By Frederik Rosén
Drone technology presents us with a quantum leap in the history of seeing in war: a history moving from hilltops and watchtowers to the use of binoculars, balloons and airplanes and then on to radar, night vision, satellites…and drones. Drone technology brings us closer than ever to the battleground. It is a medium of proximity and visibility.
The legal controversies about the use of drones in armed conflicts primarily spring from the disputed lawfulness of targeted and signature killings, including constitutional and sovereignty issues. Yet the debates have failed to address the legal implications arising from the increasing surveillance capabilities of drone technology.
Let’s take proximity and transparency as our main point of departure to discuss drones and law. Drone technology triggers international humanitarian law obligations regarding precaution in attack. Belligerents have affirmed the obligation to take due care in attack for a long time, and it is enshrined in Article 57 of Add. Protocol 1 from 1977. The principle of precaution is considered customary international law. It forms a most critical component in international humanitarian law and in the military manuals of most states.
If military commanders have drones, then under international humanitarian law they are required to use them to the greatest possible extent for taking due care in attack. If a state possesses drone technology, and if the deployment of this technology may potentially reduce unnecessary harm from armed attacks, the state is obliged to employ the technology. This is not at all different from the obligation to pick up the binoculars before firing the shells. The obligation to use drones for precaution is logically not limited to drone attacks. It applies across all weapon systems. Even in the near future, ground attacks may no longer be lawful without engaging available drone technology for the purpose of precaution.
But it does not end here. The availability of drone technology for precaution also bears implications as to how the principle of precaution should be applied. The humanitarian legal obligation to take “feasible precautions” depends on what “feasible” is balanced against. The three conventional parameters here are: (1) precautionary measures vs. strategy considerations, i.e. the time to gather and process information, or whether precautionary steps may reveal tactics; (2) precautionary measures vs. personnel considerations, i.e. the risk to the soldiers and the operators of weapon systems; (3) the precautionary measures vs. materiel considerations, i.e. the risk to the weapon systems.
Since drone technology can be stealthy, quickly deployed, or deployed well ahead of an attack (as it mostly is when used for targeted and signature killings), most situations of weapon engagement by drones leave us with only the material considerations. Yet the price tag difference between a US$3 billion B2 bomber, the US$17 million Reaper, and the US$100,000 ScanEagle, is considerable and should make a difference for such calculations.
In another branch of international law, human rights law, the growing surveillance capability of drone technology also has implications. The European Court of Human Rights has several times found the convention applicable in situations where European states have exercised control over territories or persons in places remote from Europe. Combined with sophisticated weapon systems, drone technology suggests a capability for exercising a degree of control over territories and persons, which easily mirrors some of the cases where the Court has applied its convention. To be sure, drone technology sometimes allows for more effective control than boots on the ground.
Drone technology will develop at great speed. We will soon see surveillance capabilities and weapon technologies that we cannot yet imagine the full scope of. It is, however, certain that drone technology will become an increasingly powerful tool for controlling territories and persons, and will bring still greater transparency to armed conflicts. Drones will be increasingly robotized. Autonomous weapon systems raise many questions, yet notwithstanding the weapon aspect, the mere surveillance advantage of robotized drones flows directly into the main argument about how “seeing and knowing triggers obligations.”
It is as if drone technology lifts the “fog of war” from critical aspects of the use of armed force. We therefore need to think through the application of the laws of war in armed conflicts characterized by total visibility. Because drone technology is not only a game changer, it also triggers obligations.
Dr. Frederik Rosén is a research fellow at the Danish Institute for International Studies. His is the author of Collateral Damage: A Candid History of a Peculiar Form of Death (Hurst, 2014). Rosén has published widely on international security and warfare, and is the author of “Extremely Stealthy and Incredibly Close: Drones, Control and Legal Responsibility” in the Journal of Conflict and Security Law, available to read for free for a limited time.
The Journal of Conflict & Security Law is a refereed journal aimed at academics, government officials, military lawyers and lawyers working in the area, as well as individuals interested in the areas of arms control law, the law of armed conflict and collective security law. The journal aims to further understanding of each of the specific areas covered, but also aims to promote the study of the interfaces and relations between them.
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