Armed drones and the right to life
By Nada Bamoshmoosh - Law student at the Universitá degli Studi di Firenze
OCTOBER 6th, 2021
The use of drones as lethal weapons has raised numerous legal, moral and political issues. Before analyzing some of these problems we should give a definition: unmanned aerial vehicles (also knowns as UAVs) are machines that operate semi-autonomously without an operator on board so they can be used via remote control. The first armed drone campaign was initiated by the United States, after the Twin Towers attack in 2001. Former US President George Bush authorized a total of 52 armed-drone strikes that killed 416 people including 167 civilians in those countries where there was the so-called global war on terrorism. The peculiarity of the use of drones as weapons is that they can aim at a specific target; these are called targeted killings. The strategy of targeted killings is simple: when a target must be killed, they’re tracked down and when their position is known the targeted strike is launched.
What immediately emerges is that the main counter-interest to an armed drone attack is the protection of the right to life, claimed as the supreme human right. At an international level there is a broad consensus on the importance of the right to life and even when this right may be deprived, privation of life cannot be arbitrary. There must be a preventive evaluation which takes into account the risk of unjust killings which must be minimized. Moreover, non-arbitrariness of UAV attacks must respect four fundamental requirements: a clear legal basis, necessity, proportionality, precaution.
In order to assess how and when a targeted killing can be carried out and if this is legal under international law, it is necessary to differentiate between three circumstances: period of peace, state of emergency and/or self-defense, armed conflict.
In times of peace, the use of drones and targeted killings can be part of the law enforcement system. The legality of a targeted killing will then depend on the circumstances in which the attack can be justified under the normal profile of the use of force in times of peace. In general, ‘shooting to kill’ to enforce the law may be legitimate, but killing must not be the main purpose of the operation: in fact, non-lethal alternatives must be previously considered.
The second circumstance concerns the legality of drones is state of emergency. Exceptions to the non-use of force are allowed only as long as the imminent situation requires them. A particular emergency circumstance is self-defense of States which is the main derogation under international to the ban on the use of force even though the conditions of proportionality and necessity still remain compulsory.
With regards to armed conflicts, we must highlight that in recent years, drone attacks have statistically been used in armed conflicts of a non-international nature: these are situations where a State fights with non-State organizations in a specific territory (e.g. a terrorist organization). The main problem concerning the use of drones in this situation regards the identification of targets who must be legally susceptible to being killed. In non-international armed conflict there are civilians who are also fighters and while the lives of ordinary civilians must always be protected by international humanitarian law and human rights treaties, these so-called illegal combatants are treated differently.
The possibility of depriving a person of their life in a conflict context does not mean that all deaths resulting from the use of lethal force are unpunished; quite the contrary. The criteria of proportionality and necessity of these killings are fundamental, by virtue of the importance of the right to life of all people. It is also important that States do their utmost to hit the actual target; collateral damage must be avoided at all costs. According to US government guidelines, operators must ensure that the number of civilians killed is a maximum of 10% total before authorizing an AWS attack. However, some estimates predict very different numbers: in Yemen, the Open Society Justice Initiative estimated that for every killed terrorist at least 28 civilians were killed as well.
Two issues arise: on one hand there has to be an efficient prevention and a subsequent remedy for innocent victims, on the other hand some kind of responsibility has to be taken by States or drones’ operators. Starting from the first point, in order to authorize a strike, the necessity of it must first be assessed. This assessment can be offered by a report or government notes, preferably a judicial proceeding. And if there is collateral damage, a second step is added, which is a fair trial that offers a just remedy to the victim’s family. The problem is that at the international level there is no uniform consensus on this issue. While the ECHR assesses the right to a preventive and subsequent trial regardless of the nationality of the target, this right is excluded in the United States: only American citizens can enjoy this privilege. This has removed any clearness of standards under international law, replaced by a vague license to kill and an accountability vacuum.
There is a dramatic but emblematic example to what has been said until now: in 2011 a Yemeni and American terrorist, Anwar Al-Awlaki, was killed in Yemen by a drone strike. However, his 16-year-old son, Abdulrahman was two weeks later by a drone while he was having dinner at a restaurant: no trial was guaranteed to him despite he was a US citizen and despite him being fully innocent (unlike his father). Few years later his 9-year-old sister Nawar was killed, actually not by a UAV but by a military command that resulted to be unsuccessful causing a collateral damage of 23 civilians. Again: no trial was set to repair to the damage of these innocent lives and no one took responsibility for this.
An ulterior complication to the question of responsibility is that ascertaining who is truly responsible is not always simple. In addition to this, accusing the artificial intelligence of the drone is unthinkable: would an explanation based on complex, algorithmic and probabilistic analyzes be acceptable for the relatives of a victim?
The use of drones as lethal weapons is a phenomenon that is necessarily on the rise. However, we still do not have a treaty shared by the international community, which is necessary to regulates these devices. Allowing a computer to decide to kill a person is a great risk, so better transparency must be ensured in the implementation of targeted killing campaigns. A moral aspect is then debated: these armed vehicles kill thousands of kilometers away from the military base where the soldier gives the input to the computer to kill: the risk is that the so-called PlayStation mentality develops in soldiers. Killing a person, even if it is a terrorist, still means killing a person. For this reason, it is necessary that States act as soon as possible to be able to adapt the use of drones in relation to the most precious asset we have: life.
Abdulrahman Al-Awlaki (1995-2011)
Nawar Al-Awlaki (2009-2017)