Use of Drones and Global Security: Implications Under International Law

The recent practice consisting in the use of drones in combat operations against non-state actors has provoked a large debate among international actors and legal scholars. Considered a non-traditional instrument of the use of force, the first issue of concern regards the ius ad bellum, which is the legal grounds of recourse to force and, on the other side, the ius in bello which explains the modalities of the use of force, once an armed conflict already exists. For these reasons, beside the fulfillment of the criteria established by art. 51 and Chapter VII of UN Charter on the use of force, the use of drones should also, in the context of legitimate armed attack, fully respect the criteria imposed by humanitarian international law such as proportionality, necessity and immediacy. With regard to self-defense, the use of drones under international law raises several legal questions mostly related to the pre-emptive or anticipatory nature of the use of force. Under current conventional and customary international law, the pre-emptive use of force is severally prohibited and thus, considered a violation of art. 2 (4) of the UN Charter. Self-defense, in order to be considered in conformity with art. 51 of the Charter, could be exercised in anticipatory way if an armed attack of the counter-part has already started. Outside the cases of self-defense and SC authorization, the use of drones (as a form of use of force) could be acceptable only in case of express territorial state consent. In the areas outside the combat zone (where ius in bello applies) the use of drones is not lawful. In these cases applies enforcement measures law and the drone targeted killings are to be considered “extra-judicial killings”. For these reasons, the practice of the use of drones in different areas of the world not involved in an armed conflict contrast with current international law and compromise the achievement of global security.