Droning on about drones (I) – The framework
Updated on 06 March 2023
Ambassador Dumitru has thrown down the gauntlet on the issue of “lethal autonomous robots.” As Contrarian in Residence, I could not forego the challenge.
Ambassador Dumitru begins his two-part blog with a quote from the UN Charter to the effect that its aim is the progressive development and codification of international law. The term “progressive” suggests international law multiplying by committee until – in the fullness of time- its rules will cover the earth, and a secular version of Paradise on Earth will emerge. This is an unabashedly teleocratic view of the international community on the long march toward eutopia.
Declaring my jaundiced prejudice: if a teleocratic state is naïve, a teleocratic international community is doubly so, for it combines the weakest of governance (moral suasion) with the strongest teleology (traction is gained by declaring teleocracy “self-evident” and transcendental – a secular religion). The content of the UN Charter is all too often political emotionalism – secular opium for diplomats and international bureaucrats (the masses have long since lost faith in many of the Charter’s words).
Am I unduly dismissive? Ambassador Dumitru reports: “Human Rights Watch launched a study on Killer Robots and UNITAR organised a debate on the same issue. The study represents a comprehensive and articulated analysis of the complex relationship between a forthcoming generation of weapons and international law. (…) Christof Heyns, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, presented a study on The Lethal Autonomous Robotics and the Protection of Life.” where it is argued: “Killer Robots cannot fulfill three crucial principles of international humanitarian law, namely distinction, proportionality, and military necessity, and therefore ought to be prohibited.”
I recoil instinctively. This sounds like Al Capone asking a preliminary ruling from the US Supreme Court as to whether encasing victims in cement is likely to violate their civil rights. The highly charged moral issue of “ends of war” is elided or downsized to one of “efficiency”. The approach also involves shifting moral responsibility away from the effect of the act to intention; it yields the perpetrator the “moral high ground” – as NATO attempted in Kosovo.
“Distinction, proportionality, military necessity”: we might recognize the brainchild of the Kennedy-McNamara theory of “limited war”. “Its aim was not conquest but coercion; force would be used on a rationally calculated basis to alter the enemy’s will and capabilities to the point where “the advantages of terminating the conflict were greater than the advantages of continuing it.”
To make matters worse: taking (out of context) the idea of “preliminary ruling” by the EU Court of Justice, the UN Special Rapporteur has taken upon himself to utter rulings deduced from first principles – secular scholasticism: toys for the black-robed boys and girls. It is an intellectual game of empty shells. Presumably, his predecessor would have issued such a ruling on McNamara’s intentions in Vietnam. I can visualize US helicopters in Vietnam dropping leaflets containing such preliminary rulings prior to napalming villages.
War is war, and violence is violence. No legal comfort should be given to those involved in it that there is a “rational” and a “humanitarian” way of waging war. We may endure a “limited” war. We may appeal to the participants, in the name of humanitarian principles, to be as careful as the din of battle allows. Just do not declare it, before or after the fact, in any way compatible with humanitarian law.
This is just my gut reaction. The drone issue gives me the opportunity to ramble on about the broader context:
- This approach views the world of international politics as flat and static. It is naïve in thinking governments and other actors will obey the intent of international law like a billiard ball follows the trajectory imparted to it by the cue. Reality is dynamic: the outcome is likely to be counterintuitive. This will be the object of the next blog.
- The approach ignores the origins and purpose of wars and international conflicts. Without attempting to be exhaustive on such a complex historical issue, differentiations would introduce some much needed realism. I will introduce some in a third blog. The current approach endows jus in bello with an universal character which it does not have. It is a cultural artifact originally linked to war between extractive elites. It cannot be extended to all conflicts, let alone civil wars.
- Finally, I’ll examine the current renaissance of raiding as an alternative to war. It is in this context that the role of drones needs to be studied. This will be discussed in a further blog.
 For an early description of popular disillusion with the aims of the UN Charter see Harold ISAACS (1967) : No peace for Asia. MIT Press, Cambridge.
 According to Amb. Dimitru, this is a technology in the making. I’d suggest (only half in jest) that a symmetric learned discussion be carried out on “brain implants”, which are intended to alter soldiers’ behavior in the not too distant future, or the use of “serenics” in order to avoid combat fatigue. When do we expect rules against doping soldiers – from grog to mind-altering drugs?
 Barbara W. TUCHMAN (1984): The march offolly. From Troy to Vietnam. Ballatine Books, New York. Pg. 288
 Art. 234 EU Treaty (Nice Version):
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
 Eric A. POSNER (2009): The perils of global legalism. University of Chicago Press, Chicago.