CHAPTER 4 ASSESSMENT OF THE ADEQUACY OF IHL IN REGULATING THE
4.2 Drone Warfare Challenges
4.2.1 Drone Warfare Challenges and the Fundamental Principles of IHL
4.2.1.2 Humanity
The principle of humanity, also commonly referred to as the principle of unnecessary suffering, has at its core the aim of minimising the suffering caused during the conduct of armed conflicts.455 Thus, once a military objective has been attained, the subsequent cause of harm or suffering may be regarded as unnecessary.456 The use of weapons to cause harm or superfluous injury which is unnecessary in relation to the military advantage gained therefrom is prohibited.457 One may therefore glean
450 See para 2.4.2.1 above; Dugard International Humanitarian Law: A South African Perspective 528.
451 Nuclear Weapons case 78.
452 Vogel 2010 Denv J Intl L & Pol Y 115.
453 See para 2.4.2.1 above.
454 Chengeta Are U.S Drone Targeted Killings within the Confines of the Law? 61.
455 Blank 2012 U Pa J Intl L 682.
456 Blank 2012 U Pa J Intl L 682.
457 Kolb Advanced Introduction to International Humanitarian Law 79.
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that the goal is to minimise the amount of suffering that cannot be justified by a military purpose.
Drones are regarded as legitimate weapons, and they are capable of being used in ways which do not cause unnecessary harm or suffering.458 Armed drones make use of Hellfire missiles, and other similar precision guided munitions, and are therefore similar to weapons carried by piloted aircrafts.459 Due to the fact that drones are capable of extensive surveillance and loitering measures, and employ precision- guided ammunition, they are regarded as particularly capable means of combat.460 Armed drones can be directed towards legitimate military objectives with relative ease, and their effects can be managed so as to be focused on attaining a specific military objective only.461
Consequently, they are capable of adhering to the standards set by article 51(4) of AP I.462 This is especially true in view of the fact that drones bear are able to track and follow a military target out of sight for hours and days before it launches an attack.463 Drone operators are therefore afforded with the capacity to make a decision regarding the time and place of a strike based on advanced surveillance information, and are therefore capable of minimising civilian deaths and damage.464 As with other principles, drones do not inherently present problems to the principle of humanity, but it is instead the way in which they are used by military
commanders and drone operators that could lead to some challenges. Some authors argue, for instance, that as drone operators are both physically and emotionally removed from the battlefield, the possibility of their causing excessive harm is therefore greater.465 This is referred to as the ''PlayStation mentality" towards killing targets, and it is held that their emotional distance from the consequences of their
458 In fact, drones offer significant strategic advantages to states, especially in view of their precision capabilities and the low risk posed towards the militant operating the drone; Pretorius Armed Drones: Transparency and Accountability under International Law 1.
459 Blank 2012 U Pa J Intl L 686.
460 Blank 2012 U Pa J Intl L 687.
461 Blank 2012 U Pa J Intl L 687.
462 Blank 2012 U Pa J Intl L 687.
463 Blank 2012 U Pa J Intl L 687.
464 Blank 2012 U Pa J Intl L 687.
465 Chengeta Are U.S Drone Targeted Killings within the Confines of the Law? 46.
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actions may result in those in control of drones not being truly touched by a consciousness of our common humanity.466 In other words, the direct visual emotional human element is removed when the drone is used.
However, the contrary is true. Drone operators have access to a broad spectrum of surveillance and reconnaissance footage, as well as a real-time view of the battlefield, and have a birds-eye view of the destruction a strike could cause. This could be considered a very close and personal view of a strike, especially in comparison to the view pilots of manned aircraft have as they speed past their objectives, and of the subsequent damage caused by their strike, in mere seconds and from an incredible height.467 Hence, where drone operators have to peruse surveillance footage from the drone for hours or days at a time before a strike is initiated, and they have a personal view of the strike and the ensuing harm and suffering they have caused, it is arguable that they might have a heightened sense of humanity in this regard.468 The fact that the drone operator is far removed from the battlefield is irrelevant, since the fact that drones allow for targeting from a safe distance is similar to the circumstances in which snipers target their enemies, for instance.469 Consequently, due to the advanced nature of drone capabilities, drone operators could potentially be capable of making decisions to strike based on advanced contextual information. This ensures at least some respect for the principle of humanity, and in some way helps the drone operators to be conscious of the humanity of their targets.
As can be seen from the above, no significant challenges could be associated with the use of drones in relation to the principle of humanity, save for when the desired goals are not proportionate to the means through which the goals are attained.
466 Alston "Use of Force during Armed Conflict" 57; Chengeta Are U.S Drone Targeted Killings within the Confines of the Law? 46.
467 Abizaid and Brooks Recommendations and Report of the Task Force on US Drone Policy 25.
468 Moreover, it has been held that drone operators are especially susceptible to post-traumatic stress disorder after a drone strike: they are often required to undergo prolonged surveillance of their targets, seeing them partaking in their daily routines and way of life, before they are required to eliminate them; Abizaid and Brooks Recommendations and Report of the Task Force on US Drone Policy 25.
469 Abizaid and Brooks Recommendations and Report of the Task Force on US Drone Policy 25.
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