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Vol. 12, Nº. 2 (November 2021-April 2022)

WAR DRONES: LEGAL AND BIOETHICAL CONCERNS

CESAR OLIVEROS-AYA

coliveros@ucatolica.edu.co

Lawyer. PhD in Bioethics. Master in administrative law and university teaching and research.

Research Professor at the Catholic University of Colombia, Bogotá, Cundinamarca (Colombia).

Abstract

This article aims to identify the points of tension byusing drones in military and/or war

activities, from the perspectives of international law and bioethics. From the analysis of

documents in secondary sources, it has been possible to elaborate a characterization of the

main aspects of controversy and conclude that the risk of damage in the use of these

artifacts must be subject to reduce human casualties and, for this, it is necessary to deepen

the harmonization of bioethical principles regarding the theme.

Keywords

Bioethics, International Humanitarian Law, Weapon, War, Artificial Intelligence.

How to cite this article

Oliveros-Aya, Cesar (2021). War drones: legal and bioethical concerns. In Janus.net, e-

journal of international relations. Vol12, Nº. 2, November 2021-April 2022. Consulted

[online] on the date of the last visit, https://doi.org/10.26619/1647-7251.12.2.2

Article received on June 8, 2021 and accepted for publication on August 14, 2021

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 12, Nº. 2 (November 2021-April 2022), pp. 18-27

War drones: legal and bioethical concerns

Cesar Oliveros-Aya

WAR DRONES: LEGAL AND BIOETHICAL CONCERNS

CESAR OLIVEROS-AYA

Introduction

In the first civilizations, war had a connotation of art, honor, and honor for the defense

of peoples, of nations, and the protection of those distinctive principles that summons

them. Since ancient times that assumed the character of art and, for this, it was based

on principles that, remotely, were the light of the ius ad bellum. Societies older than

Ancient Greece and Ancient Rome, considered that not every person could become a

soldier, only the best, the most skilled, those who assumed the training tending to fight

with the respect, dignity, and dedication that their political organization merited, had to

be chosen.

But the world wars came, and that practice took a radical turn. Technology made it

possible for war to be depersonalizing and one could speak of mass armies, replaceable

soldiers, generals that no longer faced combat on the battlefields, but hid in large

castles, directing military strategies as if they were a board game. All this made more

evident the gap that separates hierarchs from subordinates.

The consequence of the above was to formalize rights on how to wage war, discovering

that it was necessary to protect life as an essential right of the individual and, from

there on, to erect a compilation of universal rights, so that the idea of humanity would

again have a transcendent meaning.

Plausible but not admirable, the Western world gave rise to a new line of legal study

based on human rights as if it had discovered something not previously thought. Based

on rhetoric bordering on euphemism, without direct acceptance, what was done was to

admit the failure of law as a social science. Even today, it is insisted on without bowing

its head to the abuses committed.

However, just as a child who is warned, recommended, and prohibited certain

behaviors that are harmful to his/her safety, health and physical integrity, the human

being continues to ignore these minimum standards of planetary coexistence; mankind

continues to tempt the fate of coexistence and invent new artifacts to show how

creative the human being is in causing death and destruction of his fellowmen. In that,

humanity has shone brightly.

Article translated by Hugo Alves.

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e-ISSN: 1647-7251

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War drones: legal and bioethical concerns

Cesar Oliveros-Aya

Evolution has gone from hand-to-hand combat, to short,medium- and long-range sharp

weapons, to firearms in all categories, shapes, quality, size and material, each time

avoiding direct contact with one another. The atomic bombs were out of competition to

stop thinking about topics such as defense and neutralization, and, thus, show the

great creative capacity in making evident the skills of destruction, elimination, and

annihilation in all their splendor.

Curious tendency to avoid the individual, because the idea of combat ends up being

reduced to its minimum expression. In some way, it amounts to objectifying the other,

to ignoring the smallest detail that can establish some emotional sense for that one

who is hardly considered, more than an adversary or enemy, a hinance; a token to be

removed from the game board.

To that end, creativity has not ceased in its path to patent new mechanisms, artifacts,

devices, etc. that achieve greater security for those who activate them and, at the

same time, greater lethality for the objective (because in this sense, if they are

individuals, it is better not to allude to them as human beings).

Today, the problem is oriented to the application of artificial intelligence in armed

conflict and, in that context, the use of drones to achieve a much more effective

distancing when attacking and destroying a target.

Much has been said about regulating, limiting, and even prohibiting those weapons that

are not balanced and proportionate to the development of war... "humanize" the war,

as if at the point of euphemisms, the impact of the warlike act was diminished.

Consequently, within the framework of international law, the hard law issue has

allowed normative instruments to emerge in the light of normative instruments, such

as the Convention on Prohibitions or Restrictions on the Use of Certain Conventional

Weapons Which May Be Considered Excessively Harmful or to Have Indiscriminate

Effects (ACC or CCAC), signed in Geneva, Switzerland, on October 10, 1980,

understood as an extension to the Geneva Conventions of 12 August 1949.

From that perspective, questions arise linked to prudence for the use of these

unmanned weapons.Are they lawful? Do they guarantee the care of the civilian

population? How is liability handled in case of violation of the law? If it does not

expressly rule on drones, what is their treatment? If they are not used in conflicts,

what is the scope of domestic law?

In this regard, this paper investigates the problems involved in the use of drones as a

weapon and what is the main concern for them to be admitted from a bioethical point

of view. Therefore, it outlines as an academic objective to identify the scope of the

biolegal problem involved in the use of drones, their role as conventional weapons and

the effects they can cause to the individual, nations, and the world in general.

The textthus starts from the definition of the concept of drone, the questions that the

doctrine has made around it, and then exposes the disquisitions around its

characteristics and insertion in war scenarios, culminating with reflections taken from

film narratives that contribute to the debate in the sense of future concerns about the

implications and gaps derived from acceptable use in terms of relevance and

effectiveness.

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War drones: legal and bioethical concerns

Cesar Oliveros-Aya

Drones as military devices: more than an autonomy problem

The U.S. military has defined the drone as a vehicle that can travel by land, sea, or air,

but controlled remotely or even automatically. Thereis a big apprehension that it can

take weapons characterizations and, in short, once the human crew is suppressed, any

vehicle can be droneized. They may be subjected to telecommanding or autopiloting;

receive names such as"Unmanned Aerial Vehicle(UAV) or"Unmanned Combat Air

Vehicle"(UCAV),depending on whether it carries weapons or not. In this case, they have

received nicknames such as "aerial surveillance devices transformed into killing

machines", or "flying cameras, high resolution, armed with missiles" (Chamayou 2016:

18).

The use of unmanned aircraft for combat has its antecedent in 1849, when the Austrian

army attacked the city of Venice with a fleet of unmanned hot air balloons (Rushby

2017: 23); it is also necessary to consider the works of George Cayley in 1909, of the

Wright brothers, including the concept of pilotless aircrafts, as well as that of target

drone,and, since the 60s the military assumption of the invention under the acronym

RPV(Remotely Piloted Vehicle),modified in the 90s by UAV (UnmannedAerialVehicle),

then moving on to UAS(Unmanned Aircraft System)(Gertler, 2014).

From a technical point of view, drones are robots,as they can have a certain level of

autonomy in their movements; this aspect warns of new ethical problems for their

handling and insertion in different activities. If technology can increase this capacity, at

the same time the scope of decision-making that should be inserted into its software

will have to be questioned. Consider, for example, the risk of coupling the technology of

a virtual game to a weapon whose risk of getting out of control may be imminent

(Rossini and Gerbino: 8-9).

Regarding legal aspects, the topic is involved with the so-called Law of Air War, which

is part of the law of armed conflicts or Hague Law, as well as with Geneva Law or

International Humanitarian Law. The first originated at the First International Peace

Conference in The Hague (1899), where the world powers approached their gaze to the

dire possibilities of air warfare, an appreciation extended until the second event held in

1907 (Villamizar 2015: 93-94).

The first remote-controlled aircraft emerged just before World War I (Grossman 2018:

5), an event that was attempted to be avoided by the Allies by signing the Declaration

of 1907, while the major powers omitted to do so. This caused the aviation to be used

by the two sides to bomb each other since the regulations were mandatory for the

states parties if they faced each other (Villamizar 2015: 94).

In 1922 the Washington Conference on the Limitation of Naval Armaments was held in

which a commission of lawyers commissioned a Regulation on Air Warfare that never

entered into force. But it was in the heat of World War II that the waring sides

attempted to develop drones. Then, in Vietnam, Firebee drones entered the scene, at

the behest of the United States of America. It has been since the 90s and the beginning

of the 21

century, that it has been achieved, from computer science and remote

technology, to turn drones into the sophisticated weapons of today (Villamizar 2015:

94).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

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War drones: legal and bioethical concerns

Cesar Oliveros-Aya

Military drones are divided into explicit attack weapons and devices with

complementary military uses, the functional characteristics of which are similar,

namely:

"The engines of unmanned aerial vehicles emit a characteristic sound.

These contain bombs and missiles controlled by a laser, but their main tool

is contained in the nose. Inside it is a black box that communicates with a

satellite. This connection is what allows one to operate the drone over a

long distance. At the bottom are distributed three different cameras: one

infrared, one for long distances and the last for close-up views. Drones

transmit the images captured by their cameras, thus allowing them to

monitor territories or attack targets. If the UAV is hit or destroyed by the

enemy, the pilot is not in danger, as he is in an air base thousands of

kilometers away. It takes two human operators to guide a drone. The pilot

will oversee operating the device, and another one will oversee controlling

the cameras. If a target is located and it is necessary to attack, the pilot will

choose the weapon he will use manually. The operator points the target

with the laser, and the pilot shoots at the push of a button" (Fernández

2017: 6).

Unmanned technology is already widespread and will be very prolific soon. As it

expands and increases, the most advanced armies will manufacture drones of high

sophistication; on the other hand, states with lower capacity will gain new levels of

attack and surveillance and, inevitably, there will be more options for terrorists and

insurgents to get theirs (Grossman 2018: 5).

Therefore, in the current context, according to Kelsey Atherton fromPopular

Science,what is included in the concept of drone as a category alludes to any

unmanned and remotely piloted flying craft, ranging from something as small as a

radio-controlled toy helicopter, to the 32,000 pound or 104-million-dollar Global Hawk

(Kreps 2016: 7).

But there is confusion among artifacts that might well fit into that definition; starting by

stating that drones are getting smaller and amateur aircraft models have become more

sophisticated. For example, these can be equipped with first-person view (FPV)

capabilities in which a camera is mounted in front of the aircraft model and flown

through a video downlink displayed on a portable monitor or video. The moment this

FPV goes beyond the line of sight, the Armed Forces would likely consider it a drone

that would fall within its regulatory framework. However, operating within line of sight

does not mean that an aircraft is not a drone. Quadcopters are traditionally operated

within the line of sight and are commonly considered drones.

Another potential source of misperception is the difference between a drone and a

cruise missile. While the Missile Technology Control Regime (MTCR) considers cruise

missiles as a type of drone, they are distinct platforms. Although they can be confused

with cruise missiles, there are two differences between them:

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e-ISSN: 1647-7251

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War drones: legal and bioethical concerns

Cesar Oliveros-Aya

Table 1 - Based on studies by Sarah Kreps

Drones

Cruise missiles

Can be recovered

They are unidirectional systems

Ammunition is segregated and separated

Ammunition is integrated into its fuselage

In ranged attacks, their range is shorter

In ranged attacks, their range is longer

They are slower

They are faster

Likely to require operational bases

No operational bases required

They are not manned

Source: Sarah Kreps (2016: 8)

From these approaches, one of the great problems arises around the insertion of

drones in war. It is about how to harmonize these artifacts with International

Humanitarian Law and International Human Rights Law. Several informal meetings

have been held in May 2014 and April 2015, within the framework of the United Nations

Convention on Certain Conventional Weapons (CCAC), located in the city of Geneva, to

discuss this aspect that represents a wide legal vacuum that must be paid attention

without further delay (Del Valle 2016: 226).

Lethal Autonomous Weapons Systems (LAWS), as defined by the International

Committee of the Red Cross, are:

"Any weapon system with autonomy in its critical functions, i.e., a weapon

system that can select (search, detect, identify, track or select) and attack

(use force against, neutralize, damage or destroy) targets without human

intervention" (Queirolo 2019).

Despite this notion, it has been difficult for the international community to fully identify

the figure, especially since it alludes to "emerging technologies", but it has been

estimated that they have as a common denominator the ability to select and attack

targets "without ongoing human intervention, in an open environment, under

unstructured and dynamic circumstances" (Del Valle 2016: 228).

Similarly, in terms of classifications, autonomous weapons manage to be discriminated

against in three ways according to the human involvement that may exist in their

actions. In the following table, the English denominations are derived from Human

Rights Watch's interpretation and those in the second row correspond to the categories

used by the United States Department of Defense:

Table 2 - Elaborated from the studies of María Julieta Del Valle

Human-in-the-Loop

Weapons

Human-on-the-Loop

Weapons

Human-out-of-the-Loop

Weapons

Requires a human command

to select and attack targets

The system selects and

attacks targets, but under the

supervision of a human

operator

Can select and attack targets

without any human

intervention

They are semi-autonomous

systems

They are autonomous

weapon systems supervised

by humans

Fully autonomous weapon

systems

Source: María Julieta Del Valle (2016: 228)

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e-ISSN: 1647-7251

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War drones: legal and bioethical concerns

Cesar Oliveros-Aya

For Christof Heyns, Special Rapporteur of the Human Rights Council, these systems

have remarkable military advantages, as they:

- Offer greater protection of one's own armed forces (saving soldiers' lives and

preventing injuries).

- Multiply the force employed.

- Expand the battlefield (facilitate penetration behind enemy lines and can stay

in the theater of operations longer; much longer than people).

- Have a shorter reaction time than humans.

- Will never act out of panic or revenge, or racial hatred...

- Will be able, in the future, to employ less lethal force, avoiding unnecessary

deaths; hence, technological development can offer, as alternatives, the

immobilization or disarmament of the objective (Gutiérrez and Cervell 2013:

29-30).

As it has been observed, although the use of unmanned aerial vehicles in the military

field is not new, the use of drones today obeys the idea of technostrategy, promoted

since the Cold War, under the premise of reducing fatalities according to the US anti-

terrorist policy (Villamizar 2015: 91).

The legal controversy around these artifacts is becoming more important, and

especially in that it is argued the need to define a normative support that is clear, valid,

and effective as soon as possible, given the enormous gap that the subject implies in a

world where asymmetric conflicts are more frequent.

For Jochen Kleinschmidt, beyond orienting the discussion towards autonomy, the

controversy must be addressed in other directions, while drones "are not today the

most autonomous weapons systems in use" (2015: 21).

Considering this, the divergent positions have not been long in coming; for example,

for Judge Lord Thomas Bingham, drones are equivalent to anti-personnel mines and

therefore their recognition is not admissible; on the other hand, in the framework of

the Annual Congress of the American Society of Law,held on March 25, 2010, Harold

Koh, legal advisor of the Department of State, supported argument in favor (Villamizar

2015: 92).

In this constant tension, international law is subjected to the interpretative swing

without there still being an environment of legal certainty that clears the uncertain

panorama. Therefore, a third position has been guided by Peter Maurer, president of

the International Committee of the Red Cross (ICRC), which defends the legality of

drones used as weapons, by assimilating them to those that are launched from

helicopters or fighters.

It happens that the problem of illegality lies in the contextual study of operations under

the framework of IHL, with respect to which it is necessary, of course, to differentiate

between combatants and civil society, as well as the respective assets and this is done

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War drones: legal and bioethical concerns

Cesar Oliveros-Aya

with caution; likewise, it is necessary to cancel attacks that cause excessive or

disproportionate damage, as well as to avoid with the transport of unconventional

weapons and give greater preference to those that improve the accuracy of the attacks

in order not to affect collateral damage (Villamizar 2015: 92, 98).

A tenuous doctrinal consensus on the subject has been recognized, highlighting the

prevalence of the principle of proportionality, the protection of civil society and the

responsibility of the chain of command, as fundamental legal axes to give clarity to the

thorny study on the desirability of this modality of armament.

Concerns from bioethics

In accordance with the fundamental principles of bioethics, the problem assumes a

tension between the adequate and the inadequate, especially in the case of implications

derived from the sovereign expression of states.

It is not possible to estimate that drones will disappear from the war scene; they are

here to stay, and, in this sense, they emerge as considerable weapons in future

confrontations that, of course, there will be.

However, it is necessary to assess the relevance of a moderate use of drones, about

these potential damages that they may cause.

Bioethical interpretation is usually oriented from the concurrence of four essential

principles: non-maleficence, beneficence, autonomy, and justice. As it is known, its

correspondence with dilematic aspects is usually moderate. In the above case, its scope

is complex, especially because of the nuances involved in the possibility of causing

damage.

For example, in the face of non-maleficence, the duty is to avoid any attempt on life. In

this sense, the use of drones in war conditions would be oriented, in extreme cases,

towards the affectation of material things or goods.

Regarding charity – which in a conflict is paradoxical – it is reflected in the prohibition

of the use of force that finds its exceptions in "the authorization of the United Nations

Security Council to carry out coercive action and the legitimate defense of States"

(Ferrari, 2021: 111).

Likewise, justice and autonomy swing on the relativity of events insoil, as they are

limited to the sovereign vision of states, an aspect that is a principle, but, at the same

time, segregates the factors of incidence of the decisions to be taken.

It is not easy to bring up a precise approach to these parameters of duty, because in

the scenario of warlike conflicts, irrationality makes possible any consequence to the

detriment of the proper condition of humanity, especially when it is evident how

"international law has been brewing in function of war" (Oliveros, 2020: 131).

In the international regulatory landscape, the states that are at the forefront of the

regulation of these devices are Australia (an essential reference around private

messaging), Ghana (with the most extensive network of drones oriented to social

services), China (in terms of health care, derived from the Covid-19 pandemic), USA

(which, despite its unseated arms race and the use of drones in military activity since

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 12, Nº. 2 (November 2021-April 2022), pp. 18-27

War drones: legal and bioethical concerns

Cesar Oliveros-Aya

the 50s, has also used them for citizen protection purposes) and Spain, which in terms

of privacy and citizen security is based on Royal Decree 1036 of 2017, issued by the

State Aviation Safety Agency (Ortiz and Sánchez 2020: 19). These scopes emphasize a

non-war use, since they are oriented towards the benefactor purpose that underlies

technology, an aspect that it seeks to improve the living conditions of nations.

The inclusion of drones in this scenario opens multiple possibilities, not only in terms of

promoting asymmetric warfare, but also in that, probably, the affront towards human

beings begins to diminish. There is a need for a collaborative correspondence between

states within the complex scenario of international relations. To do this, it will be

necessary to deepen the scope of artificial intelligence supported by prudence,

restraint, and caution. Maybe it is asking a lot, but it is an urgent need to consider.

Conclusion

The drone, as an artifact that can be used for military tasks and military confrontations,

has become an important option within the tensions that move states to demonstrate

their power. One of the main concerns of the use of these is the ability to locate targets

at a distance and, even more, the detection subject to an uncertain and, probably, wide

autonomy that can generate an imbalance in the abuse of that power.

However, it is estimated that they can also contribute to reducing the deaths of human

beings in war, given the impersonal and remote-controlled character that identifies

them. Under that gaze, its military incursion is susceptible to justification.

Despite the hermeneutic difficulties involved in studying the problem from the

perspective of bioethical principles, it is necessary to formulate new criteria that involve

an appropriate use of this technology and thereby avoid catastrophic events to dignify

the human condition over war pretensions, to comply with greater rigor, the scope of

courtesy, cooperation, and reciprocity, as the basis of international law.

An insistent and permanent call is needed to the international concert of relations

between states, to effectively regulate the use of drones to put technology for the

benefit of humanity, e.g., in citizen protection work, assistance in health services,

messaging work, etc.

In this vein, emphasize the responsibility that underlies the nature of the positions held

by heads of state, heads of government, military, political and social leaders to avoid

the trivialization of violence whose risks tend to deify Human Rights to the point of

trivializing life itself while individuals are considered as mere pieces in war chess

games.

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Cesar Oliveros-Aya

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