Caroline Kennedy & James I. Rogers: Virtuous drones?, The International Journal of Human Rights, 19:2, 211-227 DOI: 10.1080/13642987.2014.991217
In regions where poor transport infrastructure and difﬁcult terrains are a perennial challenge, these vehicles are a vital resource for the ‘fulﬁlment of the civilian protection mandate’. Without helicopters, UN personnel have little support on the ground and effectively no intelligence from the air. Deﬁciencies such as this contribute to failures in UN mandate fulﬁlment. This was evident in 2012 when a detachment of peacekeepers as part of the UN Stabilisation Mission in the DR Congo (MONUSCO) was expected to halt an army of M23 rebels – who had rapidly grown ‘much stronger in size and capability’ – from taking the city of Goma.10 In this case, the peacekeepers made a ‘value judgement’ and chose not to engage precisely because of the shortages in equipment and personnel.
Such inaction led to the peacekeepers being labelled as ‘les touristes’ by the local population.12 In response, the French Foreign Minister Laurent Fabius stated that it was ‘absurd’ that the UN force did not have the necessary means, such as helicopter assistance, to defend Goma – a city of over one million people – from the rebels who committed ‘human rights violations’. This argument is surely compelling if the expectation is, unlike in Srebrenica, that peacekeepers should protect the population.
It is probable that if helicopters had been readily available (along with a robust political will), the rapid deployment of reinforcements could have taken place, and air support (in its various forms) would have been at hand to combat some of the human rights abuse. This view was reinforced in the 2010 ‘Report of the Secretary-General’, which stated that:
- two of our missions, the United Nations Mission in the Central African Republic and Chad, and the African Union-United Nations Hybrid Operation in Darfur (UNAMID), are completing their deployments under difﬁcult circumstances. Together with the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) [renamed MONUSCO] and the United Nations Mission in the Sudan (UNMIS), they also continue to lack key capabilities, in particular aviation assets, to enable full implementation of their mandates. Such shortages are especially critical since their mandates require peacekeepers to act rapidly and in a robust fashion across vast areas to implement critical tasks such as the protection of civilians.
However, despite the report, critical shortages in equipment remain in many peacekeeping missions. Shortages increase the challenges and decrease the effectiveness of the DPKO as it attempts to fulﬁl proscribed mandates and protect civilians. One suggestion to combat these deﬁciencies is the introduction of unmanned drones. This is a relatively cheap option accounting for up to 50% of the cost of helicopter systems (even more so when the cost of training personnel to man these aircraft is taken into account). As the Under-Secretary-General for Peacekeeping Operations Hervé Ladsous stated, the ‘use of such drones during the recent crisis … would have enhanced the capability … to protect civilians by preventing violence and displacements’
As Dorn’s 2008 research into UN peacekeeper fatalities highlighted, the ‘overall fatality rate for [peacekeepers from the] developing world [is] 77 per cent higher than for the developed world, mostly on account of illness. With almost 90% of the troops in the ﬁeld drawn from the developing world, the UN may be wise to directly address the issue of illness.’ Such ﬁgures indicate inadequate levels of peacekeeper training. This leads to ‘a general lack of awareness’ of the disease amongst peacekeepers, resulting in thousands falling victim. (Facts which highlight the increasing ineffectiveness and resultant vulnerability of peacekeepers in these highrisk regions.) So one ‘virtue’ of drones would be to reduce the number of ground-based monitoring, observing, reporting and peace enforcement personnel needed in high-risk regions. Drone deployment would reduce threats to life and arguably improve the effectiveness of the mission. Yet this is not the only case for the deployment of drones.
Mercenaries, arms dealers, criminal gangs and ‘radicalised’ individuals all made their way into the landscape of these ‘new’ conﬂicts. Arguably these groups had little respect for the UN, its peacekeepers and their role. In West Africa for example, child soldiers would be fuelled with concoctions of cocaine, gunpowder and alcohol by commanders and sent to perform speciﬁc tasks, such as providing ‘bait’ for attacks. In 2012, ‘Militias loyal to the former Ivory Coast president Laurent Gbagbo’ carried out an attack in which they used ‘small boys units’, otherwise known as child soldiers, to scout and take part in an ambush on a unit of UN peacekeepers which resulted in seven of the soldiers being killed. Drones may reduce these dynamics by providing surveillance evidence and therefore criminal attribution, thus making these acts more costly for the perpetrator and indeed may act as a deterrent.
The example above is not the only case of child soldiers and peacekeepers clashing during conﬂict. Since 2010, when the UN established its MONUSCO mission, it has faced the ever-present problem of ﬁghting child soldiers who are part of the M23 rebel group. As MONUSCO’s Chief of Child Protection Dee Brillenburg Wurth has stated, there are ‘a couple of hundred children among the M23 ranks’ and these children have been given ‘very, very sophisticated training [and] very serious training’ for conﬂict situations.34 As a result, this has led to a number of situations where peacekeepers have faced children in the line of ﬁre. The UN has held roundtable discussions and training workshops on how to deal with situations where peacekeepers are at risk and ‘confronted with child soldiers during their ﬁeld deployments’.
It is such perceptions of the American deployment of drones which has led to the aforementioned notion that drones are a ‘scourge targeting innocent civilians’.62 The often-cited ﬁgure that ‘474 to 881 civilians’ have been killed through these drone strikes since September 2012 lends support to this notion. Furthermore, such an offensive deployment of drones has led a number of like-minded reports to suggest that these American strikes cause ‘harm to civilians and local communities, and may fuel anger toward the US in the aggregate’. From these perceptions of American drone use for the purpose of targeted killing, it is clear to see the reasons why a negative public perception of drones may exist. However, it is the view of this article that just because the manner in which the US has deployed drones through targeted killing has led to a negative perception of the weaponry, this does not mean that if used in a less offensive and more regulated and restricted manner, the public perception of armed drones cannot change.
The perception of a drone is surely a social construct? The way in which they are perceived depends upon how they are deployed, by whom and for what reason. Drones, even armed drones, can be used in a virtuous manner to protect civilians in line with a UN mandate, just as much as they can be used in a manner which is perceived as immoral or unethical. Let us learn lessons from the public perception of drones in regions of Afghanistan, compared to the border regions of Pakistan, where ‘signature strikes’ epitomised a move toward a much more offensive and indiscriminate targeting strategy. Here armed drones were deployed against those whose behaviour was linked to ‘militant activity’ (aka a pre-deﬁned ‘terrorist signature’).65 This ambiguous notion led to an increase in collateral damage. As one probing The Atlantic report stated, ‘[t]he problem with signature strikes is that they open the door to a much higher incidence of civilian casualties [emphasis added]’.66 Therefore, perhaps unsurprisingly, when drones are deployed in this manner they cause anti-drone and anti-American sentiment within the society upon which they are deployed. In contrast, in parts of Afghanistan the view of armed drones is distinctly more positive due to restrictions put on their use.
would be Robin Hoods
David Hastings Dunn: Drones: disembodied aerial warfare and the unarticulated threat. International Affairs 89: 5 (2013) 1237–1246
Drones in the form of Predators and Reapers are in some senses just remotely piloted combat aircraft, as their users claim, but to describe them thus is to underplay the ways in which their use disrupts how we think about conflict.
The coincidence of this technology with the post-9/11 security environment has led to a new form of warfare that presents a series of challenges to traditional ways of thinking about combat. Rather paradoxically, at a time when heroism and self-sacrifice have become prominent themes in public discourse as a result of the wars in Afghanistan and Iraq, drones present warfare as the antithesis of these values. They represent warfare as post-modern and post-heroic. In a sense they are the technological western response to Al-Qaeda terrorism and Taliban insurgency. In this respect they present a series of challenges to our conceptions of warfare. They blur the distinctions between the military and intelligence worlds, between warfare and law enforcement, between combat and assassination; between the battlefield and the hinterland, between the territories of allies and enemies, between domestic and foreign threats, and between counterterrorism and counter-insurgency. They disrupt the calculus of risk of the participants in this form of combat by transforming the balance of vulnerabilities. By disembodying these weapons platforms, the technology enables their use with domestic political impunity, minimal international response and low political risk and cost.
It is now politically and technically easier to kill suspected terrorists than to arrest them. Drones are the enabling technology for a new era of targeted killing on an unprecedented geographic scale. Both physically and politically they fly below the radar, thus ushering in a new permissive form of interventionism. They are the counterterrorism weapon of choice, facilitating the US military drawdown from Iraq and Afghanistan while allowing the surveillance and elimination of targets on a growing global scale.
Drones possess many qualities which, when combined, make them potentially the ideal means for terrorist attack in the twenty-first century. They can be operated anonymously and remotely; they present little or no risk to their operators; they can be acquired cheaply and easily; their operation can be mastered simply and safely; and they can be used in isolation or in large numbers (given their availability and cost) to devastating effect. The aerial dimension they inhabit presents a means of surveillance, reconnaissance and attack that was previously reserved for large piloted aircraft, which conversely require specialist training to operate, are expensive to acquire and use, are subject to controlled and monitored operation, need an airstrip to launch from, and require an act of self-destruction in order to be used as a terrorist weapon. The ready availability of drones changes the risk calculation—on both sides. Conventional thinking about the security of buildings and high-value targets assumes the absence of a serious aerial threat. Security for such sites has traditionally been thought of in terms of perimeter defence and entry point control.
It is for this reason that the US Embassy in London is to be relocated to a new site in Wandsworth as its existing site, in Grosvenor Square, cannot be protected against the threat of truck bombs. The new design includes an artificial lake, a moat, grass berms and a 30-metre blast zone precisely in order to protect against truck bombs. The entry point will be guarded by US marines, screens and the latest sensors. But while the new building’s glass will be protected by polymer coating, it is unclear how secure it is against aerial attack by drones packed with explosives. With a drone, an individual office could be identified and attacked with precision and impunity by an explosive device or even a kinetic collision. Crowds at sporting events or rallies are vulnerable in a similar way. What works for crop dusting can be applied with malign intent to a large crowd. A crop-spraying drone could even target one group of supporters at such an event.
Exzerpte aus: Benjamin Wittes & Gabriella Blum: The future of violence: robots and germs, hackers and drones — confronting a new age of threat. Philadelphia 2015
IN DECEMBER 2011, a hacker using the nom de guerre “OxOmar” gained access to tens of thousands of Israeli credit card accounts and disclosed information about thousands of them online. In comments he posted, he described himself as a Saudi national, “one of the strongest haters of Israel,” and threatened Israelis: “You are not safe from me and Muslim hackers. We’ll fight all of our lives against Israel, we’ll harm you in any way we can. . . . [L]et’s destroy Israel and have a free Palestine without enemies.” A month later, OxOmar and his friends in a group known as Group-XP hacked the Israeli stock exchange and the El Al national airline, although trading and flights were not affected. The group called the act a “gift to the world for the New Year” designed to “hurt the Zionist pocket.”1
At one point, Israeli bloggers suggested that they had identified OxOmar as a nineteen-year-old living in Mexico. OxOmar, for his part, denied living in Mexico. No publicly confirmable information definitely establishes either OxOmar’s identity or his whereabouts, either at the time of the cyberattacks or now. Let us assume, however, that he was, in fact, a Saudi citizen and that he did carry out his attacks while in Mexico.2
Consider the following questions: Which country’s laws should determine whether OxOmar or de Guzman committed a crime? Which country has jurisdiction over the case: the one from which the acts were carried out, the one whose nationals were involved, or those countries that suffered the most harm? Does it matter where the attacked servers were physically located for purposes of jurisdiction? Does Mexico or Saudi Arabia or the Philippines bear any responsibility, as a state, for the actions of its private citizens? Where national security is presumably implicated, as in the case of OxOmar’s attacks, should the perpetrator be considered a common criminal or, as some Israeli officials suggested, a terrorist, and would that distinction matter? Should a hacker’s ideological motivations for the attack affect the legal response to his actions? If the scale and effect of a cyberattack are large enough, might a hacker be thought of as a belligerent engaged in a use of force? And what could Israel do even if it had managed to successfully track OxOmar down, for instance, in Mexico? Could it arrest him? Could it target him with lethal force? Or could it only request that Mexico extradite him or enforce its own law against him, as the United States had tried—and failed—to do in the case of de Guzman?
These questions all stem from the organizing principle of state sovereignty, which guides the current structure of our international legal system, as well as from the instincts with which we approach questions of legal jurisdiction. They reflect an understanding of the state as existing in a defined territory, with a government that maintains a monopoly on the legitimate use of force within it—that is, the state as social contract theorists such as Thomas Hobbes and John Locke understood it.
Recall that under the terms of the social contract, individuals generally surrender their right to use force to the government, which in turn undertakes to protect them from one another and from what would have been their fates in the state of nature. In addition, the government undertakes to protect its citizens from external threats, often by calling on them to participate in organized defense forces assembled to fend off threats from other states. A political state thus forms through a collective surrender and reallocation of individuals’ power. The state is sovereign in the determination of its own internal affairs, the governance of its territory, and the policing of its citizens. But other states are equally sovereign, so no state has much of a say in how another state governs its affairs within its territory.
This idealized conception of how sovereign states relate to one another, in turn, has given rise to a particular, simplistic, and increasingly problematic way of thinking about law—one built, as legal scholar Philip Bobbitt has noted, around a set of stark, polar opposites, or “antinomies.” In this view, particular actions are either public (acts of a public official such as a police officer) or private (undertaken by individuals or firms), territorial (taking place within a state’s borders) or extraterritorial (taking place outside those borders). Individuals or firms whose activities are subject to regulation are either citizens of the state that seeks to regulate them or aliens. Laws that regulate conduct are either domestic (enacted by a state’s legislature) or international (derived from a negotiated treaty or a binding custom). A violent act is either a crime (a violation of a state’s laws against murder, assault, or some other action) or an act of war (a political act of collective violence).5
These problems notwithstanding, questions of law, and particularly questions about law pertaining to security and violence, still tend to be framed with reference to sovereignty-driven juxtapositions. These juxtapositions still shape our thinking about who has the power to legislate, adjudicate, and enforce the law. They determine against whom states can apply their own regulations, and they set limits on the sort of conduct that a given state can regulate without antagonizing other states. They also determine what actions a state might take unilaterally and what actions require international cooperation or the consent of other states. In a world of many-to-many threats, in other words, long-established oppositional categories still purport to draw the legal boundaries of the power states can exercise in protecting themselves and their citizens from external threats or from threats whose origins they may not know.
Yet, as the OxOmar and de Guzman cases illustrate, the simplistic oppositions associated with the traditional picture of the sovereign state are today under greater strain than ever before. The emergence of the modern, globalized world—marked by unprecedented levels of cross-border activity, the presence of powerful nonstate actors, and notions of international human rights that imagine enforceable limits on the conduct of all states—has massively amplified the difficulties of using these categories to frame principles and practical solutions to contemporary problems. Geographical boundaries matter less for purposes of defense. Citizenship matters less in determining threats. War and crime are becoming harder to distinguish from one another. The difference between the impact that individuals and corporations can have on events and the impact of public officials is diminishing. Overall, sovereignty no longer holds quite the same moral or practical force it once did. All of this presents a major challenge for the future regulation of threats, vulnerabilities, and responses.
In its pure form, criminal law deals with domestic crimes, those that take place between and among the citizens of the state. It is each Leviathan’s province to protect individuals from the state of nature. It both empowers and constrains the sovereign in dealing with internal threats to orderly life. Because it is an internal matter, traditionally, criminal law has been subject to domestic formulation and enforcement. Some exceptions notwithstanding—for instance, with regard to internationally defined crimes—national legislatures decide what types of behavior to outlaw, how to prosecute transgressors, and what type of sanctions to authorize. Because it is a matter of internal sovereignty, moreover, different states often differ in their criminal law codes, in investigative and trial procedures, and in sentencing those found guilty. Recall that the United States and the Philippines at the relevant time had different computer fraud laws that they could bring to bear on de Guzman. Saudi Arabia, incidentally, has no written criminal code at all.
The laws of war, by contrast, are international in origin. They were designed to empower and constrain the sovereign in defending the Leviathan from external (and, later, also internal) threats to its public authority and control. Unlike under domestic criminal law, the primary addressees of the laws of war are not individuals but states and organized armed groups. Historically, the laws of war developed through reciprocal commitments between rival sovereigns and, from the mid-nineteenth century on, through multilateral agreements that all independent states were invited to join. In addition, a host of customary international norms evolved over centuries through consistent state practice and a sense of legal obligation, adding another layer of rules on warfare. The lion’s share of the substantive laws of war—including rules concerning targeting, detention, the treatment of occupied populations, weapons, and other matters—purport to apply equally to all belligerents, even if some countries, including the United States, resist some of the more recent additions to these laws.14
These traditionally distinct modes of regulating violence, criminal law and the laws of war, both trace back to the Janus-faced understanding of sovereignty—one reflecting the ruler’s traditional power to ensure domestic discipline as he sees fit, the other reflecting his power to use violence to defend his state against other powers, as well as to conclude deals with them to refrain from the rawer exercises of their respective powers. In practice, the two modes have not remained completely distinct domains, and they began merging long before technologies of mass empowerment. Although criminal law remains largely domestic, and the laws of war largely international, some material overlap has developed over time. One of the strongest driving forces behind this growing convergence has been the evolution of modern international human rights law, which, beginning in the second half of the twentieth century, sought to place individuals—rather than states—at the center of international law’s concern.15
Consider the different stances toward violence taken by criminal law and human rights law, on the one hand, and by the laws of war, on the other. Criminal law starts with the presumption that any violent act between private individuals, absent extraordinary circumstances or justifications, is forbidden and punishable. Only violence sanctioned by the state—mostly, for policing purposes—is lawful, and even then only under the strictest conditions. The laws of war, conversely, accept violence among combatants as lawful, with few limitations. Combatants’ shooting at each other requires no explanation or justification other than the underlying condition of warfare; in fact, the captured soldier, absent evidence of war crimes, is immune from prosecution for acts of violence committed in conflict.
The different legal regimes for law enforcement and warfare also stem from opposite assumptions about the temporal and geographical dimensions of conflict and enforcement. Law enforcement belongs to the everyday, the commonplace. It is the normal state of affairs; all states experience some level of crime, and all thus need to engage in law enforcement. War, by contrast, is considered an extraordinary event, a departure from ordinary political—and indeed personal—life, and its extraordinary occurrence in time and space permits some departure from the ordinary conceptions of the right to life or liberty of those affected by it.
The convergence of these two modes of regulating violence has been driven not only by an ideological concern for the individual but, perhaps more strongly, by the disruption of the categories of violence. That is, the advent of modern forms of violence, especially terrorism but also some transnational crime, has further obfuscated the line between acts of crime and acts of war. The terrorist is not commonly associated with a state, at least not directly, in the sense that a soldier operates as a formal arm of a state; the terrorist either acts alone, as did Anders Behring Breivik of Norway, in which case he looks more like a criminal, or he acts as part of a group or network, like Al-Qaeda, in which case he looks more like a combatant, a member of an organized armed group. His motivations may be political, religious, or ideological, and his victims will tend to be anonymous, targeted for their association with a particular group, as in warfare. By contrast, the victims of most violent crimes are targeted for reasons related to their individual identity, not their group affiliations—though this is not always the case. Acts of terrorism often inflict few casualties, fewer than those of famous serial killers, but they also sometimes produce mass casualties, thus resembling more the effects of war. When both the attacker and his victims are citizens of the same state—as with the 1995 Oklahoma City bombing by Timothy McVeigh and the 2002 Beltway sniper killings by John Allen Muhammad and Lee Boyd Malvo—the threat to sovereignty remains internal, as with any common domestic crime. But once the terrorist is foreign, and particularly once he operates from a foreign location, the threat takes on a more external, warlike character in its challenge to the state. Some terrorist acts, such as that of Breivik or the Tsarnaev brothers’ 2013 attack on the Boston Marathon, constitute singular, one-off events; others, such as the September 11, 2001, attack on the World Trade Center and Pentagon, are part of ongoing campaigns of terrorism that have no particular temporal boundaries. All these distinctions can make it difficult to classify acts of terrorism as criminal or belligerent in nature. Consider the shooting spree by Major Nidal Hasan at Fort Hood in 2009, which resulted in the deaths of thirteen people and injury to more than thirty others. While many in the media and politics have referred to the shooting as an act of terrorism, the Department of Defense determined that it was the “criminal act of a single individual.”18
The ambiguity of what terrorism is or what it looks like has also led different states to deal with terrorism under different paradigms—as an act of war, a crime, or some mixture of both—depending on their national attitudes toward the use of force and human rights and the types of terrorism they have experienced. Most European countries, in which terrorism has primarily involved homegrown terrorist organizations, commonly perceive terrorism as a crime, a matter to be dealt with using ordinary law enforcement measures. For these countries, a murder is a murder, whether its perpetrator has financial, romantic, or ideological motivations. For the United States, Israel, and a growing number of countries in the Middle East and Africa facing both domestic and foreign terrorists—often on a larger scale than in Europe and often involving the projection of force from beyond the country’s own borders—terrorism also has the features of war. It represents a defiance of state sovereignty with which the state cannot deal solely by means of traditional law enforcement. Instead, the state resorts to the use of armed force as should be governed by the laws of war, in a manner that no civilized society would ever tolerate in ordinary domestic policing.