Sawin – Creating Super Soldiers for Warfare: A Look into the Laws of War

This month we’ve decided to embark on some ‘themes’, where papers and questions we will consider (and you are welcome to join in) are on similar topics. The first we are looking at is the issues of super-solders, or military personnel with enhancements which may be biological. making them super-human, or mechanical by putting them in exoskeletons (like Iron Man), to make them stronger, tougher, more resilient, and able to complete missions and tasks quicker and more efficiently.

Our first consideration is ‘Creating super soldiers for warfare: A look into the laws of war’ by Christopher E. Sawin (17 J. High Tech. L. 105 2016). The article considers whether super-soldiers could ever be deployed in compliance with the law of armed conflict.

It’s available here.

Here’s what we thought:


In modern warfare, according to Sawin, there is a focus on abiding by lawful rules and limiting violence. Therefore, soldiers have to show restrain and be more selective in their fulfilment of military objectives.  The most common form of contemporary warfare is asymmetric warfare, which makes restraint and selectiveness even more important as soldiers are often faced with enemies that do not wear distinctive uniform and are able to blend in and out of civilian life at ease (so-called farmers by day soldiers by night).  Arguably, one of the most important requirements of modern soldiers is accurate decision-making.

Sawin postulates that future wars will become harsher and that the use of human enhancement technology to support the capability of soldiers to deal with harsher demands makes sense.  Human enhancement technology has the potential to provide many benefits such as increased awareness, intelligence and health. These benefits would be beneficial to soldiers in all circumstances but other benefits of human enhancement are more particular. For example, improving the speed, stamina and strength of soldiers is only likely to be of benefit when the soldiers are in close proximity to their enemy. As technology has advanced and political will for deploying soldiers has decreased, the trend in modern asymmetric warfare is to conduct operations against enemies from afar, such as with drones, which enables the killing of the enemy without the State endangering its own personnel. If this trend continues then so called super soldiers may not be determinative of which country has the elite fighting force, as suggested by Sewin.

Liam Halewood, Liverpool University


As a relative outsider to the field of law, I do find it quite astonishing sometimes just how ‘alien’ human law can seem to anyone who has experience working in other academic disciplines that are far more comfortable with future gazing and engaging with existential issues.

As the author here admits, the idea of enhancing the performance of soldiers has been around for a very long time. I find it strange then that the author raises the possibility that super soldiers may no longer resemble human beings (117) – as if this were a new problem, when these questions have existed for decades, if not centuries in other academic disciplines. I wonder then perhaps if this is a problem with law both as a discipline, and as an institution: its focus is far too insular, for it only considers the law-as-written and thus sees the world from a very distorted perspective.

To return then to some of the issues raised directly in this article, the most eye-raising from my own perspective is the question of whether supersoldiers are ‘inhumane’ weapons. This strikes me as somewhat strange given that asymmetry is essentially the primary aim of warfare: i.e. defeat the enemy as quickly and effectively as possible with minimum harm or damaged caused to one’s own. Is it really ‘inhumane’ to send in super soldiers to fight ‘normal’ soldiers when we already have a whole arsenal of weapons and technologies available to us that the ‘enemy’ doesn’t have access to? (This reminds me of the Second Italo-Ethiopian War where the Italians sent in tanks against an enemy, many of whom were armed with spears and/or bows and arrows). This leads to my second question: ‘inhumane’ for who?

Perhaps more widely here I think, the issue seems to be less about the ‘inhumanity’ of using supersoldiers, but the ‘un-humanity’ of using them – the way they represent an overt shift in the nature of ‘human’ warfare to something that goes beyond what we in modern day parlance come to understand as what it is to be human. And yet again, this is essentially nothing new – though it would appear to be so from a legal perspective. Is it not time then that law caught up with the rest of us?

Mike Ryder, Lancaster University


Sawin’s article seems a little odd to me. The whole premise is that super-soldiers with enhanced abilities would be ‘stronger, faster, tougher, better trained, and more durable’, and in doing so would be less empathetic and emotionless. This, apparently, would mean that despite having enhanced abilities, super-soldiers would be less-able to recognise civilians, and therefore would put them at greater risk. This seems ridiculous to me, as the law of armed conflict is a requirement for all military personnel to learn. Why then would personnel with enhanced abilities suddenly forget an essential part of their training? They would not. In fact, arguable a super-soldier with enhanced eye-sight and quicker cognitive abilities may be able to offer greater protection to civilians. For example, if carrying out a night-raid on a known terrorist house, a scared nineteen-year-old private may be unlikely to give anything that moves in the darkness much chance. A super-soldier may be able to see and recognise civilian presence quicker, resulting in not discharging their weapon and sparing a life that would otherwise have been collateral damage.

The article also questions whether super-soldiers would be banned under Art.35(2) of Additional Protocol 1, which states: ‘It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ Again, the premise for asking this question is again that somehow enhanced soldiers would have less ability to protect civilians. This is aside from the fact that prohibiting super-soldiers under this provision would require them to be reclassified as a weapon, which they would not be. Super-soldiers would be using the same weapons as ordinary soldiers (unless spectacularly heavy, for example), as so would not necessarily impart superfluous injury or unnecessary suffering any more than a non-enhanced soldier. Some would argue that better eye-sight and heart-rate control could make them more accurate over distance. But, that would also mean that current soldiers wearing corrective lenses, or having received laser eye-surgery also impart superfluous injury or unnecessary suffering. The only reason I could think of where super-soldiers would impart more force on a particular individual than conventional soldiers would be in hand-to-hand combat. A conventional and super-soldier firing the same weapon at the same person would impart the same damage, but in hands on fighting, an enhanced soldier with superhuman strength and endurance could wipe the floor with a conventional enemy. But, that ignores the fact that an enhanced soldier could still stop when the enemy has been beaten, and take them prisoner.

The general principles of the law of armed conflict require fighters to protect civilians as much as possible. The fact that future fighters may have enhancements does not mean that these protections would be in danger. In fact, quicker decision making and sensory abilities could recognise civilian presence sooner, or target munitions more accurately, and offer greater civilian protection.

Joshua Hughes, Lancaster University


First, the content of the paper was subpar. The author does not seem to understand what super soldiers or military human enhancement entails, and frequently confuses it with autonomous weapon systems. His vision of military human enhancement mainly seems to be based on science fiction comics, with no investigation into the current state of research and what governments are actually interested in and developing. He does not problematize or define the concepts he discusses, while human enhancement is very vague and ill-defined, and what falls under it is subject of intense debate. There are also so many different types of enhancements, some of which would be regulated by the Geneva Convention and some would not, with so many different effects, that you cannot generalize in the manner the author does to determine their legality.

Secondly, I am not a lawyer, but I do not understand his choice for exclusive focusing on Article 35 of Additional Protocol II, while there are so many more relevant principles at play, such as the principles of protection or distinction, as well as other legal instruments regulating the use of weapons such as the UN CCW. He barely problematizes the principles he actually discusses and does not present the multiple ways they can be applied, such as whether the SiRuS principle should be applied to weapons “of a nature to cause” or “calculated to cause”, as different countries interpret this principle differently and this could affect the legality substantially. His knowledge on the use of military technology and its role in warfare seems to be limited, and he dramatically simplifies concepts all the time ignoring the substantial discussion around them (e.g. when he says that the concept of informed consent does not apply for soldiers. Soldiers have that right, it is just difficult to say when they are free to consent or not, due to the hierarchical structure of the army).

On a final note, the way the article is written is problematic. He frequently cites conspiracy websites; the tone is heavily sensationalized (e.g. when he describes all unmanned systems in use by the US army between 2002 and 2010 as “enhanced war-fighting machines”, while the majority of these are very simple remote-controlled bomb disposal robots); and when he cites references to support his claims that actually argue very different things (e.g. when he says that Lin et al claim that “military soldiers are the one aspect that can determine the fate of warfare”, while they actually say on that specific page that “as impressive as our weapon systems may be, one of the weakest links—as well as the most valuable—in armed conflicts continues to be warfighters themselves”, which is something very different). Finally, the historical examples he brings up are often factually incorrect, for instance when he describes the Thirty Year War, and they have little to no relevance. These aspects do not reinforce trust in the message of the article.

Maaike Verbruggen, Stockholm International Peace Research Institute


Let us know what you think!

Autonomous Weapons and International Humanitarian Law OR Killer Robots are Here. Get Used to it – Harris

Here, we discuss ‘Autonomous Weapons and International Humanitarian Law OR Killer Robots are Here. Get Used to it’ by Shane Harris, Temple International and Comparative Law Journal, 2016, Vol.30(1), pp.77-83.

It’s available here.

Essentially, Harris argues two things:

(1) It is inevitable that human beings will build weapons systems capable of killing people on their own, without any human involvement or direction; and (2) It is conceivable that human beings could teach machines to recognize and distinguish when the use of lethal force complies with international humanitarian law.

We al dig into it in our own individual ways, and we have a few different views on this subject. So, hopefully we will start a lively debate.

If you do have any comment, please leave them at the bottom.

Without further a do, here’s Mike:


This article is very much a summation of ‘where we are at’ when it comes to autonomous weapon systems, and the author places killer robots as an inevitability (77), and one that we should perhaps embrace as machines are far more reliable than humans at snap decision making (83).

However I do fundamentally disagree with the notion that robots could (and indeed should) be taught international law, and so kill only when legal to do so. The issue here is one of interpretation and the article would seem to fail to take into account the fact that most modern-day enemies do not mark themselves distinctly as combatants, as their unknowability is the primary advantage that they are able to exercise against a vastly superior military threat. The distinction here is never so clear-cut.

There is also, in my mind, the issue of reciprocity and the expectations associated with combat. Here, war seems to be defined in strictly Western terms, where there is a law of war as such, agreed upon by both sides. But again, terrorists don’t adhere to this structure. With no attributability, there is no stopping a terrorist dressed as a civilian carrying out an atrocity, and no way a robot could interpret that ‘civilian’ as a terrorist within the structures of a strict legal framework. While I do not dispute that robots can theoretically be made more ‘reliable’ than humans, the question for me is what exactly does ‘reliable’ mean, and should the law ever be seen as a computer program?

Mike Ryder, Lancaster University


 

I will start off by saying I always like a good controversial article that goes against established conventions. As is obvious from the name already, that is what this article tries to do. However, I do not think it is succeeding and does not live up to its potential.

My problem with the article is not in what he claims, but how he supports it. I think, completely outside a moral or legal judgement, I agree with his two hypotheses he sets out in the start: 1) It is inevitable that human beings will build weapons systems capable of killing people on their own, without any human involvement or direction; and (2) It is conceivable that human beings could teach machines to recognize and distinguish when the use of lethal force complies with international humanitarian law.

However, he fails to actually provide arguments for these theses. The article is very short (7 pages, with a large part of these pages made up by sources), and 4 of these pages are descriptions of historical programmes. While there are many lessons to be learnt from historical military innovation, the most important lessons from history is that you cannot generalize from the past to predict the future with certainty. This is not support for a strong statement that it is “inevitable” that they would be developed. His argumentation that it will be conceivable to develop systems that could comply with IHL is supported by mentioning two military R&D programmes and that many technologists would answer “let us try.” Again, that is not any support for his argument that it would be conceivable, and does not provide any insight into the state of technology. Additionally, the small amount of different sources, and the quality of some of his sources, do not help. It is a shame he could not provide a solid backing for his statements, because I actually agree with it – and this is also what I have been working on myself. However, this article does not provide sufficient proof for that. Then I have not even started about the shoddy argumentation and generalizations in the last section, and the US-centrism.

He is not the only one generalizing about the development of autonomous weapon systems without taking nuances into account, as that is seen more often in the debate, unfortunately. However, the entire departing point of his article are these 2 hypotheses, so in this case a solid argument is actually needed. He ignores the established literature on what is needed for defence innovation. I would recommend the article “The Diffusion of Drone Warfare? Industrial, Organizational and Infrastructural Constraints” by Gilli and Gilli (2016) as a rebuttal of his arguments, but with more solid material to support their point of view.
Maaike Verbruggen, Stockholm International Peace Research Institute (SIPRI)


 

Harris’ article has 2 arguments: 1, humans will build autonomous weapon systems (AWS); 2, it is conceivable that AWS could comply with the law of armed conflict. I completely agree with him.

Firstly, I think AWS will be built, whether they are as independent as a Terminator who decides everything apart from mission parameters, or, as Harris suggests, an advanced drone that can initiate individual attacks when authorised. The fact is that less people want to join militaries, and we are on the verge of what could be very unpredictable and very dangerous times.  Add to that, the public being far more resistant to seeing troops die on foreign soil, and any country that feels a need to use force extraterritorially doesn’t have many options if they are going to maintain their place in the world. AWS could be the answers to a lot of problems, if the ethical issues of using them in the first place do not outweight their usefulness.

Second, I think the idea that legal rules cannot be converted to algorithms that machine could understand is ridiculous, Arkin already shows this is possible in his book Governing Lethal Autonomous Robots. The issue really goes beyond the rules. It is, frankly easy to programme a system with ‘IF civilian, THEN do not shoot’, for example. The difficulty is recognising what a civilian is. An international armed conflict, where the enemy wears an identifying uniform is clearly less problematic, an AWS that recognises the enemy uniform could fire. A non-international armed conflict between state and non-state actor is trickier – how to identify a militant or terrorist when they dress like civilians? There are suggestions in the literature of nanotechnology sensors identifying metallic footprints, but this doesn’t help AWS if in an area where civilians carry guns for status or personal protection. It seems, the only real identifying feature of enemies hiding amongst civilians is hostile intent. A robot detecting emotion is clearly difficult – but this is being worked on. Perhaps, waiting for hostile action would be better – If an AWS detects somebody firing at friendly forces, that person has self-identified as an enemy and a legitimate target, and an AWS firing at them would cause no legal issues regarding distinction.

Regarding proportionality, Schmitt and Thurner suggest that this could be turned into an algorithm by re-purposing collateral damage estimation technologies to give one value that could be weighed against military advantage which could be calculated by commanders assigning values to enemy objects and installations. In terms of precautions in attack, most of these obligations would, I think, fall on commanders, but perhaps a choice in munitions could be delegated to an AWS – for example, if a target is chosen in a street, an AWS could select a smaller munition, to avoid including civilians in the possible blast radius.

So, it is certainly not inconcievable that AWS could comply with the law of armed conflict. If fact, I think they probably could do. But massive increases in technology are likely to be required before this is possible.

Joshua Hughes, Lancaster University


As a complete novice to the debates on Autonomous Weapons Systems I enjoyed this article. However, I also completely agree with the criticisms that other group members have made about the article e.g. that some of the arguments are poorly supported. Nonetheless, as a short article that intends to provoke discussion I believe the article is successful and provides a good starting point for people like myself that are not so familiar with the topic.

Liam Halewood, Liverpool John Moores University


As always, if you’re interested in joining just check the Contact tab.

Imagining Warfare – Khan

Our third reading from month 1 is ‘Imagining Warfare‘ by Paul Khan in European Journal Of International Law, 2013, Vol. 24(1), pp.199-226.

The abstract and paper are available here.

Without further a-do, let us get into the discussion.


Brief Summary of the article: Map + constitution/laws = nation state. Put another way, if attacking the map, you are an enemy, if breaking the laws you are a criminal. The difficulty that drones have exacerbated (drones being an incremental change not a paradigm shift) is that they travel along all the fault lines of this traditional schema. They transgress borders yet attack those who are not clearly marked as combatants – the targets are not suited, booted soldiers. The crones’ controllers, if thee drones are nto fuly automated, are far away from the target so here is no reciprocity of risk. Drones are (as things stand predominantly) under the control of a nation state rather than any supra-national law enforcement body such as the United Nations etc. This all tends to the collapse of conventional definitions of war and peace, and brings to our attention the need for a new imagining, a new understanding of political violence and how it does and will occur in the future.

The article is excellent on the paradoxes involved in the oscillations in the political imaginary between criminal and enemy and explores these switches tellingly in the dissection of meanings around for instance ‘suicide bomber – sacrifice bomber’. The article outlines a ‘regime of disappearance’ that has arisen as a response to asymmetrical advantage. This regime may drag us back to the pre Human Rights era of rightless individuals. If so, the age of Human Rights may be passing.

Having mulled over the article I found myself thinking about the following:

  • Semantic collapse (1971 Arthur Schlesinger):  the way in which the objectification of the targets of the drones is achieved.  From humans to objects to things, to something less than things  (see ‘Thing’ theory’).
  • The Deconstructionist approaches of Derrida et al: the impossibility of a simple symbolic correlation between sign and signifier: eg how many meanings the word ‘war’ can generate etc.
  • I was particularly thrown by the USA generated article’s use of the first person plural ‘we’ to mean the West, or Americans.  I had reflexively read that ‘we’ to mean the targets of the drones.

Peter Kalu, Lancaster University


Khan’s work on imagining warfare is not my usual fare for academic reading.  However, it did give me a number of ideas. Firstly, its focus upon the blurred line between war and peace, and the sovereign action to declare war, did make me wonder whether the drive to outlaw war in the UN Charter and other initiatives following WWII have resulted in the state of quasi-war, quasi-law enforcement that we now find ourselves studying? The capabilities of modern weapons allowing a sovereign to go beyond their borders and exercise their sovereign powers extraterritorially, without real recompense from the international community do, perhaps, show a fraying of the framework outlawing war, with drone killings and counterterrorism as the alternative when the sovereign has chosen its enemy.

Secondly, Khans’ words about legal regulation of soldiers being quite different from what is ‘ordinary and everyday’ (p.214) reminded me of the recent case of Alexander Blackman, aka ‘Marine A, who executed an injured Taliban fighter in 2011. Despite Blackman clearly, and knowingly breaching the Law of Armed Conflict, many members of the public do not recognise this, but instead, refer to him as a hero who was doing his job of killing enemies. The fact that particular method of killing has been outlawed by the international community seems to be irrelevant to his supporters. (His conviction for murder was recently reduced to Manslaughter.)

Joshua Hughes, Lancaster University


In ‘Imagining Warfare’ Paul Kahn provides a broad overview of the social imaginary construct of warfare in the modern world, with particular reference to the use of drones in armed conflict. Kahn is particularly interested here in targeting, and the definition of the enemy compared to that of the criminal. War is no longer between organised state militaries, and this has some major implications for the way warfare is carried out, and the way it is constructed in the social imaginary. Previously, there was a distinction made between property and territory, where the criminal was associated with property, and the enemy was associated with territory. However this distinction no longer holds as wars are no longer fought over marked boundaries by uniformed combatants with clearly defined goals. Now it would seem, we need a new category, for the modern terrorist is forcing us to redefine our view of warfare, and drone strikes in states with whom we (the West) are not directly at war is one such side effect of this changing nature of conflict in the 21st century.

Mike Ryder, Lancaster University


As always, if you would like to join please contact admin@ttac21.net

We look forward to hearing your comments.

The international law framework regulating the use of armed drones – Heyns, Akande, Hill-Cawthorne and Chengeta

In our first review, we have looked at  ‘The international law framework regulating the use of armed drones’ by Christof Heyns, Dapo Akande, Lawrence Hill-Cawthorne and Thompson Chengeta in International and Comparative Law Quarterly vol 65, October 2016 pp 791–827.

It is currently available for free from CUP. See here.

The article was recently presented at the International and Comparative Law Quarterly annual lecture at BIICL by Dapo Akande and Lawrence Hil-Cawthorne. It was a great event and generated some fascinating questions and discussion.

The article is a greatly expanded version of a report on presented to the UN in his former role as Special Rapporteur on extrajudicial, summary or arbitrary executions. His 2013 report is available here.

It also builds upon the BIICL event on drones last year. The event summary for which is here.

This post is the first for our research network. We are hoping to generate ideas, comments, and hopefully collaboration between group members and beyond. Please feel free to use the comment box below, or if you would like to get involved in the network, send an email to admin@ttac21.net.

The article is rather long, and network member Maziar Homayounnejad (KCL) has written a summary of the article. Following the summary will be a few thoughts on the article from network members.


Summary:

In their article on the regulation of the use of armed drones, Heyns et al. put forward a holistic framework encompassing three distinct branches of international law (IL).

  • Jus ad bellum, which regulates the resort to military force, only allowing this where there is consent from the territorial State; in lawful self-defence against an actual or imminent armed attack; or pursuant to Security Council enforcement action.
  • Jus in bello, also known as international humanitarian law (IHL) and the law of armed conflict (LoAC). This regulates the actual conduct of hostilities and offers expanded (belligerent) rights to kill without warning, based on enemy status and civilian conduct. It also permits a ‘non-excessive’ number of civilian deaths, so long as these are ‘collateral’ and not directly targeted.
  • International human rights law (IHRL), which applies during peacetime to regulate police and law enforcement IHRL restricts the right to use lethal force to where it is absolutely necessary to protect against an imminent threat to life; and proportionate in that it is the bare minimum force required to achieve its legitimate aim and strictly tailored to circumstances.

The authors argue that armed drones are different to traditional weapons of war in that they are used to inflict low-level violence, drawn out over a long time period and often spanning several countries (including those which are far away from any contact zone). Accordingly, legal analysis of drone strikes cannot be limited to any one branch of IL, but must be shown to satisfy all three; the requirement of holistic application of IL is a constant theme to which the authors keep returning. Not least because States should be prevented from cherry-picking the framework in which they can demonstrate legal compliance, while ignoring the ones they may be violating. Preventing such tendencies has an important role in preserving the exceptional nature of war and, consequently, the right to life (RtL), which is more effectively protected under IHRL.

Equally important is to avoid confusing and conflating common terms, which may appear under two or more legal frameworks but have vastly different meanings under each one – ‘imminence’ and ‘proportionality’ being two such examples. Again, this prevents both cherry-picking and inappropriate increases in the incidence of war and loss of life.

After introducing the applicable legal frameworks and the relationships between them, the authors analyse in some detail jus ad bellum, IHL, and IHRL. Three particularly interesting points stand out from this. The first relates to the Tadic criteria for political violence qualifying as a non-international armed conflict (NIAC); namely, a) protracted armed violence and b) organisation of Parties. This has come under strain as far as individual drone strikes are concerned, in that it is doubtful that such isolated acts (if not in the context of a pre-existing armed conflict) will meet the required threshold of violence to invoke belligerent rights under IHL. If so, then the more restrictive IHRL regime will apply exclusively because an individual drone strike is unlikely to constitute protracted armed violence (unless a number of strikes can be aggregated as a ‘workaround’ to meet this threshold). By contrast, it is worth noting that autonomous weapon systems (AWS) are expected to pose challenges in relation to the second criterion (organisation of parties). This is because autonomous capabilities are more likely to enable protracted armed violence to occur with a relatively small number of persons and a looser organisational structure[1]. Of course, AWS used for targeted killings may also raise challenges in relation to the required threshold of violence, just as remotely-piloted drones do; this is worth bearing in mind as drones become progressively more autonomous over time.

A second and complementary point that the authors make relates to the expansive interpretation of the applicability of IHRL. The traditional approach to human rights required a clear geographical nexus, hence the mantra ‘on your territory and subject to your jurisdiction’. Now (and certainly over the past 20 years or so) IHRL has evolved and extended into areas of armed conflict, where courts have reconsidered the proper scope of governmental authority, and have deemed certain aspects of a hostile environment (e.g. occupation, detention, etc.) as falling within that scope. In addition, there is now a ‘divide and tailor’ principle, whereby the State’s positive obligation to protect and enforce human rights is separated from its negative obligation to refrain from arbitrarily depriving someone of their rights. The authors argue that the former requires territorial control and ‘jurisdiction’, but the latter merely requires ‘authority or control’ over the specific individual concerned. By definition, this invokes IHRL whenever a terrorist suspect is unilaterally pursued and lethally targeted abroad. Hence, the authors describe IHRL as the ‘default’ regime in such circumstances, whether or not an armed conflict exists; whether or not the NIAC threshold is satisfied. Of course, where there is no NIAC or other armed conflict, IHRL applies exclusively to impose both positive and negative HR obligations, both in relation to those targeted and those who may be caught in the crossfire. Where a NIAC does exist, IHRL applies in limited form to impose only the negative obligations on State action.

Thirdly, and again complementary to the above, the authors warn against any liberal aggregation of violence, such that we easily and frequently arrive at the conclusion that a NIAC exists. This is because when IHL is invoked, not only do less protective rules apply to those targeted, but it also means unsuspecting communities far away from any contact zone may lawfully be ‘significantly’ affected; indeed, so long as collateral deaths are not ‘excessive’, the IHL principle of proportionality allows them. This concern is echoed by other authors (such as McDonald, 2015), who point out that drone strikes in areas that are putatively in peacetime effectively deprive unsuspecting civilians of the option of seeking refuge abroad, in order to separate themselves from violence that would otherwise kill them. Not to say that being a refugee is desirable, but if the choice is between a) refugee status and b) the risk of life-changing injury or death, most civilians would likely opt for the former. Yet, drone strikes far away from an established contact zone effectively deprive them of that choice. Thus, in ambiguous circumstances we should not be quick to ‘aggregate violence’ in order to allow State action to benefit from IHL belligerent rights.

The authors sum up by reminding us of three things. Firstly, the long-standing legal framework for maintaining international peace and the RtL is both coherent and well-established, and has stood the test of time. Yet, States are using drones to exercise a police / law enforcement function to counter potential threats from allegedly new forms of conflict, which originate abroad; this poses a danger to the protection of life because the usual tools of policing (e.g. capture) are not available and the more permissive IHL framework is often relied upon instead. However, the long-standing framework mentioned above need not and should not be abandoned on account of terrorism and ‘new’ forms of conflict. On the contrary, the framework and its standards should be more diligently applied, especially in light of the increasing number of States accessing this technology and putting further pressure on the RtL.

Secondly, to reiterate, the legal paradigm applied to drone strikes makes an important difference to its permissiveness, hence an assumption of global NIAC makes it easier to justify lethal force than if IHRL becomes the dominant legal framework. Yet, the global NIAC concept is controversial: even if accepted in principle, it must be assessed against objective legal criteria, not subjective self-interest; even if it applies in a given situation, it should not be assumed to modify IHRL, even less so to displace it. As an afterthought, the authors remind us that IHL permissibility does not automatically mean desirability or wisdom: to protect the RtL, it is important to maintain the idea that force remains the exception. This is especially true for unsuspecting civilians located far away from any contact zone, who may find themselves incidentally injured without prior warning or the effective choice to seek refuge.

Finally, considering the controversy and debate surrounding the above, the authors conclude there is “an urgent need for the international community to gain greater consensus on the interpretation of the constraints that IL in all its manifestations places on the use of drones.” This is important not just for those being targeted, but also for the unsuspecting civilians mentioned above; and it is, more broadly, in the interests of keeping intact a viable and strong system of international security where the rule of law is a central feature. Drones should follow the law, not vice versa.

To begin the search for greater consensus on the regulation of armed drones, the authors propose seven fundamental principles:

  1. The current IL framework is adequate to govern drone strikes;
  2. The RtL can only be adequately protected if all IL constraints on use of lethal force (UoLF) abroad are complied with holistically; that is, individual and cumulative compliance with jus ad bellum, IHL (where applicable) and IHRL;
  3. IL norms on UoLF must not be abandoned or modified to suit the current use of drones;
  4. Any extra-territorial drone strike must comply with jus ad bellum;
  5. Where a drone strike takes place within the narrow confines of international armed conflict or NIAC (a factual question governed by objective legal criteria), it is governed by both IHL and IHRL;
  6. Outside those narrow confines, any killing is governed solely by IHRL and must meet the relatively stricter necessity and proportionality requirements developed in that jurisprudence; and
  7. There should be transparency surrounding all drone operations to enhance accountability.

[1] Stuart Russell, a leading computer scientist, illustrates the point with a (perhaps dramatised) example:

“A million Kalashnikovs can kill an awful lot of people, but only if carried by a million soldiers, who require a huge military-industrial complex to support them…

A million autonomous weapons, on the other hand, need just a few people to acquire and program them – no human pilots, no support personnel, no medical corps. Such devices will form a new, scalable class of weapons…they tip the balance of power away from legitimate states and towards terrorists, criminal organizations, and other non-State actors.”

While Russell’s comment may sound like a distant and dystopian future, modern developments in swarm technologies are certainly moving in that direction, with the US Navy’s LOCUST programme running successful trials of eight-drone swarms controlled by a single person penetrating sophisticated ship defences. The aim is to increase this to 50-drone swarms controlled by a single operator, all at a lower cost than a single Harpoon anti-ship missile. Should these Navy plans prove successful, they will enable significant violence to be inflicted with progressively less need for command and control of the battlespace. Furthermore, the miniaturisation involved will increase the likelihood of capture, reverse-engineering and proliferation to non-State actors. Accordingly, it may become more difficult as a matter of law for non-State actors acquiring these technologies to qualify as an ‘organised’ armed group.

 


Now, we move onto comments on the pieces from network members.

Mike Ryder, Lancaster University

Very interesting for me, as a non-Law student, is the question here of the obligation and responsibilities of the state in which ‘terrorists’ (be they criminals/enemies) are taking refuge.According to the authors, states are bound to their own human rights obligations preventing violations to the right to life of those within its borders (822), but there surely then remains the question of the state’s role in also policing itself internally and protecting the rights of others both internally and among the wider global population. Should the USA (for example) expect such states to assist in the tracking and detainment of suspected terrorists, or is the use of drones a signal that the normal situation of international law has broken down; that the state in question is incapable of policing its population effectively, and as such it is for others to take the law into their own hands?Does this then mean that the states in question, housing these ‘terrorists’ are not really true states at all? (NB: I used inverted commas for their guilt is not clear.) 

The other question here that arises for me is the question of the enemy vs the criminal.According to this paper, terrorists are ‘non international’ actors, so the conflict with them is a ‘non-international armed conflict’ (805). However for this to be the case, the enemy group must be organised: it requires a headquarters, strategy, and single voice (808). How then can any conflict with terrorists be ‘non-international armed conflict’ if often the success of terrorist organisations based on their diffuse, non-crystallisable nature? For me, this position seems to fail to understand the nature of the modern terrorist.

 


Joshua Hughes, Lancaster University

This article by Heyns et al is a great overview of the current legal framework governing drones, and notes a large number of issues that are being dealt with, and need to be by the international community. However, as Sir Michael Wood questioned at the ICLQ lecture, why just focus on drones? Most of this assessment could be applied to special forces counterterrorism raids.

As the authors note in the article (and restated by Akande at the ICLQ lecture about the same article), the biggest issue in relation to use of armed drones in targeted killing is the blurring of the line between war and peace, potentially resulting in a perpetual war (p.792). Which of course is a result of the current political situation where NATO states do not wish to openly risk the lives of their soldiers in potentially politically damaging operations in the middle-east. However, questions about the potential use by law enforcement (p.793) could result in blurring of the line from the law enforcement side, rather from the military. Of course, this line has been blurred in the past during proxy guerrilla wars as part of the cold war, and also in the post-colonial era, however the use of drones means that state can exploit this ‘grey-zone’ (p.794) without the need to co-opt native forces. Further in terms of blurring the line, the articles holistic approach to using all three relevant bodies of law simultaneously (p.795), rather than as discreet and separate bodies could potentially result in a legal blurring as well. This seems to be have happened in relation to drones strikes under Obama, where justifications seem to use language from all three bodies of law.

Also relating to this blurring is the prevention of combatting long-term security threats with long-term military deployments under self-defence justifications (p.801). There is not a problem with this position in law, but the point at which military forces hand over to law enforcement is tricky in practice (UNSC). Handing over to police who may not be able to handle a situation may result in a back-and-forth over the armed conflict threshold, further blurring the line. Also, such a situation would require law enforcement to be able to deal with violent NSAs who may try to retake power or position, and therefore be ‘militarised’ to some degree (as seems to be happening in Afghanistan after the pulling out of most NATO forces). It seems that, whilst perpetual war is of course undesirable for all, the point at which this type of conflict ends may require that blurring for some time longer.

 


Peter Kalu, Lancaster University

The article posits the triple lock of laws that surround the use of armed drones ( Just War laws /ius ad bellum; international humanitarian law; international human rights law) are sufficiently robust to deal with the changes that use of armed drones brings.

In relation to ius ad bellum, issues of consent and imminent threat, of the idea of war being an exceptional state not a “normal” activity are explored. In particular, the article accepts that armed drones decay the idea of war being an exceptional state.

Regarding IHL, there is an examination of the meaning of protracted armed violence by non-State groups, including tests such as whether inter alia such groups are organised and have a clear command structure. Two highly important areas are scrutinised: (1) the principle of distinction vis a vis determining civilians from combatants. and (2) whether aggregation of  non-state armed groups is permissible  when seeking action against armed groups who are spread over several States. IHRL is also explored, particularly the way it combines with ius ad bellum and IHL as a protective shield of the right to life.

The problem with all such analyses is that such law can be ignored or avoided with impunity by state actors who have the ability to create fake information, to render processes opaque and to evade transparency or fake it. The biggest example of this, indeed the elephant in the room in this area, is the manipulation and avoidance by USA and UK around the ‘weapons of mass destruction’ case for intervention in Iraq. This renders arguments around whether any laws apply similar in their scholastic irrelevance to the ‘how many angels can dance on a pinhead’ debates of the Middle Ages. The authors allude as much when, in examining the question of a State’s the right to attack hostile non-State actors abroad even without the consent of the ‘host’ State, they admit:  ‘the law on this matter appears to have changed’.  It’s worth quoting this in full so the problem can be laid bare:

“Nonetheless State practice relating to the use of force against non-State actors since 2001, is now broad and extensive, and indeed it extends beyond the immediate post 9/11 context. Following this practice, and despite academic controversy, the law on this matter, appears to have changed.”

When to this is added the high degree of blur including in the ‘political imaginary’ that drones bring to so many areas (too great a subject to set out briefly here) the problems compound.


Liam Halewood, University of Liverpool

This article is a great overview of the relevant issues of the use of armed drones, issues that will become more common with the proliferation of armed drones. I am particularly interested by the applicability of the European Convention on Human Rights (ECHR) to targeted killings and would like to add a comment in relation to this aspect of the article (essentially pages 822-825). The article rightly mentions the concerns regarding the applicability of the ECHR to drone strikes:

“one of the key difficulties posed by drones is that the attacking State can engage in targeted killing without exercising effective control over territory or without having the individual in custody, leading to question over whether such persons fall within the ‘jurisdiction’ of the attacking State for the purposes of their human rights treaty obligations”

This statement is a direct reference to the concept of jurisdiction that has developed through the jurisprudence of the European Court of Human Rights (ECtHR) and reflects the concern that targeted killing by drones would not be within the jurisdiction of the ECHR (A viewpoint shared by the UK Government).

The subsequent discussion on how the positive/negative obligations in human rights treaties should apply is interesting but does not represent the law as it stands (see how words such as “should” and “likely” are used. It is an argument rather than a legal position). Essentially, the argument is that the negative obligation to respect the right to life should be territorially unbound and therefore any State killing is within the jurisdiction of the relevant human rights treaty. This is a conception of jurisdiction that I support but it is a legal argument rather than a current legal position. The reference to Milanovic is appropriate because his work on the extraterritorial applicability of human rights treaties is highly regarded but even Milanovic acknowledged recently that drone strikes are “off the table” in regards to being regulated by the ECHR.  For the positive/negative obligation theory to be adopted by the ECtHR, it would take a great expansion of the reach of the ECHR, which the Court has not yet endorsed and has been clearly reluctant to do so.

Nonetheless, it is my view that there is scope to argue that targeted killing by drones would fit within the current conception of jurisdiction under the ECHR. If perceptions of targeted killing by drones change to recognise the technological characteristics of drones to find and track a target (control over an individual), whilst also acknowledging that a targeted killing is a unique counter-terrorism security operation (public powers), then perhaps targeted killings can be regulated by the ECHR, without requiring a drastic expansion by the ECtHR to make it so.


We will be adding further comments from group members as they come in. If you would like to join TTAC21, please e-mail admin@ttac21.net. If you don’t want to join the network, but just want to leave a comment about the article, or respond to the thoughts from group members, please do so in the comment box below.