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Drones series, Part III. War, peace and the spaces in between: Drones in international law

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By Dr. Jack McDonald:

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‘Use Drones Responsibly’ (cartoon by Randy Bish)

The Legal Regulation of UAVs

Unmanned aerial vehicles (UAVs)[1] don’t have to be used as weapons, but military UAVs require the same regulation as any other weapon system. Since the American use of UAVs to conduct targeted killings of people it defines as militants and terrorists, activists in a number of countries, notably Code Pink, have argued that their use should be stopped, and that these systems should face greater regulation.[2] Even though war and armed conflict are activities in which killing is legally sanctioned, the law of armed conflict places restrictions on the use of weapons, as well as deeming certain classes of weaponry to be illegal. The division between the two is neither neat, nor particularly logical without reference to the history of treaty law banning particular methods and means of warfare. Weapons that cannot be used without breaking key principles of the law of armed conflict (military necessity, proportionality and distinction) are illegal in essence. Weapons that are arbitrarily deemed illegal by treaty are also unusable by states adhering to commonly accepted interpretations of the law of armed conflict. The general consensus is that UAVs aren’t inherently illegal, but, like any other weapon, they may be used in an illegal manner.[3] The furore over the regulation of UAVs does, however, raise a number of issues about the role of international law in regulating the use of violence in war and armed conflict.

Processes of Banning Weapons

It appears unlikely that UAVs will be banned by a specific convention, however the calls for greater regulation of their use, particularly by non-state organisations, illustrates a key issue with the regulation of warfare in the contemporary world. The law of armed conflict is state-centric: states agree amongst themselves the precise wording of treaties to which they agree, determine for themselves the national interpretations of those treaties, and act accordingly. As students on War Studies’ International Peace & Security MA will no doubt be aware, international law is therefore constituted by politics, power, belief and practise. Over the past twenty years, however, NGOs have played an increasing role in the formation of international law.

The law regulating the use of weapons places limitations upon lawful means in warfare. Even if states differ in their interpretations of where the boundary between innately unlawful and lawful weapons lie, they all recognise that some means and methods are manifestly illegal. The starkest example of this lies in the arguments that comprise the International Court of Justice’s advisory opinion on nuclear weapons.[4] It is difficult, if not impossible, to discriminate between civilians and permissible military targets when using nuclear weapons (setting aside the point that strategic nuclear weapons were routinely aimed at population centres) and it is hard to conceive of a weapon with such disproportionate effects. Despite this, some states argued that the weapons were not illegal in and of themselves. The primary means of determining the legality of a given weapon is the ‘Article 36 process’. This refers to article 36 of Additional Protocol 1 to the Geneva Conventions (1977) that requires states to consider and examine whether new means and methods of warfare could breach any current provision of international law. States make a point of ascertaining whether the weapons that they use are, in effect, admissible to the legal framework of armed conflict and warfare.

The issue highlighted by the prospect of UAV regulation is that states appear to consider them legal, following article 36 considerations, but activists seek to push states to either regulate them further, or ban them entirely. Specific treaty bans on types of weapon are enough to render them illegal, but these require the acceptance of states. The International Campaign to Ban Landmines, resulted in the widespread adoption of the landmine ban (the Ottawa Treaty), was not supported by notable states such as America, Russia and China. The subsequent effort to push states to ban cluster munitions attracted less support, and, again, lacked the support of significant military powers. Although NGOs have been able to influence a large number of states, without the support of an overwhelming majority of states (and, most importantly, permanent members of the United Nations Security Council) their ultimate influence is limited. The key issue here is the legitimacy of the means warfare, and the role that law plays in legitimising political violence. It is in this regard that international law appears to be somewhat out of step with significant sections of popular opinion. While states do ‘hold the cards’ to the extent that NGOs have no legal authority over their actions, it is clear that NGOs play a role in delegitimising some means of warfare in the eyes of the public. Adhering to legal obligations, such as the Article 36 process, doesn’t necessarily legitimise a weapons system in the eyes of the public, whereas an NGO criticising the use of a weapons system, such as UAVs, doesn’t make that system illegal.

Non-Obvious Warfare and International Law

The key challenge of UAVs is that they enable the conduct of hostilities in a manner that was previously unthinkable. The idea that a state could use violence by ‘remote control’ is nothing new, as Michael Ignatieff’s reflections on the Kosovo conflict made clear prior to the rise of UAVs.[5] However, the degree of precision in remote warfare was previously low – Tomahawk missiles might be able to strike a target, but they could not do so in the manner that UAV operators are able to alter predicted blast patterns in near-real time.

Evolving technology, and novel uses of technology, enable armed conflicts to be conducted in a manner far beyond the imagination of those who laid the foundations of the law of armed conflict. One way of thinking about this is the relationship between the visibility of an armed conflict, and the law that regulates it. The law of armed conflict is founded in visible or ‘obvious’ warfare. As Martin Libicki outlined in a 2012 Strategic Studies Quarterly article, novel technologies permit war to be fought with entirely non-visible, or ambiguous means. The use of UAVs exacerbates this (Libicki referred to it as ‘drone warfare’).[6] Where, for example, is the ‘battlefield’ in UAV use?[7] What use is the concept of ‘combat’ where one participant is half a world away, in an air-conditioned environment? These issues pre-date UAVs, but the maturation of this technology enables violence to occur in situations far removed from those commonly associated with armed conflict. Whether this is a positive or negative development is a matter of opinion at this stage, but it also exposes key aspects of warfare which were previously taken for granted.

The protection of non-combatants is a key purpose of the law of armed conflict. A significant issue with the use of UAVs is that their lack of visibility deprives third parties to a given armed conflict of the ability to separate themselves from it. Even if we take as a given that an armed conflict exists between America and al-Qaeda (which is by no means certain, or accepted by critics) then one conducted by UAV strikes and other sporadic bursts of violence make it extremely difficult to determine the places in which people are at risk of being killed by error or accepted consequence. Even if the American use of UAVs is (as claimed) more precise than any previous era of warfare, this method of warfare also deprives those affected by it of simple means of protecting themselves. By this, I mean that civilians who are no part of the purported conflict have no method of disassociating themselves from it. In any ‘normal’ armed conflict, a civilian who wishes to preserve their life (above their livelihood and normal way of life) usually has the option of becoming a refugee when they perceive the approach of military forces. The lot of a refugee is far from safe, nor should it be considered as a ‘good’ outcome in the normal sense of the word. However, as the current Syrian civil war demonstrates, civilians are able to separate themselves from violence that would otherwise kill them, even if it results in an often harsh existence. Where states choose to wage war by non-obvious means, civilians have no way of ascertaining their immediate danger. An armed conflict might pass them by without ever entering earshot, or it might result in their death for standing too close to people that a state, halfway around the world, has determined are lawful military targets. None of this is explicitly illegal, but the continued use of UAVs by state militaries is likely to lead to further pressure from NGOs and the public as a result of these issues. I doubt these will lead to a ban, but states will have to argue their case for the continued use of UAVs beyond their ‘simple’ legality.

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Dr Jack McDonald is a research associate and teaching fellow at the Department of War Studies, King’s College London.

NOTES

[1] Or ‘drone’, ‘unmanned combat aerial vehicle’, ‘remote piloted air system’, depending on the writer.
[2] See, for example, http://droneswatch.org/ a coalition founded by Code Pink
[3] The end use of UAVs for targeted killings presents a host of legal issues. The best single volume introduction to the subject is Finkelstein, Ohlin and Altman Eds.’ Targeted Killings: Law and Morality in an Asymmetrical World (Oxford University Press, 2012)
[4] Commonly referred to as the Nuclear Weapons case. It is worth reading the full opinion, as well as the various decisions on pages 42 onwards http://www.icj-cij.org/docket/files/95/7495.pdf
[5] See Michael Ignatieff’s Virtual War (Vintage: 2001)
[6] http://www.au.af.mil/au/ssq/2012/fall/libicki.pdf
[7] This is a key criticism of the American use of UAVs, as well as a wider theoretical point. See, for example, Mary Ellen O’Connell Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 (SSRN: 2009) http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1501144

There’s a new sheriff in town - but can he keep the peace?

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In this, the final post of the Private Military and Security Contractors Series, series editor Birthe Anders examines the current state of PMSC regulation, with special attention to the recently launched International Code of Conduct Association.
Strife Editors

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There’s a new sheriff in town - but can he keep the peace?
by Birthe Anders

One of the main concerns about Private Military and Security Companies (PMSCs) is that their employees carry weapons in volatile situations and are not as well regulated as state forces. While armed guarding is only one part of the industry it is arguably the one that raises the biggest concerns over the effective control of potentially deadly force. However, with the recent launch of the International Code of Conduct Association, PMSCs have never been as well-regulated as right now – but is this enough?

In September 2013, a new regulatory body for PMSCs was established: the International Code of Conduct for Private Security Service Providers Association (ICoCA). The ICoCA is a non-profit organisation based in Geneva and is supposed to certify companies and monitor their compliance with the Code of Conduct for Private Security Service Providers (ICoC). The code contains provisions on company management, governance and the conduct of personnel, including on the use of force.[1] As of early November, 708 companies had signed up.[2] Thus monitoring its implementation is no small task. While some commentators have welcomed the ICoCA [3] and others condemned it as a poor attempt to legitimise PMSC’s work,[4] overall the launch of the ICoCA has not generated much discussion so far. Why is this? It might be due to confusion and uncertainty if this is an achievement worth celebrating. Even for long-standing followers of PMSC regulation efforts it is not yet clear what effect the ICoCA will have.

Recently Anton Katz, chair of the UN Working Group on Mercenaries warned of regulatory gaps created by differing national regulations that could lead to human rights violations.[5] The Montreux Document[6] and the ICoC were valuable, but they were not enough as ‘these initiatives are not legally binding and cannot be considered as complete solutions for the problems concerning PMSCs’.[7] While it is always good keep an ideal situation in mind (i.e. a legally-binding, international convention on PMSCs’ rights and obligations especially in war zones complemented by national legislation, all of them well-monitored and enforced of course), it is worth examining what we have right now. While not the same as a law, the ICoCA will monitor compliance with the ICoC for those PMSCs that signed up to it. So what we have right now is for the first time an oversight mechanism that is supported by companies, governments and advocacy groups at the same time.

For anyone not familiar with PMSC regulation, a brief overview is in order. In a nutshell, many laws and regulations apply to PMSCs and their employees, but few were specifically created for them. This can be problematic as even the best laws need monitoring and enforcement – inherently difficult in many contexts PMSCs operate in. On the national level, few states have addressed the issue. Exceptions are South Africa, the US and most recently Switzerland. On the international level, the UN Working Group on Mercenaries has published a Possible Draft Convention on PMSCs,[8] while the most prominent efforts are those initiated by the Swiss government: the Montreux process and the ICoC. The Montreux Document is aimed at states and (in a legally non-binding way) signatories acknowledge their obligations under human rights and international humanitarian law. In contrast, the ICoC is directed at companies. A central aspect of PMSCs regulation is its implementation. Nullo actore nullus iudex - if no one brings a claim forward there will be no investigation. Whithout adequate oversight AND enforcement, the best regulation is useless.[9] This brings us back to the ICoCA.

Once it is up and running, companies that signed up to the ICoC can - among other things - expect to have their performance monitored by the ICoCA. As one observer commented, the Association will institutionalize ‘the relationship between stakeholders’ as well as ensure ‘that PMSCs that sign on the ICoC actually conduct themselves accordingly’.[10] This has a lot to do with money. If the Association is not properly funded, oversight tools such as field visits will not take place. Companies pay according to their size, with small companies paying US$ 2.500, medium companies US$ 5000 and big companies US$ 9000 in the first year of membership, which increases slightly in the following year.[11] One member of the Steering Committee stepped down in summer 2013. Among his criticisms was company dues being set too low to allow the association to carry out independent monitoring of company behaviour. However, both the UK and the US have welcomed the ICoCA. The State Department might incorporate ICOCA as requirement into the bidding process (as well as to the ANSI-PSC 1 standard),[12] while the UK has announced that a national certification system will be created to measure companies’ implementation of the ICOC.[13] These announcements are significant as both countries are important PMSC clients.

Industry representatives were – together with government and civil society representatives – involved in the creation of the ICoCA, yet it goes beyond previous attempts at industry self-regulation. That is a big step. Arguably, we can now only judge the ICoCA by what’s on paper. The Association is currently looking for an executive director,[14] so it will be some time before it is up and running. How robust its monitoring and complaints procedures are remains to be seen when first cases of misconduct are reported. We all remember that Blackwater simply withdrew from the US industry association ISOA and its code of conduct in light of an impending misconduct investigation a few years ago.

So the answer to the introductory question depends on whether you are a glass half-full or half-empty kind of person. Yes, the success of the ICoCA remains to be seen. Yes, it applies only to companies that signed up to it and yes, it does not eliminate the need for individual states to regulate companies within their jurisdiction. It may be a small step, but it is a critical move towards a more comprehensive regulation of the industry, especially by differentiating between companies that committed to the ICoC and those that did not.

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NOTES

[1] For the full code see http://www.icoc-psp.org/uploads/INTERNATIONAL_CODE_OF_CONDUCT_Final_without_Company_Names.pdf.
[2] For an overview of where signatory companies are headquartered, see http://www.icoc-psp.org/Home_Page.html. With 208 the UK is the country with the most signatory companies.
[3] Human Rights First, http://www.humanrightsfirst.org/2013/09/18/icoca-launch-marks-significant-step-to-improve-private-security-contractor-oversight/.
[4] War on Want, http://www.waronwant.org/news/press-releases/17987-charity-slams-conduct-code-for-private-military-and-security-companies.
[5] UN Press Relase, 13 September 2013: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13729&LangID=E.
[6] Available at http://www.icrc.org/eng/assets/files/other/icrc_002_0996.pdf.
[7] UN Press Release, 4 November 2013: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13940&LangID=E.
[8] Available at http://psm.du.edu/media/documents/international_regulation/united_nations/human_rights_council_and_ga/open_ended_wg/session_1/un_open_ended_wg_session_1_draft-of-a-possible-convention.pdf.
[9] For those interested in further reading, information about PMSC regulation is as good as never before, largely due to the Private Security Monitor, a project of the University of Denver in association with DCAF. It provides an extensive, annotated library of national and international laws, conventions and other instruments somehow related to the regulation of PMSCs. This includes a detailed list of national regulation for PMSCs for most countries around the world. Having said that, hardly any country has laws specifically applying to PMSCs. Instead, laws focus on domestic security provision, mercenaries or the enlistment of a country’s citizens in foreign armed forces. http://psm.du.edu/.
[10] http://psm.du.edu/commentary/index.html.
[11] http://www.icoc-psp.org/uploads/ICOCA_Draft_Financing_Model.pdf.
[12] http://www.state.gov/r/pa/prs/ps/2013/08/213212.htm. For the ANSI-PSC standards see http://psm.du.edu/industry_initiatives/asis_international.html.
[13] https://www.gov.uk/government/speeches/international-code-of-conduct-for-private-security-providers-association.
[14] If you have seven or more years of work experience in the private security sector along with a number of other skills you can apply until 18th November. http://www.icoc-psp.org/uploads/ICoCA_Executive_Director.pdf.