Drone warfare and international law Prof. Dr. Tom Ruys 6 February - - PowerPoint PPT Presentation

Drone warfare and international law – Tom Ruys – 6/02/2014

Drone warfare and international law

• Prof. Dr. Tom Ruys

6 February 2014

Introduction

• Unhelpful to speak of drone warfare as if it

were governed by a specific normative framework

• No one-size-fits-all: Importance of

distinguishing between different scenarios

Drone warfare and international law – Tom Ruys – 6/02/2014

Scenario 1: drone warfare in the context of an IAC/NIAC and within the territory where the actual hostilities are taking place

• LOAC paradigm
• Relevant norms in theory in practice – no intrinsic

problems (pending the advent of fully autonomous drones?)

• Specific points of attention in the context of drone

warfare?

• Precautions?
• Weapon of choice – less harmful alternatives?
• Involvement of civilian personnel?

Drone warfare and international law – Tom Ruys – 6/02/2014

Scenario 2: use of drones by a State within its own territory absent a situation of armed conflict

• IHRL paradigm – law enforcement scenario
• Right to life imposes strict standards on the

use of lethal force

• “outside the context of armed conflict, the

use of drones for targeted killing is almost never likely to be legal” (P. Alston)

Drone warfare and international law – Tom Ruys – 6/02/2014

Scenario 3: use of drones outside the context of an armed conflict within the territory of another State that consents

• IHRL obligations territorial State
• Responsibility of the attacking State

extra-territorial application of IHRL?

effective control over territory/control over persons broad reading of ‘effective control’? different treaty rights & customary rights? ‘consent’ as a delegation of ‘public powers’?

Drone warfare and international law – Tom Ruys – 6/02/2014

Scenario 4: use of drones outside the context of a (pre-existing) armed conflict within the territory of another State that does not consent

• First and foremost Jus ad Bellum question
• Erosion of the normative framework?
• Gravity ‘armed attack’
• Attacks by non-State actors
• Self-defence against ‘imminent threats’?
• Small-scale attacks outside the scope of Article 2(4) UNCh?
• Targeting principles

Drone warfare and international law – Tom Ruys – 6/02/2014

Scenario 5: use of drones in the context of an armed conflict that ‘spills over’ into the territory of a third State and whereby the latter State consents

• No Jus ad Bellum issue - LOAC paradigm

applies (cf. Scenario 1)

• Key question: what spill-over/nexus?
• Only hot battlefield – continuation of hostilities from the territory
• f a third State
• >< LOAC not limited geographically, but follows wherever

lawful targets go – idea of a ‘transnational’ armed conflict

Drone warfare and international law – Tom Ruys – 6/02/2014

Scenario 6: use of drones in the context of an armed conflict that ‘spills over’ into the territory of a third State and whereby the latter State does not consent

• First and foremost Jus ad Bellum/law of

neutrality issue + application LOAC

• Again: what ‘spill-over’/nexus?

Drone warfare and international law – Tom Ruys – 6/02/2014

Concluding observations

• Even if practice is not always compliant, no intrinsic

problems under LOAC – no need for a separate legal framework

• Relevant legal frameworks (JaB/IHRL/IHL)

nonetheless under strain

• Geographic boundaries LOAC
• Extra-territorial application IHRL
• Erosion of the Jus ad Bellum?
• Risk of State responsibility for complicity/assistance?
• greater transparency + ‘terrorist’ label unhelpful
• Winning the war >< securing peace?

Drone warfare and international law – Tom Ruys – 6/02/2014