ON July 15, the Pakistan military announced it had shot down an Indian spy drone in Bhimber, Azad Kashmir. This response seemed to have triggered a series of border skirmishes along the working boundary and the Line of Control.
Pakistan filed a complaint with UNMOGIP, the UN body responsible for observing violations of the ceasefire line. India, however, no longer recognises UNMOGIP’s mandate: it has repeatedly argued that UNMOGIP’s authority ended when the Simla Agreement entered into force in 1972. This treaty is well known for its focus on bilateral relations.
If India did indeed conduct a spy drone surveillance flight inside Pakistan’s territory, then this intrusion would be a flagrant violation of the latter’s sovereignty, which is safeguarded under Article 2(4) of the UN Charter. Pakistan’s response of shooting down such a drone would be a legitimate exercise of its inherent right of self-defence, provided under Article 51 of the UN Charter. Pakistan also reserves the right to take proportionate countermeasures to such aggression, a response enumerated by the International Court of Justice in its seminal Nicaragua judgement on the legality of the use of force.
Drone usage can serve as a catalyst for escalating conflict.
However, India denies that its surveillance drone was ever shot down by Pakistan. With conventional weapons such claims would be verifiable, because it would be easy to trace military weapons and equipment. But with commercially available surveillance drones, such assessments are difficult. For instance, the drone shot down by Pakistan is said to be commercially available for only $1,259. Any private citizen or militant outfit would have access to this relatively cheap but effective technology. Any military using drones of this kind can always put the blame on private actors and deny it ever conducted such operations in the first place. In addition, militaries can continue to use surveillance drones without any risk of personnel injury or casualties. Both these factors provide an incentive for states to clandestinely use surveillance drones against each other.
This makes this technology exceptionally dangerous, because both combative and surveillance drones become force multipliers. Drone usage for surveillance or otherwise can serve as a catalyst for propagating or escalating conflict. Currently, the international law regime regulating drones, including their proliferation, is far from adequately developed. This in turn allows states to use this technology brazenly and opportunistically, seriously challenging established norms of international law that reinforce restraint and promote peace.
For an example of how this can happen, let’s examine the legal regime governing spying under International Humanitarian Law (IHL). “Espionage is defined as gathering or attempting to gather information in territory controlled by an adverse party through an act undertaken on false pretences or deliberately in a clandestine manner.” While combatants normally enjoy combatant immunity and protections, a charge of espionage can strip a captured combatant on enemy territory of his or her prisoner-of-war status: enemy combatants can be punished or sentenced under national legislation for espionage after a fair trial. But surveillance drone operators never enter enemy territory and cannot be caught, even though the information gathered by them through a drone can be much more revealing and intrusive as compared to that gathered by a spy physically.
Both combative and surveillance drones are not enemy combatants under IHL. Drones cannot be tried, punished or convicted of violations of the law of war, while the identities of the drone operators are kept strictly confidential by the states employing them. Thus surveillance drone operations currently seem to lie outside the conventional framework of responsibility and accountability under international law.
The legal lacunae are resulting in serious human rights violations including the right to privacy and liberty at a domestic level and violations of state sovereignty at an inter-state level. They are also triggering a global drone arms race, which will pose serious challenges for international peace and security in the near future. States might also feel they can develop or devise their own rules on drone usage, because they are not bound by the traditional restraints in customary international law governing the use of force and surveillance.
Pakistan and India are extensively developing their own drone weapons delivery and surveillance systems and it is imperative that both states bilaterally develop a transparent regime to circumvent their misuse against each other for all purposes, including clandestine surveillance. Drones have proven to be a multiplier of lethal force and both countries must realise this fact right away; they should not wait for a multilateral framework to develop, which might take a very long time.
The writer is a former legal adviser to the ministry of foreign affairs.
Published in Dawn, July 26th, 2015