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PETRA DITRICHOVÁǧOCHMANNOVÁ
CYIL 7 ȍ2016Ȏ
in situations of armed conflict and regulates HOW force is used. Especially when
addressing the legality of the use of drones such a distinction must be carefully
observed as armed drones, due to their ability to target while being operated from
a geographically distant area, represent a very good example of how both bodies of
law may be easily conflated in practice. Mike Schmitt pertinently states that “the
question whether armed forces may be present on a particular territory is different
from the question of whether the trigger may be pulled.”
10
2.2
Ius ad Bellum
When addressing rules applicable to the legality of resort to force, one has to start
with a general rule on the prohibition on the use of force in international relations
contained in Article 2/4 of the UN Charter.
11
It is well known that the UN Charter
contains two explicit exceptions to this general prohibition: First, the Chapter VII
authorization on the use a force granted by the Security Council. Second, the right
to individual or collective self-defence in reaction to an “armed attack” as stated in
Article 51 of the UN Charter.
Authorization granted by the UN Security Council is usually self-explanatory,
but interpretation of what constitutes an “armed attack” for purpose of triggering
lawful actions in self-defence causes anumber of ongoing interpretative difficulties.
First of all, there is an unsettled discussion regarding the scope and the threshold
(scale and effects) of the armed attack.
12
The key question regarding the use of armed
drones is whether a single or isolated drone strike would be considered as reaching the
level of an armed attack and therefore give a state a right to act in self-defence or not.
Jurisprudence provides some general indications with respect to frontier incidents,
13
but the matter is still far from precisely settled. Because airspace incursions happen
quite often in practice (involving both violation of airspace by traditional manned
aircraft
14
and use of drones
15
), a states’ behavior leading to the conclusion of an
10
Study Group on the Conduct of Hostilities under IHL in the 21st century, 10 April 2014, International
Law Association, Working Session Report, Washington, 2014,
http://www.ila-hq.org/en/committees/study_groups.cfm/cid/1040 (visited on 20 May 2015).
11
Article 2 para 4 UN Charter, 1945,
http://www.un.org/en/documents/charter/(visited on 20 May 2015).
12
International Law Association, Washington Conference (2014), Use of Force, Report on Aggression
and the Use of Force.
13
For instance, ICJ Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996; Case
concerning Military and Paramilitary Activities in and against Nicaragua, 1986; ICJ Oil Platforms, 2003.
14
On 24 November 2015 Russian jet violated Turkish airspace for 17 seconds; in response Turkey shot
it down. In 2012 after a Turkish jet was shot down in Syria for violating their airspace, the Turkish
president in this respect even emphasized that “a short-term border violation can never be a pretext
for an attack”. For more information, see
http://www.bbc.com/news/world-middle-east-34912581(visited on 10 August 2016).
15
Media occasionally report on drones which enter into foreign airspace. In this case Iran shot down
an Israeli drone conducting surveillance near a nuclear site. For instance
http://www.bbc.com/news/