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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.