265 / 536
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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.