HC 772 Defence CommitteeWritten evidence from James Earle on behalf of the Association of Military Court Advocates

DRONING FOR BRITAIN

LEGAL AND ETHICAL ISSUES ARISING FROM THE USE OF REMOTELY PILOTED AIR SYSTEMS

The Association of Military Court Advocates (AMCA)

The Association of Military Court Advocates was established in 2005 to aid those who practise military law and represent members of HM Forces at the Military Courts. The aim of the Association is to assist and train practitioners in providing advice and guidance and to take an active interest in the development of military law and the law of armed conflict.

Hon. Chairman: The Rt. Hon. Lord Thomas of Gresford OBE QC (Goldsmiths Chambers)

Hon Treasurer: Mr Richard Hanstock (3 Raymond Buildings)

Hon Secretary: Ms Annelisa Eccles (Review Point Consulting)

Membership Secretary: Mr Matthew Bolt

Mr James Earle (Fenners Chambers)

Mr Ian Graham (Fraser Dawbarnes)

Mr Ged Hale (Hale Law)

Miss Rhiannon Sadler (Westgate Chambers)

Mr Reuben Scott (Richard Griffiths & Co.)

Mr Julian Young (Julian Young & Co.)

Biographical Note

James Earle was commissioned from RMA Sandhurst into the Royal Regiment of Artillery. He served to the rank of Major in a variety of home and overseas posts before obtaining a Masters degree in War Studies from King’s College, London. He is now a barrister specialising in criminal law at Fenners Chambers in Cambridge.

Introduction

1. This paper is concerned with ethical and legal issues arising from the delivery of lethal force by unmanned air vehicles (UAV/drones). It is submitted on behalf of the Association of Military Court Advocates, which is an organisation of civilian lawyers with a particular interest in military law and the law of armed conflict.

2. The paper provides a summary of technical developments in unmanned aircraft; explains their potential for proliferation; and places them in an ethical and legal context. The conclusion is that UAVs, even when fully autonomous, are neither inherently unethical nor unlawful. However, their legitimate use is contingent upon information disclosure and independent scrutiny.

3. The recommendation of the paper is that consideration should be given to the creation of a standing independent reviewing committee, served by a small secretariat. The committee should be capable of hearing expert military and civilian evidence on technical developments; advising on the ethical and legal implications of UAV deployment; and providing such public information as is consistent with the national interest and security.

Technical Developments and Proliferation

4. Unmanned air vehicles have been a significant feature of all recent military operations, and their success in surveillance and reconnaissance has created a burgeoning civilian market. In December 2011, United States Customs & Border Protection announced the purchase of its ninth drone, a Predator B, in Arizona.1 Apart from tracking illegal immigrants and drug smugglers, drones have been used to support wider Federal law enforcement. Cattle rustlers,2 kidnappers,3 and serial environmental polluters have all been successfully located and tracked by UAVs. To date, no domestic criminal has been killed by remotely operated aircraft, but there are several claims of privacy violation still to be heard in American courts.4

5. The vertical and horizontal proliferation of UAVs has been rapid and is likely to accelerate. Some 50 American companies, universities and government organisations report active engagement with the development and production of over 155 different designs. In 2010, American expenditure on UAVs reached $3 billion, and it is expected to exceed $7 billion by 2020. In round terms, this investment will constitute 77% of total global spending on UAV R&D, and around 69% of procurement.5

6. Sources vary, but between 76 and 80 countries are known to have either developed UAVs of their own or acquired them from foreign suppliers.6 The United States, however, is one of only three that are currently using armed drones in military operations. The other two are Israel and the United Kingdom.

7. In Israel, the use of UAVs for real-time surveillance, electronic warfare and decoys began during the 1973 Yom Kippur war. Their success in subsequent conflicts led to the creation of Mazlat, (now Malat), a division of the state-owned Israel Aerospace Industries (IAI). Malat worked with the US AAI Corporation to develop Pioneer UAVs during the 1991 Gulf War, and there has been extensive US/Israeli co-operation since then. The operation of armed drones in Gaza, Sinai, Pakistan and Yemen has attracted criticism from the United Nations High Commissioner for Human Rights, in particular for the “lack of transparency surrounding their use … [and] an accountability vacuum [that] affects the ability of victims to seek redress”.7

8. IAI has an order backlog of US$1.2 billion, with exports accounting for 76% of revenue in the second quarter of 2013.8 The company is developing close connections with China, whose own plans for UAV development remain opaque.

9. In the United Kingdom more than £2 billion has been committed to the purchase, research and development of unmanned drones since 2007. About 25% of this sum was spent on US General Atomics MQ-9 Reaper drones, but the largest commitment—some £847 million—was to the acquisition of Watchkeeper. The Watchkeeper is an intelligence, surveillance, target acquisition and reconnaissance (ISTAR) drone built in Britain by an Anglo-French-Israeli consortium with majority ownership (51%) vested in the Israeli company, Elbit Systems.

10. The Royal Artillery has aspirations to equip Watchkeeper with a weapon system, although the drone has been beset with delay and may not be ready in time for service in Afghanistan.9 The incorporation of an American de-icing system has also created uncertainty over export licensing. In brief, the United States Department of Defence is concerned about the involvement of Elbit Systems and the possible re-export of technology to China.

11. The Watchkeeper programme is about three years behind schedule, although it shows more promise than some of its predecessors. (The Phoenix became known as the Bugger-Off because of its frequent failure to return). Nevertheless, the RAF has been successfully flying MQ-9 Reaper UAVs in Afghanistan since October 2007, and 39 Squadron currently operates five by satellite from Creech Air Force Base in Nevada. The UK is expected to announce funding for a new armed Medium Altitude Long Endurance (MALE) drone this year, under the Scavenger programme.10

12. Under the Autonomous Systems Technology Related Airborne Evaluation & Assessment programme (ASTRAEA), £30 million is to be spent on “technologies, systems, facilities, procedures and regulations that will allow autonomous unmanned vehicles to fly in UK civil airspace.”

13. It is expected that nearly 30,000 military and civilian UAV will be operating worldwide by 2018. Many of these will be capable of carrying weapons even if they were not originally designed or procured for offensive action. During a recent visit to Pakistan, UN Secretary-General Ban Ki-moon said that:

“the use of armed drones, like any other weapon, should be subject to long-standing international law, including international humanitarian law.”11

14. Nearer to home, the United Kingdom’s Joint Doctrine Note 2/11 concludes with the following apocalyptic question:

“There is a danger that time is running out—is debate and development of policy even still possible, or is the technological genie already out of the ethical bottle, embarking us all on an incremental and involuntary journey towards a Terminator—like reality?”

The Ethical Context

15. The starting point for most discussions about the ethical application of lethal force is the just war tradition of St Augustine (1226–74). This requires both a just cause for going to war, (Jus ad Bellum), and just conduct during the ensuing conflict (Jus in Bello).

16. Historically, advances in military technology challenge the concept of Jus in Bello. How can new systems, which may give an overwhelming advantage to one side over the other, be applied in an ethical manner? Is it possible to reconcile an ethical approach with perceptions of military necessity?

17. The Laws of Armed Conflict seek to promote Jus in Bello by upholding two fundamental principles:

(a)The principle of discrimination between military objectives and combatants on the one hand, and the structures of civil society and non-combatants on the other.

(b)The principle of proportionality of means. Acts of war should not cause damage that is disproportionate to the military objective. Harm to non-combatants is only truly collateral when it is indirect and unintended, even if foreseen. Combatants assume the status and rights of non-combatants if they surrender and lay down their arms.

18. A more recent and controversial addition to the principles of Jus in Bello requires agents to be held responsible for their actions. This means that blind obedience to orders—the defence of “Befehl ist Befehl”—cannot be relied upon by subordinates if they recognise their orders to be immoral.12

19. Although the just war tradition has been widely criticised as a departure from the absolute pacifism of early Christianity, it remains the principle philosophical basis for the exercise of restraint in war. Moreover, there is nothing about it that is fundamentally antithetical to the use of drones. The precision accuracy of drones allows a level of discrimination that was wholly beyond the carpet bombers of WWII, or even the most sophisticated intercontinental ballistic missiles (ICBM) of the late twentieth century. Whereas the accuracy of nuclear tipped ICBM is measured in “Circular Error Probable” (CEP) of hundreds of metres, modern drones can be targeted to the last metre. Pinpoint accuracy means that warheads can be smaller, targeting can be more precise, and the risk of collateral damage is minimised.

20. Moreover, UAVs are not prone to the emotional unpredictability of combat troops. The extent of this unpredictability, even among highly trained personnel, was emphasised by a survey of American participants in Operation Iraqi Freedom.13

21. The key findings have been extensively quoted, but bear repetition:

(a)Only 47% of US soldiers, and 38% of Marines, agreed that non-combatants should be treated with dignity and respect.

(b)Over a third of US soldiers and Marines believed that torture should be allowed, either to save the life of a comrade or to obtain information about insurgents.

(c)45% of US soldiers and 60% of Marines said that they would not report a comrade who had injured or killed an innocent non-combatant.

(d)33% of US Marines and over a quarter of soldiers claimed that mistreatment of non-combatants had not been expressly forbidden by their NCOs and officers.

(e)31% of US Marines and 28% of soldiers reported that, despite ethical training, they had faced ethical situations in which they did not know how to respond.

(f)Ethical violations increased with exposure to direct combat experience, especially if it involved the loss of a team member.

22. It has been convincingly argued that drone “pilots”, removed by many miles from contact with an enemy, will be less prone to impassioned responses and more likely to behave in a consistently ethical manner. If that proves to be untrue, then individual accountability is more easily achieved in an electronically monitored command bunker than a slit trench or a gun position.

The Legal Context

23. The translation of ethical ideals into codified laws of armed conflict has a long history. It extends, perhaps, to the Angiers Synod of AD 990 which proscribed the seizure of hostages and property.

24. Of more immediate relevance, the four Geneva Conventions, (1864–1949), codified the distinction between combatants and non-combatants. They remain the principle internationally recognised legal authority on the treatment of wounded personnel. Their emphasis is upon the rights of individual combatants.

25. The three Hague Conventions (1899–1907) concentrate upon the means of waging war, rather than upon the treatment of individuals who are caught up in it. They seek to “diminish the evils of war, as far as military requirements permit,” and acknowledged a general principle of restraint. Their essence is the avoidance of unnecessary suffering and an insistence that “the right of belligerents to adopt means of injuring the enemy is not unlimited.”

26. A recent illustration of the Hague approach is the 1980 “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects.” The 73 signatories agree to prohibit or restrict weapons whose “primary effect is to injure by fragments which, in the human body, escape detection by X-rays; mines; booby traps; and incendiary weapons.”

27. In 1995, a fourth Hague Protocol prohibited the use of blinding laser weapons, and in 1996 the existing second Protocol was revised by the Ottawa Convention as a direct result of international pressure to ban the production and use of anti-personnel mines.

28. These foundation stones in the Law of Armed Conflict have been developed by a number of major international treaties. After 1990, in the face of repeated and major violations, significant attempts were made to improve enforcement. The UN Security Council’s decision to establish the International Criminal Tribunal for the Former Yugoslavia in 1993 illustrated the trend. So did the similar tribunal for Rwanda that was established in 1994.

29. In 1998, a UN-convened conference in Rome adopted a treaty for the establishment of an International Criminal Court. To date, 122 states have signed the Rome Treaty, but three of those—Israel, the United States, and Sudan—have announced that they will not ratify it. The ICC has permanent jurisdiction to prosecute genocide, crimes against humanity, and war crimes, but an additional power to prosecute offences of aggression will not be pursued until at least 2017. Absent a fully functioning and universally supported ICC, state governments remain the chief mechanism for enforcing the laws of war.

Issues of Definition and the Role of the State

30. The UAVs that are currently in service all rely upon a degree of human intervention and supervision. They are semi-autonomous. For as long as that remains the case, there is no compelling reason for drones to be regarded as either inherently unlawful or antithetical to the just war tradition. Whether the “human in the loop” is responsible for the decision to deploy UAVs in the first place, or for general targeting policy once they are in theatre, or even for the selection of individual targets, it should remain possible to maintain a chain of accountability. But this optimistic prognosis depends upon transparency and independent scrutiny, both of the decision making process and of the safeguards to protect non-combatants.

31. Fully autonomous UAVs, capable of locating their own targets and destroying them without any human intervention are a different proposition and could, arguably, fall outside the just war tradition altogether. This is because there is, by definition, no human supervision to enforce the fundamental principles of proportionality and discrimination.14 The present state of technology, especially so far as the Anglo-French-Israeli Watchkeeper project is concerned, may make this appear a distant prospect. But the acquisition of fully autonomous military robots has been a stated objective of the United States since 2004, and a number of systems are already in an advanced stage of development. A notable example is the Falcon HTV-2 hypersonic unmanned aircraft, which is reported to have attained test speeds of Mach 17–22 or up to 13,000mph. At such speeds, the level of human oversight is either severely limited or non-existent. An elementary conflict of software algorithms could lead a hypersonic drone off target by 5Km in less than a second.15

32. Nevertheless, the United States DoD formally recognises ten levels of autonomy, with an expectation that the final level, (fully autonomous swarms of UAVs with group strategic and tactical goals, distributed control, and a facility for on-board route re-planning), will be attained by 2015.16

33. Decisions about the military utility of fully-autonomous UAVs have to be made by individual states, and this would suggest that responsibility for defence procurement should remain firmly with government agencies. A recent announcement that the British Ministry of Defence is to negotiate the outsourcing of arms purchases to a consortium led by the American engineering group, CH2M Hill, should raise concerns about the nature of the procurement in question.17

34. But an even more fundamental issue for governments is whether the increase in drone operations will erode the definition of war to a point where it is all but meaningless. Brief examination of the dispute that arose between President Obama and Congress over operations in Libya suggests that this erosion is already well-advanced.18

35. The cause of the dispute was the 1973 War Powers Resolution. The Resolution requires an American president to either obtain congressional approval for hostilities or terminate a mission within 60 days:

“[Absent a declaration of war]… in any case in which the United States Armed Forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; [or] into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces …”19

36. The United States’ support of NATO operations in Libya did not follow a declaration of war, and was not sanctioned by Congress within the stipulated 60 days. Nevertheless, the State Department maintained that military operations were legal because drone strikes did not amount to the introduction of US armed forces to hostilities.

37. The Libyan operation raises substantial questions about the traditional definitions of armed force and war. In particular:

(a)Whether the use of remotely piloted aircraft amounts to the introduction of armed forces or not.

(b)Whether the use of drones amounts to the commencement of full-blown hostilities, or merely to an action falling short of war.

38. At the time of writing, congressional approval is being sought for American intervention in Syria. Whatever the outcome, it is unlikely to resolve either of these questions conclusively because the rapid technological evolution of drones militates against definitive answers or rigid rules. Meanwhile, drones have been used for “targeted killings” of suspected terrorists in several countries that are ostensibly at peace with the United States. Among them are Pakistan, Somalia, and Yemen where a CIA armed drone killed five men on a public road in 2002.

39. For their part, the Israelis appear to have been using armed drones for “decapitation killings”, over a number of years, although the extent of such operations is not publicly acknowledged. Similarly, whilst the British Royal Air Force has reportedly flown more than 20,000 drone missions in Afghanistan, the objectives, targeting policy, and geographical constraints on their use remain secret.

40. It is understandable that targeted killing by drones remains veiled by official secrecy. For the time being, it offers an unparalleled risk-free opportunity to attack terrorist suspects in remote places. But it is difficult to imagine that states more developed than Sudan or Yemen would tolerate drone intrusions on their airspace. Nor is it likely that a more militarily advanced state, such as China or Russia, would ignore extra-judicial killings by a foreign power on their soil. If secrecy continues to prevail over accountability and transparency, then there can be no guarantee that drone missions comply either with the Laws of War or with the ethical concepts that underpin them.

41. There is ample evidence that the conduct of war according to ethical and legal principles is not only moral, but also sensible. At best, resort to untrammelled indiscriminate violence may lead to short-term tactical advantage, but almost never to strategic success. To quote Elizabeth Quintana: “… the more ethically we can conduct our warfare and the treatment of prisoners of war and civilians, the smoother the process of concluding war might become”.20

42. To this might be added the observation that public support for hostilities is unlikely to be lasting—especially in an age of unprecedented media scrutiny—if there is a widespread perception of unethical or illegal conduct veiled by secrecy. Moreover, given the likely proliferation of UAVs as the technology becomes cheaper and more widely available, it would be as well for the West to occupy a morally elevated position from which to condemn the future unprincipled use of drones by unstable states or terrorist groups. In this context, it is worth noting that Hizballah has flown at least six UAVs into Israel, and that crashed allied UAVs from Iraq have been recycled or reverse engineered on the border between Afghanistan and Pakistan. In Columbia, FARC is reported to have nine UAVs.21

Conclusions and Recommendations

43. The use of UAVs is not in itself unethical or a breach of the Laws of War. In fact, the capacity for precise targeting raises the hope that future conflicts might have a stronger ethical foundation than could ever be afforded by twentieth century concepts of nuclear deterrence. But “precision relies on the vitality of the principle of distinction”.22 If there is no legal enforcement of the boundary between innocent civilians and combatants then the potential moral benefits of pinpoint accuracy are lost. There can be no legal enforcement without transparency and independent scrutiny. In sum, “a lack of disclosure gives states a virtual and impermissible license to kill”.23

44. The problem is not that UAVs are unlawful in themselves, but that their numbers, sophistication, relative cheapness and adaptability offer unparalleled opportunities for secrecy. If there are no independent arrangements for the scrutiny of deployment and targeting decisions, then there can be no means of ensuring compliance with the basic principles of proportionality and discrimination. Just as importantly for the major democracies, public support for hostilities is unlikely to be sustained unless there is a perception of jus in bello.

45. Moreover, unless there is public awareness and scrutiny, UAVs that were never originally designed for offensive action could be adapted as platforms for fragmentation or Directed Energy Weapons (DEW) which might themselves be a breach of existing Hague protocols.

46. There are already specialist “Think Tanks” and research organisations dedicated to military and international affairs. Some, such as RUSI, have a distinguished history and extensive contacts within government departments, universities, and private sector defence companies. What is missing, however, is a standing legal review committee, with a remit to track technological developments in UAV and assess their specific implications for the ethical and lawful conduct of war. In order to be fully effective, such a committee would need regular input from military and commercial authorities, perhaps supported by a small secretariat. To be truly independent, it would need to be recruited from civilian and military experts, with a preponderance in favour of the former. It should answer directly to government at cabinet level, and in the interests of transparency the review committee should be capable of fulfilling a limited public information role.

47. Further information about any of the issues or recommendations raised in this paper may be obtained through the Secretary to the Association of Military Court Advocates.24

9 September 2013