By Nirbhay Phusate and Akhand Pratap Rai
Introduction
According to the latest press release by the UN Human Rights Office (OHCHR), at least 8,490 non-combatants have been killed with nearly 14,244 injured in the ongoing Russia-Ukraine conflict (10th April 2023). One of the reasons of such huge number of deaths could be said due to the presence of high-tech weapons. One of such weapons or so called weapons system is the use of Unmanned Aerial Vehicles (UAVs as used further). An UAV also commonly known as drone is an aircraft that is guided autonomously, by remote control, or both and that carries sensors, target designators, offensive ordnance, or electronic transmitters designed to interfere with or destroy enemy targets.
Historically UAVs have been used for various purposes such as surveillance, disaster response, data collection, healthcare, agriculture & delivery systems, but the most debated one is as a weapon system. In the Russia-Ukraine War itself, both the sides have used UAVs extensively such as the use of SHAHED-136, ORLAN-10, SWITCHBLADE 300, BAYRAKTAR TB2, MATRICE 300 RTK, MAVIK 3, GERAN 2, Kvazimachta and KAMIKAZE. The major issue surrounding the use of UAVs is that, as the risk to lives of combatants is reduced due to the use of remote control/automated UAVs, this leads to encouragement of prolongation of war which further leads to unnecessary suffering and disruption of peaceful livelihood of non-combatants.
The major justification provided in the favor of use of UAVs is that, it reduces the chances of civilian casualties, as the precision of UAVs can be made by fixing a target and then using it against it. But the whole justification falls around the feet as the data shows that huge numbers of deaths have been caused of non-combatants. Not only it leads to deaths but also leaves psychological effect on the civilians as the continuous hovering leads to breach of right to privacy and creates a fear of someone looking over them all the time.
UAV’s and Law of Armed Conflict:
The current International Law does not specifically provide for regulation of armed UAVs and hence the General rules of International Law and Law of Armed Conflict apply. These rules state that, there must be adherence to principle of not causing Unnecessary Suffering (Additional Protocol I, Article 35.2), principle of Distinction (Additional Protocol 1, Article 48) and principle of Proportionality (Article 51(5)(b) of Additional Protocol I). While in the ongoing war, it can be clearly seen that there is no adherence to the above principles. Such as the rule of Distinction permits direct attacks only against the armed forces of the parties to the conflict, while the peaceful civilian population must be spared and protected against the effects of the hostilities. But it has been seen that, there has been many deliberate UAV attacks in civilian areas sparing none. Also the principle of unnecessary suffering is not complied with, as the damage by the traditional weapons used by one side are incomparable with the fatality of explosive nature of armed UAVs causing also the failure of complying with the principle of proportionality.
Russia’s war on Ukraine has also provided a testing ground for foreign UAV powers, such as Turkey, the US, and Iran, further accelerating drone proliferation. The war has meanwhile served as a public relations campaign for armed UAVs and loitering munitions, changing the public image of UAVs along the way. UAV operations in Ukraine contrast with the use of large UAV systems in the war on terror over the past two decades, which became controversial due to their association with collateral damage and targeted killings beyond official battlefields.
One of the other issues with UAVs is that, as UAVs become common, their use may not be only restricted to state actors, but also by the non-state actors, who generally don’t comply with rules of International law. Further as the presence of UAV’s increase, the accessibility to such weapons by non-state actors may also increase as have been already seen, as cases have come up where cheap civilian drones have been used as explosives in targeting places. Considering the general use of UAVs, it has been seen in the last few years the gradual increase in the use of UAVs in situations of non-armed conflict. The Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (dt.2020) on “Use of armed drones for targeted killings” (A/HRC/44/38) states that there have been various extra judicious killings in the name of self-defense without any transparency and accountability. The report highlights the issue of targeted killings using armed drones, particularly in light of the proliferation in the use of drones and their expanding capability over the past five years, and makes recommendations designed to regulate their use and enhance accountability. The report also analyzes the armed drone killing of Iranian General Quassem Soleimani.
The Way Forward
From the above it can be concluded that the laws regulating Armed Conflict are not sufficiently equipped to deal with the changing technological developments of UAVs. Rather than seeking to develop new principles or values, the existing legal framework can be updated to reflect the changing landscape of armed conflict. Indeed, the main challenge is the certainty that the advancement of technology will further outpace international legal developments
Nirbhay Phusate and Akhand Pratap Rai are Doctoral Candidates at the Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi