Ashutosh Anand and Himanshu, both first year students at the National University of Study and Research in Law in Ranchi, India, analyze the efficiency of legal frameworks that regulate drone warfare by non-state actors…
Between Saturday night on June 26 and the early hours on Sunday, June 27, two blasts rocked the high-security technical sector of the Indian Air Force (IAF) Station in Jammu. Sources reported that an IAF patrol squad witnessed two low-flying drones drop two Improvised Explosive Devices (IED). Two IAF personnel suffered minor injuries in what is most likely the country’s first drone attack on a defense facility. Authorities later confirmed that the incident was a terror attack.
This drone attack spurred debate among those worried about such further attacks on military assets or other civilian locations, such as airports and crowded public places. In recent times, a rising number of states and armed non-state actors (ANSAs) are using armed drones to carry out strikes, both inside and outside of armed conflict zones. These drone attacks have severe humanitarian repercussions for civilians. For instance, the world has observed a “significant growth” in the combat use of civilian drones in Yemen, Syria, and Iraq.
According to a data estimation based on research undertaken in 2019 by various Indian security agencies, around six lakh uncontrolled drones of all sizes and capabilities exist in India, and any of them could be exploited by disruptive entities to conduct a nefarious operation. In light of the above incidents, it is pertinent to analyze and identify the loopholes in laws related to the use of drone warfare by non-state actors, especially against civilians.
Lacunae in International Laws
International law does not directly regulate the use of armed drones. Their usage, however, is regulated by international law’s general principles. An armed drone shall not be considered a weapon in itself but rather a platform used to transport a weapon. The methods of warfare, including weapons, weapon systems, and weapon platforms, are covered under the International Humanitarian Law (IHL). Therefore, the IHL regulations govern the use of armed drones as a method of warfare.
The principle of distinction (as stated in rule 1 of the IHL) obligates the parties to engage with only military targets. Furthermore, the principle of proportionality (as stated in rule 14 of the IHL) forbids such attacks on military assets, leading to loss, injury, or damage to civilian life and property, which would be grossly disproportionate to the concrete and direct military advantage expected.
However, as exemplified by the 9/11 attacks, or the Mumbai attacks of 2008 to name a couple, the world has seen a plethora of attacks in which the terrorist’s prime objective is to take civilian lives. As terrorist organizations are not a state entity, they are not obligated to adhere to international regulations that safeguard civilians from arbitrary lethal actions in cases of violence or war. Moreover, there is an absence of any international law that explicitly regulates drone warfare by a non-state actor.
Furthermore, a universal legal definition of terrorism in international law is lacking. Several legal systems and government entities offer distinct definitions of terrorism, but governments have been hesitant to create a universally accepted and legally enforceable definition. Therefore, on the international platform, there may arise an ambiguity to include a non-state actor in the ambit of “terrorism.” The Indian Prime Minister Mr. Narendra Modi too, on various occasions, has urged the U.N. to define terrorism to prevent the U.N. from losing its significance.
The Wassenaar Arrangement and the Missile Technology Control Regime (MTCR), which contains existing international frameworks for regulating and controlling the proliferation of weaponized technology, including UAV systems, are also ineffective in today’s dynamic era. For instance, the MTCR is only applicable to member states. Moreover, countries like China, Pakistan, and Iran, which are infamous for weapon proliferation, are not members of the Wassenaar Arrangement or the MTCR.
With no universal definition of terrorism and a lack of explicit and concrete laws on drone warfare for non-state actors acting against the civilians in international law, it becomes complex and challenging to regulate and counter drone terror acts that can inflict severe civilian damage.
The Cavity in Indian Regulations
India recently recognized the need for strict and urgent regulations of armed drones. Hence, the government formulated a National Drone Policy issued by the Directorate General of Civil Aviation (DGCA) in 2018, which regulated remotely piloted aircraft (RFA). However, the policy was limited to provisions for restricted zones and licensing of drones only. A fresh draft superseded the rules in 2020 and ultimately, came the Unmanned Aircraft System(s) Rules 2021, which extended the ambit of the aircraft that fall under the rules along with some new regulations. However, these rules apply to Unmanned Aircraft System (UAS) registered in India only and not to any enemy aircraft. The point to note here is that the rules presuppose that the drones used in terror acts will be registered in India, thereby excluding all the unregistered drones from the regulatory framework.
Strictly speaking, drone warfare was more sincerely dealt with in the National Counter Rogue Drone Guidelines of 2019 (NCRDG), citing threats from UAS. The guidelines suggested a Counter-Unmanned Aircraft Systems (C-UAS) plan, which shall be deployed in three different models. The first and most secured being the full-scale model that will be deployed to protect crucial assets of national importance, such as the Rashtrapati Bhavan, Parliament House, significant airports of the nation, and nuclear plants. The subsequent models, i.e. the mid-segment model and the basic model, will be deployed to protect metro airports, oil refineries, ports, power plants, and state secretariats, important official premises, and monuments of national importance, respectively. The document also suggested anti-drone technologies to safeguard the above-mentioned assets, including sky fencing, drone guns, advanced test high energy assets (ATHENA), drone catcher, and SkyWall 100.
What is being called an exhaustive document by field experts, likely has a major loophole in implementation and compliance. The longstanding guidelines have seen little to no implementation since its formulation. The Border Security Force, responsible for preventing such attacks along and near the border region, has been asked by the Home Ministry to keep a vigilant eye on the drones around the border. But due to the lack of procurement of drone countering technology, the BSF and other security agencies find it difficult to disable these rogue aircrafts. Additionally, previously when aerial infiltration and smuggling activities were rising along the borders, the BSF informed the ministry about its inability to monitor drone movements due to a lack of technological support.
Moreover, the NCRDG does not provide any information on how the C-UAS will distinguish between legitimate and illegitimate drone use, as the model is prescribed to be deployed in public places where civil and commercial use of drones are already permitted under Unmanned Aircraft System(s) Rules, 2021. For instance, a “legitimate” pizza-delivery drone can be used to drop explosives concealed in the same pizza box, or an “illegitimate” drone can be disguised in a swarm of drones being used in a public gathering to bomb a concert. Further, the law is silent on the theft and subsequent unlawful use of a registered drone. Both the cases pose a significant threat to “civilian” lives as they fly in open skies over populated areas.
Further, suggestions were made in the NCRDG to formulate a legal framework for “authorized” use of the C-UAS system that will be equally in accordance with the privacy laws and public safety as it is with national security. The successful implementation of these systems to counter rogue drones has many roadblocks in its way in the form of legal issues. For example, there will be privacy concerns from the new surveillance and countering system, as modern-day UAS systems are equipped with high definition cameras and advanced voice recorders. This may pose an issue as India’s Apex court upheld the right to privacy in the case of K.S. Puttaswamy v. Union of India in 2018.
However, neither the new Unmanned Aircraft System(s) Rules, 2021 nor any other legislation includes any provision that deals with such legal issues. Thus, these government issued guidelines and circulars need to be converted into a separate legal and policy instrument that addresses the loopholes mentioned above, and that is binding on the government. Only then can the gaps and shortcomings of the proposed framework, partially technological and partially legal, be overcome to prevent the anticipated drone warfare.
Ashutosh Anand and Himanshu are first year BA. LL. B. students at the National University of Study and Research in Law in Ranchi, Jharkhand, India.
Suggested citation: Ashutosh Anand and Himanshu, Jammu Drone Attack: Analyzing Current Legal Frameworks that Regulate Drone Warfare by Non-State Actors, JURIST – Student Commentary, July 13, 2021, https://www.jurist.org/commentary/2021/07/anand-himanshu-regulating-drone-warfare/.
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