The Adequacy of International Humanitarian Law in Regulating the Challenges Posed by Drone Warfare

Abstract

IHL is widely accepted as being the law applicable to instances of confirmed armed conflict. While this body of law is responsible for governing the use of modern means of warfare, it is often criticised for lagging one war behind reality. IHL consists of a number of fundamental principles which states must consider before conducting a strike in the milieu of armed conflicts. These principles include military necessity, humanity, honour, distinction, precaution and proportionality. Armed drones, with due consideration of their unique capabilities in the context of armed conflicts, are generally considered to be a legitimate means of warfare. Nevertheless, armed drones are often used in ways which one might regard as contrary to the fundamental principles of IHL. When one considers the current challenges posed to IHL by the use of armed drones in warfare, it is questionable whether or not IHL is adequate in regulating these challenges. In the absence of adequate rules capable of wholly and effectively governing the use of drones in warfare, it is then determinable whether a legal framework should be developed in order to address the nuanced issues posed by armed drone use. Consequently, the elements of such a possible legal framework are to be determined. Proceeding from the premise that IHL is responsible for regulating the use of drones in the context of armed conflicts, and realising that the issues posed by armed drones as used in warfare are of such a challenging nature that they might necessitate the development of IHL, the study makes a number of findings. These include that the fundamental principles of IHL, and in particular the principles of precaution, distinction, and proportionality are of particular relevance to drone warfare inasmuch as one is presented with numerous challenges upon the application of these principles to the use of drones in warfare. In particular, it is further determined that where one regards the challenges relating to the lack of transparency, the need for accountability, the constant proliferation of armed drones and the problematic nature presented by the development of autonomous drones, it is evident that IHL falls short of adequately addressing these challenges. At a general level, this study finds that there is a need for a common position as to the use of armed drones as used in the context of armed conflicts. With due regard to the international movement toward such a position, and in view of an analysis of the most salient challenges posed by the use of armed drones today, one is confronted with certain elements which are not only pertinent to the discussion surrounding the use of armed drones, but which make a useful point of departure in determining the issues to be included in a draft legal framework concerning the use of armed drones in warfare.