STRASBOURG MODEL UNITED NATIONS
ANNUAL CONFERENCE December 7th 2013
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STUDY GUIDE Sixth Committee LEGAL
Drones in the Twenty-First Century Warfare: Defining a Legal Framework
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CONTENTS
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Topic Drones - History of the Committee……….....pg. 5 - Organization of the Committee…..pg. 6 - Introduction to the Topic...……......pg. 7 - Points of Discussion.………………...pg. 10 - The Future…………………………….….pg. 16 - Points a Resolution Should Address..............................pg. 17 - Bibliography and Further Reading………..….............................pg. 18
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A MESSAGE
Dear Delegates, welcome! Congratulations to your admittance to the Strasbourg mini-MUN! You have been selected to address one a crucial issue in a peculiar UN organ: the Legal Committee. This study is an introduction to our topic, providing a firm foundation for you to then research in greater detail. It will serve you in the writing of your position paper, defining your country’s position on the matter. Reading this document will be the first step to becoming an outstanding delegate, as the old adage says, knowledge is power: nowhere is this truer than in Committee. Good luck in your research. Committee Directors Héloïse de Montgolfier hdemontgolfier@free.fr
Pauline Fouquet pauline.fouquet@gmail.com
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HISTORY OF THE COMMITTEE
The General Assembly, established in 1945 under the United Nations Charter, is the only organ of the United Nations where each state can be represent, all being considered as equal and sovereign. The main part of the General Assembly’s work is occurring in six committees, whom is the legal one. The Legal Committee, officially named The United Nations General Assembly Sixth Assembly, is the main forum that deals with legal considerations. Article 13 of the United Charter defines this committee as charged to “initiate studies and make recommendations for the purpose of (…) encouraging the progressive development of international law and its codification”.
Since its first session in 1948, the Sixth Committee has continuously developed international law on the basis of freedom and human rights. Even if its work is limited to non-binding recommendations, it has powerfully promoted international law comprehension and codes. The Legal Committee won fame with several legal agreements. One can name some of them: The Vienna Convention on Diplomatic Relations in 1961, the Vienna Convention on the Law of Treaties in 1969, the International Convention for the Suppression of the Financing of Terrorism in 1999 or the establishment of the Rome Statute of the International Criminal Court in 1998, that set up this judicial organ to bring to justice authors of crimes against humanity. Legal Committee has proved its capacity to successfully deal with contemporary issues all through its existence. Today, more than ever, given the deep mutations concerning the whole international community, it will bring to play a key role.
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ORGANIZATION OF THE COMMITTEE
The Legal Committee has a universal membership, namely, each Member State of the United Nations is a de jure member of the Legal committee. Sovereignty and equality of the United Nations is reflected into the principle of “one state, one vote” The Sixth Committee is entitled to initiate studies, to make recommendations to states in order to promote international law and code, the realization and respect of human rights and fundamental freedom. Aiming at giving political weight to its actions, the Legal Committee follows a “mixed decision-making rules”. The Legal Committee firstly aims at taking decision on a consensual basis. Some recommendations may be adopted following a vote, but informal vote is preferred. That is why most of the recommendations and resolutions have been adopted through acclamation, unanimity or consensus.
The Legal Committee closely works with other institutions of the United Nations, like the International Law Commission, the United Nations Commission on International Trade Law, and the Ad Hoc Committee on Terrorism. During the annual session, the Sixth Committee has to deal with items and issues highlighted by these institutions.
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INTRODUCTION A drone can be defined as any terrestrial, naval, or aerial device, remotely or automatically piloted. It is, more prosaically, a high resolution flying camera, which may be equipped with missiles. Drones are therefore often referred to as unmanned (combat) aerial vehicles. The idea of such a technology arose from the rejection of the numerous slaughters and deaths that occurred during World War Two. An uninhabited vehicle was seen as the solution to avoid as many body bags as possible to come back in their home countries. It also represented a tactical and technical advantage. Now, in twenty-first century warfare, the exponential increase in the use of drones went along with the idea that using capital was preferable to labour, as far as defense – and to a certain extent, intelligence – are concerned.
“Just 10 years ago, the idea of using armed robots in war was the stuff of Hollywood fantasy. Today, the United States military has more than 7,000 unmanned aerial systems, popularly called drones” Peter W. Singer, director of the Brookings Institution’s program for 21st Century Security and Intelligence and a senior fellow in its Foreign Policy program
In this committee session, we will put aside any account of the civilian use of drones, notwithstanding its likely future developments in terms of policing. Instead, the delegates should focus on their use by the military, as well as for intelligence-gathering purposes. Drones can be used for three different types of missions that can be organized into a gradual scale: 1. surveillance and intelligence (which remains by far the first objective assigned to drones), 2. combat support, 3. and eventually combat itself, through strikes on pre-defined targets. More precisely, drone-technologies offer such possibilities as radar, optical or electro-optical sensoring, survey and mapping, fire control through laser designation, etc. Drones are also more and more likely to turn to fully autonomous robots, which is very preoccupying as far as ethics are concerned, since our legal framework might not be very adapted.
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Today, approximately 32 countries would design 250 different types of drones, of which 80 would be exploited by 41 nations in a military way. The United States, however, largely dominates the drones industry. Since the end of the “cold war”, they first developed the Predator, which was already in operation in Kosovo and Bosnia from 1995 on, to identify terrestrial targets. It was only an eye by that time, and not yet a weapon. It was then improved and turned into a weapon in 2001 (the Reaper), when it was equipped with missiles. Even if the increase in the use of drones by the United States started in Afghanistan in the first place, it is the Obama Administration that undoubtedly expanded the targeted-killings programme. A few thousands of American drones are currently in activity. And a strike is launched every four days.
Source: Bureau of Investigative Journalism
The United Nations themselves use drones, and they even started to use these devices for surveillance in peacekeeping operations in 2006 in the Democratic Republic of Congo (MONUC, rebaptised MONUSCO in 2010), then in Chad and Central Africa (MINUCRAT), but also following the earthquake in Haiti in 2010.
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However, there is no consistent international framework that could legally bind the states when using drones. The use of such technologies can only be attached to two agreements so far:
The Missile Technology Control Regime: it aims at restricting the proliferation of missiles, complete rocket systems as well as unmanned air vehicles. This regime unfortunately relies on the only consent of the states to apply common directives, and no sanctions are designed.
The Arms Trade Treaty: it regulates armed drones trade, among other weapons.
These agreements have been concluded under the aegis of the First Committee of the General Assembly (DISEC – Disarmament and International Security Committee). Plus, they are not satisfactory enough since they do not provide the international community with a general overview of the drones phenomenon. Other UN bodies have shown their interest into the topic so far, such as the Security Council, the SOCHUM Committee or the Human Rights Council, and a very important report by Christof Heyns, the UN Special Rapporteur has been made public. But these efforts have to be pushed forward.
Even though drones are not illegal weapons, they can be easily misused. The international community, through the Sixth Committee of the General Assembly, should try the best to ensure that drones match the fundamental norms of international humanitarian law and international human rights. This is all the more important in a context where terrorism poses new challenges, but also because the low cost of drones makes them more prone to proliferate, quantitatively and geographically.
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POINTS OF DISCUSSION 1. Drones as Tools of Intelligence-Gathering The drone technology operated a revolution in vision, which became constant and total. This is a really risky trend, notably in the perspective of future developments in the civilian area – it could be the technological application of a “Big Brother” society, not only abroad but as far as national policing is concerned. Where would the protection of personal data and private life fit into such a context? In the area of intelligence-gathering about alleged terrorists, the method of targetdesignation used by the United States C.I.A (Central Intelligence Agency) is highly reprehensible on a moral ground, but –fortunately or not – no legally-binding element has been designed by the international community yet to prevent it to occur. Every Tuesday in Washington (some calls it “Terror Tuesday”), a kill list is approved by the President, based on names. But more worryingly, it would appear that for the major part of the strikes, you do not know the exact identity of the targets – one speaks about “signature strikes”. Thanks to the constant data provided by drones, some “patterns of life” are spotted: maps and charts combining the moves, interpersonal links and time schedule of the person are established. This profiling allows one to determine whether the pattern is in conformity with a terrorist’s behaviour. Plus, this method can be applied predictively: for example if irregularities are observed in one’s behaviour, it will be considered as suspect, and an alert is likely to be set off.
“When the C.I.A. sees three guys practising aerobics, they think it is a terrorist training camp.” A joke often heard in U.S. administrations’ corridors
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Still, information and intelligence are the ground of success in many operations, as acknowledged Lieutenant General Carlos Alberto dos Santos Cruz, Force Commander of the United Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO). Drones can bolster a mission, help to identify armed groups (it is obviously harder to identify such groups on the ground when they are no more mass armies), track their movements, but even monitor the safety of internally displaced persons. It is a very useful instrument to mitigate risk.
2. Drones and the Redefinition of Combat The first part of the problem pertains to sovereignty. In practice, drones are used by some countries in some others without any declaration of war (in Yemen and Pakistan for example); so how can it fit into the framework of the international laws of armed conflict? Japan, for instance, after several warnings to leave its airspace, simply shot some foreign drones; this seems to be a quite justified reaction as regards the protection of the Japanese State’s legal rights – the first of which being sovereignty.
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This becomes even more complicated when the drone is used to kill a pre-designated individual (for detailed information, see Point of Discussion N°3). In September 2001, Yemen killed Anwar al-Awlaki, an American citizen not convicted with a crime, despite the United States not being at war with Yemen. This example shows the crucial need for a legal framing of the use of drones; indeed, if we are neither at war nor in a law-enforcement operation, then where do we legally stand? Besides the definition of combat in the geographical sense, drones are a landmark illustration of how warfare in the twenty-first century has redefined the way to combat. They do not require a pilot on board, and thus avoid the “body bag syndrome” that results of traditional aircrafts being shot at above the battlefield. Since the 1990s and the conflict in the Balkans, a new principle has emerged sui generis, that is the immunity of national combatants: societies are less and less prone to accept the death of their soldiers abroad. Such a principle generates a pull for robotics solutions. The problem is that this combatant immunity comes in frontal opposition with the traditional principle of non-combatant immunity, on which just war theory and international humanitarian law have been built up on for centuries.
“If you can avoid unnecessary situations where you expose them [medics] to fire and you end up with two dead guys, then we have a responsibility to the American people to avoid that.” A former Army Special Forces officer
It is true, however, that drones, thanks to their fire-accuracy, can limit collateral damage, unlike a bomber. But many cases of bad targeting could be accounted for. Moreover, one must be careful to such sophisms as the idea according to which “thanks to drones, we have better targeting-capacities”. Indeed, on the one hand, targets are not designated by the drone itself (although some “progress” is made in this direction) but the officers behind their computers; on the other hand, distinguishing on the camera between a combatant and a non-combatant silhouette, when there are no distinctive clothes, can be arduous.
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Eventually, drones can be seen as the asymmetrical, terroristic means, which has been found to counter “terrorism” and asymmetrical conflict. First, we cannot really consider that the officer in his room full of computers is in the same situation that the “combatant” targeted. Moreover, drones can really be instruments of terror – which can be counter-productive for those who use them. Indeed, drone stands for “insect buzzing”; people who ear this sound without stopping for days can be terrorised.
3. Facing Terrorism: Drones as an Instrument of Targeted-killings Terrorism presents characteristics that break with traditional warfare. First, terrorism can be led by state or non-state actors. Second, one cannot speak any more about battlefields in a traditional sense: conflict does not take place in delimited territories but in population centres; it does not seem to be delimited over time; and actors and combatants are hardly identifiable and localized. Third, terrorism does not involve war declaration and thus does not easily fit into international law of war. Targeted killings, despite their recurrent use, have never been defined in international law. It consists in lethal force that “is intentionally and deliberately used, with a degree of premeditation, against an individual or individuals specifically identified in advance by the perpetrator (…)This distinguishes targeted killings from unintentional, accidental, or reckless killings, or killings made without conscious choice” (Philip Alston, International Lawyer). Targeted killings may nevertheless be legal under certain circumstances in armed conflicts. Israel and the United States have experienced this strategy, in particular by drones use. According to a realist perspective, using drones within a targeted-killing strategy may reveal some undeniable advantages to counter terrorism. First, facing no-end conflicts, the reusability and profitability of drones represent major benefits. Also, these engines are much less expensive than a piloted aircraft – its price represents only 5-6% of the one of a piloted aircraft.
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This must be considered if we place terrorism eradication as depending on the military and technological capacities of a state. On top of this, drones are featured by suppleness and efficiency; thus they could offer the most adequate technology to counter combatants within terrorism framework. Drones permit access to adversarial areas – e.g. the tribal areas in Pakistan – that a piloted aircraft or troops could not reach to. Also, their observation role, the possibility to fly longer than a piloted aircraft and the information transmission in real time are major assets facing invisible individuals and unpredictable situations. International Humanitarian Law (IHL) authorizes the use of targeted killings in an armed conflict when the target is an individual who “directly participated in hostilities” (DPH). However this practice has to be necessary and proportionate, regardless of whether the conflict occurs between states or between a state and terrorist groups. Therefore it must not be used as a reprisal or in retaliation. Obviously,
in
an
armed
conflict
perspective, the issue is to define who participates directly in the hostilities. In 2009, the International Committee of Red Cross (ICRC) has established three cumulative conditions to constitute DPH: there must be a “threshold of harm”, the harm must be a part of a specific and combat operation and the act must have a “belligerent nexus”. Outside of an armed conflict, and outside of these three conditions, targeted-killing strategies are, in most of cases, illegal. They could be legal only if they are a response to an imminent and dangerous threat – namely an anticipatory action in self-defence – a necessity that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation ”.
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However, it is not sure that countering terrorism by targeted killings responds to this kind of necessity. On the contrary, using drones within such a strategy would threaten the international law that prohibits the arbitrary deprivation of law. These targets should rather be brought to justice, according to the law enforcement rules.
Thus, the use of drones as instruments of targeted killings to counter terrorism blurs the distinction between the war and the law enforcement-approach, because it does not follow a declaration of war. It cannot be considered as an act of anticipatory self-defence, in case of peace, neither as part of a war strategy because one cannot define countering terrorism as a war in its traditional sense. This confusion is reflected by the notion of “unlawful combatants”, designed by the Bush Administration to qualify terrorists and to justify the measures set up to deter them. These legal issues lead the United States to wage a veritable “lawfare” in order to make international law compatible with its use of drones within its war on terror. They seek for overstepping the legal obligation of a declaration of war by changing the geographical ontology of international law. The central idea is that, in the 21 st century, you can chase enemies on the international level, and the world is the new hunting ground. This position breaks with the current territorial perspective. Such an approach raises major issues in terms of compatibility with basic human rights: it would legally allow extrajudicial execution, namely a right of assassination on a global scale.
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THE FUTURE
The future of “dronisation” (a French neologism created by Grégoire Chamayou, a French philosopher) raises a threefold issue:
First of all, since drones are a relatively cheap technology, they are bound to proliferate, and to spark a technological race (that has already started between many national and/or regional military industries). One of the likely evolution, that has started to appear, is the development of Lethal Autonomous Robots (LARs), namely fully autonomous robots not only able to make the decision to fire on their own, but also, thanks to algorithms, to designate the human targets. This evolution is highly preoccupying in terms of affixation of responsibility, since moral agency disappears when the machine is totally unmanned.
Second of all, since drones are a “low technology”, they are likely to proliferate in the hands of non-state actors, who could be terrorist actors. This means that we could start having drone attacks on the soils of occidental states. The military targets being hidden, the risk is transferred upon civilians; easily accessible.
Eventually, drones as they offer the perspective of a total ocular control over people, are likely to proliferate as far as surveillance and police operations are concerned.
“I think of where the airplane was at the start of World War I: at first it was unarmed and limited to a handful of countries. Then it was armed and everywhere. That is the path we’re on.” P.W. Singer
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POINTS A RESOLUTION SHOULD ADDRESS The international community, as represented by this Committee, has to seize this chance to discuss to use of drones in prevision of the many problems that are certainly to occur following it, so that when they occur, there is a legal framework to address them.
How can we get national authorities to be more transparent on their decision to use drones (as a surveillance tool or a direct combat instrument) in a logic of democratic control? Should the United States be given special recommendations by the Committee, regarding to their pioneer role and extensive use in creating and using drones? How can we pull drones out of a lawless zone (between war and law enforcement)? How to create categories to distinguish between drones as an illegal act of violence or as a legitimate act of war? Who should be responsible in case of an illegality caused by the use of a drone? How could the Legal Committee supervise drone-proliferation? How to prevent drones from being accessible by a great and therefore dangerous amount of civilians? With which UN agencies or international NGOs shall the Legal Committee design a legal framework and work on its efficient implementation?
‘And if the machine is not responsible, who does the group seek to hold accountable, and where exactly do they draw the line? “Who do we go after, the manufacturer, the software engineer, the buyer, the user?”’ Marc Garlasco, Human Rights Watch
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BIBLIOGRAPHY And Further Readings
Brunstetter, D. and M. Braun, ‘The Implications of Drones on the Jus War Tradition’, Ethics & International Affairs, Vol. 25, No. 3 (2011), 337-58 Arkin, R. C., ‘The Case for Ethical Autonomy in Unmanned Systems’, Journal of Military Ethics, Vol. 9, No. 4 (2010), 332-341 Davis, D. (2007), ‘Who Decides: Man or Machine? Armed Forces Journal, Vol. 11 (2007), available at: http://www.armedforcesjournal.com/2007/11/3036753 Der Derian, J., Virtuous War: Mapping the Military-Industrial-Media-Entertainment Network (Boulder: Westview, 2001) Killimister, S., ‘Remote Weaponry: The Ethical Implications’, Journal of Applied Philosophy, Vol. 25, No. 2 (2008) Singer, P., Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin, 2010) Schmitt, M., ‘Drone Attacks under the Jus ad Bellum and Jus in Bello: Clearing the “Fog of War”, Yearbook of International Humanitarian Law, Vol. 13 (2010), 311-326 Sharkey, N., ‘Saying “No!” to Lethal Autonomous Targeting’, Journal of Military Ethics, Vol. 9, No. 4 (2010), 369-383 Sparrow, R., ‘Killer Robots’, Journal of Applied Philosophy, Vol. 24 (2007), 62-77 Strawser, B. J., ‘Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles’, Journal of Military Ethics, Vol. 9, No. 4 (2010), 342-368
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