IHL and UCAVs (aka "Drones")
The reported use of Unmanned Combat Aerial Vehicles (UCAVs)—also known as “drones”—in areas such as Afghanistan, Pakistan, Somalia, and Yemen has engendered a wide variety of responses among international and domestic lawyers and policy analysts, such as last Friday's ASIL Insight by Professor Mary Ellen O'Connell. Indeed, within the past year alone, panelists before the U.S. Congress, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, and the U.S. State Department Legal Adviser, among others, have all examined legal and policy issues pertaining to the reported use of UCAVs. (As did various commentators during an HPCR live seminar last December.)
Determining which legal framework applies (or frameworks apply) to a specific use of force deployed via a UCAV depends partly on whether an armed conflict exists. International humanitarian law is applicable to a use of force deployed via a UCAV only in situations that rise to the level of an armed conflict. (Last January, HPCR hosted a live seminar regarding questions related to the threshold of armed conflict. In addition, HPCR recently published the HPCR Manual on International Law Applicable to Air and Missile Warfare, as well as its Commentary.)
In situations of armed conflict, the use of force—whether deployed through a UCAV or any other weapons platform—is not unlimited, but rather must conform to the principles laid down in IHL. As noted in the Commentary on the 1977 Protocols additional to the Geneva Conventions, IHL is a “compromise based on a balance between military necessity, on the one hand, and the requirements of humanity, on the other.” To strike that balance, IHL requires each use of force to adhere to the principles of distinction, necessity, and proportionality, among others (see, e.g., Articles 48, 51, 52, and 57 of Additional Protocol I).