Written by: Izabella Khachatryan
INTRODUCTION
The death toll of armed conflicts corroborates their immensely destructive consequences. The statistics gained depict losses by all types of wars and allow us to predict the violent propensity of modern warfare.[1] The sophisticated modifications and adaptions of new tools in modern armed conflicts raise complex issues and signal a high risk of resulting in an increase of civilian casualties than before. One of those ‘tools’ is the unmanned aerial vehicle (“UAV”), whose usage became not only popular but highly demanded.[2] The conducted research and testimonies warn that UAV warfare caused, and continues to cause, significant civilian casualties. Therefore, the rapid technological growth, concurrently with military technology is a direct call to broaden the International Humanitarian Law (“IHL”) domain. Consequently, legal and ethical issues arise whether UAVs are legal during armed conflicts, considering the high risk of causing disproportionate collateral damage. Thus arises the question of the legality of drone attacks under IHL. This question is specifically prominent because ineffective law regulations have already granted impunity to aggressors, such as Azerbaijan and Turkey that terrorized civilian populations in Armenia and Artsakh (also referred to as Nagorno-Karabakh) during a 4-day war in 2016, the 44-day war in 2020, and until now as well.
Unmanned aerial vehicles
UAVs, or otherwise known as a drone, is a pilotless aircraft controlled from thousands of miles away to conduct surveillance or deploy lethal force remotely. The term UAV extends to include a great variety of vehicles such as unmanned aerial combat vehicles or remotely piloted weapons, etc.
The principles that apply to manned aircraft, submersibles, and ground vehicles similarly apply to unmanned vehicles and drones. However, there is the question concerning the mechanisms that enable the operation of the craft without a pilot being physically present onboard and how accurately they can perform. It is believed that the system and a combination of sensors that collect data about the environment, the drone’s position, orientation proximate to that environment, and small mechanisms that create a movement of some part of the vehicle ensure the completion of the whole operation procedure. Some unmanned vehicles are considered autonomous drones[3] since they do not have a human presence in the feedback loop. The functionality of such drones varies from the simple act of moving about to following a target and completing complex multi-steps without any human intervention. Other remote-control vehicles do not have such an autonomous operation mechanism, and human assistance is required. In some UAV mechanisms, a computer is placed between a human and the actuators (i.e., a fly-by-wire system); this sophisticated system has more functions than a human does. Therefore, the fly-by-wire system may sometimes even correct or adjust human instructions to consider other environmental data that it acquires directly from the sensors.[4]
The continuous exponential growth of drones that extends their types, categories, the vast range of productivity, and capacity is evidence of the real-time presence of the significant change in warfare nature. The revolution in military affairs[5] is no longer a concept; the armed UAVs and their usage are a part of the mentioned revolution. Consequently, it is essential to scrutinize the details and legal limitations of the vehicles since drones are not explicitly mentioned in weapon treaties or other legal instruments of IHL. Generally, no differentiation is made between armed drones and other weapons launched from manned aircraft. Despite this fact, the usage of such weapon systems during armed conflicts becomes subject to the rules of IHL, and the question is whether those rules are sufficiently complying with the cardinal principles of IHL. [6]
Principle of Proportionality
The principle of proportionality provides a framework for establishing whether, in a particular attack, the incidental harm caused to civilians and civilian objects is lawful. The rationale is that IHL prohibits neither collateral damage nor extensive collateral damage to civilian or civilian objects. However, it prohibits any attack that is expected to cause collateral damage that is excessive in relation to the desired military advantage. The principle requires balancing the anticipated military advantage of the attack against the expected harm to civilians. The dilemma of the process is that it should balance incommensurable values. Yet, each of the consequences in the ratio must be considered based on the time the attack was calculated, not on the result of the attack. Thus, the principle is devised to protect civilians in armed conflicts, reinforcing provisions in several treaties and statutes. Therefore, it is essential to consider whether drone performance, strikes, the decision-making process, and targeting satisfy this principle. The description of UAVs and their types provide ground to think that those systems have sufficient precision and accuracy since they rely on multiple levels of intelligence. Yet, the potential risks show that a computerized system may gather faulty data and so it is not guaranteed to have zero mistake implementation. Furthermore, loitering munitions attached to unmanned combat aerial vehicles (“UCAV”) and other kamikaze drones appear not to conduct a ‘surgical strike.’
IHL proportionality is somehow codified in treaties statutes and exists as part of binding customary international law. Its legal definition can be found in Protocol I Additional to the Geneva Conventions in articles 51(5), 57(2), and 83(b), the International Criminal Court (“ICC”) article 8(2)(b)(iv),[7] and in United Nations international tribunals statutes.[8]
Principle of precaution
The parties in an armed conflict are obliged to embrace precautionary measures: precautions in attack and against the effects of attacks to expand the possibilities of respecting the principles of distinction and proportionality. The obligation demands the belligerents to do everything feasible and use all effective and reasonably available data to determine whether a person is a lawful target.[9] Yet, the target itself must be confirmed to be a military target before engaging in an attack. Some types of precautionary measures are the selection of means and methods of warfare, the environment of the target, target selection and verification, examination of the effects of an attack, warning, cancellation, or suspension of attacks in case of changes in circumstances, etc.[10] Therefore, all reasonable precautions and efforts must be made to spare the civilian population and avoid damage to civilian objects, causing collateral damage.[11] If too many civilians are gathered in a particular targetable area, then regarding the principle, the attacker must abstain from attacking. However, it is not necessarily prohibited to target military objectives shielded by civilians, but if so, the lawfulness will have to be assessed in light of the principle of proportionality, and strict precautionary measures will have to be taken in order to minimize losses to those civilians.
The attacks conducted by armed drones, UCAVs, are mainly done by surprise, without any warning, resulting in possible infringement of the obligation of minimizing collateral damage. The fact that UAVs are equipped with cameras and sophisticated communication systems serves as a ground to think that they are accurate enough and may comply with the precaution principle. Consequently, when the parties fail to fulfill several measures that minimize the risk of excessively destructive effects, the obligations are violated. All the obligations of precautions in the attack are considered customary law and apply to any attack launched by belligerents against legitimate targets.
CHAPTER I
Types and Technical Characteristics
The general classification of drones can be marked by the differentiation of their nature: armed and unarmed. According to the Manual on International Law Applicable to Air and Missile Warfare, the first type is defined as “[an] unmanned aircraft of any size which does not carry a weapon and which cannot control a weapon“[12]; while the latter one is “[an] unmanned military aircraft of any size which carries and launches a weapon, or which can use on-board technology to direct such a weapon to a target.”[13] The common key feature of these two air vehicles is that they present pilotless aircraft. In addition, UAVs, both armed and unarmed, can be classified based on several physical factors such as maximum take-off weight, range, payload, endurance, and means of command and control. The NATO Standardization Agreement 4670 and Study on Armed UAVs by UNODA’s Advisory Board on Disarmament Matters help identify those classifications.
Level of autonomy and feasible risks
To help consider the caused risks of both types of UAVs more rationally, their level of autonomy is worth mentioning. In semi-autonomous systems, humans appear in the loop of the functioning system by initially employing the vehicle and then monitoring and controlling its actions. Thus, being operated within long distances, the regulator makes the final decision. While the autonomous is believed to be a complex variation that independently should identify and complete the mission without any human intervention. Hence, autonomous machines are perceived to be capable of adapting and assessing the environment, using those observations to make the final decision on possible actions. Mainly such sophisticated systems are used in military UAVs and are believed to have a low percentage of human intervention, yet in some phases, the human controller is present, shifting it again to semi-autonomous. The ongoing technological enhancements strive to create a system that is fully autonomous. Still, UAVs cannot operate fully independently. Consequently, the line between autonomous and semi-autonomous systems becomes obscure, aggregating more unpredictable and less accountable aspects of drone usage.
Every decision for something is a decision against something, and while individuals can make multiplex decisions almost immediately, machines may be challenged to overcome this task for various reasons. Therefore, the common belief that such drones have a high level of precision is limited since it depends on several factors such as drone video, signal intelligence, human intelligence, data crush, skills lag, limited situational awareness, and lack of proper training. Moreover, types of strikes, also shift the level of accuracy and possible collateral damage caused.
The instance of a drone system failure could be providing a false sense of confidence to the operational units regarding the target.[14] The issue can result from various components, such as communication flaws. Types of communication have their own risks, such as D2D communication being vulnerable to various types of attacks, including jamming, D2G communications are public and not secure, using a single-factor authentication, which can be easily broken, causing them open to attacks, etc. Furthermore, the video obtained from drone sensors that collects huge amounts of information about the potential target may fail to trace essential data, or the intelligence and analysis have, if done incorrectly, may result in mistakes and civilian casualties.[15] Another drawback of drone video is the “soda straw” phenomenon; when an armed drone zooms in to identify the target, it fails to capture a broader picture of the area, and critical data is lost.[16] Often video surveillance is backed with signals intelligence, but in low-tech environments, it is limited to intercepting and tracking phones and can be ground for manipulation.[17] Finally, as UAV sensors capture substantially more than operators can analyze, the personnel, data analysts, and decision-makers face the obstacle of ‘data crush,’ where a missed detail by the overflow data may cause regrettable mistakes.[18] Similarly, there is an ethical and legal issue regarding the sensor operators and ‘pilots’ of UAVs since the weapons are restricted by the mastery of the personnel whose required level or training is not revealed. Accordingly, despite the advantages, the high probability of misidentification based on various factors bears the risk of disproportionate strikes and collateral damage causation.
Consequently, drones can be either armed or unarmed, and while completing military tasks fulfilling certain criteria, they may gain combatant status and be deemed military aircraft.[19] The unarmed drones usually carry out ISR missions, but the armed ones have more sophisticated missions such as target acquisition, joint surveillance target attack radar, and target strikes. To complete the activities mentioned, armed drones or UCAVs carry loitering munitions or cruise missiles or are being designed to function as loitering munitions. Therefore, often the utilization of loitering munitions blurs the bar between UAVs and cruise missiles. However, the UAVs definition by NATO depicts that the loitering munition is not perceived as a part of the UAVs.[20] Thus, armed drones are believed to carry a lethal payload, but categorizing them as a weapon is vague. Therefore, the drones and the weapons they may carry should be scrutinized separately, as illegal actions of such aerial vehicles can either be imposed by the weapon they carry or the technical malfunction, including the decision-makers, an integral part of the ‘kill chain.’
CHAPTER II
The usage of UAVs in different types of armed conflicts
The usage of armed UAVs has changed the nature of warfare, making it an asymmetrical conflict that involves the use of highly sophisticated remotely piloted drones from outside the theatre of war, attacking militants who operate on land in or near civilian populations. The definition of the armed conflict suggested by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) states, “an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.“[21] Therefore, the types of armed conflicts and their identification on their own exacerbate the issue. For each case, the legality of the operation should be assessed to prevent potential violations since the applicable rules vary depending on their type.
UAVs, mainly UCAVs, are often implemented during non-international armed conflicts (“NIAC”), the armed confrontation between state and non-state armed groups, and not international armed conflicts (“IAC”), an armed conflict between two states. The United States (“US”), in its military operations in Afghanistan, Pakistan, Yemen, Somalia, etc., claims that its actions comply with NIAC, and the military operations, including using drones, are explained as a ‘global war on terror,’ and a policing action against Al Qaeda, the Taliban, and other associated forces. No final ruling by any international judicial institution would state that the conflict is international or internationalized due to the involved subjects or geographical scope that the theatre of war is transient. Nevertheless, the actual wording of the Geneva Conventions seems to focus not on the geographical scope of the conflict, but the parties involved in the conflict. Consequently, NIAC examples are the 1989 attack on La Tablada barracks operations[22] and US operations in Afghanistan, Yemen, Pakistan, Somalia, etc.
Thus, identifying an armed conflict is quite prominent since it specifies the applicable law and only then the possible ways to assess the means used, including the usage of UAVs. Depending on the nature of the conflict, the specific conventions, international agreements should be enforced, and most of the rules of customary international laws since the right of parties to an armed conflict to choose methods and means of warfare is not unlimited.[23]
Targeted Killings
The term targeted killing is not defined under international law; it commonly began to be used in 2000, after Israel made public a policy of “targeted killings” of alleged terrorists in the Occupied Palestinian Territories. Hence the term targeted killing does not fit precisely into any specific legal framework but may emerge in times of peace as well as armed conflicts and be perpetrated by governments, their agents, or by organized armed groups in armed conflict. In a targeted killing, the explicit intent of the operation is to employ lethal force against an individual(s) determined explicitly in advance by the perpetrator.[24]
In several circumstances, targeted killings infringe the right to life, and the violation is apparent when the term targeted killings associate with “extrajudicial execution,” “summary execution,” and “assassination,” all of which are illegal.[25] Therefore, the legality of targeted killing relies on the context in which it is executed. Outside an armed conflict, UAVs must be used in compliance with the relevant rules of international human rights law. Interstate conflicts raise the issue of using force in another sovereign state’s territory, and Article 2(4) of the UN Charter forbids such use of force.[26] However, two impunities to this rule exist, self-defense or consent granted by the second state.[27] Targeted killings in armed conflicts to be legal should ensure whether a specific individual is a legitimate target or not.
Drone strikes related to targeting operations should obey the cardinal principle of IHL, distinction; distinguish between combatants and civilians when targeting individuals, and between civilian objects and military objectives. This principle is mainly codified in Additional Protocol I Article 48 and is also explained in Additional Protocol I Article 51(1) and Additional Protocol II Article 13(1) and has been recognized as a rule of customary international law providing the ‘general protection’ for civilians.
During IACs, members of the armed forces of a party to the conflict have an explicit right to take a direct part in hostilities, and by that, they are legitimate targets. All others that are not part of this class are considered civilians and should not be targeted unless they take direct participation in hostilities.[28] A similar condition exists during NIACs, where civilian population shall not be the object of attack and enjoy this protection unless they take a direct part in hostilities.[29] However, the commentary to Article 51 Additional Protocol I states that the immunity afforded to civilians is subject to overriding conditions, meaning that immunity can be overridden, mainly abstaining from all hostile acts.[30] Hostile acts are acts that are intended to cause actual harm to the personnel and the equipment of the armed forces. Attacks shall be limited to military objectives. However, objects initially having non-military nature may become targetable if located, used, or repurposed to gain military outcomes or conduct military operations.[31]
Thus, the legality of drone strikes depends on determining the status of the conflict and the identification of legitimate targets.
Casualties
Despite the common belief that UAVs are mainly used in NIACs, the rapid technology development and obscure legal limitation of the mentioned means allow it to occur in any conflict bearing a minimum legal liability and causing considerable casualties. Article 35 of Additional Protocol I clarifies the existence of limitations of ‘means or methods’ of warfare, and UCAVs, according to the HPCR Manual definition, are mainly “means of warfare used in combat operations […] causing either (i) injury to, or death of, persons; or (ii) damage to, or destruction of, objects.“[32] Furthermore, restrictions and prohibitions on weapons, means, and methods, provided by treaties and customary international law include the prohibition of employing weapons, projectiles, and materials, and methods of warfare of nature that “cause superfluous injury or unnecessary suffering.“[33] The well-established rules of IHL apply to new weapons and the use of new technological developments in warfare, such as drones. For example, when new weapons are about to be attained by the party to the conflict, they encounter restrictions as required by Article 36 of Additional Protocol I. Although obligations of the article enclose only to States party to the Additional Protocol I, the necessity to review the legitimacy of all new weapons feasibly applies to all states as of the condition of the forbidding use of illegal weapons, means and methods of warfare by this granting the rule a customary nature.
UAVs in IAC
The armed conflict between Armenia and Azerbaijan over Artsakh in 2020 began on September 27, 2020, with the attack of Azerbaijani units on Armenian posts under the vague pretext and reasoning that it was a response to the bombing of villages from the territory of Artsakh by the Armenian side.[34] The conflict lasted for 44 days and ended on November 10, 2020, via a Moscow-brokered truce agreement. Thousands of people were killed on both sides during the conflict, but the Armenian side bore the maximum casualty due to the massive use of UCAVs in war operations by the Azerbaijani military.[35] The Azerbaijani side used various UCAVs such as Elbit Hermes 450, IAI Searcher aircraft, IAI Heron, Elbit Hermes 900, Israeli Harop loitering munitions, kamikaze drones models such as the Aeronautics Orbiter 1K, the Elbit SkyStriker, and Turkish Bayraktar TB-2.[36] During the 44-day war Turkish Bayraktar TB2 UCAV showed outstanding versatility, and in addition to target identification, tracking, and guidance, it was also capable of independently destroying targets.[37] According to available data, the armed drones contributed to the destruction of considerable combat systems at the disposal of the Armenian forces.[38] One of the reasons is that the Armenian side in the conflict did not have or gain electronic jammers that could interfere with the signals linking the UCAVs with their guidance stations and eventually hinder their work. Therefore, Azerbaijan sent drones to detect the targets, and then the observed targets would be acted upon by armed UCAVs or kamikaze UCAVs.[39] Indeed the performance of drones in a conflict was revolutionary; however, the case of an independent decision-making process led to the question of whether the targeting was done accurately – distinguishing between civilians and military and not simply following to acquire the tactical and strategical goal. Furthermore, did the usage of loitering munitions, kamikaze drones, and other weaponized drones complied with the Article 35 Protocol I requirement of not “caus[ing] superfluous injury or unnecessary suffering“, and Article 48, 51 (1) Protocol I regarding the distinction?
I interviewed a combatant who participated in the 44-day war in Artsakh. I. A. served in the army for about 14 years, where he participated in the 2016 and 2020 Artsakh conflicts. According to I.A., Azerbaijan could not reach any success during the 2016 armed conflict, and in Karvachar, where he was serving, no intense clashes occurred. During the 2020 armed conflict, I.A. was once again serving in Karvachar, where he was injured on October 9, 2020 around 5 pm. Describing the moment, I.A. stated “I wanted to take a short break to clean my weapon and smoke a cigarette as I had learned earlier that a ceasefire between two parties was brokered.“[40] However, at that moment there was a strike from a Bayraktar TB-2. I.A. was with two other soldiers who died upon impact. I.A. only survived because those two soldiers were in front of him, and their bodies stopped the shrapnel from the explosion from striking him as well. At first, I.A. thought that he had lost several parts of his body as he could not sense anything but the heat in his chest. At that moment, he should have been recognized as hors de combat[41] since he had been rendered unconscious, incapacitated by wounds, and was therefore incapable of defending himself. Thus, he should not have been considered as a legitimate target during the second strike. However, drones failed to make this distinction.
The second strike was supposedly launched from the plane and was just a few meters away from I.A. and another soldier who had stayed to help. Due to the first strike, I.A. had severely injured his leg. He described that the lower part of his leg was beside him, and he took it by himself and put it next to him. Other soldiers who did not survive had their bodies torn apart by the drone strike and fragmented injuries were in the bodies. In the case of I.A., the bodies of those two soldiers and bulletproof vest stopped the shrapnel; however, besides almost losing his leg, he received fragmented injuries. More than a year I.A. has been in the rehabilitation stage at Soldier’s Home Rehabilitation Center, learning to walk again.
I also interviewed two doctors, Vladimir Tsughunyan and Harut Shaburyan, who were both in Artsakh during the 2020 war. Dr. Tsughunyan was an emergency doctor providing first aid to wounded combatants and transporting them to more secure hospitals. Dr. Shaburyan assisted during surgeries at Hadrut and Stepanakert. Both doctors also dealt with injuries during the 2016 conflict. Hence, they were able to differentiate and compare the level of injuries and wounds during the two conflicts.
The general description of the injuries in 2016 provided by both doctors represented expected injuries with a low mortality rate. According to Dr. Shaburyan, injuries were on lower or upper parts of the bodies and were caused by gunshots, not shrapnel or fragmented injuries, and rarely did he witness burns which, if they happened, were due to land mines. However, the situation was completely different in 2020. According to Dr. Shaburyan, the first injury that he witnessed was a soldier whose whole body was burnt; there was no hair on his head, and there was traumatic brain injury, as well as damaged lungs and inner organs due to shrapnel/fragmented injuries. Dr. Shaburyan also saw the corpses of soldiers and mentioned the rarity of seeing a whole body. Only parts of the bodies were preserved or found, and one doctor was responsible for numbering the body parts.
Dr. Tsughunyan and Shaburyan were on medical service in different parts of the conflict. However, both mentioned that medical personnel were targeted. Dr. Tsughunyan, while providing first aid and transporting injured patients to Stepanakert, remembers being targeted and even tried to film the UAVs flying above the ambulance car. As he reported, there was a load of wounded soldiers, and the ambulance car sometimes had to be overfilled with eight soldiers instead of the usual one or two. If the UCAVs were working with infrared sensors, measuring the heat being emitted by an object, then the ambulance car with eight and more people was misidentified to be a legitimate target. Hence, the distinction principle was neglected, or drones that used infrared sensor cameras failed to make a distinction between military objects and targets since doctors wore their medical uniforms and drove only ambulance cars that had special/protective emblems on them. The same issue was present regarding hospitals; the differentiation between military objects and hospitals was not made despite the distinguished signs and protective emblems. The result is predictable, and both doctors said they lost doctor friends who were doing their job of providing help to wounded soldiers. Consequently, doctors faced unforeseen injuries and had to perform exceptional surgeries and therapies while not being protected. Moreover, the risks mentioned in the first chapter indeed are true, and whether the drone performance is accurate or not, its strike has an indiscriminate nature and, in case of survival, causes superfluous injury or unnecessary suffering.
Dr. Shaburyan also reported of a time when he responded to a case of injured civilians near Hadrut. When he arrived, he saw a civilian vehicle entirely punctured, and inside was a father and his son. The father had gunshot wounds causing severe lung wounds, and the son had an injury on his hand. During surgery, in the body of the father the doctors detected a big piece of unknown metallic fragment that had harmed inner organs. Other civilians later also reported that a UAV had crashed into their home in Hadrut, and the family members were severely injured. As proof, they family brought the fragment of the UAV to the hospital.
Other examples of civilian casualties are reported in the interim report of the Human Rights Ombudsman of the Republic of Artsakh.[42] According to the interim report, civilians were killed on the spot in front of their houses, yard, and apartment. The strikes were recorded not in one but several densely populated regions such as Hadrut, Martuni, Stepanakert, Askeran, Martakert, Shushi, and Kashatagh. As a result of drone strikes, 42 civilians were killed, and 163 civilian injuries were recorded.[43] As discussed in the principle of precaution and article 57 of Additional Protocol I, “constant care shall be taken to spare the civilian population, civilians and civilian objects” thus, “there should be an increase in the level of caution employed when endeavoring to identify the target” and if too many civilians are gathered in a particular targetable area, then regarding the principle, the attacker must abstain from attacking.[44] Assuming that in some of the previously mentioned areas there were military objects, then the principles of distinction, proportionality, military necessity, and precautionary must be applied during the decision-making process. Therefore, more precise means of warfare must be chosen and used to minimize or exclude civilian loss and collateral damage.
UAVs are deemed to have the required high precision and intelligence. However, in Amnesty International’s article, “In the Line of Fire,” it was reported that “[in the conflict] notoriously inaccurate and indiscriminate weapons in populated civilian areas, including internationally banned cluster munitions, unlawfully killing scores of civilians and wounding hundreds more [were used].”[45] Hence, the loitering munitions attached to UAVs, or their build-in weapons did not meet the abovementioned requirements. Another issue is the geographical aspect of UAVs’ implementation since they operate around the whole country, blurring where the combat zone starts and ends. For example, during the Artsakh war, Azerbaijani UAVs were also attacking civilian settlements of Armenia – villages around the town of Vardenis – under the justification of gaining military advantage and using preemptive self-defense. As a result, a 14-year-old child was injured by an Azerbaijani UAV strike while he and his family were driving to work in the fields. During the same period, because of the aggression of the Azerbaijani armed forces, one civilian was killed, and two others were injured.[46] Consequently, the principle of distinction was not applied. Moreover, precautionary measures were neglected as before the strikes no warning signal was made. In addition, the capacity of UAVs flying beyond visual line of sight increases the risks of misidentification and mistargeting and also limits civilians’ ability to hide in case of attack.[47] This leads to the thought of balancing the lives of civilians against machines. In the case of fighter jets, which have individual pilots, keeping a high altitude that is unreachable to entire air forces may be justified from the perspective of sparing the lives of the personnel, but that argument is nullified in the situation where UAVs are being used.
The ‘winner‘ of the 2020 Artsakh war was Azerbaijan, and the UAVs had a significant role in this military gain. However, it is doubtful whether they operated as precisely or accurately as described in their manuals, leaving space for zero mistakes and collateral damage since the collected and recorded evidence presents various levels of casualties. Hence, further investigations should clarify whether the violations presented below are due to UAVs malfunction, attempting to be justified as military mistakes, or are just an act of gross negligence, aiming to reach the military goal with deliberately disproportionate attacks.
UAVs in NIAC
There are currently multiple, parallel, and overlapping non-international armed conflicts in Pakistan, Yemen, and Somalia. Most notably, NIAC activities in Pakistan are against Taliban-affiliated groups in the Federally Administered Tribal Areas and independent fighters in Balochistan, in Somalia government fights against Al-Shabaab, which has pledged allegiance to Al-Qaeda, and in Yemen, the government opposes Al-Qaeda in the Arabian Peninsula. Formed international coalitions and actors such as the US are supporting the government of these three countries. However, sometimes the lack of transparency regarding the US drone strikes restrains the assessment of whether certain strikes are part of the NIAC or not.
In 2004, Pakistan began undertaking military offensives against fighters considered to be associated with Al-Qaeda in the tribal areas near its Afghan border, where the US also began targeting via drone strikes.[48] Similarly, since 2009, the US, with the consent of the government of Yemen, has operated drone strikes and other special missions against Al-Qaeda in the Arabian Peninsula.[49] In Somalia, the US was also granted consent from the Somalian government to conduct conventional, and drone strikes in Somalia against targets linked to Al-Shabaab.[50] The armed groups against whom the government of Pakistan, Somalia, and Yemen are fighting satisfy the requirements of Article 3 of intensity and organization level, where all parties to the conflict are bound by Article 3 common to the 1949 Geneva Conventions and customary IHL. Al-Qaeda, as well as other armed groups in the Arabian Peninsula, by exercising territorial control over large parts of Yemen, have fulfilled the required criterion for the applicability of Protocol II. It should be noted that Protocol II does not apply between armed groups.
Depending on the strike type, the level of confidence and risk of mistargeting and misidentification vary. A signature strike conducts targeting without knowing the exact identity of the individuals targeted. It is controversial as more individuals are at death risk in some cases, civilians, because of their behavior or affiliations. While in a personality strike, the identity of a target is known, which creates “high degree of confidence,” according to US officials.[51] Furthermore, in the case of armed groups such as Al Qaeda, the Taliban, and other associated forces that used to mingle with civilians, the identification and distinction process becomes more challenging and riskier. A former senior intelligence analyst Marc Garlasco stated that it is challenging to use image intelligence in densely populated areas such as northern Pakistan with thick vegetation.[52] In April 2011, during a combat engagement involving the Marines and the Taliban in Afghanistan, a Predator drone was “unable to discriminate the highly distinctive combat outline of two Marines (with full battle equipment) from the irregular enemy.” [53] One of the signal intelligence failures was in 2010 when, based on phone intercepts, the US Special Forces assumed that Taliban deputy governor Muhammad Amin was using the name Zabet Amanullah as an alias.[54] Amanullah was killed based on the assumption he was Amin, but Amin was alive and seen in Pakistan after the strike.[55] Finally, an example of a ‘data crush’, according to a US investigation, due to information overload, a mistaken military targeting operation against a convoy in Afghanistan occurred, which left 23 civilians dead, including children.[56]
Consequently, UAVs undoubtedly influence modern warfare development. The cases and examples prove that they are less expensive means of weapon that allow achieving military strategic goals such as getting mountainous and other non-easy reachable areas to collect information. However, the possible risks mentioned in the chapter I depict that UAVs presumed to be sophisticated technological tools may have various malfunctions and breach conventional rules based on their usage. The inaccuracy occurs in the distinction process and the use of weapons of UCAVs during the strikes. The strikes have an indiscriminate nature and, in case of survival, cause superfluous injury or unnecessary suffering. Examples were amputation, burn, traumatic brain injuries, etc.
CONCLUSION
This report aimed to discover the legality of armed and unarmed UAVs during armed conflicts. The case studies of international and non-international armed conflicts depicted how at first glance, the same rules can be applied differently depending on the environment and how the performance of the pilotless vehicle may end up carrying diverse outcomes. Theoretically, the usage of UAVs, mainly in intelligence, surveillance, and reconnaissance missions, appears to be a beneficial and safe option during conflicts, disregarding the errors that may happen due to fast-changing circumstances. However, while considering cases, the usage and performance of armed and unarmed UAVs lead to a controversial conclusion, inevitable collateral damage, unforeseen injuries, and other casualties. Currently, no differentiation is made between armed drones and other weapons launched from manned aircraft. Only the general rules of IHL, mainly customary international laws, legally limit them both, but there is a gap and vague responsibility on states to guarantee to what extent drone operations shall comply with IHL rules and principles. The violations show that despite being believed to be an accurate means of warfare without any legal limitations, it will be able to breach even the universal rules and laws without bearing any responsibility. The reason is the dilemma regarding the vehicle’s autonomy level. When the attack is conducted with disobedience of any IHL principle, the liability issue occurs and whether the violations occurred due to military mistake or gross negligence remains unclear.
Consequently, even though UAVs are not prohibited, the naturally emerging recommendation is to establish specific limitations and armed control over UAVs usage to minimize and eventually eliminate misuse and abuse of such means. The rules are going to be logically inherited, such as the precise maximum altitude from where the strikes should be conducted, an exact margin of error for distinction, stricter regulations regarding the weapons they carry, etc. If such a treaty is established, states owning drones will be bound by those rules and ideally lessen disproportionate attacks. As for now, where it is deemed to believe that ”even wars have limits,” the evidence proves the opposite. Modern warfare appears to be tenser and unlimited, demonstrating the unfair juxtaposition: the life of an individual versus machine.
[1] Frontiers in Public Health, Estimating the Number of Civilian Casualties in Modern Armed Conflicts–A Systematic Review. Available at https://www.frontiersin.org/article/10.3389/fpubh.2021.765261 (last accessed March 30, 2022); Nadège Mougel, (2011) REPERES – module 1-0 – explanatory notes – World War I casualties – EN. Available at http://www.centre-robert-schuman.org/userfiles/files/REPERES%20%E2%80%93%20module%201-1-1%20-%20explanatory%20notes%20%E2%80%93%20World%20War%20I%20casualties%20%E2%80%93%20EN.pdf (last accessed March 20, 2022); The National WWII Museum New Orleans, Research Starters: Worldwide Deaths in World War II. Available at https://www.nationalww2museum.org/students-teachers/student-resources/research-starters/research-starters-worldwide-deaths-world-war (last accessed March 20, 2022)
[2] THE CENTER FOR THE STUDY OF THE DRONE AT BARD COLLEGE, The Drone Databook. Available at https://dronecenter.bard.edu/files/2019/10/CSD-Drone-Databook-Web.pdf (last accessed March 21, 2022)
[3] The degree of autonomy in a machine is measured by its ability to negotiate John Boyd’s OODA Loop: Observe, Orient, Decide, Act.
Lewis, S (June 2019), OODA loop. Available at https://www.techtarget.com/searchcio/definition/OODA-loop#:~:text=The%20OODA%20loop%20(Observe%2C%20Orient,as%20more%20data%20becomes%20available.(last accessed March 25, 2022)
[4] THE CENTER FOR THE STUDY OF THE DRONE AT BARD COLLEGE, The Drone Primer: A Compendium of the Key Issues. Available at https://dronecenter.bard.edu/files/2013/08/2014_Drone_Primer_Spreads.pdf (last accessed March 21, 2022)
[5] Singer, P. W. (2009), Wired for War: The Robotics Revolution and Conflict in the 21st Century. Available at https://www.semanticscholar.org/paper/Wired-for-War%3A-The-Robotics-Revolution-and-Conflict-Singer/892817a6837e462dfcc8daa948cee58aa6481f0e (last accessed March 25, 2022)
[6] Advisory Opinion of 8 July 1996, LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS, paras. 74-87. Available at https://www.un.org/law/icjsum/9623.htm (last accessed in April 6, 2022)
[7] Rome Statute of the International Criminal Court (last amended 2010), Article 8, 17 July 1998, ISBN No. 92-9227-227-6, https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx
[8] Statute of the International Criminal Tribunal For the Former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993).
[9] Article 57 Additional Protocol I
[10] Article 57 (2) (a) (i) (ii) Additional Protocol I
[11] Ibid.
[12] HPCR Manual, rule 1 (dd). Available at https://reliefweb.int/sites/reliefweb.int/files/resources/8B2E79FC145BFB3D492576E00021ED34-HPCR-may2009.pdf (last accessed April 9, 2022)
[13] HPCR Manual, rule 1 (ee). Available at https://reliefweb.int/sites/reliefweb.int/files/resources/8B2E79FC145BFB3D492576E00021ED34-HPCR-may2009.pdf (last accessed April 9, 2022)
[14] Rosenberg, M. (September 2016) “It’s Not Like Hollywood: Why U.S. Airstrikes Go Awry,” The New York Times. Available at https://www.nytimes.com/2016/09/21/world/middleeast/collateral-damage-why-us-airstrikes-go-awry.html (last accessed April 10, 2022); Reuters, (September 2016) “US-led forces strike Syrian troops, prompting emergency UN meeting”. Available at https://www.cnbc.com/2016/09/17/syria-says-us-led-jetshit-its-troops-dozens-reported-killed.html (last accessed April 10, 2022)
[15] Schmitt, E. (November 2002)“Threats and Responses: The Battlefield,” The New York Times,
[16] Defense Industry Daily, (May 2010), “Too Much Information: Taming the UAV Data Explosion”
[17] Columbia Human Rights Clinic interview with Marc Garlasco (April 2012), (former senior intelligence analyst at the Pentagon, New York City)
[18] Shanker, T. and Richtel, M. (January 2011)“In New Military, Data Overload Can Be Deadly”, The New York Times
[19] HPCR Manual, rule 1(x)
[20] Basic terminological document NATO APP6 (2010).
[21] ICTY, Prosecutor v. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70
[22] See Juan Carlos Abella v. Argentina, Case 11.137, Report Nº 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (1997), para 156.
[23] Additional Protocol I, Article 35, paragraph 1.
[24] Nils Melzer, Targeted Killing in International Law (2008) at 4-5
[25] Ibid, paragraph 10.
[26] UN Charter, Article 2(4).
[27] UN Charter, Article 51.
[28] Additional Protocol I, Article 50 paragraph 1.
[29] Additional Protocol II, Article 13 paragraph 3.
[30] COMMENTARY OF 1987 PROTECTION OF THE CIVILIAN POPULATION, paragraph 3
[31] Additional Protocol I, Article 52 paragraph 1.
[32] HPCR Manual, rule 1 (ff)
[33] Additional Protocol I, Article 35 paragraph 2.
[34] Ergun, A. Aliyev, A. (2020). An Account on Karabakh War: Why Now and Then What? Panorama.
[35] Westad, J. P. (2021). Another War over. New Internationalist, 529, 13.
[36] Yermakov, A. (2020). Unmanned Aerial Vehicles over Nagorno-Karabakh: Revolution or Another Day of Battle. Available at https://valdaiclub.com/a/highlights/unmanned-aerial-vehicles-over-nagorno-karabakh/ (last accessed April 20, 2022)
[37] Shaikh, S. and Rumbaugh, W. (2020). The Air and Missile War in Nagorno-Karabakh: Lessons for the Future of Strike and Defense. CSIS Available at https://www.csis.org/analysis/air-and-missile-war-nagorno-karabakh-lessons-future-strike-anddefense (last accessed April 20, 2022)
[38] Ibid.
[39] Dixon, R. (2020). Azerbaijan’s drones owned the battlefield in Nagorno-Karabakh — and showed future of warfare. The Washington Post. Available at https://www.washingtonpost.com/world/europe/nagorno-karabkah-drones-azerbaijanaremenia/2020/11/11/441bcbd2-193d-11eb-8bda-814ca56e138b_story.html (last accessed April 20, 2022)
[40] Crisis24 (2022). Azerbaijan: Fighting in Nagorno-Karabakh continues as ceasefire talks begin October 9 /update 11. Available at https://crisis24.garda.com/alerts/2020/10/azerbaijan-fighting-in-nagorno-karabakh-continues-as-ceasefire-talks-begin-october-9-update-11 (last accessed April 20, 2022)
[41] Additional Protocol I, Article 41
[42] Human Rights Ombudsman of the Republic of Artsakh (Nagorno-Karabakh) (SEPTEMBER 2021) INTERIM REPORT ON THE CASES OF THE KILLING OF CIVILIANS IN ARTSAKH BY THE ARMED FORCES OF AZERBAIJAN. Available at https://artsakhombuds.am/en/document/785#_Toc83492395 (last accessed May 1, 2022).
[43] Ibid.
[44] Ibid. 40.
[45] Amnesty International (January 2021). In the line of fire: civilian casualties from unlawful strikes in the Armenian-Azerbaijani conflict over Nagorno-Karabakh. Available at https://www.amnesty.org/en/documents/eur55/3502/2021/en/ (last accessed April 20, 2022).
[46] PAN Media (October 2020). “Վարդենիսում ԱԹՍ-ից տուժած 14-ամյա երեխայի մոտ դրական դինամիկա կա, վիճակը կայունանում է“. Available at https://www.panarmenian.net/arm/news/286573/ (last accessed May 1, 2022).
[47] See ICTY, The Prosecutor against Milan Milutinović, Nikola Šainović, Dragoljub Ojdanić, Nebojša Pavković, Vladimir Lazarević and Sreten Lukić, Case No. IT-05-87.
[48] Geneva Academy of International Humanitarian Law and Human Rights (2022). Non-international armed conflicts in Pakistan, RULAC. Available at https://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-pakistan#collapse3accord (last accessed April 22, 2022)
[49] Geneva Academy of International Humanitarian Law and Human Rights (2022). Non-international armed conflicts in Yemen, RULAC. Available at https://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-yemen#collapse3accord (last accessed April 22, 2022)
[50] Geneva Academy of International Humanitarian Law and Human Rights (2022). Non-international armed conflict in Somalia, RULAC. Available at https://www.rulac.org/browse/conflicts/non-international-armed-conflict-in-somalia#collapse3accord (last accessed April 22, 2022)
[51] Center for Civilians in Conflict (formerly CIVIC) and Human Rights Clinic at Columbia Law School (2012). The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions. p.8.
[52] Columbia Human Rights Clinic interview with Marc Garlasco (April 2012), (former senior intelligence analyst at the Pentagon, New York City)
[53] Wheeler, W., (February 2012). “Finding the Right Targets” Time; Rogers, K., (April 2012). “Predator Strike that Killed Sailor Angers Father”, Las Vegas Review-Journal.
[54] Hastings, M., (April 2012). “The Rise of the Killer Drones: How America Goes to War in Secret”, Rolling Stone
[55] Clark, K., (May 2011). ”The Takhar Attack: Targeted Killings and the Parallel Worlds of US Intelligence and Afghanistan”, Afghan Analysts Network
[56] Shanker, T., and Richtel, M., (January 2011). “In New Military, Data Overload Can Be Deadly”, The New York Times; United States Forces – Afghanistan, Kabul Afghanistan“Executive Summary for AR 15-6 Investigation, 21 February 2010 CIVCAS incident in Uruzgan Province,”
