On July 16th, the Dutch Advisory Committee on Issues of Public International Law (CAVV) offered its advice concerning a possible deployment of armed drones to the Dutch Ministry of Foreign Affairs.
On 5th January, the Dutch Minister of Foreign Affairs, Frans Timmermans asked the Advisory Committee to investigate the legitimacy, lawfulness and allowed circumstances of the use of armed drones in the context of international law. NATO allies have adopted the (unarmed) drones as a new means to combat security challenges in the 21st century. Nevertheless, these ‚Äòrisk-free‚Äô tools of warfare remain highly controversial and a politically sensitive topic.
The use of (armed) drones by the U.S., primarily in Yemen and Pakistan, remains under heavy scrutiny by international human rights organisations. The UN High Commissioner for Human Rights, Navi Pillay, has requested investigations into U.S. drone strikes in Pakistan as they likely violate human rights. Hence, the handling and usage of drones raises questions of ethics and lawfulness, and remains a controversial topic in political arenas around the world.¬†Timmermans has deemed further investigation necessary and will use this advice as the base for an international debate on the use of armed drones. The Dutch Minister would like the Netherlands to contribute in a constructive manner to the world-wide discussion.
The Advisory Committee concerned with the legal implication of drones is an independent advisory body to the first and second chambers of the Dutch Parliament. In its advice, the Committee has looked into the legal bases of using violence and applicable legal frameworks for the use of armed drones (e.g. humanitarian law of war and human rights) among others. The Committee is convinced drones are not to be considered as illicit weapons, when applied in existing international legal frameworks.
The Committee stressed: ‚Äòarmed drones are allowed to be deployed outside domestic territory in case of a recognised legal basis‚Äô, as enshrined by international law. For example, if a binding UN mandate would authorise violence, and the deployment of armed drones is deemed desirable, operating drones is¬†not¬†unlawful. The Committee goes even further to state that a specific mandate for the usage of armed drones is not considered necessary. An unmanned armed drone is equal to a manned fighter jet or attack helicopter.
The Committee also looked into the legal aspects of the targeted killing outside the context of an armed conflict. Especially considering the ongoing critique of the United States‚Äô operation of drones in high volumes as a tool for the precision killing of (potential) terrorists. According to the Committee, the deployment of armed drones is regarded as lawful ‚Äúonly in the most exceptional situations‚Äù. These situations are limited to the protection of individuals or third persons in case of direct and imminent violence; prevention of an escape of a suspect of an exceptional serious crime; or, in case of precipitating a violent uprising. However, violence should always be a last resort, the Committee explains.
Besides legal implications, the Committee also recognised that an ethical question relating to the ¬†deployment of drones remains. The so-called ‚ÄòPlaystation phenomenon‚Äô is cited in the report. This ‚Äòphenomenon‚Äô supports the critique that less psychological hesitations and constraints in using violence underpin drone attacks, due to the distance between the drone operator and the operational area. This is a criticism that has previously been leveled against helicopter gunship pilots. Nevertheless, as the Committee argued, the phenomenon is not currently supported by sufficient scientific evidence or by legal relevance.
The Committee advises in its document to adhere to conventional and customary international law, and not to stretch the use of drones to the limit in the case of the dynamic and changing character of modern warfare. Lastly the Committee has argued that current international law is sufficient to regulate and legitimate the use of drones.
Currently, the Dutch armed forces solely deploy unarmed drones for missions combating piracy in Somalia. Additionally, police forces operate surveillance drones over domestic airspace. Dutch security forces have not deployed armed drones, however Minister Timmermans does not exclude the possibility of the future use of armed drones to protect Dutch assets.