Debate emerging over international norms for drone use

The RAND Corporation has produced a report and a myth-debunking series of blogs about armed drones. Taking a controversial view, the authors at RAND support the development of international norms surrounding armed drone use:

The challenge in establishing international norms will be to define rules that preserve the rights of countries to use these systems in legitimate ways against legitimate threats (senior al Qaeda or Islamic State terrorists) while constraining illegitimate uses (political dissidents). The international community has established norms, with and without U.S. leadership, through efforts like the treaty banning antipersonnel landmines, and the Convention on Certain Conventional Weapons prohibiting the use of lasers to cause permanent blindness. With determined, skilled leadership, such efforts could establish standards that identify illegitimate uses while preserving military operational flexibility.

An opportunity exists to replace potentially risky precedents in using long-range armed drones with international norms to decrease their misuse by others.

Other experts in the national security sector do not agree. A couple weeks ago, I interviewed Ben Lerner from the Center for Security Policy on this subject -- and his position was clear:

Such new norms are 1) unnecessary, since we already have international law on the use of force that can cover drones; and 2) unlikely to be effective, because the parties whose drone use we are most concerned about (China, Russia, Iran, terrorist groups) are least likely to be affected by new norms on drone use, because they will either have no regard for such norms (especially the case with non-state actors) or they'll argue that their use of drones is consistent with the new norms, even if they're not, and will proceed ahead with whatever it is they want to do. In the meantime, such new norms -- it seems to me -- could be manipulated as another means by which to constrain U.S. use of drones, to the detriment of U.S. national security.

This perspective clearly differs from that in the RAND report:

As Micah Zenko from the Council on Foreign Relations points out, "History shows that how states adopt and use new military capabilities is often influenced by how other states have -- or have not -- used them in the past ... A well-articulated and internationally supported normative framework, bolstered by a strong U.S. example, can shape armed drone proliferation and employment in the coming decades." Such an approach would pose numerous challenges but might strengthen the chances of long-term U.S. public support and allied cooperation, and strengthen the U.S. diplomatic hand when dealing with states that fail to follow international norms ... U.S. leadership in shaping norms like these is important to prevent either of two extremes. Overly restrictive norms may deter allies from obtaining armed UAVs and could restrict U.S. use. A lack of norms, on the other hand, may make it more difficult for the United States and its allies to discourage others from acquiring and using armed UAVs in ways that threaten regional stability or the laws of war.

Of the two viewpoints, Lerner is on more solid theoretical and historical ground. Existing international law can already be applied to drone use, and entities from which the greatest threats of armed drone use arise will undoubtedly not follow international norms over the long term. Instead, what we will see are the international norms being used against Western nations -- while our adversaries will flout them.

When interviewed again for his comments on the RAND reporting, Lerner reinforced and expanded upon his original concerns about new international norms:

Countries or entities (like terrorist organizations) intent on using drones this way will do so regardless of new norms governing drones specifically.  They will either (a) disregard them entirely (especially in the case of terrorist organizations who operate outside the framework of nation-states to begin with, and can be relied upon to have little-to-no regard for agreements amongst nation-states) or (b) spin their use of drones to argue that what they’re doing doesn’t violate these new norms.

“China, for example, is a member of the UN Law of the Sea Treaty (LOST), yet argues that LOST actually allows China to claim sovereignty over the entire South China Sea,” said Lerner, “Syria is a member of the Chemical Weapons Convention, yet that hasn’t stopped Syria from dropping chemical bombs on Syrian neighborhoods. And Iran of course has violated the Nuclear Nonproliferation Treaty to which it is a party.”

Lerner goes on to note that “new norms will, however, constrain the U.S. from using one of its most effective, and ironically most humane weapons, by opening up new avenues of lawfare for those seeking to take this advantageous weapon away from the U.S.”

His point about drones being relatively “humane weapons” is shared by some major international human rights organizations. For example, the RAND report itself cites the view of the International Committee of the Red Cross (ICRC), whereby “the ICRC has indicated armed UAVs might offer advantages: ‘... any weapon that makes it possible to carry out more precise attacks, and helps avoid or minimize incidental loss of civilian life, injury to civilians, or damage to civilian objects, should be given preference over weapons that do not.’”

Lerner does generally agree with RAND’s thrust against blanket restrictions on drone sales, though with some caveats:

I am less enthusiastic about transferring drones of any kind to countries that are increasingly hostile to the West (Turkey comes to mind) or in perpetual danger of being taken over by hostile forces (which these days would include much of the Arab Middle East), though I recognize that with respect to the latter, we may need to do so on a case-by-case basis, depending on the circumstances.

With regard to the potential utility of the Missile Technology Control Regime (MTCR) for effectively controlling international drone use and profileration, Lerner is likely more skeptical than the RAND authors. According to Lerner, “if we really want to address the proliferation of drones, we can’t rely on international agreements/understandings like the MTCR to curb that proliferation, at least not among those countries that are unwilling to abide by such arrangements. The MTCR will do its job amongst those member countries that join the MTCR and choose to apply it, but those countries generally are not the guys we worry about when it comes to drones.”