CHAPTER 5 RECOMMENDATIONS AND CONCLUSION
5.2 Assessment of the Adequacy of IHL
Substantial technological advances have seemingly always caused instability in terms of the existing economic, psychological, institutional, cultural and social frameworks, and they have done so in particular for international and national laws, which are usually thought to support societal stability.674 Generally, it is desirable that regulatory systems such as IHL should be difficult to modify. This is because the constancy of laws often supports their coherence and legitimacy.675 On the other hand, when sudden transformative change takes place, the strengths of these essentially conservative bodies of law can very easily be considered vulnerabilities.676
672 See para 4.2.3 above.
673 Stohl and Dick The Arms Trade Treaty and Drones 11.
674 Allenby "How to Manage Drones: Transformative Technologies, the Evolving Nature of Conflict, and the Inadequacy of Current Systems of Law'' 439.
675 Allenby "How to Manage Drones: Transformative Technologies, the Evolving Nature of Conflict, and the Inadequacy of Current Systems of Law'' 439.
676 Allenby "How to Manage Drones: Transformative Technologies, the Evolving Nature of Conflict, and the Inadequacy of Current Systems of Law'' 439.
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One may therefore argue that although IHL may derive some strength from its stability, in the face of the development of complex technological military advancements such as drones, some flexibility is required from the law in order for it to remain adequate to performing its purpose.
Furthermore, it is widely recognised that IHL faces serious challenges, as has been pointed out in the preceding chapter. Often, this is understood to be as a result of a failure of compliance caused by the very nature of the irregular forces active in modern-day warfare.677 Due to this perceived lack of compliance, IHL is deemed by some authors to be ineffective or inadequate, both in terms of shaping behaviour and in adding to the broader goals of the international community.678 Legitimacy, effectiveness and compliance lie at the heart of this issue.
A further potential detriment, as mentioned above, is the fact that IHL seems to be constantly one war behind reality. Moreover, as can be gleaned from the above discussion, some of the challenges posed by drone warfare require the law in this regard to develop, especially where no provision is made for the regulation of a certain challenge, such as with the issue concerning the lack of transparency, or AWS. In view of the recent increase in the number of gross violations of IHL, the former chief executive officer of the Australian chapter of the ICRC, Robert Tickner, argued that IHL, as we well know it, is being challenged as never before in history.679
Hence, when we are confronted with the intricate challenges presented by the novelty of the use of drones in warfare, we are left to determine the adequacy of this body of law in regulating such challenges. Unfortunately, there are no established benchmarks for assessing the adequacy of IHL.680 However, it is held that a clear indicator of the inefficacy of a set of laws is the situation where there is not merely a lack of conformity between the prescribed and actual behaviour, but a failure to accede to the binding nature or validity of the rules themselves by way of
677 Clark et al 2017 EJIR 18.
678 Clark et al 2017 EJIR 19.
679 ICRC 2015 https://www.icrc.org/en/author/robert-tickner; Clark et al 2017 EJIR 2.
680 Clark et al 2017 EJIR 2.
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an ''unreasoning'' complete indifference to the rules, by a rational appeal to numerous and contradictory principles, or by a complete lack of rules within the law to govern certain problems with which it is faced.681
Very often, technologies such as drones are identified as the problem in this regard, due to the fact that the underlying complexity thereof presents itself as daunting.
Consequently, it is essential to understand and engage in the difficult reality of the challenges presented by the actual use of drones in order to potentially develop more appropriate regulatory frameworks.682 An effective method of doing so is to think about drones not as a unitary technology, but as an arrangement of possible responses to specific challenges, and in different contexts.683 Given the nature of most of the issues discussed above, it is clear that it is the nature of the use of drones in an armed conflict which is potentially problematic for IHL and consequently raises questions as to the adequacy of this body of law to address the challenges it is presented with.
Given the above reasoning and the challenges IHL is faced with, it is clear that assessing the adequacy of IHL, a body of law designed to govern armed conflicts, in regulating the unique challenges posed by the use of armed drones in warfare is an inconceivably intricate task. However, in an attempt to clarify the position, it is arguable that where IHL is unable fully to address an issue, it can be deemed inadequate to do so. This does not mean that it is inherently inadequate, or that the principles underlying this body of law are entirely ineffective in regulating the present challenges, but it simply implies that it requires some development in order to effectively regulate the issues it is faced with today. As can be seen from the discussion on the development of IHL, it is clear that where in the past IHL was lacking, it was subjected to modification. Therefore, the argument can be made that, in view of the vast challenges IHL is faced with regarding the use of drones in armed conflicts, in conjunction with the rapid development of the technology relating to the
681 Clark et al 2017 EJIR 2.
682 Allenby "How to Manage Drones: Transformative Technologies, the Evolving Nature of Conflict, and the Inadequacy of Current Systems of Law'' 439.
683 Allenby "How to Manage Drones: Transformative Technologies, the Evolving Nature of Conflict, and the Inadequacy of Current Systems of Law'' 439.
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future use of drones (such as the development of autonomous drones which challenge the foundational principle of IHL, namely, the ''human'' element) IHL should be developed in order to adequately address the complex issues it is faced with. This seems to be the general consensus in the international community, since various actors are currently engaged in negotiations regarding the regulation of the use of armed drones.684
Consequently, one can conclude that at the moment IHL is inadequate to regulate the challenges identified above – but this does not imply the demise of this body of law, since the situation can be remedied by adapting and adding to the current rules which comprise IHL.