The Legality of Drone Strikes under International Law The use of force or

the use of fear?

By Corey Gauci, 5th year B Laws/ Arts
In the United Nations (UN) Human Rights Council Special Rapporteurs, reports have repeatedly
focused on the development and impact of drones within the realm of international law,
particularly with respect to the United States adoption of drone strikes in weakening Al Qaedas
and the Talibans command structure over the last decade. On the horizon, for example,
developments in nanotechnology and biotechnology and in autonomy and robotic systems
present eventualities that the international community must address in coordinated ways.
Consequently, there remains a notable lack of consensus on how to apply the rules of
international law that regulate the use of force of drones, the fact that drones are now an
established technology notwithstanding.
What is drone technology?
In the UN Human Rights Council Report of the Special Rapporteur on the Promotion and Protection
of Fundamental Human Rights while Countering Terrorism, drone technology is defined as a
remotely piloted aircraft, that of which, in conventional threats of armed conflict, the primary
function is the provision of intelligence, surveillance, targeting and reconnaissance.
Since 1999, remotely piloted aircraft have been used in a direct combat role for target
acquisition, using laser markers to designate a target that is then attacked by precision-guided
missiles discharged from conventional fixed-wing or rotary-blade aircraft.
The appeal of drones is clear.
Among other things, they provide
strategic advantage of greatly
reducing the time between the
identification of a potential target
that could be a great distance away
and the deployment of deadly force
against that target. Alternatively,
the availability of drones may lead
to States, where they perceive their
interests to be threatened,
increasingly engaging in a lowintensity but drawn-out applications of force that know few geographical or temporal
boundaries; the effect being that the increased use of drones would run counter to the notion
that war and the transnational use of force in general must be of limited duration and scope,
and that there should be a time of healing and recovery after conflict. Some States may also
choose to utilise armed drones in domestic law enforcement contexts, such as for border patrols,
operations against organised crime and crows control in demonstrations. Further, armed drones
may fall into the hands of non-State actors and may also be hacked by enemies or other entities.
Drones can be expected to become more sophisticated and available in more compact form, and
also to become less expensive and therefore more accessible. Inevitably, the number of States
with the capacity to use drones is likely to increase significantly in the near future, reinforcing
the need for greater consensus on the terms of their use.
Case study: The use of drone technology by the US against Pakistan since 2004.
Since 2004, the United States government has attacked hundreds of targets in Northwest
Pakistan using unmanned aerial vehicles (drones) controlled by the Central Intelligence Agencys
Special Activities Division. Most of these attacks are on targets in the Federally Administered
Tribal Areas along the Afghan border in Northwest Pakistan.

Article 2(4) of the U.N. Charter prohibits the threat or use of force by one state against another.
Two exceptions to the Article 2(4) prohibition on the use of force are particularly relevant to the
question of whether US targeted killings in Pakistan are lawful: (1) when the use of force is
carried out with the consent of the host state; and (2) when the use of force is in self-defence in
response to an armed attack or an imminent threat, and where the host state is unwilling or
unable to take appropriate action.
1. Exception One: Pakistani consent It isnt specifically clear whether Pakistan had consent
to the use of drone strikes. Whilst sources suggest that Pakistan has originally supported
drone strikes, contradicting sources allude to Pakistans withdrawal of consent. The later
proposition is further reinforced by repeated public statements by Pakistani officials, which
intensified in 2012 declaring the US strikes as illegal, counter-productive, and violate the
countrys sovereignty, clearly rejecting any notion of consent on behalf of the Pakistani
government.
2. Exception Two: Self-defence In the absence of Pakistani consent, US use of force in
Pakistan may not constitute an unlawful violation of Pakistans sovereignty if the force is
necessary in self-defence in response to an armed attack, either as a response to the attacks
of September 11, 2001, or as anticipatory self-defence to mitigate threats posed by nonstate groups in Federally Administered Tribal Areas. Ultimately, the construction of an
argument, for or against the appropriateness of self-defence, depends on what side of the
conflict one chooses to advocate for. In short, for the use of force to be lawful, the host state
must also be shown to be unwilling or unable to take the appropriate steps, itself, against
the non-state groups. Similarly, the application of anticipatory self-defence has been widely
critiqued on the basis that the US drone strikes couldnt have reasonably been invoked to
prevent an attach that was at the time, instant, overwhelming, and leaving no choice of
means, and no moment of deliberation, according to the U.N. Human Rights Committee
Special Rapporteur, Study on Targeted Killings A/HRC/14/24 28 May 2014. Furthermore,
Pakistan has infrequently shown attempts to take action against Al-Qaeda and Taliban
command structures located in the countrys region, in line with the States obligations
under International Human Rights Law and International Humanitarian Law concerning the
use of force, thereby rejecting the legitimacy of self-defence as a possible exception to the
use of force carried out against Pakistan by the US with the use of drone strikes since 2004.
Accordingly, the use of force by the US against Pakistan, primarily deals with the issue of
legitimacy of the use of force in light of the prohibition in the U.N. Charter. Nevertheless, the
ongoing conflict between the US and Pakistani has marked a turning point in the use of
unmanned aerial vehicles (drone technology) as a means of combating terrorism on an
international scale.
The linked between drone technology and humanitarian law
If used in strict compliance with the principles of humanitarian law, drone technology can
reduced the risk of civilian casualties by significantly improving overall situational awareness.
The ability of drones to loiter and gather
intelligence for long periods before a strike,
couples with the use of precision-guided
munitions, is undoubtedly a positive
advantage from a humanitarian law
perspective. As the International Committee
of the Red Cross (ICRC) has noted, any
weapon that makes it possible to carry out
more precise attacks, and helps avoid or
minimise incidental loss of civilian life,
injury to civilians, or damage to civilian
objects, should be given preference over
weapons that do not.

Irrespective of the advantages and disadvantages linked to the use of drones in the context of
international law, the legality regarding the use of drones in response to armed conflict remains
paramount insofar as limiting the use of drones in circumstances that would otherwise call for
less intrusive measures. Accordingly, the following propositions are key to understanding the
legality of drone technology under international law as it currently stands:
(a) When considering whether a States use of force violates the sovereignty of another State in
contravention of the U.N. Charter, one must consider the notions of jus as bellum, the body of
law concerning the recourse to force, and depends on whether the later State has consented
to the strikes, or whether the former State is lawfully acting in self-defense.
(b) When determining when and which individuals may lawfully be targeted under applicable
international human rights or humanitarian law, regardless of ones assessment of the
legality of the recourse to the use of force the use of force against a specific individual
must also comply with either international humanitarian law (in the context of an armed
conflict) or international human rights law (outside armed conflict).
(c) When considering whether a State may legitimately rely on the defence of self-defence to
the use of force pursuant to Art 51 U.N. Charter, the requirements of proportionality and
necessity must still be met in order to legitimately utilise drone technology as a means of
self-defence.
In summary, discussions regarding the legality of the drones policy under both international
humanitarian law, the body of law governing armed conflict, and international human rights law,
often require fact-dependent contextual analysis. Due to the benefits of drone technology, there
is no doubt that the use of drones will continue to increase overtime. Accordingly, it is imperative
that the international community collectively deals with the lack of certainty regarding the use of
drones under international law principles.