CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ

INTERNATIONAL LAW AND THE USE OF ARMED DRONES…

2. Modalities of the use of armed drones 2.1 Law Enforcement Situations

Concerns about the use of drones in peacetime mainly arise in situations when armed drones are used for law enforcement purposes. That is for maintaining or restoring public security, law and order where human life is endangered. As with any other law enforcement activities, such a use of drones has to comply with applicable legal regulation on the use of (lethal) force by law enforcement officials. This entails mainly rules of domestic and international human rights law and criminal law. 6 The basic conditions for lawful conduct of law enforcement could be summarized as follows: 7 1) lethal force may be used by state agents only – e.g. police or military forces (this eliminates all non-state actors, including private security companies not specifically authorized 8 ); 2) armed drones would have to be used only as a last resort in order to protect against an imminent threat to life (no other means, such as capture would suffice); and 3) use of lethal force has to be proportionate to the posed threat and necessary. This condition is sometimes described as the “strict” necessity standard, requiring that the use of force must not exceed what is strictly necessary for securing law order and security. 9 If force would be used in other situations than peacetime, the nature of regulatory framework would differ. However, before one can transit from rules related to peace to rules governing war/armed conflict, a distinction between two different bodies of law has to be emphasized. Ius ad bellum , which regulates WHEN and under WHICH conditions states may resort to use of force, and Ius in bello , which applies 6 For instance, the right to life is recognized world-wide as ius cogens . International conventions such as the International Convention on Civil and Political Rights (ICCPR) or European Convention on Human Rights (ECHR) provide explicit legal grounds on which a right to life may be limited but not derogated. 7 ApartfromapplicableinternationalhumanrightslawinstrumentssuchastheInternationalConvention on Civil and Political Rights (ICCPR) or European Convention on Human Rights (ECHR), these requirements flow from the Code of Conduct for Law Enforcement Officials, GA 106th plenary meeting, 17 December 1979, 34/169 http://www.un.org/disarmament/convarms/ATTPrepCom/Background% 20documents/CodeofConductforlawEnfOfficials-E.pdf (visited on 3 June 2015) and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 8th UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, September 1990, http://www.ohchr.org/EN/ ProfessionalInterest/Pages/UseOfForceAndFirearms.aspx (visited on 20 May 2015). 8 It belongs to the competence of a government to contract with Private Security Military Companies; however such a government should follow recommendations given in the ICRC, The Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict , 2008. In a follow up, the DCAF now seeks to develop a Contract Guidance Tool to support States and private clients when drafting contracts for such services. 9 OLIVIER DE SCHUTTER, International Human Rights Law , Second edition, Cambridge University Press, 2014, p. 368-380.

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