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ANNUAL CONFERENCE December 7th 2013

STRASBOURG MODEL UNITED NATIONS

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Drones in the Twenty-First Century Warfare:

Defining a Legal Framework

STUDY GUIDE

Sixth Committee LEGAL

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*

Topic

Drones

- History of the Committee……….....pg. 5

- Organization of the Committee…..pg. 6

- Introduction to the Topic...……......pg. 7

- Points of Discussion.………………...pg. 10

- The Future…………………………….….pg. 16

- Points a Resolution

Should Address..............................pg. 17

- Bibliography and Further

Reading………..….............................pg. 18

CONTENTS

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Dear Delegates, welcome!

Congratulations to your admittance to the

Strasbourg mini-MUN!

You have been selected to address one a

crucial issue in a peculiar UN organ: the Legal

Committee.

This study is an introduction to our topic,

providing a firm foundation for you to then

research in greater detail. It will serve you in

the writing of your position paper, defining

your country’s position on the matter.

Reading this document will be the first step to

becoming an outstanding delegate, as the old

adage says, knowledge is power: nowhere is

this truer than in Committee.

Good luck in your research.

Committee Directors

A MESSAGE

Héloïse de Montgolfier

hdemontgolfier@free.fr

Pauline Fouquet

pauline.fouquet@gmail.com

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The General Assembly, established in 1945 under the United Nations Charter, is the only

organ of the United Nations where each state can be represent, all being considered as equal and

sovereign. The main part of the General Assembly’s work is occurring in six committees, whom is

the legal one.

The Legal Committee, officially named The United Nations General Assembly Sixth

Assembly, is the main forum that deals with legal considerations. Article 13 of the United Charter

defines this committee as charged to “initiate studies and make recommendations for the purpose

of (…) encouraging the progressive development of international law and its codification”.

Since its first session in 1948, the Sixth Committee has continuously developed international

law on the basis of freedom and human rights. Even if its work is limited to non-binding

recommendations, it has powerfully promoted international law comprehension and codes.

The Legal Committee won fame with several legal agreements. One can name some of

them: The Vienna Convention on Diplomatic Relations in 1961, the Vienna Convention on the Law

of Treaties in 1969, the International Convention for the Suppression of the Financing of Terrorism

in 1999 or the establishment of the Rome Statute of the International Criminal Court in 1998, that

set up this judicial organ to bring to justice authors of crimes against humanity.

Legal Committee has proved its capacity to successfully deal

with contemporary issues all through its existence. Today, more

than ever, given the deep mutations concerning the whole

international community, it will bring to play a key role.

HISTORY OF THE COMMITTEE

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The Legal Committee has a universal membership, namely, each Member State of the

United Nations is a de jure member of the Legal committee. Sovereignty and equality of the United

Nations is reflected into the principle of “one state, one vote”

The Sixth Committee is entitled to initiate studies, to make recommendations to states in

order to promote international law and code, the realization and respect of human rights and

fundamental freedom. Aiming at giving political weight to its actions, the Legal Committee follows a

“mixed decision-making rules”. The Legal Committee firstly aims at taking decision on a consensual

basis. Some recommendations may be adopted following a vote, but informal vote is preferred.

That is why most of the recommendations and resolutions have been adopted through acclamation,

unanimity or consensus.

The Legal Committee closely works with other institutions of the United Nations, like the

International Law Commission, the United Nations Commission on International Trade Law, and the

Ad Hoc Committee on Terrorism. During the annual session, the Sixth Committee has to deal with

items and issues highlighted by these institutions.

ORGANIZATION OF THE COMMITTEE

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A drone can be defined as any terrestrial, naval, or aerial device, remotely or automatically

piloted. It is, more prosaically, a high resolution flying camera, which may be equipped with

missiles. Drones are therefore often referred to as unmanned (combat) aerial vehicles. The idea of

such a technology arose from the rejection of the numerous slaughters and deaths that occurred

during World War Two. An uninhabited vehicle was seen as the solution to avoid as many body

bags as possible to come back in their home countries. It also represented a tactical and technical

advantage. Now, in twenty-first century warfare, the exponential increase in the use of drones went

along with the idea that using capital was preferable to labour, as far as defense – and to a certain

extent, intelligence – are concerned.

In this committee session, we will put aside any account of the civilian use of drones,

notwithstanding its likely future developments in terms of policing. Instead, the delegates should

focus on their use by the military, as well as for intelligence-gathering purposes. Drones can be used

for three different types of missions that can be organized into a gradual scale: 1. surveillance and

intelligence (which remains by far the first objective assigned to drones), 2. combat support, 3. and

eventually combat itself, through strikes on pre-defined targets. More precisely, drone-technologies

offer such possibilities as radar, optical or electro-optical sensoring, survey and mapping, fire

control through laser designation, etc. Drones are also more and more likely to turn to fully

autonomous robots, which is very preoccupying as far as ethics are concerned, since our legal

framework might not be very adapted.

INTRODUCTION

“Just 10 years ago, the idea of using armed robots in war was the stuff of Hollywood fantasy. Today,

the United States military has more than 7,000 unmanned aerial systems, popularly called drones”

Peter W. Singer, director of the Brookings Institution’s program for 21st Century Security and

Intelligence and a senior fellow in its Foreign Policy program

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Today, approximately 32 countries would design 250 different types of drones, of which 80

would be exploited by 41 nations in a military way. The United States, however, largely dominates

the drones industry. Since the end of the “cold war”, they first developed the Predator, which was

already in operation in Kosovo and Bosnia from 1995 on, to identify terrestrial targets. It was only

an eye by that time, and not yet a weapon. It was then improved and turned into a weapon in 2001

(the Reaper), when it was equipped with missiles. Even if the increase in the use of drones by the

United States started in Afghanistan in the first place, it is the Obama Administration that

undoubtedly expanded the targeted-killings programme. A few thousands of American drones are

currently in activity. And a strike is launched every four days.

The United Nations themselves use drones, and they even started to use these devices for

surveillance in peacekeeping operations in 2006 in the Democratic Republic of Congo (MONUC,

rebaptised MONUSCO in 2010), then in Chad and Central Africa (MINUCRAT), but also following the

earthquake in Haiti in 2010.

Source: Bureau of Investigative Journalism

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However, there is no consistent international framework that could legally bind the states

when using drones. The use of such technologies can only be attached to two agreements so far:

The Missile Technology Control Regime: it aims at restricting the proliferation of missiles,

complete rocket systems as well as unmanned air vehicles. This regime unfortunately relies

on the only consent of the states to apply common directives, and no sanctions are

designed.

The Arms Trade Treaty: it regulates armed drones trade, among other weapons.

These agreements have been concluded under the aegis of the First Committee of the General

Assembly (DISEC – Disarmament and International Security Committee). Plus, they are not

satisfactory enough since they do not provide the international community with a general overview

of the drones phenomenon. Other UN bodies have shown their interest into the topic so far, such

as the Security Council, the SOCHUM Committee or the Human Rights Council, and a very important

report by Christof Heyns, the UN Special Rapporteur has been made public. But these efforts have

to be pushed forward.

Even though drones are not illegal weapons, they can be easily misused. The international

community, through the Sixth Committee of the General Assembly, should try the best to ensure

that drones match the fundamental norms of international humanitarian law and international

human rights. This is all the more important in a context where terrorism poses new challenges, but

also because the low cost of drones makes them more prone to proliferate, quantitatively and

geographically.

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1. Drones as Tools of Intelligence-Gathering

The drone technology operated a revolution in vision, which became constant and total. This

is a really risky trend, notably in the perspective of future developments in the civilian area – it

could be the technological application of a “Big Brother” society, not only abroad but as far as

national policing is concerned. Where would the protection of personal data and private life fit into

such a context?

In the area of intelligence-gathering about alleged terrorists, the method of target-

designation used by the United States C.I.A (Central Intelligence Agency) is highly reprehensible on

a moral ground, but –fortunately or not – no legally-binding element has been designed by the

international community yet to prevent it to occur. Every Tuesday in Washington (some calls it

“Terror Tuesday”), a kill list is approved by the President, based on names. But more worryingly, it

would appear that for the major part of the strikes, you do not know the exact identity of the

targets – one speaks about “signature strikes”. Thanks to the constant data provided by drones,

some “patterns of life” are spotted: maps and charts combining the moves, interpersonal links and

time schedule of the person are established. This profiling allows one to determine whether the

pattern is in conformity with a terrorist’s behaviour. Plus, this method can be applied predictively:

for example if irregularities are observed in one’s behaviour, it will be considered as suspect, and an

alert is likely to be set off.

POINTS OF DISCUSSION

“When the C.I.A. sees three guys practising aerobics, they think it is a terrorist training camp.”

A joke often heard in U.S. administrations’ corridors

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Still, information and intelligence are the ground of success in many operations, as

acknowledged Lieutenant General Carlos Alberto dos Santos Cruz, Force Commander of the United

Nations Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO).

Drones can bolster a mission, help to identify armed groups (it is obviously harder to identify such

groups on the ground when they are no more mass armies), track their movements, but even

monitor the safety of internally displaced persons. It is a very useful instrument to mitigate risk.

2. Drones and the Redefinition of Combat

The first part of the problem pertains to sovereignty. In practice, drones are used by some

countries in some others without any declaration of war (in Yemen and Pakistan for example); so

how can it fit into the framework of the international laws of armed conflict? Japan, for instance,

after several warnings to leave its airspace, simply shot some foreign drones; this seems to be a

quite justified reaction as regards the protection of the Japanese State’s legal rights – the first of

which being sovereignty.

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This becomes even more complicated when the drone is used to kill a pre-designated

individual (for detailed information, see Point of Discussion N°3). In September 2001, Yemen killed

Anwar al-Awlaki, an American citizen not convicted with a crime, despite the United States not

being at war with Yemen. This example shows the crucial need for a legal framing of the use of

drones; indeed, if we are neither at war nor in a law-enforcement operation, then where do we

legally stand?

Besides the definition of combat in the geographical sense, drones are a landmark

illustration of how warfare in the twenty-first century has redefined the way to combat. They do

not require a pilot on board, and thus avoid the “body bag syndrome” that results of traditional

aircrafts being shot at above the battlefield. Since the 1990s and the conflict in the Balkans, a new

principle has emerged sui generis, that is the immunity of national combatants: societies are less

and less prone to accept the death of their soldiers abroad. Such a principle generates a pull for

robotics solutions. The problem is that this combatant immunity comes in frontal opposition with

the traditional principle of non-combatant immunity, on which just war theory and international

humanitarian law have been built up on for centuries.

It is true, however, that drones, thanks to their fire-accuracy, can limit collateral damage,

unlike a bomber. But many cases of bad targeting could be accounted for. Moreover, one must be

careful to such sophisms as the idea according to which “thanks to drones, we have better

targeting-capacities”. Indeed, on the one hand, targets are not designated by the drone itself

(although some “progress” is made in this direction) but the officers behind their computers; on the

other hand, distinguishing on the camera between a combatant and a non-combatant silhouette,

when there are no distinctive clothes, can be arduous.

“If you can avoid unnecessary situations where you expose them [medics] to fire and you end up with

two dead guys, then we have a responsibility to the American people to avoid that.”

A former Army Special Forces officer

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Eventually, drones can be seen as the asymmetrical, terroristic means, which has been

found to counter “terrorism” and asymmetrical conflict. First, we cannot really consider that the

officer in his room full of computers is in the same situation that the “combatant” targeted.

Moreover, drones can really be instruments of terror – which can be counter-productive for those

who use them. Indeed, drone stands for “insect buzzing”; people who ear this sound without

stopping for days can be terrorised.

3. Facing Terrorism: Drones as an Instrument of Targeted-killings

Terrorism presents characteristics that break with traditional warfare. First, terrorism can be

led by state or non-state actors. Second, one cannot speak any more about battlefields in a

traditional sense: conflict does not take place in delimited territories but in population centres; it

does not seem to be delimited over time; and actors and combatants are hardly identifiable and

localized. Third, terrorism does not involve war declaration and thus does not easily fit into

international law of war.

Targeted killings, despite their recurrent use, have never been defined in international law.

It consists in lethal force that “is intentionally and deliberately used, with a degree of pre-

meditation, against an individual or individuals specifically identified in advance by the perpetrator

(…)This distinguishes targeted killings from unintentional, accidental, or reckless killings, or killings

made without conscious choice” (Philip Alston, International Lawyer). Targeted killings may

nevertheless be legal under certain circumstances in armed conflicts. Israel and the United States

have experienced this strategy, in particular by drones use.

According to a realist perspective, using drones within a targeted-killing strategy may reveal some

undeniable advantages to counter terrorism. First, facing no-end conflicts, the reusability and

profitability of drones represent major benefits. Also, these engines are much less expensive than a

piloted aircraft – its price represents only 5-6% of the one of a piloted aircraft.

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This must be considered if we place terrorism eradication as depending on the military and

technological capacities of a state. On top of this, drones are featured by suppleness and efficiency;

thus they could offer the most adequate technology to counter combatants within terrorism

framework. Drones permit access to adversarial areas – e.g. the tribal areas in Pakistan – that a

piloted aircraft or troops could not reach to. Also, their observation role, the possibility to fly longer

than a piloted aircraft and the information transmission in real time are major assets facing invisible

individuals and unpredictable situations.

International Humanitarian Law (IHL) authorizes the use of targeted killings in an armed

conflict when the target is an individual who “directly participated in hostilities” (DPH). However

this practice has to be necessary and proportionate, regardless of whether the conflict occurs

between states or between a state and terrorist groups. Therefore it must not be used as a reprisal

or in retaliation.

Obviously, in an armed conflict

perspective, the issue is to define who

participates directly in the hostilities. In 2009,

the International Committee of Red Cross

(ICRC) has established three cumulative

conditions to constitute DPH: there must be a

“threshold of harm”, the harm must be a part

of a specific and combat operation and the

act must have a “belligerent nexus”.

Outside of an armed conflict, and outside of these three conditions, targeted-killing strategies

are, in most of cases, illegal. They could be legal only if they are a response to an imminent and

dangerous threat – namely an anticipatory action in self-defence – a necessity that is “instant,

overwhelming, and leaving no choice of means, and no moment of deliberation”.

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However, it is not sure that countering terrorism by targeted killings responds to this kind of

necessity. On the contrary, using drones within such a strategy would threaten the international

law that prohibits the arbitrary deprivation of law. These targets should rather be brought to

justice, according to the law enforcement rules.

Thus, the use of drones as instruments of targeted killings to counter terrorism blurs the

distinction between the war and the law enforcement-approach, because it does not follow a

declaration of war. It cannot be considered as an act of anticipatory self-defence, in case of peace,

neither as part of a war strategy because one cannot define countering terrorism as a war in its

traditional sense. This confusion is reflected by the notion of “unlawful combatants”, designed by

the Bush Administration to qualify terrorists and to justify the measures set up to deter them.

These legal issues lead the United States to wage a veritable “lawfare” in order to make

international law compatible with its use of drones within its war on terror. They seek for

overstepping the legal obligation of a declaration of war by changing the geographical ontology of

international law. The central idea is that, in the 21st century, you can chase enemies on the

international level, and the world is the new hunting ground. This position breaks with the current

territorial perspective. Such an approach raises major issues in terms of compatibility with basic

human rights: it would legally allow extrajudicial execution, namely a right of assassination on a

global scale.

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The future of “dronisation” (a French neologism created by Grégoire Chamayou, a French

philosopher) raises a threefold issue:

First of all, since drones are a relatively cheap technology, they are bound to proliferate, and

to spark a technological race (that has already started between many national and/or

regional military industries). One of the likely evolution, that has started to appear, is the

development of Lethal Autonomous Robots (LARs), namely fully autonomous robots not

only able to make the decision to fire on their own, but also, thanks to algorithms, to

designate the human targets. This evolution is highly preoccupying in terms of affixation of

responsibility, since moral agency disappears when the machine is totally unmanned.

Second of all, since drones are a “low technology”, they are likely to proliferate in the hands

of non-state actors, who could be terrorist actors. This means that we could start having

drone attacks on the soils of occidental states. The military targets being hidden, the risk is

transferred upon civilians; easily accessible.

Eventually, drones as they offer the perspective of a total ocular control over people, are

likely to proliferate as far as surveillance and police operations are concerned.

THE FUTURE

“I think of where the airplane was at the start of World War I: at first it was unarmed

and limited to a handful of countries. Then it was armed and everywhere. That is the

path we’re on.”

P.W. Singer

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The international community, as represented by this Committee, has to seize this chance to

discuss to use of drones in prevision of the many problems that are certainly to occur following it,

so that when they occur, there is a legal framework to address them.

How can we get national authorities to be more transparent on their decision to use drones

(as a surveillance tool or a direct combat instrument) in a logic of democratic control?

Should the United States be given special recommendations by the Committee, regarding to

their pioneer role and extensive use in creating and using drones?

How can we pull drones out of a lawless zone (between war and law enforcement)?

How to create categories to distinguish between drones as an illegal act of violence or as a

legitimate act of war?

Who should be responsible in case of an illegality caused by the use of a drone?

How could the Legal Committee supervise drone-proliferation?

How to prevent drones from being accessible by a great and therefore dangerous amount of

civilians?

With which UN agencies or international NGOs shall the Legal Committee design a legal

framework and work on its efficient implementation?

POINTS A RESOLUTION SHOULD ADDRESS

‘And if the machine is not responsible, who does the group seek to hold accountable, and where

exactly do they draw the line? “Who do we go after, the manufacturer, the software engineer, the

buyer, the user?”’ Marc Garlasco, Human Rights Watch

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Brunstetter, D. and M. Braun, ‘The Implications of Drones on the Jus War Tradition’, Ethics & International Affairs, Vol. 25, No. 3 (2011), 337-58 Arkin, R. C., ‘The Case for Ethical Autonomy in Unmanned Systems’, Journal of Military Ethics, Vol. 9, No. 4 (2010), 332-341 Davis, D. (2007), ‘Who Decides: Man or Machine? Armed Forces Journal, Vol. 11 (2007), available at: http://www.armedforcesjournal.com/2007/11/3036753 Der Derian, J., Virtuous War: Mapping the Military-Industrial-Media-Entertainment Network (Boulder: Westview, 2001) Killimister, S., ‘Remote Weaponry: The Ethical Implications’, Journal of Applied Philosophy, Vol. 25, No. 2 (2008) Singer, P., Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin, 2010) Schmitt, M., ‘Drone Attacks under the Jus ad Bellum and Jus in Bello: Clearing the “Fog of War”, Yearbook of International Humanitarian Law, Vol. 13 (2010), 311-326 Sharkey, N., ‘Saying “No!” to Lethal Autonomous Targeting’, Journal of Military Ethics, Vol. 9, No. 4 (2010), 369-383 Sparrow, R., ‘Killer Robots’, Journal of Applied Philosophy, Vol. 24 (2007), 62-77 Strawser, B. J., ‘Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles’, Journal of Military Ethics, Vol. 9, No. 4 (2010), 342-368

BIBLIOGRAPHY And Further Readings

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http://www2.ohchr.org/english/issues/executions/ http://www.strategicstudiesinstitute.army.mil/pubs/parameters/Issues/WinterSpring_2013/1_Article_Dowd.pdf http://www.stabilityjournal.org/article/view/94 http://www.onera.fr/sites/default/files/ressources_documentaires/cours-exposes-conf/letallec-onera-sense-avoid-drone.pdf http://www.onera.fr/sites/default/files/ressources_documentaires/cours-exposes-conf/mieux-connaitre-les-drones.pdf http://www.academia.edu/4805831/Extremely_Stealthy_and_Incredibly_Close_Drones_Control_and_Legal_Responsibility http://politicsinspires.org/the-international-campaign-to-stop-killer-robots-a-misguided-effort/ http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf http://www.theguardian.com/commentisfree/2013/jun/19/robot-wars-drones-life-death-decisions http://bigbrowser.blog.lemonde.fr/2013/10/30/maman-les-ptits-avions-nabila-9-ans-raconte-la-guerre-des-drones-au-congres-americain/ http://www.franceculture.fr/emission-place-de-la-toile-philosophie-critique-du-drone-2013-05-04 http://www.internetactu.net/2013/05/29/theorie-du-drone-de-la-fabrique-des-automates-politiques/ http://www.lemonde.fr/asie-pacifique/article/2012/09/26/vivre-dans-la-peur-des-drones_1765872_3216.html http://thediplomat.com/flashpoints-blog/2013/10/22/japan-to-shoot-down-foreign-drones/ http://www.bastamag.net/article3403.html http://www.jeuneafrique.com/Article/ARTJAWEB20131009151920/ http://www.lexpress.fr/actualite/monde/les-drones-attaquent_1235283.html http://www.lemonde.fr/technologies/article/2012/12/06/drones-de-combat-la-guerre-du-futur_1801079_651865.html