawful combatant, one must, among other things, wear a fixed, distinctive emblem that is recognizable at a distance (such as a uniform) and carry arms openly.[11]. Exception to the above rule is where a noncombatant directly or actively participate in the warfare. He is said to have absolved himself from the immunity accorded to him by law.[12]


WHO THEN IS A CIVILIAN WITHIN THE CONTEXT OF IHL?

A civilian is any person who does not belong to one of the categories of person referred to in Article 4 A 1,2,3 and 6 of the third convention and Article 43 of this protocol.[13] The above definition is unclear and literally abstruse. It is generally accepted that civilians are defined as all people that are not combatants[14]


1. Military Objects

According to Article 52 (2) of protocol I, military object is defined thus:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.


Under that definition, an object must cumulatively fulfill two criteria to be a military objective. First, the object has to contribute effectively to the military action of the enemy. [15]This is exemplified by an object’s "nature, location, purpose or use", which clarifies that not only objects of a military nature are military objectives. Second, its destruction, capture, or neutralization has to offer a definite military advantage for the other side.[16]What qualifies as a military object is therefore a question of fact.


2. Meaning of Drones

A drone, in technological terms, is an unmanned aircraft. Drones are more formally known as unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UASes).[17]. Essentially, a drone is a flying robot that can be remotely controlled or fly autonomously through software-controlled flight plans in their embedded systems, working in conjunction with onboard sensors and GPS.[18].[Categorically, "drone" refers to any unmanned, remotely-piloted, flying craft ranging from something as small as a radio-controlled toy helicopter, to the 32,000- pound, $104 million Global Hawk military drone.[19]In determining what exactly constitutes a drone under this language one considers whether the vehicle or flying craft at issue (1) flies and (2) is controlled by a pilot on the ground; if the vehicle meets this criteria it falls under the everyday-language definition of drone.[20].


3. Drones vis-a-vis the principle of distinction

Some States possess high technology armed drones that can be used to target individuals overseas. The civilian population feels the effects of such attacks thousands of kilometers away from the place where the pilot operates the aircrafts.[21] Most famously, the United States has carried out such attacks in different parts of the world, including Afghanistan, Pakistan, Yemen and Somalia. Though to a lesser degree, other countries have also carried out such attacks. For example, France undertook its first armed drone strike in Mali in 2019, the United Kingdom used armed drones in Syria and Russia reportedly deployed armed drones in Syria.[22] There can be no doubt that when a new weapon emerges, a debate will take place regarding its legality.[23]


Thus the control of armed drones by non-military personnel has created another distinction problem even though their development was arguably to comply with the requirements of destruction under IHL. IHL.[24] is quite silent on the right to strike back at them[25]. It is observed that, drone, by its nature, is not a lethal weapon, or a weapons, the use of which is prohibited by the LOAC[except that the CIA is reported to have used drones with lethal effects contrary to the conventions).[26]. Drones are not specifically mentioned in weapon treaties or other legal instruments of international humanitarian law.[27]


However, the use of any weapon system, including armed drones, in armed conflict situations is clearly subject to the rules of international humanitarian law.[28] This means among other things that, when using drones, parties to a conflict must always distinguish between combatants and civilians and between military objectives and civilian objects. They must take all feasible precautions in order to spare the civilian population and infrastructure, and they must suspend or cancel an attack if the expected incidental harm or damage to civilians or civilian objects would be excessive in relation to the concrete and direct military advantage anticipated.[29] But then, in any event, drone operators must employ the principle of distinction and by extension, all other principles of IHL, in launching military attacks on the other end (the contracting party).


CONCLUSION

Historically, distinction was fairly easy; combatants wore uniforms and non-combatants did not. Now, the ‘global war on terrorism’ has raised new concerns because terrorists do not wear traditional uniforms, and it has become harder to distinguish between civilians and terrorists. Terrorists often take advantage of civilian populations and hide themselves among them. The situation has raised new challenges for drone operators in regards to distinction.[30] Lackadaisical use of drone is a threat to the principle of distinction. Its usage by non military personnel, may also amount to a breach of IHL. Thus, a high degree of dexterity must be employed in the sage of drones in armed conflict in order not to trample upon the rules of IHL.


ENDNOTES

[1] Drones and Challenges of Remote Warfare, available at https://e-brief.icrc.org/issue/new-technologies-and-the-modern-battlefield-humanitarian-perspectives/part-2-drones/ assessed 05/08/2020, 1@36 PM

[2] International Law by sir Robert Jennings. Pages 1335 of the e-copy.

[3]Ibid.

[4] Ibrahim Abdullahi, The Unmanned Killer Machine: The Proliferation of Armed Drones Technology, Strikes and Effects on International Humanitarian and Human Rights Laws.

[5] Art. 48 of Protocol Additional to the Geneva Conventions Of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict(Protocol I), of 8 June 1977.

[6] Marco Sassoli, Legitimate Target of Attacks Under International Humanitarian Law, Background Paper prepared for the Informal High-Level Expert Meeting on the Reaffirmation and Development of International Humanitarian Law, Cambridge, January 27-29, 2003, available at www.hsph.harvard.edu/hpcr. See also Art. 48, 51, 48 and 52 of Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts of 1977 (Protocol I), prohibit indiscriminate attacks and attacks or reprisals directed against the civilian population and individual civilians, and civilian objects respectively.

[7] The Principle of Distinction between Civilians and Combatants, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule1 assessed 05/08/2020, 2@06 PM Page 1 of 3

[8] Ibid.

[9] Drones and Distinction: How IHL Encouraged the Rise of Drones. Michael W. Lewis Ohio Northern University & Emily Crawford The University of Sydney, available at https://www.researchgate.net/publication/256055556, assessed 5th July, 2020.

[10] Oren Cros:The New Way of War: Is There A Duty to Use Drones?, http://scholarship.law.ufl.edu/flr.

[11] Ibid

[12] Article 51.3 of Additional Protocol I and article 13.3 of Additional Protocol II (In relation to non-international armed conflict.

[13] Article 50 of Protocol I.

[14] Michael W. Lewis and Emily Crawford: Drones and Distinction: How IHL Encouraged the Rise of Drones available at https://www.researchgate.net/publication/256055556.

[15] Marco Sassòli, supra.

[16] Ibid.

[17]https://www.google.com/amp/s/internetofthingsagenda.techtarget.com/definition/drone%3famp=1 07/08/2020, 2?28 PM.

[18] Ibid.

[19] Vivek Sabrawat: Legal Status of Drones Under LOAC and International Law, Penn State Journal of Law and International Affairs Volume 5 No 1, 2017.

[20] Ibid.

[21] Humanitarian Concerns raised by the Use of Armed Drones, Sandra Krähenmann, Geneva Call, and George Dvaladze, Geneva Academy of International Humanitarian Law and Human Rights, available at https://www.genevacall.org/humanitarian-concerns-raised-by-the-use-of-armed-drones/ assessed ssed 05/08/2020.

[22] Ibid.

[23] Drones and International Humanitarian Law: Compliance with the Rules of Jus in Bello available at international law.blog.

[24] Ibrahim Abdullahi, supra.

[25] Ibid.

[26] Ibid.

[27] The use of drones must comply with laws, an interview with Peter Maurer, the president of the ICRC, available at https://www.icrc.org/en/doc/resources/documents/interview/2013/05-10-drone-weapons-ihl.htm assessed 07/08/2020, 2@33 PM].

[28] Ibid.

[29] Ibid.

[30] Vivek Sabrawat, Supra


ABOUT THE AUTHOR

This blog has been authored by Ukashatu Ibrahim who is a Final Year LL.B. student at Usmanu Danfodiyo University, Sokoto, Nigeria.


[PUBLICATION NO. TLG_BLOG_20_6304]

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