Human Rights Challenges Posed by Drone Operations and Countermeasures
July 17,2022   By:CSHRS
Human Rights Challenges Posed by Drone Operations and Countermeasures
XU Shuang*
Abstract: Drone strikes are increasingly used in counter-terrorism operations and other military fields, and drones are heralded as the “future of war.” Meanwhile, the use of drones as weapons also brings a series of human rights challenges, mainly reflected in the infringement upon or serious threat to basic rights such as the right to life and the right to a fair trial, leading to a series of imputation problems. In fact, international human rights law is binding on States parties, whether in peacetime or in armed conflicts, and the protection of human rights it provides continues. This requires relevant entities to incorporate this new type of military use into regulation as soon as possible. Meanwhile, based on the principle of respecting national sovereignty, they should abide by the principle of distinction and proportionality, prevent the violation of human rights through abuse of armed drones, reinterpret relevant concepts and principles, gradually develop international standards for the use of drones as weapons, fairly and reasonably determine the responsibilities of various parties, and ensure that the use of new technologies does not negatively affect human rights protection.
Keywords: drone attack · right to life · right to fair trial · principle of distinction 
Unmanned Aerial Vehicles (UAVs or drones) refer to unmanned aircraft operated by remote control equipment and in-flight programmed control devices.1 They can be mainly divided into pre-programmed drones and remote-controlled drones.2 In recent years, armed drones have been widely used by an increasing number of countries to launch air strikes against terrorist groups, and they have begun to become the most valuable military weapons in asymmetric warfare. This has led to intense debates over their use as military technology,3 as some argue they pose a great threat to human rights protection. For example, the United States carried out 567 counter-terrorism strikes using drones during the Obama administration, which caused 387 and 807 civilian casualties.4 Among them, women and children. This is of great concern to the international community. The major countries and parties involved in the use of drones have so far failed to reach a consensus on the integration of principles, norms, and interpretations of the norms of international law to address human rights violations caused by the military use of drones.5 At present, only the Convention on Cluster Munitions regulates the firing of cluster bombs from drones by prohibiting “explosive bomblets that are specifically designed to be dispersed or released from dispensers affixed to aircraft”; there are no other rules of international law that specifically regulate the way drones participate in battles. This is inconsistent with the rapid development of drone technology and the increasingly widespread military use of drones, which not only affects the strength of the protection of basic human rights, such as the right to life and the right to a fair trial but also creates hidden dangers to the peace and security of the international community and the development of the order of international law. It is therefore imperative that the academic circle strengthens their research to provide a path of understanding and intellectual reference for various parties to act, cooperate, have constructive dialogue, and form new rules.
At present, the discussion on the military use of drones in jurisprudence is mainly focused on the research of international law and military law scholars. Research in the field of human rights jurisprudence is still in the initial stage of development. Kevin Heller questions the legality of the use of drones in counter-terrorism operations, arguing that counter-terrorism operations such as “signature strikes,” which rely heavily on drones, must comply with all existing international human rights law and international humanitarian law, and calls for international legal norms to have a comprehensive review of the use of armed drones.6 Scholars, represented by Heyns, have spoken out against the violation of the right to life through the military use of drones, stating that the use of armed drones in all circumstances must be consistent with the use of force under international human rights law and international humanitarian law. Their research contributed to an expert seminar on “Armed Drones and the Right to Life.”7 Some humanitarian law scholars have discussed how armed drones should identify targets when carrying out their missions to determine the choice of legal norms.8 Public international law scholars such as Wang Meili and others also discuss the controversial issues concerning the military use of drones in relation to the law of war and international humanitarian law.9 In addition, other research in China on the military use of drones has come from military law scholars, who argue that drones, as a new military technology development, pose many legal dilemmas that are in urgent need of a breakthrough.10 In general, there is no systematic analysis of the human rights challenges posed by the military use of drones, which reflects the need and urgency to strengthen research on this issue.
This paper attempts to start from the challenges the use of drones as weapons in various complex situations present to human rights protection, so as to examine what impacts and violations of human rights have been caused, how to allocate responsibilities among the relevant subjects, and the basic principles to be followed in the military use of drones. In addition, these issues are used as guides in reconstructing the relevant rules and order of international law and ensuring that the new technology does not have negative impacts on human rights protection. This is a comprehensive and systematic exploration of the use of drones as weapons in the human rights law dimension.
I. Trends in the Use of Drones as Weapons
At present, as a new-type weapon representing top technology, drones are changing the traditional way of warfare and have become a technology that countries are competing to take the lead in due to their unique advantages of zero casualties on the user side and high efficiency. Drones can carry a wide range of combat equipment, including weapons and other things, and carry out unmanned strikes, thus require no combatants on the battlefield and making it possible to launch long-range attacks from thousands of miles away and to carry out small-scale “surgical” strikes quickly. Statistics reveal that it takes at least five years to train a pilot who can implement a flight mission independently and who may be killed at any time during the mission. The fact that the drones are unmanned makes the strike completely casualty-free for the user country. Meanwhile, the precision and speed of the drones’ combat capabilities can bring a strike to an end even before the enemy can react. They are thus viewed as ideal for fighting terrorists. Besides, drones ensure high operational efficiency. Drones are small, agile in flight, stealthy, and versatile, capable of reconnaissance, carrying weapons, and refueling fighter jets, making them a versatile combat platform. In addition, drones can fly long distances at ultra-low altitudes, with low requirements once in the combat environment. Meanwhile, they do not get fatigued during long flights, thus being able to surpass the limits of “casualties” and “fatigue.” In these terms, drones are the “new favorites” of militaries because of their low cost, high efficiency, and flexibility, which enables them to play increasingly diverse roles in the military field.11
Drones have been used by the United States to carry out hundreds of strikes against terrorists for over a decade in Afghanistan, Yemen, Pakistan, Somalia, and other countries. In 2019, the US Department of Defense spent approximately USD 9.6 billion in financial resources on drone systems and related areas, an increase of 28 percent over the previous year.12 At this stage, the United States is gradually abandoning the traditional combat methods of deploying ground troops to counter terrorism and overthrow hostile regimes and increasing its tendency to use drones and other non-traditional combat methods. Other countries, such as the United Kingdom, France, Germany, Israel, and other major military nations have also made heavy investment in developing drones and have formulated defense programs accordingly.
II. Human Rights Violations or Threats Posed by the Use of Drones as Weapons
The unique advantages possessed by drones make geographical barriers no longer resistant to their use. Meanwhile, drones have entered the perspective of widespread interest and concern in human rights jurisprudence. The increasing number of terrorist strikes and religious extremist activities in recent years has posed a continuing threat to national security, causing the international community’s main concern in the area of security to shift from relatively simple traditional security issues to extremely complex non-traditional security issues.13 Some major military states have started to use armed drones to take military actions against non-state actors such as terrorist organizations that launch attacks. But in the course of their military missions, drones may violate international human rights conventions and cause casualties among non-military personnel, including civilians, making them one of the internationally recognized items threatening the right to life. Drone strikes have “killed in one move” terrorist suspects and permanently deprived them of a fair trial and a chance to defend themselves. Besides, drone strikes change the human environment. To find and identify targets, drones often hover at low altitudes for long periods and at irregular intervals. This on the one hand is a threat to human life and on the other hand can result in psychological fear among the local population, making it difficult to maintain a peaceful life and even lead to economic and social disorder, which further makes it impossible to safeguard the realization of other fundamental rights. A joint study by Stanford University and New York University on “Human Rights and Conflict Resolution” found that many women and children in civilian areas of Pakistan subjected to frequent drone “surveillance” cruises suffer from post-traumatic stress disorder (PTSD),14 with recurring stress, panic, and anxiety. Afraid of hearing mechanical buzzing sounds, they do not dare to go outside. Their right to health has been violated and their access to education is lost in reality. The following discussion will focus on the possible violations of the right to life and the right to a fair trial caused by the military use of drones.
A. Right to life
As a prerequisite for the enjoyment of all rights by individuals, the right to life is guaranteed by both international human rights law and humanitarian law.15 Contemporary international human rights rules are a system of treaties and customs constructed around the protection of the life and human dignity of the individual. Article 6 of the International Covenant on Civil and Political Rights establishes the criteria for protecting the right to life: first, the right of everyone to live in safety, and no organization or individual may unlawfully deprive another human being of life; second, the right to exclude danger, i.e. the right to remove the danger of unlawful attacks on life by others; and third, the right to change dangerous circumstances that threaten the safety of life. These standards are usually characterized by absolute rights and are nonderogable even in a state of emergency.16 Drone strikes pose a huge threat to human rights, the first and foremost being the right to life under Article 6 of the International Covenant on Civil and Political Rights.
1. The use of drones as weapons and the right to life of civilians
In the aftermath of the September 11 terrorist attacks on the United States on 2001, the UN Security Council adopted successive resolutions 1368 and 1373, calling on States “to combat by all means threats to international peace and security caused by terrorist acts, and recognizing the inherent right of individual or collective self-defense in accordance with the Charter.”17 Through these resolutions, it can be seen that the United Nation’s use of the right of self-defense of States has subtly changed in a world situation transformed by terrorist attacks. In other words, it recognizes the exercising of the right of self-defense against terrorist activities by non-state actors.18 In addition, the United States, Israel, and other countries have argued that, because some countries cannot control or condone terrorist activities on their territories, it is appropriate to allow victim States to take over the fight against non-state actors when these countries are “unable or unwilling” to take effective action to control terrorist organizations on their territory, so as to exercise their right to legitimate self-defense.19 After the September 11 terrorist attacks, the United States has significantly increased the intensity of its right to self-defense, claiming that under the “customary law of self-defense,” it could use force against non-state actors — such as al-Qaeda, the Taliban, and theiraffiliated forces — and even introduced the concept of “unrestrained self-defense.”20
In this framework of “unrestrained self-defense,” drones are increasingly taking the center stage in counter-terrorism operations. However, ever since the military use of drone strikes has been applied, there have been numerous reports and incessant criticisms of their use because of killing of innocent civilians in drone strikes. The UN Human Rights Council’s special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has called on the United States to disclose details of its drone program.21 No official information has ever been released on the specific casualties caused by countries that have launched drone strikes. The numbers have only been roughly estimated by some civil society organizations, while the real figures may be much higher and even more alarming. Taking the United States’ use of drone strikes as part of its counter-terrorism activities in Pakistan for example. The United States carried out 376 drone strikes between 2004 and 2013, killing between 2,525 and 3,613 people, according to statistics from the British non-profit organization Bureau of Investigative Journalism.22 The UN Special Investigator for Human Rights, Christof Heyns, has clearly warned that “the use of drones by States to exercise essentially a global policing function to counter potential threats presents a danger to the protection,”23 of human rights and in particular, “there is, however, a notable lack of consensus on how to apply the rules of international law that regulate the use of force to drones.”24 On December 19, 2013, the United Nations General Assembly adopted resolution 68/178, which “notes the recommendations, including on the urgent and imperative need to seek agreement among Member States on legal questions pertaining to remotely piloted aircraft operations” and requires UN Member States “ensure that any measures taken or means employed to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including the Charter of the United Nations, human rights law and international humanitarian law, in particular the principles of distinction and proportionality.”25 In 2014, UN Special Investigator Ben Emmersen again noted with concern that “the increasing use of remotely piloted aircraft, or drones, has caused a disproportionate number of civilian casualties.”26
Drones themselves are not prohibited by international law, but their use constitutes a new method of warfare. In terms of the act of drone warfare itself, it can easily have the effect of causing unintended casualties, even though a drone strike targets an individual. Proponents of armed drones argue that drones have a greater range and more accurate surveillance capability than other weapons and that drone-launched missiles have a smaller blast radius than any other conventional munitions that come standard with fighter jets. This may minimize the potential for the loss of civilian lives.27 However, given that drone strikes often occur in densely populated areas, a slight increase in the missile’s blast radius could increase the threat of casualties exponentially. This is where the potential for the military use of drones to violate the right to life lies. In reality, there have been several cases of drone strikes that have harmed civilians. It is generally believed that the reason for this result, in addition to the fact that the high accuracy of drones still falls short of their theoretical claims, is that some countries using drones have intentionally extended the blast radius of their strikes or relaxed their criteria for carrying out a strike to ensure the success of the strike and make it easier to eliminate the intended targets. For example, the “signature strike” policy has given tacit permission for drones to fire on unidentified civilians, which inevitably results in drone strikes causing innocent casualties.28 For the non-targeted deaths, even if they are unidentified, the attacking state tends to call them “enemies killed in action.”
2. The use of drones as weapons and the right to life of targeted persons
It is certain that even the use of drones in counter-terrorism missions to take military measures against targeted terrorists faces a thorny legal question: whether the state using the drones is also subject to the obligations established by human rights conventions when carrying out military missions abroad. The use of drones for military missions usually involves cross-border strikes or other situations beyond national territory. In such cases, are the norms of international human rights conventions still binding on the state concerned? The International Court of Justice has established the scope of application of international humanitarian law and international human rights law through advisory opinions such as the Wall case and others,29 namely that both international humanitarian law and international human rights law aim to protect human life, health, and dignity and are systems of rules for the protection of human rights, which are essentially the same, but their application differs in time, geography, and scope of application to persons.30 Generally speaking, international humanitarian law is a special rule applicable in situations of armed conflict, while international human rights law is a rule that applies in times of both armed conflict and peace.31 The protection afforded by international human rights law extends beyond national borders and does not cease in peacetime or wartime. Besides, in principle, the obligation not to arbitrarily deprive another human of the right to life also applies to hostile actions.32 In other words, human rights law also regulates how parties to a conflict use force and explicitly regulates the relationship between a state and individuals subject to its jurisdiction. Relevant judgments of the International Court of Justice, the UN Human Rights Committee, and the European Court of Human Rights have established that States parties are required to comply with their international human rights convention obligations in areas under their effective control when carrying out military missions abroad.33 This means that the controlling state cannot give unconditional preference to the use of drones for targeted killings to strike armed men or terrorists hiding in areas under its effective control. The direct use of lethal weapons is violating the corresponding human rights convention unless there is clear evidence that on-site capturing is impossible or that the act of capture would harm civilians. At present, international human rights jurisprudence suggests that international human rights law has shifted from a territorial concept of “effective jurisdiction” to one that governs “cleared persons” in the context of counter-terrorism operations. For example, Nils Melzer argues that when the controlling state of a drone performs tasks such as signature attacks or targeted killing, and other acts, targeting the identified target to be executed constitutes a valid jurisdictional criterion of the person.34 According to this criterion, the measures taken by the state concerned against the targeted person are also subject to the regulation of international human rights conventions; force may only be used as a last resort when other means have failed or there is no prospect of achieving the desired result; it must be strictly proportionate to the legitimate aim to be achieved. At least, states on military missions have an obligation to ensure that targeted persons are not arbitrarily deprived of their lives, and may not carry out clearance operations for deterrence.35
B. Right to a fair trial
Drone strikes on terrorist suspects may violate an individual’s right to a fair trial. Article 10 of the Universal Declaration of Human Rights sets out the basic content of the right to a fair trial, in which everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his/her rights and obligations and of any criminal charge against him/her. In addition, suspects have the right to a defense, that is, they are to be considered innocent until proven guilty according to law and have the right to defend their actions. Under international human rights law, the right to a fair trial is a right enjoyed by everyone, including terrorists, who should be tried in public by a court of law and their crimes confirmed before punitive measures are carried out in accordance with the conviction. In general, the right to a fair trial is not a right that cannot be restricted or derogated from, but the restriction or derogation must be subject to certain conditions, namely that the danger must be so imminent that it cannot be eliminated by the process of trial before immediate measures can be taken without trial, otherwise, the right should be restricted or derogated from based on the “better to catch than to kill” approach. The extent of the restriction or derogation is strictly limited to what is necessary by the situation’s exigencies.
In practice, most military drone operations are not conducted in urgency. For example, the use of drones to carry out “targeted killing,” where a country strikes a specific person in a planned and premeditated manner beyond the battlefield, is often used to remove the leader of a terrorist or insurgent group. Moreover, the human impact of drones is destructive, essentially killing the target of the attack on the spot. From this perspective, such strikes are not necessary, they do not adhere to the principle of proportionality, and they directly and completely deprive terrorists of their right to trial. The arbitrary deprivation of life and denial of access to the trial for suspected terrorists means that the minimum standards of the “right to a fair trial” granted to individuals under the International Covenant on Civil and Political Rights no longer exist. The implementation of a policy of targeted killing would cause that “a single bullet will be prosecutor, judge, and executioner all at once.”36
III. Difficulties in Assuming Responsibility Arising from the Use of Drones as Weapons
In the course of their military missions, drones contain a whole set of operating systems, involving multiple subjects and multiple links. Besides, they are often conducted in the complex environment of long-range cross-border strikes, with devastating ones launched in a highly short period. Such a model significantly exacerbates the asymmetry in the structure of armed conflict, making the incentive for the parties in the conflict structure to comply with the established rules of international law (such as reciprocity) highly weak or even fractured. For their own purposes, both sides have a strong incentive to violate or dilute their obligations in opposite ways. In this way, it leads to the difficult issue of the attribution of responsibility for violations of international human rights law and international humanitarian law in the context of the use of drones as weapons. However, whatever the circumstances, there should be a responsible subject for the use of lethal force. The question of the assumption of international responsibility cannot be avoided.
A. Assumption of State Responsibilities
It is a principle of international law that a state is responsible for its internationally wrongful acts. Wrongful acts arising from drone strikes should also be the responsibility of the state concerned.
1. It is difficult to determine whether the conduct of drone warfare is attributable to a state.
The Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter referred to as the Draft Articles), adopted by the United Nations International Law Commission in 2001, stipulates that two basic conditions must be present for state responsibility to arise: first, the existence of an internationally wrongful act by a state, and second, the wrongful act should be considered an act of the state, which means it can be attributable to the state. An internationally wrongful act is a breach by a state of an international obligation that it has assumed. For drone strikes, violations of state sovereignty, international humanitarian and human rights law, and others are internationally wrongful acts. However, can these wrongful acts be attributed to a particular state?
According to the Draft Articles, states are responsible only for internationally wrongful acts committed by or on behalf of the state or a government, or which are attributable to a state under domestic law. Firstly, state organs such as the military, security, and intelligence departments are fully dependent on and under state control. Even in the absence of authorization, their conduct is fully attributable to the state. As a result, if a state launches a drone strike through its state institutions or military forces, it is an act of the state. For example, the Central Intelligence Agency, the national intelligence agency of the United States, is responsible for most of the operations of the drones used by the United States to conduct strikes. There is no doubt that the strikes it launches are attributed to the United States, which carries out the most drone strike. However, whether the conduct of non-state actors can be attributed to the State is a controversial issue. According to the Draft Articles, the conduct of a non-State actor can only be attributed to the state if it is in fact “carried out on the instructions of a state organ” or “under its direction or control.” However, the concepts of “on the instructions of a state organ” and “under its direction or control” are not sufficiently defined in the law on state responsibility.Besides, it is difficult in practice to determine whether an action meets this criterion. According to reports, on January 5, 2018, militants in Syria carried out a cluster strike on a Russian military base in Syria, using attack drones. The Russian Ministry of Defense said that this was a large-scale drone strike on a Russian base in Syria37 and that the incident must have been linked to a state subject and not simply done by a “terrorist organization” on its own. First, the area south-west of Idlib where the drone strike originated is monitored by Turkey; second, Russian experts speculated that this class of drone would have to be manufactured by a “country that is used to using drones” and that the munitions mounted on the drone were probably produced in Ukraine. All the evidence points to a high correlation between the drone attack and the “support” of certain states, but it is difficult to determine whether this correlation meets the “special standard of imputability in relations between terrorist groups and host states.”38 This issue is hard to be ascertained. The attribution of this behavior to a particular state is therefore too controversial.
2. Assumption of State responsibility for an authorized strike
The problem of overlapping national subjects also arises in cross-border drone strike operations. First of all, the sending of a drone into another country to carry out a strike constitutes, in the absence of other premises, a de facto act of aggression prohibited by international law. At this point, the international responsibility for both the act of aggression itself and other acts in violation of international law in the strike should be borne by the striking state; otherwise, the state carrying out the drone operation must bear the burden of proof to account for it.
However, except for the above situation, “consent” may justify the legitimacy of a state’s conduct, i.e. the consent of the government of the state in whose territory the terrorist organization is located and its authorization of another state to enter its territory to carry out a drone strike. In this context, between the terrorist organization and the state in which it is located, a further subject emerges, namely the state authorized to implement the strike. It is generally held that a terrorist organization is in a state of non-international armed conflict with the state in which it is located. Non-international armed conflicts are defined as sustained acts of violence between the armed forces of a state and other organized armed groups, or between such armed groups, within the territory of a state. In this situation, the two parties to the conflict are the state committing the authorized act and the terrorist organization within the territory of that state, while the state authorized to carry out the strike is merely the executor of the action and is not a party to the conflict. Common Article 3 of the Geneva Conventions Protocol II provides for “minimum” standards to be observed by the parties in non-international armed conflicts, but there are no relevant provisions or precedents on the assumption of responsibility in non-international armed conflicts with the participation of a third State. Under the relevant provisions of a non-international armed conflict, the state carrying out the drone operation is not a party to the conflict, so the responsibility for the violation can only be borne by the authorizing State.
In the reality of cross-border drone strikes, the authorizing state is usually not involved in any conflict and cannot take responsibility, but the authorized implementing state is often the biggest beneficiary and the one most capable of taking responsibility. Therefore, the aforementioned “misalignment” of responsibility is not reasonable. On May 9, 2013, the Peshawar High Court in Pakistan ruled that illegal US drone strikes in Pakistan violated national sovereignty and infringed on fundamental human rights and the relevant provisions of the Geneva Conventions.39 However, the United States claimed that the move had been “authorized” by a secret agreement with Pakistan. Whether such a secret agreement existed and whether its contents include the strikes has not been confirmed. Former Pakistani Foreign Minister Shah Mahmood Hussain Qureshi declared that the United States’ drone strikes threatened Pakistan’s sovereignty and violated international law, and demanded that the United States hand over control of the drones to Pakistan to avoid the sensitive issue of sovereignty.40 At present, in the absence of further evidence of explicit authorization or permission from the government of the country where the terrorist organization is based, it is the most plausible conclusion that drone strikes violate national sovereignty.
B. Assumption of personal responsibility
Generally speaking, the subject of responsibility in international law is the state. However, in the field of international criminal law after World War II, the principle of establishing the responsibility of individuals under international law was gradually established. The duties of war commanders are also set out in the Geneva Conventions Protocol I. Drones do not start their strikes “automatically,” but are weapons platforms that remain under human command and control in identifying and striking targets, which means that they are “manually controlled throughout” and that specific people need to be responsible for their any illegal actions.
But holding individuals accountable for illegal drone strikes is complex. First, the people involved on the ground in drone operations are highly diverse, possibly including the specific operator of the drone, the person in command of the strike, the person who determines the target of the strike, or even the manufacturer and technical support provider of the drone, among others. The exact categories or persons responsible for drone strikes need to be analyzed on a case-by-case basis. Second, the legal status of ground personnel in drone operations is controversial, making it difficult for them to be held accountable. In an armed conflict, combatants have a special legal status. In other words, their participation in hostilities is not otherwise punishable if international humanitarian law is followed in combat; however, without a combatant status, a person taking a direct part in hostilities does not enjoy special protection but is subject to recourse under domestic law.41 This is the principle of immunity from domestic law. In other words, the killing and wounding of lawful combatants on the battlefield is not governed by domestic law, but only by the laws of war.
As already mentioned, the composition of ground personnel in drone operations is complex, many of them are technicians without combatant status. For example, the CIA, which controls drone strikes, employs a large number of employees of all types outside the military. In theory, therefore, ground personnel in drone strikes who are not combatants are not covered by the domestic jurisdictional immunity of combatants. Persons participating in an armed strike shall be governed by their domestic criminal law for “direct participation in hostilities” and shall not be immune. However, this scenario is almost impossible to achieve, as a country of drone strikes is often supportive of the strikes, so it is almost impossible to hold those involved accountable.
IV. How International Human Rights Law and International Humanitarian Law Should Respond
In the face of the difficulties and legal dilemmas posed by drone warfare, international human rights law and international humanitarian law must respond as soon as possible to include this new form of warfare in their specific scope of regulation. In this regard, the following recommendations are made in this paper.
A. Reaffirmation of the principle of respect for national sovereignty
Drones play an irreplaceable role in counter-terrorism activities. However, if left unregulated, the appearance of a country entering another country to launch military operations in the name of counter-terrorism will evolve into an atrocity worse than terrorism, which is itself a violation of international law and a breach of international peace. Therefore, the use of drones for counter-terrorism must not infringe on the principle of national sovereignty and needs to be based on international cooperation.
Although the principle of State sovereignty is an ordinary principle of public law, the mandatory requirement that sovereign States respect the sovereignty of the State concerned in the use of force provides an indirect umbrella of protection for the safety of civilian lives. In the Draft Articles, the United Nations International Law Commission has set out several circumstances in which States are exempt from responsibility, one of which is “consent.” When a state validly expresses its consent to the implementation of a particular act by another state, the wrongfulness of that particular act is precluded in relations with the latter state to the extent that the act does not exceed the scope of that consent. As a result, the most direct and legal way of using drones to cross borders and counter terrorism is to obtain the consent of the country in which the terrorist group is located. Consent here must be explicit and mutually agreed upon. The Unites States claimed to have a “close working relationship” with Pakistan regarding drone strikes in Pakistan, but Pakistan did not explicitly acknowledge this. Therefore, a treaty or agreement should be signed between the striking country implementing the drone strikes and the host country, specifying the means, timing, and scope of the strikes. The country implementing the strikes then undertakes not to cross the border in counter-terrorism, while the host country cooperates with the strike-implementing country. This will uphold the principle of national sovereignty and prevent disputes between the two parties over the strike, while at the same time striking terrorists and maintaining regional security.
B. Reinforcing the principles of distinction and proportionality
As a form of lethal force, the use of armed drones must be governed by established principles of international human rights law and international humanitarian law, otherwise, there is a risk of a proliferation of force that directly threatens human rights protection; the most important of these principles are distinction and proportionality.
1. The principle of distinction between civilians and combatants
The principle of distinction is arguably the most fundamental principle that runs through international humanitarian law.42 The distinction between civilians and combatants was made explicit in the Geneva Conventions of 1949; the principle of distinction was formally and explicitly expressed in international humanitarian law by Protocol I as amended in 1977.43 The principle of distinction generally requires a distinction between legitimate military objectives and civilians & and civilian objects. Specifically, parties to a conflict must always distinguish between combatants and civilians, between military and civilian targets. They can only attack against combatants, not directly against civilians. When the parties to an exchange of fire are unable to identify the targeted person as a civilian or an armed person, he or she shall be presumed to be a civilian. The Geneva Conventions do not define the criteria for the status of a “civilian.” But the 2009 International Red Cross’s Interpretive Guidance on Direct Participation in Hostilities defines “civilians” as those “ not members of State armed forces or organized armed groups of a party to the conflict.”
The core of the principle of distinction goes beyond the distinction between the identity of individuals to inquire whether a particular target poses a realistic threat to military personnel, materiel, and ability to conduct military activities in the course of an armed exchange of fire. This criterion of materiality implies equating recruiters, trainers, doctors, scientists, and promoters in non-state armed groups with civilians.44 No lethal strike should be made against any armed person not directly engaged in combat unless both parties to the conflict find that an individual with civilian status, either alone or in association with other agencies, has participated in or committed an act that has directly resulted in the loss of life or damage to war materiel on one side of the engagement.
It is important to note that the direct harm caused by an act in which a civilian participates or commits is the underlying cause of his or her loss of civilian protection status. In particular, the International Committee of the Red Cross has limited its criteria to “directness of causation” i.e. civilians can only be targeted if it is established that their actions directly result in actual military harm. To clarify the loss arising from the actual conduct of civilians engaged in belligerency, the International Committee of the Red Cross defines the period of loss of civilian status as falling between the execution of preparatory measures by a civilian intervening in direct hostilities and the return of the civilian after the execution. Thus, civilians are directly involved in hostilities both before and after the acceptance of hostilities and the execution of their operational tasks.
The ICRC’s definition of belligerents in non-state armed groups in non-international armed conflicts shows an imbalance with the definition of belligerents in state armed groups, which in turn leads to differences in the legitimate targets of strikes. The personnel of any international military armed body are legitimate targets; in contrast, state armed groups must identify non-state armed groups in the course of non-international engagements as having a “continuous combat function” before they can be targeted. The rationale for the development of unbalanced strike norms is the non-existence of a uniform and recognizable identity for non-state armed organizations. Sometimes armed groups recruit or employ civilians for non-combatant, temporary work. Therefore, the distinction between civilians and combatants becomes a necessity for the state’s armed agencies to undertake adequate reconnaissance activities before launching drone attacks, and to be able to carry out lethal strikes only if they have sufficient evidence that the armed drones are targeting members of military organizations carrying out combat missions, or civilians who are carrying out hostilities. The principle of distinction requires the most rigorous means of screening the identity of the target of a long-range strike before it is carried out by the state’s army. Relaxing the screening criteria would increase the risk of civilians losing their lives and would lead the population to doubt the legitimacy of the country’s military operations.
At present, the technology for military drones continues to pose a serious challenge to the principle of distinction. A large number of cases call into question the ability of the existing drones to faithfully implement the principle of distinction in strikes. A further problem, which may be even more serious, is that the targeted persons (militants) often blend in with the civilian population and even deliberately use children and other civilians as human shields. In the absence of strict restrictions, launching a drone strike is bound to harm innocent people. For example, there have been cases in the past of drone strikes against terrorists and family members in their homes or cars. Furthermore, it relates to the principle of proportionality that should be observed in drone strikes.
2. The principle of proportionality
The principle of proportionality is an important principle of international law that protects the right to life of civilians in the course of armed conflict. It was first established in Protocol I. The principle of proportionality is concerned with the issue of collateral damage arising from strikes on legitimate military objectives, requiring that strikes on military objectives should be launched to prevent, as far as possible, collateral loss of civilian life or injury or the destruction of civilian objects and to avoid excessive strikes on the target that would cause more damage than intended. The fundamental purpose of the principle of proportionality is to prompt the conductor of the strike to avoid harming innocent people and inciting additional risks.
International human rights law requires that the right to life not be deprived arbitrarily. According to the principle of proportionality, the state may only apply resort to lethal weapons to a strike if the aim is to protect the right to life of others and if there are no other effective measures.45 Article 9 of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states that “in any event, intentional lethal use of firearms may only be made when strictly unavoidable to protect life.” Article 2 of the European Convention on Human Rights establishes standards to protect the right to life, specifies that the use of force must be in accordance with the principle of necessity, and limits its scope to three areas: (a) in defense of any person from unlawful violence; (b) to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. In this regard, the normative level requires that a state party using a lethal weapon must demonstrate that its purpose is to protect the lives of others and that no other effective means of achieving the same objective exist. Where a state party has the capacity to apprehend belligerents or terrorists, or where the persons targeted do not present a real danger to civilians, deprivation of life should not be used to eliminate the potential threat to the lives of others.46
As a result, as belligerents plan their operations, they should carefully select the weapons to be carried by armed drones and assess the environment in which the drones will strike and the risk of harm to civilians. In the assessment process, the party carrying out the strike needs to specifically assess the destructive power of the weapon used, the population surrounding the target, the time of the strike, the location of the target, the activities of the surrounding population, and the presence of civilians within the target area. A high degree of precision and intelligence should be reflected in the strike techniques, avoiding the use of bombs with a large blast radius that could cause loss of civilian lives or injury to persons and damage to property. If the targeted strike is at a distance from the place where the actual armed conflict is taking place and is in a densely populated area, then carrying out the strike could result in significant casualties and violate international human rights law and humanitarian law obligations to protect the right to life in a state of belligerency.
Specifically in the case of drone strikes, in terms of access to information, it is often difficult to make accurate and effective decisions due to the powerful nature of drones in terms of battlefield intelligence, in which the operator is faced with a large and changing amount of information at all times and thus has highly limited time to process it. Due to its mechanical characteristics, the drone gathers information mostly from a top-down view, which can lead to biased judgments if not combined with information from the horizontal view on the ground. In terms of operator speculation and analysis, as drones create an “isolated” battlefield environment for the operator that is cut off from reality, it is difficult for the drone operator to have real and comprehensive information about the battlefield because he or she cannot be there. Besides, a transcendent state of mind can develop, which is not conducive to prudent decision-making and restrained use of force. In terms of practical results, the collateral damage caused by drone strikes cannot be ignored. According to protest groups opposed to the military use of drones, “drones are killing and injuring civilians at a rate of over 97 percent.”47 This does not meet the ideal expectations of the effectiveness of the use of force.
In addition, in all exchanges of fire, belligerents should make every effort to comply with the international humanitarian law principle of “capture first and opposition to killing.” In the Interpretative Guidance on the Notion of Direct Participation in Hostilities: A Critical Perspective, the International Committee of the Red Cross states that “it would defy basic notions of humanity to kill an adversary or to refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.” The basis for this humanitarian principle of proportionality is currently controversial. Some scholars maintain that the humanitarian norms established by the International Committee of the Red Cross erroneously place the principle of the necessity of harm from military operations above all rules of international humanitarian law.48 Opposing scholars argue that the state should have the right to decide whether it is necessary and proportionate to strike a particular target in a specific situation.
Indeed, the principle of humanity promoted by the International Committee of the Red Cross provides a direction for the modern war on terrorism to restrain the use of lethal force. On the one hand, it requires the military forces of sovereign states to take capture measures against terrorist organizations as far as possible in areas under their control and far from war;49 on the other hand, it also constrains the use of lethal weapons by the military forces of sovereign states to implement simple and brutal counter-terrorism policies.
C. Clarify the relevant rules of international human rights law and international humanitarian law
First, an interpretative statement of the relevant provisions of existing international law should be made to clarify the consensus of the international community on the use of drones as weapons, in order to respond to this rapidly developing “fait accompli” and to form a “new customary international humanitarian law.” For example, Article 36 of Protocol I states “In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.” Is drone warfare, then, prohibited by international legal rules under this article? If it is not prohibited, what restrictive conditions need to be met for its use? These are issues that require authoritative guidance to ensure that states “respect and ensure respect” for the general obligations of international humanitarian law, and to avoid weakening the original effectiveness of international humanitarian law because of its “ambiguity” on important issues.
Second, we should formulate an international treaty on the use of drones as weapons and develop new principles to address the current dilemma. A national treaty regulating drone warfare should include the following key elements.
To begin with, we should develop internationally uniform standards for the use of drones as weapons, including the circumstances under which they can be used, the level of precision they must achieve before they can be used, the level of sophistication required of drone operators, the types of military equipment they can carry, the amount of ammunition used, the limits of material damage and human casualties, and the initiatives necessary to reduce civilian casualties, among others. There must be a degree of transparency regarding the use of drone strikes, otherwise, it is difficult to argue that the military use of drones can satisfy the principle of legitimacy. The criteria for the use of drones as weapons should themselves be refined. These criteria are a concretization of the principles of distinction and proportionality. If these criteria are not met, the drone does not meet the purpose of legitimate use and should not be used as a strike weapon, so as to control the collateral damage to innocent civilians.
The responsibility of the state and individual responsibility for violations of international obligations concerning drone strikes should be clarified and strengthened. The destructive power and uncertain accuracy of drone strikes are due to several human factors, in addition to their technical limitations. On the one hand, the nature of drones allows their operators to stay away from the battlefield and thus avoid casualties on their side. However, such a fact can also lead to a lesser experience of war and a lesser sense of humanitarian responsibility on the part of the operator. Some scholars have pointed out from the perspective of psychological research that the long-range use of drones creates a complete separation between the operator and the potential opponent, making combat akin to playing a video game, where one can simply set up a program, push a button and the killing can be done automatically from thousands of miles away.50 Driven by this “gaming machine mentality,” there is a high risk of misuse of drones. On the other hand, it may also encourage the states carrying out the strikes to abandon humanitarianism in their eagerness to hit their targets, increasing the randomness of strikes and causing more casualties among innocent people. Therefore, it is recommended that international cooperation and sanctions under international law be strengthened in terms of state responsibility; and that a sound system be gradually established for individual responsibility. In terms of reason, although the operation and command of a drone are far from the battlefield, it is still a weapon. The accuracy and legitimacy of drone strikes depend on the human intelligence that underlies the decision to strike.51 If a drone strike violates the law of armed conflict and constitutes a war crime, then someone must be held accountable. Confirming individual responsibility can be done by first finding the direct operator and then tracing back up the chain of command to further clarify the responsibility of the drone commander and reflect it through international criminal law.
Finally, the conditions for the use of drone strikes should be reinforced. In the specific context of counter-terrorism, international human rights law must be strictly adhered to concerning terrorists who pose no imminent threat; a state cannot arbitrarily use drones as weapons to carry out targeted killings of terrorists, even with the authorization of the state in which the terrorists are located. For priority terrorists who require the use of drone strikes, the striking state must go through an open and procedural selection process before they can be targeted, thus protecting the human rights of suspected terrorists.
D. Defining international responsibility in a fair and reasonable manner
The challenges posed by drone strikes concerning the issue of responsibility in international law are mainly because the regulation of state responsibility and individual responsibility for wrongful acts in international law is still inadequate. Drone warfare also often involves the conduct of multiple states or non-state actors, making it difficult to define the subject of responsibility. This paper argues that it is necessary to reaffirm the need to strengthen international cooperation: on the one hand, when a state agrees to a strike in its territory by another state, an agreement can be made between the two states as to which party will be held responsible for the unlawful consequences of the strike; on the other hand, international organizations and key states should enact the corresponding international legislation as soon as possible. For example, in the case of attribution of responsibility for strikes committed by nonstate actors, which is difficult to determine due to the lack of fixed criteria for “on the instructions of a state organ” and “under its direction or control,” the principle of strict responsibility can be considered for adoption. In other words, a relevant state, such as the state from which the drone was launched, the state that provided the drone equipment, and others, are presumed to have acted on behalf of that state as long as the victim state has evidence that the strike originated in or was specifically supported by that state. The state may provide evidence to rule out such an inference and will incur a certain level of state responsibility if it is unable to do so. However, such state responsibility should be limited to a certain extent. For example, it could take the form of actively assisting the victim state in the investigation and documentation of drone attacks, promising not to supply weapons again, among others.
V. Conclusion
It has become increasingly easy to kill with armed drones. Their low cost make drones an appealing option to states or armed groups, making it a “seductive” military technology and triggering fierce competition among states in this field. The use of drones is no longer the prerogative of developed countries and countries such as Nigeria, Pakistan and Iraq are increasingly using them for specific military missions.52 More seriously, as the demand for such lethal weapons increases rapidly, it is conceivable that drone warfare will not be limited to counter-terrorism or specific armed conflicts, but will increasingly be used on all battlefields and even become the main equipment of warfare.
Military experts have predicted that “killer drones” are “the future of warfare.”53 At present, this future seems to be accelerating toward us. Technology is “an evolutionary system embedded in society.”54 The upgrading of military technology has triggered a deep-seated evolution in the way warfare is conducted and the pattern of warfare. A modern model of international warfare has emerged, featuring the objective to minimize casualties on one’s own side; with “precision” strikes against the enemy the main means of combat that have a heavy reliance on intelligence information.55 How should the existing rules of international law respond to such a trend? In particular, the international law of war is not only confronted with a partial update of the rules governing the use of a particular type of weapon, but also with a holistic change. In this process of change, the role of non-state actors such as national courts, international organizations and international special tribunals, and humanitarian NGOs in monitoring and judging violations of the rules of international law is increasing, while the influence of third-party interventions is rising.
In 2017, the United Nations held the Second Formal Meeting of Experts on Lethal Autonomous Weapons Systems under the framework of the United Nations Convention on Certain Conventional Weapons in Geneva. Representatives from dozens of countries, regions, and international organizations attended the conference to engage in intense discussions on the legal regulation of lethal autonomous weapons systems, including armed drones. The participants even called for a pre-ban to guard against the threat posed by such weapons. At a time when warfare is becoming increasingly technological and intelligent, it seems unrealistic to try to stop the development and application of drones for military purposes through a paper ban. However, with drones being so important, the questions of which legal norms and ethics are the bottom lines that must be adhered to and which can be adjusted must be answered. They need to be answered by social science scholars, technologists, and military scholars together. At present, the Martens Clause of international humanitarian law is still in force, even during the “window” of time when there are no clear rules governing drone warfare in international law. In other words, in situations not covered by international humanitarian law, “civilians and combatants remain protected and governed by the principle of international law derived from the established customs, the principle of humanity, and the dictates of public conscience.” In any case, as Michael Moller, Director-General of the United Nations office at Geneva said we must take pre-emptive action to ensure that the ultimate decision to end life remains in the hands of human beings themselves.
(Translated by PAN Yingzhao)
* XU Shuang ( 徐爽 ), Associate Professor, Law School, and Special-Term Researcher, Institute of National Security, Minzu University of China. This article is the phase achievement of a key project (21AFX004) of the National Social Science Fund of China in 2021.
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2. As no precedent has been found for the use of pre-programmed drones in military activities, the discussion in this paper is all about remote-controlled drones.
3. Liu Shucai, “Technological Change and the Evolution of the ‘Fog’ of War,” International Perspectives 4 (2018).
4. Jessica Purkiss and Jack Serie, Obama’s Covert Drone War in Numbers: Ten Times More Strikes Than Bush, The Bureau of Investigative Journalism, accessed March 5, 2021, https://www.thebureauinvestigates.com/stories/2017-01-17/obam-as-covert-drone-war-in-numbers-ten-times-more-strikes- than-bush.
5. For a list of the specific elements on which consensus could not be reached, see UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/2559, 11 March 2014, para. 71.
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14. Post-traumatic Stress Disorder (PTSD) is a comprehensive psychological disorder. Specifically, an individual is affected by a man-made event such as a terrorist attack, violent crime, or other threat, or a natural disaster. Although the affected individual is externally intact and sometimes unaware of such an event, he or she lives with the internal trauma. After a period of time or with a specific trigger effect, he or she develops adjustment disorders and mental distress, causing great physical and mental disturbance. See International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan (September, 
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28. “Signature attacks” were first mentioned publicly in February 2008 and have since become the primary method of the United States’ drone strike operations in Pakistan. According to the established process, the US military intelligence analysts first draw portraits of terrorism suspects, analyze their level of risk, and create “biographies,” which are then put into “strike baskets” for high-level approval to select targets for strikes. Subsequently, by acquiring information and analyzing intelligence, drones can target any individual who matches “suspicious behaviors” or certain other “distinctive signatures,” without the need for any other evidence to prove it. The United States later expanded the “signature strike” to Yemen and called it the “Terror Attack Disruption Strikes.”
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33. Lopez Burgos vs. Uruguay, Communication 52/1979, Views, 29 July 1981. The UN Human Rights Committee has held the governments of State parties responsible for committing extraterritorial human rights violations. The European Court of Human Rights has also established in relevant judgments that States parties to the Convention must ensure the effective implementation of the European Convention on Human Rights within the areas under their jurisdiction when carrying out extraterritorial military missions. See Al-Jedda vs. UK, appl no. 27021/08, judgment 7 July 2011; Jaloud vs. Netherlands, appl no. 47708/08, judgment 20 November 2014.
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43. Article 48 of Protocol I: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
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51. Ibid. 
52. UN Human Rights Council, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, A/HRC/25/59, 11 March 2014, paras. 25-40.
53. Afsheen John Radsan, “Loftier Standards for the CIA’s Remote-Control Killing, Statement to House Subcommittee on National Security & Foreign Affairs, William Mitchell Legal Studies Research Paper No. 2010– 11.
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