- Ahan Gadkari
QUESTION OF ETHICAL RESPONSIBILITY ON THE USE OF UNMANNED AERIAL VEHICLES IN COMBAT ZONES
There has been significant debate regarding the legal and ethical permissibility of the use of drones (Brooks, 2013). The current ethical debate has usually revolved around the nature of the lack of proximity between the targeter and the target. This also raised the primary concern that the distance between the two will lead to psychological changes in the nature of conduct. Another concern is that the distance virtually grants the target a risk-free environment for conducting operations. As famously stated by John Sifton, the minimization of the pilot and political risk as well as the distance between the killer and killed makes the use of drones disturbing (Sifton, 2012).
Drones foreshadow the idea that viciousness can be separated from humanity.
Multiple drone pilots have spoken of a lack of any form of feeling while conducting drone strikes. The most famous remarks are Matt Martin's, wherein he says he did not feel his targets were "human beings" (Mayse, 2011). Although there has been extensive debate on drone warfare's ethical nature, there are two significant issues that require greater attention. The first being, what is the responsibility of someone who commits acts such as war crimes in a situation wherein these targets have become completely desensitized to the actual conflict zone? It should be kept in mind that this refers to the ethical responsibility rather than just legal responsibility. The second being whether such a target is responsible for the acts committed when ordered by a superior, or will the defence of superior orders apply in this case?
Legal discourse on UAVs
The principal legal discourse regarding the use of drones is regarding the technological advancements in the use of drones, which might lead to a lack of meaningful human control (Paust, 2015). The question arises whether such machine systems are compatible with the laws of war (Amoroso, 2017). Two significant concerns dominate this discussion. Firstly, the primary concern is that drones will become wholly autonomous and conduct multiple strikes on individuals (Council, 2005). It is foreseeable that these drones' programming may not account for the principle of proportionality (military gain must be more than the civilian damage) and the principle of distinction (the distinction between military personnel and civilians) within jus in bello. They might cross borders and target civilians indiscriminately in a manner that violates the principles of the Charter of the United Nations. The second issue that arises is whether these drones have the capability to apply the principle of proportionality and the principle of distinction in a conflict zone. The CCW Group of Governmental Experts on lethal autonomous weapon systems seems to believe that drones cannot apply these principles. In their 2018 Recommendations and Conclusions, they mentioned that only a human could apply the principles of jus in bello; and that accountability, as well as responsibility for the same, cannot be transferred (GGE, 2018). All these issues have, however, been addressed previously on this forum in terms of the legal concerns in more detail. The focus of this piece hereafter is on the equally pertinent ethical questions of accountability during the use of unmanned aerial vehicles in combat zones.
Significant ethical discourse on UAVs revolves around the reduction of the risk to the target, which results in further escalation and ease of conducting armed conflict. In the words of Ignatieff, the armed conflict ends up becoming a "spectator sport" (Ignatieff, 2000).
Previously, there were multiple issues that acted as a deterrent against conducting armed conflict. For instance, the threat of the pilot and the crew being captured alive or killed acted as a significant caution to conducting strikes on foreign soil. This also raised multiple public debates about the merits of war. An example of the same is the events that took place in Chicago outside the Democratic National Convention in 1968 to protest the American intervention in Vietnam.
Such an outcry is no longer generated due to the simple fact that the use of UAVs minimizes the loss of life. Previously, the threat of the pilot and the crew being captured alive or killed acted as a significant caution to conducting strikes on foreign soil. This also raised multiple public debates about the merits of war. Such public approval is no longer needed for waging armed conflict without the loss of life, such as the use of UAVs. As Peter Asaro had rightly stated, these weapons reduce the risk of casualties for the attacking state and reduce the risks and cost of going to war (Asaro, 2013). At the same time, they also remove the combatant from the area of conflict. One of the biggest deterrents to armed conflict is participating in the armed conflict itself. Armed conflict used to be characterized by horrors such as gore and filth. The ethical considerations made by someone on the battlefield will never be the same as a person sitting with a joystick in a secure location. Moral choices can be quickly abandoned when there is a considerable distance between the target and the targeter.
Question of Responsibility
In this regard, in order to examine the question of Responsibility, the first question that needs to be answered is whether someone on the battlefield who has conducted a war crime should have the same responsibility as someone who has done so sitting in a faraway bunker. The crux of this issue is that when someone is facing the horrors of war in front of them, they will deal with it differently than someone who is sitting thousands of miles away. The risk posed to the person on the ground is higher than the one sitting in the faraway bunker. Simultaneously, the inherent issue of someone sitting in a faraway bunker naturally abandoning their moral choices also arises.
In order to understand this issue, let us consider the Milgram shock experiment (Patten, 2009). The experiment was about the connection between obedience to authority and personal conscience. Participants for this experiment were gathered through an advertisement which was placed in a newspaper. The participants were then divided into two groups. One group had learners, and the other group had teachers. The selection was rigged in a manner that all the learners were students of the professor and all the external participants were in the teacher group. The experiment was such that the learners sit in an electric chair and have to answer the teachers' questions. If they do not comply, the researcher would order the teacher to give them an electric shock. The external participants all believed that the person inside was actually receiving a shock. The experiment had multiple variations, one of which included having a barrier or a wall between the teacher and the learner. It was found that in cases wherein there was no barrier between the two, the teachers gave them shocks of lower voltages. In situations wherein there was a barrier that prevented them from viewing their victim, they raised the voltage to a degree wherein it could kill the other person. This gave rise to many findings, two of which can be directly used to answer the ethical question on drones. First, when a person cannot witness the harm being caused by them, that person is more likely to increase the level of harm. This can be directly linked to the drone operators sitting in a bunker, thousands of miles away from the conflict zone. A person using a drone cannot witness the consequences of their actions except for a tiny image on a screen. This not only scales up the ease of conducting such strikes but also dehumanizes the drone operator to the commission of such attacks. Second, in both cases, the researchers had ordered the teachers to increase the voltage, but they did not do so in some cases. This proves that people object to the commands of their superior while causing harm when they can witness the consequences in close proximity. This again raises the question of whether a person ordered to conduct a drone strike that might lead to war crimes should have the same responsibility as to the person in the conflict zone? Since the person in the conflict zone will have a lower degree of obedience to committing war crimes, will the extent of responsibility remain the same?
In both situations, the same order has been given. In terms of responsibility, there are two considerations to be made which differ in these circumstances. The first is that the drone operator is in a virtually risk-free environment while the soldier witnesses the horrors of war in front of them. The second is that the operator is far from the victim, which has a dehumanizing effect on the process. This has been established by the statements of Matt Martin, as mentioned previously in this piece. These can be answered by interpreting the situation along with Martens Clause (Ticehurst, 1997). Martens Clause is now a part of customary international law declared by the International Court of Justice in the advisory opinion on the Legality of the Threat or Use of nuclear weapons (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996). Martens’ clause lays down that certain “principles of humanity” which should be used to interpret provisions of jus in bello, especially when to fill in certain ambiguities. While casting responsibility, although the operator is at a far distance from the target, the responsibility case must be the same as a person in the conflict zone since any provision should be interpreted along with the consideration of the principles of humanity. Even if the operator is ordered to conduct such a strike, the order is an extension of the law, and this extension will not stand if it goes against these principles of humanity.
The world of today has high-level technology like drones. As Ben Parker had said, "With great power, comes great responsibility."
Drone operators have a higher degree of responsibility to make sure they are not committing any acts violating jus in bello since they are not directly in the conflict zone. The need for accountability is highlighted since the drones cannot comply to principles of jus in bello as mentioned in the CCW report.
Technology such as drones need mechanisms for accountability and responsibility. Giving such operators a lower degree of penalization will encourage further violations of the law of war. Only by creating the same responsibility for drone operators can it be ensured they respect the principles of jus in bello.
The way forward is for these issues to be considered by states and hopefully examined in the forthcoming CCW meetings.
Sifton, J. (2012, February 7). A Brief History of Drones. Retrieved from The Nation: https://www.thenation.com/article/archive/brief-history-drones/
Brooks, R. (2013). Drones and the International Rule of Law. Retrieved from Gerogetown University Law Centre: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2296&context=facpub
Mayse, C. (2011). Predator: the Remote-Control Air War Over Iraq and Afghanistan: A Pilot's Story Citation metadata . Retrieved from Gale Academic: https://go.gale.com/ps/anonymous?id=GALE%7CA260060544&sid=googleScholar&v=2.1&it=r&linkaccess=fulltext&issn=1044016X&p=AONE&sw=w
Paust, J. J. (2015). Part VI Emerging Areas?, Ch.51 Remotely Piloted Warfare as a Challenge to the Jus Ad Bellum. The Oxford Handbook of the Use of Force in International Law.
Jus in bello and jus ad bellum arguments against autonomy in weapons systems: A re-appraisal. (2017, October 31). Retrieved from Questions de Droit Internation: http://www.qil-qdi.org/jus-bello-jus-ad-bellum-arguments-autonomy-weapons-systems-re-appraisal/
Amoroso, D. (2017, October 31). Jus in bello and jus ad bellum arguments against autonomy in weapons systems: A re-appraisal. Retrieved from Questions of International Law: http://www.qil-qdi.org/jus-bello-jus-ad-bellum-arguments-autonomy-weapons-systems-re-appraisal/
Council, N. A. (2005). Autonomous Vehicles in Support of Naval Operations. The National Academic Press.
GGE, U. (2018). Draft Conclusions and Recommendations. 2018 CCW Group of Governmental Experts on lethal autonomous weapon systems.
Ignatieff, M. (2000). Virtual War: Kosovo and Beyonf. Macmillian Publishers.
Asaro, P. (2013). On banning autonomous weapon systems: human rights, automation, and the dehumanization of lethal decision-making. Cambridge University Press.
Patten, S. C. (2009). Milgram's Shocking Experiments. Cambridge University Press.
Ticehurst, R. (1997). The Martens Clause and the Laws of Armed Conflcit . Retrieved from International Review of the Red Cross: https://www.icrc.org/en/doc/resources/documents/article/other/57jnhy.htm#:~:text=The%20Martens%20Clause%20provides%20a,armed%20conflicts%20and%20natural%20law.&text=However%2C%20the%20Martens%20Clause%20establishes,dictates%20of%20the%20public%20conscienc
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (International Court of Justice 1996).
About the author: Ahan Gadkari is a third-year law student pursuing the BA LLB course in O.P. Jindal Global University. He writes for many think tanks and has worked with UNESCO. He has a keen interest in arbitration and international law.
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