Indian Defence Review

Introduction

Military technology which has always defined how wars are fought has come a long way from bows and arrows of the epical war of Mahabharata and Trojan war to longbow used by the English archers at Agincourt in the Middle Ages through the invention of gun powder and much later heavy tanks and bombing aircrafts of World Wars, nuclear arsenals and now remotely piloted laser guided unmanned aerial vehicles (UAVs) amongst plethora of other new weapons. Dreamy ‘Star Wars’ like ideas which once were novel and movie stuff is now a reality because of advancement in the field of warfare technology, especially UAVs (drones). And, it has created a situation of flux in our understandings of war, how it is fought and who should fight where-man or machine or combination of both in a declared war or may be even in a non-declared war.

Drone has been defined as “a remotely operated, autonomous, or automated robot that is capable of sensing information, processing it, and executing a physical action without a pilot on board”¹. Progressively there has been evolution of dronesfrom itsfirst use by Austria during war with Italy for bombing the Venice city on 15 July 1849 where itused balloons carrying explosives which hadtimer set fuses as control mechanism to trigger the explosion.“ WW-II witnessed use of “flying bombs” both by allied and axis forces; the US navy retrofitted B24 bombers with remote controlled mechanisms that dropped bombs on the German trenches and German V-1 bombers similarly destroyed many cities of the allied nations using similar remote controlled mechanisms.”² Modern unmanned aerial vehicles which is now being widely used were initially  invented for military purposes by the Ryan Aeronautical Company beginning in 1951; the Ryan Firebee is a series of target drones developed by the Ryan Aeronautical Company. Firebee 1241s UAVs were successfully used by Israel against Arabs during 1973 Yom Kippur war for reconnaissance and decoys. USA used drones in Vietnam, Iraq, Afghanistan; they were by far for the reconnaissance and intelligence gathering in the initial stage.  In the last couple of decades drones in its avatar as weapon have changed the face of war. In the year 2020, world witnessed the pivotal role drones played in Turkey’s impressive victory in Nagorno-Karabakh. Also, those following the Russian invasion in Ukraine saw the TV footage with awe how Kamikaze drones supplied by the US brought upon heavy costs on the Russian tanks proving how military drones are playing pivotal role in Ukraine’s defensive war against the mighty Russian armed forces. Undeniably Unarmed Aerial Vehicles (Drones) have now joined the armed forces of the world in their inventory as they are becoming indispensable in modern war.

But a new kind of war was born when USA and its allies commenced using weaponised-drones in countries where they were not formally at war or without proper consent of the sovereign states where these UAVs targeted against individual terror master minds or terror groups in their so called “war against terror”. Turkey and some other countries have been using drones for transnational assassination in Syria.  This paper will analyse ethical and legal issues of such use of dronesin the war against terror in addition to discussing misuse of drones for terrorism.

War ethics and difference between War and Terrorism

Thought of ethics of war can be traced to mythology, religious scripts andculture.Just war theory which has evolved over timehas historical pedigree. Hugo Grotius’s De iure belli ac pacis, a book in Latin (English: On the Law of War and Peace) published in 1625 in Paris is regarded as a foundational work in international law which covers legal status of war.On principles and concept of the just war four essential aspects are:

• • The war should have a just cause.
  • Commencement of war should be declared by a legitimate authority.
  • Principle of proportionality should be applied while conducting war.
  • Non-combat immunity to be ensured during military engagements between the opposing forces.

If above fouressential aspects while resorting to war are met then it may be considered justifiable and legitimate from the perspective of just war tradition not withstanding war’s destructive and violentnature. But what about “war on terror” and how does it differ from the war that we understand? Most importantly the war is comprehensible and less ambiguous but terrorism is viewed as violent, more threatening and incomprehensible therefore perceived as criminal and unjustifiable. “War is motivated, while terrorism is gratuitous violence”²

This explanation of war and terrorism may not be agreed by the radicalized extreme left or right wing ideologues who feel if the postulation of Clausewitz that “war is …an act of force to compel our enemy to do our will” is acceptable why not terrorism which is seen as ideological clash, where terrorists through violence compel the target population to accept their ideology. To enforce their idea the terrorist groups aim to directly challenge the government’s monopoly of force. But rarely a government or a state will allow a group challenging its authority and will take firm measures beginning with peaceful negotiations -failing use of force to destroy the challengers.Though,it’s a different issue whether an idea can at all be killed. In today’s world cross border terrorismis less based on political ideaand more based on religious fanaticism. In the westernnationstherearein- state terrorism mostly based on racism, anti-refugee movements, or challenging political ideologyemanating from the radicalized right wing³.

In a declared interstate war use of weaponised-drones will pass the scrutiny of laws of war but my analysis here will focus on ethical and legal positions of droning terrorists based in a sovereign state with which there is no formal war or any treaty permitting such action. Searching through the available literature one finds that there is no standard definition of terrorism.Because often one state’s “terrorists” are considered another states “freedomfighters”. Terrorism in Kashmir isa classic example how India’s views differ from Pakistan.

UN on Terrorism

Because of varying perceptions on terrorism, drawing up international legislation to deal with terrorism has been beset with problems.Post 9/11 Twin Tower terrorists’ attack, Security Council unanimously adopted the landmark Resolution 1373 (2001). This important document entailed future response of Security Council to deal with the threat of terrorism. However this document and successive resolutions thoughask states to adopt measures which have far reaching legislative and executive actions but remain silent on definition of terrorism because its member states in the last seven decadeshave not been able to unanimously agree to a single definition.In the meanwhile, The UN General Assembly usually follows its inflection on terrorism based onits 1994 declaration on ‘measures to eliminate terrorism’which is primarily an alternative definition on terrorism that states:

• • “Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.”⁴

Counter-Terrorism Committee (CTC) was established as subsidiary body of the Security Council through Resolution 1373 (2001). It empowered the Council to assess Member States’ compliance with the provisions incorporated in this Resolution. Respecting the views of the human rights groups, Security Council through its Resolution 1556 has offered a new non-binding definition of terrorism which is quite narrow in its scope. It is important to note that legal experts do not accept internal terrorism a threat to international peace and security.⁵

 Recognising the increasing threat arisen by the misuse of  emerging technologies the United Nations Security Council Counter-Terrorism Committee (CTC) held a special meeting in India in Mumbai and New Delhi on 29 and 30 October 2022 which was attended by Dr.Jaishankar -India’s External Affairs Minister, UN officials, members of the Security Council, and diplomats. The meeting postulated on the challenges of global counter terrorism architecture focusedon significant areas where emerging technology aided increase in  threat of abuse for terrorism purposes. In Mumbai 26/11 attacks (2008) were discussed and how Pakistan despite evidences dragged its feet to take action against the masterminds Hafiz Saeed and Zaki-urRahmanLakhvi. In this conference India also highlighted that though US convicted David Headley and TahawwurRanabut refused to extradite them. Both Indian External Affairs Ministers Dr.Jaishankar and US Secretary of State were vociferous on China’s repeated disagreement in designating LeT leaders on the UNSC 1267 terror list. In Delhi the CTC focused on terror recruitment, radicalisation and terror-funding including misuse of crypto currency. The deliberations led to “Delhi Declaration on countering the use of new and emerging technologies for terrorist purposes”.⁶

War on Terror

On September 29, 2001, US President George W. Bush said, “Our war on terror will be much broader than the battlefields and beachheads of the past.  The war will be fought wherever terrorists hide, or run, or plan.” Drones have been used by USA since then in their mission on “war on terror”. But United State government made an unprecedented drone attack in Yemen on September 30, 2011 where two American citizens, Anwar Al Awlaki and Samir Khan were killed.David Rhode in Reuter’smagazine wrote,“The target of the attack was Awlaki, a New Mexico-born Yemeni-American whose charismatic preaching inspired terrorist attacks around the world, including the 2009 killing of 13 soldiers in Fort Hood, Texas. Civil liberties groups argued that a dangerous new threshold had been crossed. For the first time in American history, the United States had executed two of its citizens without trial.”⁷

Turkey has been using weaponised drones extensively in Kurdish controlled northeast Syria. Besides the Turkish Armed Forces (TSK) had been conducting cross-border operations in norther Iraq, a region where PKK terrorists have hideouts and bases from where they carry out attacks against Turkey. Recently it was reported that Ankara carried out drone strikes in Syria near area of US operations. The fact that such deep strikes inside Syria means on the garb of eliminating terror groups Turkey used drones with impunity against civilians is a serious human rights violation and in the past similar drone strikes were termed as extra judicial killings by the human rights groups. For example killing of Salwa Yusuk by a drone has been debated as an extrajudicial targeted execution. Amnesty International in 2018 reported,” according to the Bureau of Investigative Journalism, US drone strikes have killed up to 1,551 civilians since 2004 in Pakistan, Afghanistan, Yemen and Somalia. Amnesty International and others have exposed how some drone strikes have violated international law and may amount to extrajudicial executions or war crimes.”⁸ Killing civilians whether targeted or through collateral exposure due to employment of weaponised drones are contrary to the laws of armed conflict, which as per international laws on war require protection to non-combatants (civilians).

Efficacy of military dronein eliminating a target was reinforced when United States’ President Joe Biden during a live television address fromWhite House on 1^st August said ‘Justice has been delivered’ confirming killing of the 71-year-old Egyptian doctor Ayman al-Zawahiri who together with Bin Laden plotted 9/11 attack and took over al-Qaeda after the death of Bin Laden in 2011. Zawahiri was one of the most wanted terrorists in the US list and his remote killing in the Afghan capital Kabul on 31 July 22 by a drone attack was apparently organised by the CIA in collaboration with Pakistan. Biden administration demonstrated US capability of much talked about “Over-The-Horizon” operation. The news put people to think once again how technology has replaced human warrior in elimination of enemy from far away with much precision and possibly for the first time without collateral damage.But justifiability of the means to deliver justice has been questioned by a section of international legal luminaries and human rights activists highlighting ethical and legal untenability.Are such actions permissible from the just war perspective? International Law expert Ben Saul writes, “The killing (of Zawahiri) is most accurately described as extrajudicial execution or revenge murder designed to deter others from participating in terrorist groups. It is also another body blow to the “rules-based international order” that the US demands others—but apparently not itself—respect.”⁹This dichotomy is noticeable. United States had been vociferous over human rights violations in other countries and is much sensitive to terrorism when it affects them. But despite Pakistan’s sheltering UN designated terrorists groups like Lashkar-e-Taiba and Jaish-e-Mohammad US has not designated Pakistan in the list of states sponsors of terrorism. Therefore on the issue of terrorism US has adopted policy how it affects the country.

Misuse of Unmanned Aircrafts for Terrorism

With the increasing commercial availability of UAVs in the market and their technological development, these drones have potential to become a dangerous weapon in the hands of terror groups. Dronesladen with Chemical, Biological, Radiological, Nuclear, and Explosives (CBRNE), can be employed as a flying attacker.A range of terrorist and insurgent groups have already deployed UAVs for attacks and intelligence gathering. Today’s commercial UAVs are exploitable mainly in two ways: − for placement of improvised explosive devices (IEDs), CBRN substances, etc. and for reconnaissance of area. The commercial segment of the UAV market in Asia Pacific is projected to grow at the highest CAGR of 18.5% during the forecast period from 2021 to 2026.¹⁰

On August 4, 2018 when Venezuelan President Nicholas Maduro was delivering his speech at a public outdoor event in Caracas, Venezuela on the occasion of 81^st anniversary of national army, two drones equipped with powerful explosives were used by a terrorist group in an attempt to assassinate the president. Possibly this is for the first time terrorism by unmanned aircraft occurred. Fortunately, the president was not harmed but a few soldiers were injured. Two aspects get highlighted with this drone attack: how easily drones could be used against the highest authority of a nation —and how difficult it is to defend against such attempts. The attempt to assassinate Nicholas Maduro came close and may embolden similar experiments by the terrorist groups to employ weaponised drones to whack their targets.¹¹

The use of weaponized-drones by non-state actors or a group acting at the behest of nation-states—is a concern. The proliferation of UAV technologies and their access by the terrorists or insurgents can wreak havoc; drones can be used to harm wide range of objects -from an individual target to a flying airliner. State sponsored terrorist attacks making use of weaponized drones is a grim reality before long. “It is already happening with Hezbollah and allegedly with the Houthi rebels, who have used drones to ram Saudi air defences in Yemen. Some groups are mastering drone technology without the help of state sponsors. In Syria, the Islamic State has successfully used drones to conduct surveillance and reconnaissance in addition to carrying out offensive actions like dropping a grenade on an adversary’s military base…a terrorist group can steal or purchase a drone from a rogue state or corrupt military or intelligence officials…¹² On 27 June 2021, two weaponised drones attacked Indian Air Force Station in Jammu; each drone had payload of more than 2kgs of explosives. India raised the matter in the General Assembly of the United Nations and asked the august body to take a serious note of use of weaponised drones for terror activity. One of the most dreaded scenario would be terrorist groups  launching a massive  attack using weapons of mass destruction delivered through drones in a large public gathering like sports-stadium, political rally, busy railway station  etc. which may result humongous damage to lives and even  it fails to create a major damage it can still create fear psychosis-an objective of terrorism.” The possibility that drones could be used to disperse deadly agents or viruses over a sports stadium or public gathering place is a harrowing prospect. Even, if a drone attack fails to result in large numbers of fatalities, the attempt could still achieve an attacker’s goal of perpetuating the psychological dimension of terrorism.”¹³

Terrorists will always aim to find newer means to generate fear psychosis and chaos. They are not constrained by international laws on war as their organisations may not have legal recognition. As part of counter terrorism operations response to the threat has to be robust and all encompassing like; detection, counter-measure mechanism, and imparting training as part of preparation to defend against attack by weaponized drones.¹⁴

Legitimacy of transnational Drone attacks against terror groups.

An analyses of the following provisions of the United Nations are relevant in examining the legal aspects of drones during war or and in non-war zones.Article 1 spell out the purpose of the United Nations and Article 51 enumerates aspect of self defence as under¹⁵:

Article 1: Purpose of United Nations:

• • To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

Article 51:

• • Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Ben Saul an expert on international law avers issue of self-defence is not applicableto USA as al Qaeda is not in direct confrontation with USA as of now and USA having left Afghanistan has no right to transgress territorial sovereignty of Afghanistan. And Taliban government of Afghanistan has not threatened security of USA by employing al Qaeda.The U.N.’s monitoring team,in July 2022, concluded that “Al-Qa[e]da is not viewed as posing an immediate international threat from its safe haven in Afghanistan because it lacks an external operational capability and does not currently wish to cause the Taliban international difficulty or embarrassment.”¹⁶

The 2020 Doha agreement commits the Taliban governmentin Afghanistan to preventing terrorist activity against the United States from its soil. Though US citing this agreement would like to give legality to their drone attack that killed Zawahiri but it must be noted that after 2009 abortive bombing attempt in New York no other act of terrorism has been committed by al Qaeda threatening security of USA. Therefore the drone attack was an extra judicial act and noncompliance of international law.In 2021, US drones attack against IS-K killed ten civilians but the drone strike against Zawahiri without collateral damage has enhanced confidence of US. Pinpointed target elimination was reacted mildly in Afghanistan and there was not much international uproar-even media gave it a pass.

India’s Problem areas

India is beset with terrorists’ attack in J&K and other places. Who can forget dastardly 26/11 attack in Mumbai in 2008 by the Pakistaniterror group Lashkar-e-Tayyaba? Pakistan’s role in spreading terrorism is well established. Bleeding India through thousand cuts has been a long term strategywhichterror groups based in Pakistan are implementing. And India is not the lone sufferer. “More than half the major terrorist plots against the West between 2004 and 2011, for instance, had links to Pakistan.”¹⁷ In addition, insurgency in northeastern states in India in particular has been going on since decades though under control. There have been occasional difficulties to garner support and consistent cooperation from neighbouring countries like Bangladesh, Myanmarfor intelligence and assistance in law enforcement. Pakistan hardly ever played ball in this respect as overtly many a times they pronounced these terrorists originating from their soil as non-state actors but covertly their ISI was abetting and supporting.US was able to get support of Pakistan government when they were droning suspected terrorist hide outs in FATA region but for India it always remained a distance dream.Obviously there is more difficulty in locating targets even if India wants to make use of dronesagainst the terrorists based in Pakistan. Along with drones where practicable and can be engaged with precision aided by accurate real time intelligence there is a need to  complement the effortwith extensive other counterterrorism measures, such as the disruption of terrorist financing, information and cyber operations, and security and counterterrorism assistance to states in the region.Government of India has initiated actions towards this end and the result is visible. 

Conclusion

Definition of terrorism is inherently disputatious in the modern age because of contestation in perception. UN CT advised extensive domestic legislation on terrorism but member states usetheir discretionin defining and meaning of terrorism suiting their national interest. Both governments and the non-state groups resort to violence to force their ideology on the groups otherwise not falling in line. As one man’s freedom fighter is another man’s terrorist hence, the disagreement in defining terrorism which makes it difficult for the international bodies to make and promulgate law. “Palestinian militants call Israel terrorist, Kurdish militants call Turkey terrorist… the nation-states call the militants who oppose their regimes terrorists”.¹⁸During last two decades US has employed weaponizeddronesagainst terrorists in Federally Administered Tribal Areas (northwest Pakistan)  in Yemen; and in Somalia and Libya. All these strikes were controversial because they were conducted in areas outside the battlezones.

Misuse of emerging technologies by the terror outfits to cause panic and wanton destruction may increase. In future, possibly most serious threats of terrorism will emanate from the misemployment of weaponised drone.  And going forward that calls for a fresh look on the counter-terrorism paradigm. Human rights activists comparatively are less vocal on the ghastly acts of  terrorists but often raise hue and cry when punitive counterterrorism actions ae undertaken. Non state actors do not go through legal scrutiny,neither have they abided by the convention of just war principles but  a responsible state has to abide by war ethics and international laws on war. With the increasing availability of commercially available drones in the open market and their likely misuse as a weapon of terror, defence against drone attacks for the purpose of terrorism assumes importance.Offensive drone strikes targeting transnational terror groups  has become part and parcel of the strategy of US, Turkey and a few other countries and one will not be surprised if few more countries follow similar strategy. There has been outcry by the human rights group against transnational dronestrikes against terror groups in areas not known as normal war zones.Instances like Zawahiri is described as “targeted killing” by those undertaking the operation  but the act does fail in the scrutiny of the experts of internal laws on war and according to them euphemism of ‘targeted killing” is actually an  “assassination.”  However noticeably,United State’ssingle minded purpose of eliminating terrorism and to achieve that aim means used disregarding international rule based order  did not evoke much adverse media response. There weresomeprotestson the aftermath of killing of Zawahiri which did not continue for long. Apparently Taliban government did not object presence of Zawahiri;may be politically that did not suit them though after the killing the government of Afghanistan reported ignorance of Zawahiri’s presence there.  At the same it was not much vocal against US drone attack. HasZawahiri killing proved that even some violation of international law may be acceptable if it helps in reducing terror? Terrorism is unacceptable and so is flouting international law at will.Townsend Hopes wrote of American leaders during the Vietnam War, “struggling in good conscience…to serve the broad national interest according their lights”¹⁹. The same was as truerwhen Predator drone was launched to kill Zawahiri with Hellfire missile. May there be lights in the leaders of the nation states and in the terrorist masterminds too!

1. Scientific American. The Changing Face of War (Kindle Locations 758-759).
2. Stefano Passini, Laura Palareti, Piergiorgio Battistelli , We vs. Them: Terrorism in an Intergroup Perspective , Dans Revue internationale de psychologie sociale 2009/3-4 (Tome 22), pages 35 à 64 , https://www.cairn.info/revue-internationale-de-psychologie-sociale-2009-3-page-35.htm accessed on August 26, 2022.
3. Ibid.
4. United Nations Declaration on Measures to Eliminate International Terrorism annex to UN General Assembly resolution 49/60, “Measures to Eliminate International Terrorism”, of December 9, 1994.
5. Resolution 1566cumulatively requires: (a) an intention to cause death or serious bodily injury or hostage taking, (b) an offense under one of the 19 existing “counterterrorism” conventions, and (c) a purpose (or “specific intent”) to provoke a state of terror in the public or a group of persons, or to intimidate a population, or to compel a government or international organization to do or to abstain from doing any act.(excerpts from article-The Legal Black Hole in United Nations Counterterrorism, June 2, 2021by Ben Saul)
6. https://www.un.org/securitycouncil/ctc/ accessed on 26 august 2022.Also see United against terror, The Hindu (editorial),October 31, 2022.
7. https://www.reuters.com/article/us-david-rohde-drone-wars-idUSTRE80P11I20120126 accessed on September 11. 2022.
8. SETH J. FRANTZMAN, Turkey accused of killing Kurdish female commander in Syria, THE JERISALEM POST, JULY 28, 2022 accessed on September 11, 2022.
9. Ben Saul, The Unlawful U.S. Killing of Ayman al-Zawahri, August 17, 2022,https://www.lawfareblog.com/unlawful-us-killing-ayman-al-zawahri accessed on 27 August 2022). Ben Saul is Challis Chair of International Law at the University of Sydney and Associate Fellow of Chatham House in London. He tweets at @profbensaul.
10. https://www.marketsandmarkets.com/Market-Reports/unmanned-aerial-vehicles-uav-market-662.html viewed on August 25,2022.
11. Colin P. Clarke, Approaching a ‘New Normal’: What the Drone Attack in Venezuela Portends, The RAND Blog, August 13, 2018 (https://www.rand.org/blog/2018/08/approaching-a-new-normal-what-the-drone-attack-in-venezuela.html accessed on 11 August 2022.
12. Colin P. Clarke, Approaching a ‘New Normal’: What the Drone Attack in Venezuela Portends, The RAND Blog, August 13, 2018 (https://www.rand.org/blog/2018/08/approaching-a-new-normal-what-the-drone-attack-in-venezuela.html accessed on 11 August 2022.
13. Ibid.
14. http://dlibra.bg.ajd.czest.pl:8080/dlibra/docmetadata?id=4404&from=publication accessed on September 11, 2022.
15. https://www.un.org/en/about-us/un-charter/full-text  accessed on September 10, 2022.
16. Ben Saul, Lawfare Blog, The Unlawful U.S. Killing of Ayman al-Zawahri, August 17, 2022, https://www.lawfareblog.com/unlawful-us-killing-ayman-al-zawahri, accessed on 24 August, 2022.
17. Mitt Regan, DO TARGETED STRIKES WORK? THE LESSONS OF TWO DECADES OF DRONE WARFARE,Modern Institute of Warfare at West Point, 06.02.22. Viewed in https://mwi.usma.edu/do-targeted-strikes-work-the-lessons-of-two-decades-of-drone-warfare/ on August 22, 2022.
18. chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://dema.az.gov/sites/default/files/Publications/AR-Terrorism%20Definitions-BORUNDA.pdf accessed on 5 September, 2022.
19. Quoted in Noam Chomsky, At War With Asia, p.310.Vintage Books.(1970)