How would a programmer encode the protocols defining proportionality in such a decision making process? Would there be a mathematical proportion of weapons-carrying-persons vs. non-weapons-carrying persons set as a minimum level? What happens to a measure like this in a country such as Afghanistan, where a very high proportion of civilian men carry rifles whether they're combatants or not? What about parts of the United States in which hunting is popular, for that matter?
General O'Meara noted during discussion that "targeting decisions should be made by people steeped in ethics... not by 25 year olds." He went on to note that he has asked in many situations... "who does your ethics?" The answer, he said, is usually nobody... both in the military and in corporate settings.
As regards to Article 36, the obligation rests upon the state to evaluate whether use of remote weapons is prohibited or not. The ACLU has requested documents under the Freedom of Information Act regarding the "legal basis in domestic, foreign and international law" for such drone strikes, including who may be targeted with this weapon system, where and why..." The CIA has requested summary judgement, stating:
"The types of records sought include, for example, targeting information, damage assessments, information about cooperation with foreign governments, and legal opinions about general and specific uses of weaponized drones to conduct these alleged strikes. The CIA has informed Plaintiffs that it can neither confirm nor deny the existence or nonexistence of records responsive to this request without compromising the national security concerns that animate FOIA's disclosure exemptions -- specifically the exemptions set forth at 5 U.S.C. - - 552 (b)(1) and (b)(3) ("Exemption 1" and "Exemption 3"). The CIA's determination in this regard is proper and entitles it to summary judgment."
In this case, the U.S. says that any documents related to its responsibility under Article 36 are so secret, it can't even confirm or deny that such documents exist.
We should note that the U.S. signed the protocols noted above, but never submitted the protocols to Congress for ratification. 170 other countries ratified them. George Aldrich, the head of the U.S. delegation to the 1977 conference that adopted them criticized then President Reagan for not submitting them. The panelists acknowledged the ratification question, but stated that the U.S. is bound by the protocols because they are recognized as rules of customary international law valid for all states.
One of the more interesting parts of the panel discussion touched, briefly, on whether the use of drones might reduce transgression of IHL. Wagner referenced the shooting down by the U.S. of Iran Air flight 655, in which 290 civilians were killed. Wagner notes that subsequent reports speculated that "scenario fulfullment" played a role in the order to fire upon the airliner. Humans are subject to interpreting information in ways that fit their pre-existing thought patterns. The officer who ordered the strike expected an F-14 to be on the radar where the Airbus was, and so, saw an F-14. A drone trained to qualify the target might have been better able to distinguish between the F-14, with its 64 ft. wingspan, and the Airbus, with its 147 ft. wingspan.
The Global Hawk is considered the most autonomous of current Dept. of Defense unmanned aerial vehicles. It is for surveillance only, and does not carry missiles. by U.S. Dept of Defense
Political and Military Decision Making
The panel discussed whether the availability of drones would affect political decisions regarding going to war, and military decisions regarding how to wage war. There is little doubt their use already has affected such decisions. They made it easier, for example, to commit to military actions in Pakistan and Yemen.
All panelists agreed that by requiring fewer ground troops, the decision to commit to military actions using drones would be easier for politicians to make. Wagner noted that sending an army of machines to war might exact less of an emotional toll upon a population. This would be one factor in making such a decision easier. Drones, it was noted, are also less expensive than soldiers.
Which leads to an unasked question regarding the next generation of drones: who will make the decisions regarding whether to develop them, and will ordinary citizens have any input upon that decision?
As noted above, some of the memoranda regarding the use of offensive unmanned weapons has been clasified. Harold Koh, Legal Adviser, U.S. Department of State, made a speech regarding drones in March 2010. Koh, who had frequently criticized the Bush administration's actions in the "Global War on Terror" before joining the Obama administration, stated that the current administration adheres to the principles of discrimination (distinction) and proportionality in its operations, including the use of unmanned vehicles. He stated "great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum." The ACLU's suit, if successful upon appeal, may help reveal how much care is taken.
From a military point of view, the panel speculated that the decisions as to whether to produce this next generation will rest with bureaucrats who are "in a bureaucratic drill," and "unlikely to go to the decision makers and say we need to have a discussion." It is unlikely that Congress would disapprove any major weapons program.
Which leaves the generals in the field. If the weapons are developed, it is likely they will be used. As General O'Meara stated, first in regard to IHL: Cicero said, "inter arma leges silent"--in time of war the laws are silent--and then in regard to deployment, purely from a selfish military point of view, he "doesn't want to fight fair." A general wants "all the weapons that might possibly make an armed conflict shorter or less casualties that he can use. Commmanders know they have a responsibility to return the sons and daughters to their families whole."
The general takeaway from the panel was that drones, like all military tools, have their pluses and minuses. No public debate took place regarding the deployment of the first generation. Explanation by the Executive Branch only began in 2010, after years of strikes, and questioning on behalf of the public by the ACLU the same year. Columnists address related issues today.
The very well organized We Robot 2012 Conference was a specialists' gathering to address these issues in public. In addition to the papers themselves (see links above), it is expected that videos of the conference will be available online shortly, if they're not already in place at the time you read this article.