The transformation of international law and the rise of drones series, part I

This post is the first in a series (well, hopefully a series, but let’s face it, PhD ≠ free time) that I am going to do on the way in which international law is being or may be transformed by the increased use of armed drones by states. It is, in large part, an exercise for me to order my own thoughts on the matter, but I also hope that it will provide some food for thought among those with interests in international law, politics and technology, about what drones might mean for the future. So here goes…

It has been a theory of mine, since before I began my research into drones and international law, that the rise of these remotely piloted weapons might have the result of promoting, within states, a desire to interpret the law in a way that is more permissive of the use of force.

The logic behind the theory runs like this: Until now, states' desires to use force have been restrained by both concrete practical and abstract legal impediments. Drones make the extraterritorial use of force a much more ‘simple’ endeavour, as they remove much that has previously presented a physical, concrete barrier to such actions, at least for those with the infrastructure to fly them. As a result of the removal of concrete barriers to uses of force, states become restrained solely by abstract barriers. International law, and its symbiotic relation (or perhaps its alter-ego) international politics, represents the most instantly present of these abstract barriers, manifesting in such things as the prohibition on the use of force under Article 2(4) of the United Nations Charter. When concrete impediments are overcome and law remains the only barrier, not only is there is an incentive to change the way that law operates, but it is likely to occur as a necessary consequence as practice expands to fill its new horizons, sort of like an international law version of Parkinson’s law. Areas of international law representing the principle barrier(s) to uses of force become focal points, either by design or accident, which are put under stress by practices that occur at the limits of its flexibility, which may ultimately change its shape, like an elastic band which loses its elasticity, or a much-loved sock which just ends up looking sad and tired... Maybe there is a better analogy. Nope, that'll do.

The change in the law produced by drone use is not an overturning of that law, but a blurring of it through interpretation. There is not a concerted and overt campaign to change the law, but rather a constant stress placed upon those areas which represent barriers. There is no chance, for instance, that the use of drones will signal the end of the prohibition on the use of force under Article 2(4) of the UN Charter. But it may result in an increased permeability of that rule, as the exceptions to it—principally self-defence—are gradually widened. And it is these sites of the law being ‘widened’, or made more permissive of uses of force that I would like to focus on over the coming months.

I have argued previously that the growth of drones is likely to speed up the transformation of the ‘armed attack’ requirement of Article 51 of the UN Charter form a state-against-state mechanism to one which focuses on attacks by non-state actors. But I believe that there are many other areas of international law which are potentially at risk of interpretive transformation as a result of this new technology. I intend to consider a number of these within this blog, and to set out my argument as to why drones present a possible ‘challenge’ to the current state of the law (I put the word challenge in inverted commas as, of course, some might see this as a welcome opportunity to expand international law in a way that will enable states to defend themselves more efficiently. Needless to say, perhaps, I don’t share this view!).

The key areas (in addition to the armed attack requirement) I have identified as being most susceptible to change are:

-       The gravity requirement within self-defence

-       The unable and unwilling test within self-defence

-       The law governing the consent of states to third state interventions

-       The law governing the existence of non-international armed conflicts

It will be noted that these areas of law are, for the most part, the gateways to uses of force, rather than aspects of international law that govern conduct in the use of force. I suppose that this is a result of the fact that drones are being viewed from the perspective of technology that enables the use of force, so it follows that the areas of law they impact upon are those involved in the enabling/disenabling of uses of force. These are the abstract barriers. It is pure coincidence that these areas of law coincide with those so far covered in my PhD thesis on drones and international law!

So, hopefully I will have a chance to post the first substantive piece in the series within the coming weeks. I look forward to writing it and I hope you enjoy reading it!

Drones and the politics of international law

Drones (also known as unmanned aerial vehicles or remotely piloted aircraft systems among other monikers), though not yet ubiquitous, are increasingly permeating our daily lives. They are used by scientists, police forces, hobbyists and delivery companies (but only for burritos...). Only the other day, while my partner and I were walking in the isolated North York moors, a drone hummed determinedly across the sky. But it was not a quadcopter being flown by a member of the public, it was (most likely, having referred to the very handy Drone Survival Guide) a ‘Hermes’ military surveillance drone, operated by the Royal Air Force, providing a clear reminder that the growth of drones has arguably had its most palpable manifestation within the field of armed conflict.

Drones have had a place in this field since at least the First World War, and they have subsequently played a part in many conflicts, including Korea, Vietnam, the Yom Kippur War and Yugoslavia. However, though some of these drones were used lethally as guided bombs, most were purely for reconnaissance. It was not until the Kosovo war that a drone, the Predator, was armed[i] and later still, during the war in Afghanistan, that a missile was fired by a drone. Since then, the number of drones has grown at a staggering rate. In 2000 the US had fewer than 50 drones[ii] but by 2012 this had risen to over 19,000, set to rise as the Pentagon seeks to increase its daily drone flights by 50%. Drones therefore have the capacity to change the traditional picture of warfare from one of direct personal engagement to one that is indirect and impersonal, at least for those states with the infrastructure to fly them.

Nonetheless, this transformation does not have immediate implications for armed conflicts and the law that governs them—from a doctrinal perspective, drones are not per se legally problematic, they are ‘conventional weapons’ under international law and they are not prohibited under any of the treaties that restrict the use of certain weapons.[iii] However, this statement masks the fact that it is not the weapon itself that is controversial, but the uses to which it can be put. On 3 November 2002, the US fired a missile from a Predator drone operating in Yemen, which killed six people including a reputed high-ranking member of al-Qaeda, wanted by the FBI in connection with the attack on the USS Cole in 2000. The importance of this event is difficult to overstate as it represented the first drone strike undertaken outside of a combat zone, against a non-state actor with no link to the state in which they were present. It is therefore of a distinctly different character, demonstrating the ability of drones to transcend the traditional boundaries of ‘war’. Since that first extra-conflictual strike, the use of drones in this manner has increased dramatically and the US flies them constantly in Pakistan, Yemen and Somalia. The number of deaths from drone strikes is now well over 5,000, many of which have been civilian. What drones represent therefore is a dramatically increased ability of states to use extraterritorial force avoiding much in the way of public accountability.

Luckily, untrammelled force on the part of powerful states is circumscribed by the framework of law that governs the use of force by states, known as jus ad bellum.[iv] This area of law comes out of the historic practice of states (known as customary international law) and, most importantly, the Charter of the United Nations. Article 2(4) of the Charter creates a universal prohibition on the use of force by states, subject only to a handful of exceptions. Principal among these is force used in self-defence;[v] under Article 51 of the UN Charter and international customary law, a state may use force ‘if an armed attack occurs’ and if it is necessary and proportionate.[vi] The Charter has been acceded to by ostensibly every state in the world and therefore we may assume that when drone strikes are carried out, they are done so in line with these laws. Indeed the US has insisted (in the guise of assertions about its wider use of force) that its global drone programme is carried out in line with international law. Thus it is possible to aver that the resort to drone strikes can be lawful under the rubric of jus ad bellum and that as such their use is done so in accordance with the international law; those actions that would be illegal are not carried out. End of story.

But of course this is not the end of the story at all. To claim that the law restricts the use of force and that therefore any resort to drones must be legal (I mean, come on, states aren't going to breach international law are they? Right??) is to ignore part of the picture.  This is that the law is a political process, subject to competing interpretations vying to crystallise a particular view of the law, advancing specific interests. In the words of Martti Koskenniemi, the law is a ‘[p]olitical struggle … waged … on the meaning of legal symbols’.[vii]  And drones provide a catalytic point around which these divergent interpretations converge by virtue of the fact that they represent a (relatively) easy way of states to resort to forceful actions. To put it another way, when force is a practical difficultly and therefore less likely to be used, it makes no difference whether the legal system in which it is used is restrictive or permissive; however, when the resort to force is readily available, the practical barrier has been removed and only the legal one remains. This consequently rests a state’s foreign policy options on whatever is the dominant interpretation of the law, giving states a huge motivation to interpret the law in a way that suits them.

This interpretive struggle is evident throughout the jus ad bellum but it is at its most clear when we look at a state’s ability to resort to force not against another state, but against a non-state actor (NSA). Under Article 51 of the UN Charter, which preserves states’ ‘inherent right’ to self-defence, a state may respond forcefully only when they have suffered an ‘armed attack’, but there is no definition of what such an attack constitutes. Consequently, the notion of an ‘armed attack’ presents itself as a legal concept which cannot but exist through interpretation. The key site of interpretive struggle over its meaning is whether such an attack can only come from another state (this could be via a NSA but requires a link between that NSA at the state in which it resides), thus restricting a ‘victim’ state’s right to self-defence, or whether it can come from a NSA, therefore expanding a state’s right to self-defence.

The UN Charter regime has been traditionally understood to emphasise the limitation of the use of force and it has been said that during the foundation of the UN ‘the general tendency was towards a restrictionist interpretation of any permission in relation to the use of force.’[viii] The traditional teleology of the jus ad bellum is like the ‘perpetual peace’ of Kant’s cosmopolitanism.[ix]  This provides the first interpretation of the law—the ‘restrictionist’ approach. This interpretive underpinning has been borne out by judicial decisions considering the possibility of armed attacks originating from NSAs. In the case of Nicaragua v United States, the International Court of Justice (ICJ) held that for an armed attack to be carried out by a NSA, there must be some degree of connection between that NSA and the state in which they reside[x] (though without saying what this degree needed to be). Similarly, in the Wall advisory opinion of 2005, the Court referred to ‘the existence of an inherent right of self-defence in the case of an armed attack by one state against another state’.[xi]  Finally, in DRC v Uganda the Court again cited the need for a non-state actor to be linked with a state before self-defence can be invoked.[xii]  Under this interpretation of the international law of self-defence, drone strikes would be restricted to conflicts which are ostensibly between states. Attacks carried out by NSAs would necessarily be treated as crimes and accordingly be dealt with as a matter of law enforcement. It is thus that such an interpretation can be understood to focus on and promote peace rather than allowing states easily to use military force in the territory of others.

Despite this seemingly staunch support for the requirement of a link between NSA and territorial state, the traditional restrictionist approach has been challenged by an opposed interpretation that emphasises states’ security requirements over the pursuit of peace. This alternative interpretive paradigm entirely removes the requirement of a state-NSA nexus and consequently creates a regime in which the lawful resort to force is much more readily available, known as the ‘expansionist’ approach. Jordan Paust referred to 19^th Century state practice to interpret the armed attack concept as requiring no state-NSA link[xiii] while others have suggested that preventing self-defence against independent NSAs would undermine the object and purpose of the UC Charter.[xiv]  This expansionist interpretation appears to have found favour with states in their recent practice as well, an example of which being the use of force against ISIL in Syria, in which self-defence appears to have been raised.[xv]  In contradistinction to the restrictionist paradigm above, this formulation of self-defence allows states to undertake forceful actions in the territory of others much more readily, and makes conflict a much more likely prospect, to the point of normalisation.

The use of drone strikes in Pakistan, Yemen and Somalia has been justified by self-defence[xvi] and in these instances force has been used against NSAs which are not linked to those states. In this manner it is entirely clear how their use has been made possible through an interpretation of the law and that the expansionist interpretation is currently dominating. Likewise, it is easy to see how this understanding of self-defence could be employed in the future to justify their further use. Drones therefore represent a coming together of the concrete and the abstract; when an expansionist interpretation is adopted, drones are the point at which the practical and legal possibilities of the use of force become congruent. They allow those states with the capacity to operate them the ability to use military force to police an entire region, as is arguably the case in the Federally Administered Tribal Areas in Pakistan.

In conclusion, it is vital that those studying drones are cognisant of the inherent plasticity and interpretive flexibility of the international law governing the resort to force. It is submitted that drones have arisen in an epoch that is hallmarked by an increased desire on the part of states to use force and a consequent reduction of global stability. The law cannot be viewed as a fixed structure which checks state uses of force—to do so would be result in the loss of all critical legal faculty. Drones have pushed to the forefront many inherent tensions within international law and without examination and resistance these have the potential to resolve themselves into a system that is highly permissive of the use of drones. The risk is the creation of conditions that encourage powerful states to subject weaker ones to near perpetual militarised policing from the air. This rather bleak prediction may sound far-fetched but it is already the case in the tribal areas of Pakistan. The need for critique is immediate.

---

[i] M Benjamin Drone Warfare; Killing by Remote Control (Verso, 2013) 15.

[ii] M Benjamin Drone Warfare; Killing by Remote Control (Verso, 2013) 17.

[iii] For instance the United Nations Convention of Certain Conventional Weapons (1980), which regulates landmines, incendiary weapons and blinding lasers, amongst others.

[iv] It should be noted that this is distinct from international humanitarian law (or jus in bello) which governs the conduct of hostilities once they have begun, which is not considered here.

[v] The other exceptions to the prohibition are collective actions in response to threats to peace, under Chapter VII UNC, as well as the more controversial humanitarian intervention. A state is able to consent to foreign intervention within its territory as an inherent aspect of sovereignty, but this removes the act from the jus ad bellum framework, rather than rendering it lawful within it.

[vi] Necessity and proportionality do not originate with the UN Charter but from much earlier customary international law, as evidenced in the Carline affair of 1837 in which self-defence was deemed lawful only when the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation’.

[vii] M Koskenniemi ‘What Should International Lawyers Learn from Karl Marx?’ (2004) 17 Leiden Journal of International Law 229, 236.

[viii] I Brownlie ‘Legal Regulation of the Use of Force’ (1959) 8 International and Comparative Law Quarterly 707, 718.

[ix] I Kant ‘Toward Perpetual Peace’ (DL Colclasure trnsl.) in P Kleingeld Toward Perpetual Peace and Other Writings on Politics, Peace, and History (Yale University Press, 2006) 73.

[x] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) ICJ Reports (1986) [195].

[xi] Advisory Opinion Concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories ICJ Reports (2004) [139].

[xii] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) [146].

[xiii] JJ Paust ‘Self-Defence Targetings of Non-State Actors and Premissibility of US Use of Drones in Pakistan’ (2010) 19(2) J.Transnat'l L.& Pol'y 237, 244-7.

[xiv] AC Orr ‘Unmanned, Unprecedented, and Unresolved: The Status of American Drone Strikes in Pakistan Under International Law’ (2011) 44 Cornell Intl LJ 729, 739.

[xv] SJ Power ‘Letter dated 23 September 2014 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General’ S/2014/695

[xvi] See e.g. H Koh ‘The Obama Administration and International Law’ (March, 2010) Speech at the Annual Meeting of the American Society of International Law; and Eric Holder ‘Attorney General Eric Holder Speaks at Northwestern University School of Law’ (2012) <http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law> (accessed 20 August 2015).