CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ INTERNATIONAL LAW AND THE USE OF ARMED DRONES… doubt that complex characteristics of modern warfare do not always easily fit into the established framework”. 58 Furthermore, he emphasizes that, instead of creating new categories such as “new wars”, we should be rather concerned with the law that applies and how the new features of war that we observe are affected by the law. 59 4. Conclusion It is acknowledged that current conflicts are extremely complex and difficult to classify as to what legal paradigm should be applied. A correct determination of the applicable legal paradigm is of importance for a number of areas related to conduct of hostilities, such as use of force or detention. On the other hand, difficulties surrounding classification of conflicts are not entirely new and specific to the new technologies such as drones. It is apparent that in practice precise answers to the challenges surrounding the use of armed drones are not easily answerable because in the majority of publicly known cases we are lacking relevant factual information. Not surprisingly, both UN Special Rapporteurs recently addressing the issue of the use of drones, Mr. Christof Heyns 60 and Mr. Ben Emmerson, 61 have generally called for a greater clarity and transparency of the factual and legal issues related to the use of drones. Complementary, from a strict legal point of view, it has to be understood that answers cannot be found in the LOAC only, as it often includes the right of third sovereign states. Therefore, the use of drones usually encompasses areas related to ius ad bellum , law of neutrality etc. A comprehensive approach entailing legal and policy analysis on a case by case basis is desirable for any assessment of the legality of the use of drones. Nowadays, drones are so contested because of the quantity of their use and because of the unclear legal character of the conflicts in which they are being used (namely Yemen or Pakistan). On the other hand, it is not the technology or lack of applicable rules that we should be afraid of, but rather us – persons/human beings/ decision-making bodies – who sometimes intentionally blur well established legal regimes when foreseen results are perceived as unfavorable to our strategic interests. Such behavior may result in two consequences. The short and directly apparent one that Wolff Heintschel von Heinegg observed is that, “if a state pretends that an armed conflict is not in existence when manifestly it is, this may result in unnecessary 58 William B. Boothby, Conflict Law: the Influence of NewWeapons Technology, Human Rights and Emerging Actors , T.M.C. Asser Press, 2014, p. 36. 59 Ibid ., p. 42. 60 A/HRC/26/36, UN GA, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, 2014. 61 A/HRC/25/29, UN GA, Report of the Special Rapporteur on the promotion and protection of human rights and fundamentals freedoms while countering terrorism, Ben Emmerson, 2014.

251