A drone is a drone is a drone

Published: 30 September 2020 Author: Marco Meyer

On 8 September 2020, the parliamentary group “The Left” in Germany’s Federal Parliament submitted a motion that “Parliament reject equipping the Federal Armed Forces with armed drones (RPAS [Remotely Piloted Aircraft] / UAV [Unmanned Aerial Vehicles]) in the form of both the procurement of armed drones and the procurement of ammunition for drones already used by the Federal Armed Forces.” In a related development, on 16 September 2020, the Federal Parliament’s Defence Committee scheduled a public expert hearing on, inter alia,  the assessment of the potential arming of remotely piloted UAVs. These events came just about two and a half months after the Federal Ministry of Defence presented to the Federal Parliament a “Report on the Debate on the Possible Procurement of Armed Drones for the Federal Armed Forces” (the Report). The aim of the Report was to present “the results of the series of events organized by the Federal Ministry of Defence on the issue of the procurement of armed drones (Unmanned Aircraft Systems, UAS), in the course of which a broad and inclusive debate on international law, constitutional, ethical and political aspects took place.”

The 21-page Report’s brief “section” on legal issues consisted of only one and a half pages covering constitutional law as well as jus ad bellum and jus in bello considerations. The relevant parts of the Report read as follows:

“The debate on international law and constitutional law aspects has shown that there are no special international or constitutional law peculiarities for the use of armed UAS. These are carrier systems which, in legal terms, do not differ fundamentally from other aerial platforms. The procurement of UAS is allowed; the admissibility of their use is based on the relevant rules of international and constitutional law applicable in the respective situation.

Armed UAS offer the possibility of taking and documenting decisions about the use of weapons even over long distances, promptly and with the involvement of several decision-making levels. This allows for a redundant target check which ensures the legal conformity of the use of weapons and helps to avoid wrong decisions.

The international and constitutional requirements for the use of armed UAS do not differ from the use of other weapons systems. According to the general principles, the legal framework depends on whether or not they are used in armed conflicts, or in international or non-international armed conflicts. […].

During an armed conflict, the rules of international humanitarian law apply. Of central importance here is the requirement of constant distinction between protected civilians and civilian objects on the one hand, and legitimate military objectives on the other (“principle of distinction”).

In armed conflicts the prohibition of attacks on military targets which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination of these, which are excessive in relation to the concrete and direct military advantage anticipated (“prohibition of excessive collateral damage”) must also always be observed. In particular, UAS with scalable, precise and low intensity weapons can make a contribution to avoiding damage in complex and urban combat situations. Due to their long operating hours (flight time) and their high reconnaissance capabilities, armed UAS enable more precise decision-making processes that can facilitate compliance with the principles set out above.

Outside of armed conflicts, armed UAS may be used if and to the extent that international law (e.g. a UN Security Council resolution under Chapter VII) permits the use of armed force. In these situations the use of armed UAS is conceivable, for example for self-defence, for protection or for mission completion in compliance with the relevant legal framework applicable to the individual case and the operational requirements. […]

The use of drones for extrajudicial killings and actions contrary to international law contradicts everything that the Federal Armed Forces have stood for since their foundation and will not be contemplated under any circumstances.”

The Federal Ministry of Defence’s argument focused primarily on questions of targeting, which apply to any weapons system or other means of warfare. This may be explained by the fact that the use of armed UVAs does not constitute any particular problem under the jus ad bellum. The same is actually true for the jus in bello, as UAVs are neither indiscriminate per se (i.e. by design) nor do they necessarily cause excessive harm. The question of whether their use complies with the principle of proportionality will depend on the military advantage gained by an attack. The lack of a specific authorization of the use of armed UAVs does not make their use illegal in terms of international law. This was also confirmed by the International Committee of the Red Cross, which stated that “armed drones per se are not prohibited by IHL [International Humanitarian Law]. There are also no inherent features of drones that would prevent their operators from observing the relevant rules of this body of law.”

As correctly pointed out in the Report, the legal issue with armed UAVs is not with the weapons system as such but with the way it is deployed. There is no difference between armed UAVs and other weapons or means and methods of warfare, which could theoretically also be directed against civilians and civilian objects. The Federal Ministry of Defence was aware of the obligation to take precautions in attack and the need for a legal advisor to advise the commanding officer on the specific use of armed UVAs.

Against this background, it may be asked why the Federal Parliament’s Defence Committee scheduled yet another public expert hearing on the possible arming of remotely controlled UAS from an “international law, constitutional law and ethical perspective”. This is especially so as the same questions had been addressed in an expert hearing by the Defence Committee during the previous parliament in June 2014. One could ask why the Committee did not schedule expert hearings on the “international law, constitutional law and ethical aspects” of other weapons or weapons systems. While it is necessary – if not mandatory – in a democratic society that the military’s capabilities and equipment are discussed in parliament, one may wonder whether anybody expects a different outcome, considering that international law has not changed since the hearing in 2014. There is thus also no reason – at least from the standpoint of international law – to adopt a motion denying the Federal Armed Forces the use of a lawful weapons system.

Category: Armed conflict and international humanitarian law

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  • Marco Meyer is a research associate at the Helmut Schmidt University of the Federal Armed Forces Hamburg and an articled law clerk at the Higher Regional Court of Schleswig.

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