Last month’s New York Times report that the American air wars in Iraq, Syria, and Afghanistan have been plagued by flawed intelligence, poor targeting, and thousands of civilian deaths is a further reminder of the fallibility of existing processes for anticipating and mitigating harm to civilians in U.S. military operations. The report is the latest in a series of allegations that have added to growing concerns about the ability and, in some cases willingness, of U.S. military forces to protect civilians. These include the Aug. 29 U.S. drone strike in Kabul, which killed ten civilians; November’s New York Times report that the U.S. military failed to investigate properly a 2019 airstrike in Baghuz, Syria that killed dozens of civilians; and additional allegations in mid-December about the activities of a secret U.S. strike cell, Talon Anvil.
Earlier this month, 21 civil society organizations described the Kabul and Baghuz incidents as “emblematic of twenty years of US operations that have killed tens of thousands of civilians in multiple countries” and demonstrative of an “unacceptable failure to prioritize civilian protection in the use of lethal force; meaningfully investigate, acknowledge, and provide amends when harm occurs; and provide accountability in the event of wrongdoing.” As the United States seeks to understand the circumstances and, hopefully, learn and implement lessons from such incidents as the Kabul and Baghuz strikes, it is critical that other states also reflect on the implications of these incidents for their own policies, procedures, and practices for protecting civilians in military operations.
Continuing Concerns with the Use of Armed Drones
Any such reflection must extend to the use of armed drones. The Kabul drone strike is an important reminder that, for all the apparent benefits associated with drone technology, including their capacity for surveillance that can improve situational awareness before an attack and reduce the risk of civilian casualties, mistakes still happen that result in civilian deaths and injuries that might otherwise have been avoided.
The Kabul drone strike also serves as an important reminder of the concerns raised over the years with regard to the use of armed drones that remain largely unaddressed. These concerns range from the perceived lack of transparency and accountability surrounding the use of armed drones to fears that the technology can increase opportunities to attack and push conflict into populated areas, putting civilians and civilian objects at greater risk of incidental harm. Concerns have been raised too about the psychological harm caused to people living under the persistent threat of drone attacks.
As the proliferation and use of armed drones continues, these concerns will become increasingly acute. It is reported that as of 2020, at least 102 countries had acquired an active military drone inventory, and around 40 possess, or are in the process of procuring, armed drones. At least 20 non-state groups have reportedly obtained armed and unarmed drone systems. The widespread proliferation of drones has led to their increased deployment in support of armed groups or allied states in proxy wars, as demonstrated in places like Ethiopia, Libya, Iraq, and Syria.
In a 2020 report on the protection of civilians, United Nations (U.N.) Secretary-General António Guterres referred to the lack of debate concerning the proliferation, acquisition, and use of armed drones. That same year, the U.N.’s Special Rapporteur on Extrajudicial, Summary or Arbitrary executions called on U.N. Member States to establish a transparent, multilateral process for the development of robust standards on the use of drones or, failing that, for like-minded States to establish a group of experts to develop such standards (in the form of a time-bound forum), for states, academics, and civil society to identify and strengthen legal norms and accountability mechanisms.
One such forum, the U.S. initiated “Joint Declaration” process that began in 2016, has made lackluster progress in developing international standards on the export and use of armed drones. While fifty-three U.N. member states have signed the Joint Declaration, only a small group of countries have worked to develop international standards, including the United States, Germany, Italy, Japan, the Netherlands, and the United Kingdom (France, Israel, and Turkey also have participated as observer states). A report earlier this year notes that the results of this process have not yet been released, “though the effort continues to incrementally move forward under U.S. direction.” The process has faced criticism, however, for failing to include civil society, and for producing ambiguous, weak, and non-binding language that risks undermining existing standards of international law.
In addition to serving as a reminder of the need to develop specific standards on the use of armed drones, the Kabul drone strike also serves as an important wake-up call for states which are acquiring armed drones but have not yet articulated, at least publicly, the legal and policy frameworks that should govern their use. These frameworks, at a minimum, should include the circumstances in which armed drones will be used and the operational measures that will be put in place to protect civilians and civilian objects in the conduct of drone strikes. These include measures to ensure the positive identification of targets; a robust collateral damage estimation process to mitigate potential civilian harm and damage to civilian objects; processes for ensuring that the presence of civilians is accounted for up to the point at which the strike takes place and when there is doubt, for delaying or aborting the strike; and effective measures for assessing the impact of the strike, identification of potential civilian casualties, and responses to casualty reports.
Canada’s Intended Acquisition of Armed Drones
Canada is one of a number of states in the process of acquiring armed drones. Historically, Canada has been widely recognized as a forceful advocate for the protection of civilians in armed conflict. In 1999, Canada, as president of the U.N. Security Council, was instrumental in establishing the protection of civilians as a thematic item on the Council’s agenda and led the drafting and adoption in September 1999 of the first Council resolution on the protection of civilians. This set in motion the adoption of further resolutions on this theme as well as wide-ranging initiatives within and outside the Council to promote and strengthen the protection of civilians which continue to this day.
In its 2017 defence policy, Strong, Secure, Engaged, Canada stated its intention to “invest in a range of remotely piloted systems, including an armed aerial system capable of conducting surveillance and precision strikes.” Such systems “offer great potential in helping Canada meet its defence needs, at home and abroad.” Those defence needs include deterring, detecting, and defending against threats to, or attacks on, Canada, as well as supporting global stability by leading or contributing forces to the North Atlantic Treaty Organization (NATO). The policy also envisages expanding the operational capacity and investing in the capabilities of Canadian Special Operations Forces.
Through its Remotely Piloted Aircraft System (RPAS) project, Canada has begun the process of acquiring medium altitude and armed drones, along with associated equipment, weapons, infrastructure, and in-service sustainment capability. According to the “invitation to qualify” issued as part of the procurement process inviting potential suppliers to submit proposals, the RPAS project will provide the Canadian Armed Forces (CAF) with the ability to carry out sustained operations worldwide as well as the capacity for intelligence, surveillance, target acquisition, reconnaissance, and the ability to conduct strikes with precision guided munitions of up to 500 lbs. The project is worth up to five billion Canadian dollars (approximately 3.9 billion U.S. dollars) with initial delivery expected in 2025-2026.
Canada’s Future Use of Armed Drones and the Protection of Civilians
Canada’s defence policy notes that, as with any technology used in military operations, the CAF will ensure that its use of RPA is consistent with “domestic and international law.” The policy does not elaborate further on the domestic and international legal frameworks that would apply to the use of armed drones, or indeed the specific circumstances in which armed drones might be used and which would have a bearing on the applicable international legal frameworks, in particular international humanitarian law (IHL, or the law of armed conflict) and international human rights law (IHRL). Canada is a party to all the major IHL and IHRL treaties and the importance of compliance with the law of armed conflict is firmly embedded in the CAF doctrine and training.
The defence policy further notes that drone operations “will be conducted in strict accordance with all the controls, procedures and rules of engagement [ROE] that govern the use of force with any other weapon.” Again, however, there is little information in the defence policy or elsewhere on the content and scope of the existing controls, procedures, and ROE; the extent to which they include effective measures to anticipate, mitigate, respond to, and learn from civilian harm resulting from drone strikes; and, importantly, the extent to which these controls, procedures, and ROE are appropriate to the specific context of using armed drones.
Indeed, armed drones are not like “any other weapon.” Drones provide the benefits of “stealth and persistence” – they have a long range and, unlike conventional aircraft, can be deployed over a target for prolonged periods of time, hovering at heights of up to 50,000 feet, out of sight and usually out of earshot of those on the ground. Because drones are operated remotely, the operators are exposed to no personal risk compared to conventional airstrikes. Drones also have enormous intelligence gathering capacity which can improve situational awareness before an attack and, in so doing, potentially ensure more effective protection of civilians.
These features of armed drones also increase the opportunities for states to conduct attacks that might otherwise be considered unrealistic, impractical, or undesirable through other forms of air power or the deployment of ground troops. As the U.N. Secretary-General observed in a 2013 report on the protection of civilians, “[a]s the ability to conduct attacks increases [through the use of armed drones], so too does the threat posed to civilians.” An interview in May this year with the Commander of the Royal Canadian Airforce, Lt. Gen. Al Meinzinger, revealed little in terms of the scenarios in which armed drones might be used, including whether they could be used for targeted killings.
The need for open, transparent, and informed discussion of the possible scenarios and the legal and policy considerations governing Canada’s future use of armed drones is especially pertinent in light of the failures associated with the Aug. 29 drone strike. As Luke Hartig recently observed, U.S. drone strikes are “complex and analytical undertakings that rely on techniques and procedures developed and refined over many years.” Yet, the Kabul drone strike raises important questions as to how the U.S. military identifies targets, and seeks to prevent and investigate civilian casualties.
Given that the U.S. military continues to struggle with mitigating civilian casualties from drone strikes (and air strikes more broadly), despite the existence of techniques and procedures that were, to quote Hartig again, “developed and refined over many years,” it is imperative that Canada is more transparent about, and invite public scrutiny and discussion of, the legal and policy considerations that will govern its use of armed drones. And that discussion should happen now, as the acquisition process continues and certainly prior to the deployment of armed drones in Canadian military operations. This is not the first time such a suggestion has been made. This time, however, as we reflect on the failures associated with the Kabul drone strike, anything less than a transparent and informed discussion of these questions would be a serious missed opportunity with potentially deadly consequences for civilians caught up in conflicts in which Canadian armed drones will be deployed in the future.