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PETRA DITRICHOVÁǧOCHMANNOVÁ
CYIL 7 ȍ2016Ȏ
(direct/indirect) between these actors, a consequent question is what should be the
standard/threshold for proving such linkage e.g. overall control?
On the other hand, there well may be cases in practice where the non-state actor
acts autonomously and independently of the territorial state, therefore making this
requirement of attribution impossible.
Having in mind the example of the so called Islamic State, which acts on the
territory of Iraq and Syria as a
“de facto”
administrative body (such behavior raises
a separate concern of whether such an organization in the meantime could form
a state under international law or not), one wonders whether it is truly possible and/
or correct to search for attribution. Making the case positive, then to which state
should their acts be attributable? Is it fair towards the former territorial state? The
differing justifications of states fighting the Islamic State in Syria prove the unsettled
state practice in this respect.
These are all important questions and issues which represent an extremely difficult
area for providing answers in practice. The author is aware that this controversy
merits a further detailed analysis, which, however, exceeds the scope of this article.
2.3
Ius in Bello
– Armed Conflict
The second body of law –
Ius in Bello
– law of armed conflict (LOAC) applies in
a situation of armed conflict. There are no specific rules on the use of drones under
the LOAC, so it is important to apply general LOAC rules applicable to the respective
type of armed conflict (international armed conflict – IAC; or non-international
armed conflict – NIAC). In practice, drones are widely used in support of military
operations of both types of armed conflict (e.g. IAC – Libya; NIAC – Afghanistan).
Unlike in situations of peacetime when use of a lethal force is very much constrained
with a specific rules ensuring protection of a right to life, the conduct of hostilities,
by its nature, does not prohibit killing of legitimate military targets
,
18
provided that,
among others, the LOAC principles of proportionality and precautions are fulfilled.
19
Therefore, the use of armed drones in situations of armed conflict does not represent
a specific legal challenge.
3. Where is the Controversy?
The general overview of the existing legal frameworks and its applicable rules
governing use of armed drones confirms that international law contains a wide range
of legal safeguards for ensuring drones’ compliance with the law. In this respect, one
might be asking: what is then the controversy with the use of armed drones?
18
See Principle of Distinction, Article 48 Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflict (API).
19
Article 57 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflict (API).