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Título: Article: The international law and its approach on combat drones
Publicado por: Admin en Octubre 11, 2017, 07:15:36 pm
The international law and its approach on combat drones

One of the basic considerations whether an action is a crime or a consequence of an armed conflict tends to be if that armed conflict existed in the first place. There are war strategies followed by different countries when they find themselves in a conflict, and they all must follow different limitations that will not allow these countries and governments to “cross the line”. The Rome Statute is the most visual example of what is allowed and not during a time of war. Specifically, their article 8 speaks about the different war crimes that will be considered and punished if they are committed. Serious violations of international laws and conventions tend to be included in the concept of war crimes, but they must always work as a part of a plan or policy in the large-scale conflict.
The Rome Statute is a complete text that explains the different contents of international criminal law. But, as does society, the type of crimes evolve. A new way of committing a crime, a new weapon, new strategies, people trying to find the spots that law has never treated with before, and use them to commit supposed crimes, is something that tends to happen, and even more in the era of information, communication and technology.

Recently, it’s been a topic in international law the usage of Drones. Drones can be used as an entertainment, for humanitarian reasons, to investigate, or even for war. It’s easy to use a drone as a weapon if a person makes the machine carry an explosive. The biggest difference that these drones or UCAVs (Unmanned Combat Air Vehicles) have with other means of war is the independence in which these act with.

A drone functions with a remote pilot, but different types of drones can work with different programs, to the point of allowing drones to fly and act almost on their own by the use of AI’s. That means that a drone can be an unmanned vehicle or a programmed missile, it can have many shapes and, for that reason, it can be dangerous.

Already in 2013, Peter Maurer, president of the International Committee of the Red Cross, spoke about drones. He explained the importance of making a difference between other weapons and drones. Although the UCAVs are not specifically considered under International Humanitarian Law, their usage is subject to international law. As every technology, its existence or usage does not necessarily imply a harm done to someone else. However, it’s actually there where the debate starts. Combat operations in places such as Afghanistan, Gaza or Yemen. Some argue that the precision with which the drones act have caused less destruction and casualties between civilians, but their remote functioning has also caused an erroneous attack and death on civilians in many occasions. (Maurer, P., 2013)

Using drones is not illegal, but arming them makes the vehicle become a weapon. That’s the reason why the international law still applies. But one of the main issues then is finding the responsibility of the crime that a drone can commit.
For remotely controlled drones, these weapons, even if not directly, have a constant control from an operator. Although that operator is not present, he identifies the target, fires the weapon, and follows a responsibility chain equal to anyone who actually fights in the battlefield using other type of weaponry. “Drone operators are thus no different than the pilots of manned aircraft such as helicopters or other combat aircraft as far as their obligation to comply with international humanitarian law is concerned, and they are no different as far as being targetable under the rules of international humanitarian law.”, Maurer, P. (2013)

In order to judge the usage of drones as a weapon, there are different factors to take in mind. The operator or IA that was in control, the program used in the drone, casualties, damage, moral…

In the 31st international Conference of the Red Cross and Red Crescent, during 2011, the workers from the different organisations redacted a 53-pages text in which they considered the new challenges that the international law was facing to judge the contemporary conflicts. In the chapter V, Means and methods of warfare, they specify on drones and IAs.


The Conference explains how, in the latter case, the responsible for a crime would be difficult to determine. It’d not be clear if the person responsible for a war crime committed by an Artificial Intelligence. Serious violations of the IHL and the different war crimes tend to be considered under the responsibility of a human, so what would happen if an AI committed such crimes? The circumstances of that AI usage cannot be currently determined by the IHL, since the programmer, the manufacturer, the command that deployed the drone, all could be part of the definition but not necessarily responsible. The International Committee of the Red Cross argues that the new technologies do not change the existing law, but actually must respect it.

In that sense, I’d like to consider the war crimes under the Rome Statute and which ones could be caused by drones. It must be said that because of the amount of crimes recognised by the Rome Statute, I will focus mainly on these that are directly in relation with the grave breaches of the Geneva Convention:


As it’s shown, the various crimes cannot be always applicable for the drones, but still, being a weapon of new warfare does not make drones invulnerable to International Humanitarian Law. Even so, the ICRC mentions that “current norms do not sufficiently regulate some of the challenges posed and might need to be elaborated. For the ICRC, it is important to ensure informed discussion of the issues involved, to call attention to the necessity of assessing the potential humanitarian impact and IHL implications of new and developing technologies and to ensure that they are not employed prematurely under conditions in which respect for IHL cannot be guaranteed.” (ICRC, 2011)

One of the biggest challenges that the international community has to face in order to regulate drones is the legal field, but morals get involved often:


UCAV’s affect directly to the military capacities of a country. They can be used to supress the enemy, support operations, eliminate specific targets, and perform specific surveillance or defensive operations. These vehicles have access to an incredible amount of customization only limited by the human capacity, which is constantly increasing. The military has already begun to consider drone warfare as the next step of armed conflicts. UCAV’s will be in the future used for low-intensity fights, counter-insurgence and surveillance, but because of the advances and different legal and moral considerations, it’s unlikely that the change will happen anytime soon. UCAV’s can be used for the most dangerous or precision-based jobs and the future of their actions will depend mostly on how the technology advances.

For that reason, knowing how these advances could occur in any moment, the ICRC is an example of prevention. The Committee has been working on the issue of drones from even 2011 with their mention on the Report and the discussion on legal, social and ethical issues. Drones have the opportunity to change the ways in which war is performed and they will bring either more destruction or even a warfare based only in drone-fighting operations. Policymakers will need to review International Laws in order to control and prevent it to get out of hand. What worries the ICRC, as an example, is the implications on civilians. There’s been reported cases of harmed civilian populations in Pakistan because of the CIA’s drone programmes, but as it happens with any weapon, the case needs to be deeply studied.

In conclusion, drones are a new mean of contemporary warfare that brings into question legal issues because of their recent apparition and the possibility of being not fully included and considered in IHL, as also how to judge the chain of command in AI-controlled vehicles. They also bring specific ethical problems to the international community because of the possible harm of civilians and the intention to delegate to an AI the question: “What’s morally acceptable in this situation?” Only the future advances on technology and law will show the extent of the issue.



References

Broersma, M. (2015), US Military Recruits Gamers To Fly Killer Drones. From Silicon UK, available at http://www.silicon.co.uk/e-innovation/military-gamers-drones-160784

Callam, A. (2015). Drone wars: Armed unmanned aerial vehicles. International Affairs Review, 18.

International Committee of the Red Cross (2011). 31st INTERNATIONAL CONFERENCE OF THE RED CROSS AND RED CRESCENT. International Humanitarian Law and the challenges of contemporary armed conflicts – ICRC Report. Geneva, Switzerland, 28th November to 1st December, 2011

International Committee of the Red Cross (2013). The use of armed drones must comply with laws.

International Committee of the Red Cross (2014). Ensuring the use of drones in accordance with international law

International Criminal Court (2011), Rome Statute of the International Criminal Court. Avaliable at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

Roth, K. (2013), What Rules Should Govern US Drone Attacks? From The New York Review of Books, available at http://www.nybooks.com/articles/2013/04/04/what-rules-should-govern-us-drone-attacks/

Schmidt, M. (2016). Air Force, Running Low on Drone Pilots, Turns to Contractors in Terror Fight. New York Times, available at https://www.nytimes.com/2016/09/06/us/air-force-drones-terrorism-isis.html?_r=0