CYIL vol. 7 (2016)

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PETRA DITRICHOVÁǧOCHMANNOVÁ CYIL 7 ȍ2016Ȏ
– in operations which from a legal point of view are debatable as to whether they
fall within the scope of armed conflict or not (namely Yemen and Pakistan). Because
it is being claimed that such use of drones in these conflicts have caused the death
of thousands of persons,4 the public started to contest the legality of such targeting.
Recognizing the foreseeable increase in the employment of armed drones in future
conflicts, as well as in controversy surrounding the legal classification of conflicts in
which drones are mainly employed, it is of utmost importance to understand their
various legal frameworks and applicable rules.
Answering the question of applicable legal framework is not just a theoretical
issue but has a crucial impact on the whole acceptance of the use of armed drones as
a means of warfare and their legality under international law. For instance, “the right
to kill without warning” exists only in a situation of armed conflict5 and, if applied in
situations outside of armed conflict, it amounts to what is called extrajudicial killing.
In essence, the determination of the appropriate legal paradigm (law enforcement
versus the law of armed conflict) and related applicable rules for a drone’s engagement
has a crucial impact on the victim of such an attack (namely whether the right to life
was violated or not by a drone attack) and on targeting authority (whether the drone
attack was lawful or not).
By clarifying the applicable legal rules the aim of this article is to demystify
unfounded and usually emotional concerns about the use of drones. It is important
to note that this paper will focus on legal aspects only and will not discuss moral,
ethical, psychological or even sociological concerns related to the use of drones,
despite the author’s awareness that these factors may override the legal aspects and
substantially contribute to the public perception of the general unacceptability of the
use of armed drones.
The article, firstly, introduces a general overview of the modalities of the legal
framework for the use of armed drones (law enforcement situations, ius ad bellum, ius
in bello). Secondly, it focuses on identification of the issues of possible controversy.
By addressing examples related to the use of force under both the law enforcement
and LOAC paradigm, it aims to emphasize the importance of setting out clearly what
legal paradigm governs the military operation. Finally, it addresses an issue of the
classification of conflicts with a central question of what constitutes “armed conflict”.
4 For example see: 41 men targeted but 1.147 people killed: US drone strike – the facto on the ground,
24. 11. 2014, (visited
on 10 April 2015).
5 MARY ELLEN O’CONNELL, “Saving lives though a definition of international armed conflict” in
Proceedings of the 10th Bruges Colloquium: Armed Conflicts and Parties to Armed Conflicts under IHL:
Confronting Legal Categories to Contemporary Realities, October 2009, p. 20.