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The Use of Unarmed Drones in UN Peacekeeping Operations: Issues of Attribution

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Use and Misuse of New Technologies

Abstract

The use of drones is typically associated with targeting strikes. Hence, it comes as no surprise that the debate on the opportunity for the United Nations to make use of this technology is still dominated by concerns on the “killer drones”. This Chapter emphasizes, instead, the magnitude and the crucial importance of the use of unarmed drones by the United Nations in missions conducted under their aegis. In peacekeeping operations in particular, unarmed drones are essential for fulfilling the UN mandate, as they can perform several non-lethal functions (i.e. monitoring, information gathering, surveillance and reconnaissance). However, drones—although unarmed and employed for peaceful purposes—pose a number of legal issues, particularly from the perspective of the protection of human rights and the liability of their operators. An often overlooked question relates to the (mis)use of drones by private actors who have been contracted by the United Nations to remotely operate the vehicles from ground stations and to collect, store and analyse the data thus captured. This issue will be tackled from the perspective of the Draft Articles on the Responsibility of International Organizations with the aim to assess whether private actors operating the drones can be considered as “agents” of the United Nations, thereby directly imputing their potential wrongdoings to the Organization for whom they have been contracted.

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Notes

  1. 1.

    The debate surrounding the use of “killer drones” in Afghanistan, Yemen, Pakistan and the Sahel is widely covered in the legal literature (see, ex multis, Heyns et al. 2016, pp. 791–827). The European Parliament, for its part, recently fleshed out its position on the matter in the study “Towards an EU common position on the use of armed drones” conducted by the Directorate-general for external policies and published in July 2017 (available at www.europarl.europa.eu/RegData/etudes/STUD/2017/578032/EXPO_STU(2017)578032_EN.pdf). As for the legal hurdles underpinning the claims for reparation of damages caused by drones, see the recent publication of the European Center for Constitutional and Human Rights, “Litigating Drone Strikes. Challenging the Global Network of Remote Killing” (2017).

  2. 2.

    See Sect. 2 below.

  3. 3.

    This latter scenario raises a different question, that is to say whether and to what extent the UN Security Council can lawfully delegate Member States to use force without assuring that the said States make use of weapons that are in accordance with international law standards. This issue—which clearly exceeds the scope of the present study—is addressed from a much broader perspective by Lozanorios (2014), pp. 109–151.

  4. 4.

    UUAVs can perform a large set of arduous civilian tasks, including the following: to reach remote rural areas with inexistent or difficult networks; to capture imageries after natural disasters, thus collecting real-time information which can prompt timely action and prevent other risks; to monitor danger scenarios both at night and during the day, by reporting rapid damage assessments with a view to better organizing emergency responses; to transport and deliver relief items and primary goods, such as foods, water and medical supplies, in a more timely fashion; to bring connectivity to areas with no cell or Wi-Fi signals, by extending Wi-Fi connectivity from the sky to the ground; and many others.

  5. 5.

    With over 3000 members in more than 120 States, the Humanitarian UAV Network is committed “to promote the safe, coordinated and effective use of UAVs for data collection and cargo delivery in a wide range of humanitarian and development settings” (for the background of this initiative see www.uaviators.org/). Interestingly enough, the Network—wherein the UN Office for the Coordination of the Humanitarian Affairs sits as member of the Advisory Board—elaborated a first Code of Conduct for the use of UAVs in humanitarian settings, containing guidelines on data protection and privacy. A presentation on the topic “Humanitarians in the Sky: Using UAVs for Disaster Response” was delivered by the Network in the “Remotely Piloted Aircraft Systems Conference” that was held in Brussels in 2014 (the study can be accessed at the webpage www.irevolutions.org/2014/06/25/humanitarians-in-the-sky/).

  6. 6.

    OCHA Policy Paper, June 2014.

  7. 7.

    Recently, the UNICEF together with the Office of the UN High Commissioner for Refugees (UNHCR) chaired the UN Innovation Network, to share experiences and advance discussions on innovation across UN agencies (www.refugeesmigrants.un.org/feature-does-drone-technology-hold-promise-un).

  8. 8.

    The corridor launched by the UNICEF together with the Government of Malawi has been “designed to provide a controlled platform for the private sector, universities and other partners to explore how UAVs can be used to help deliver services that will benefit communities” (UNICEF, Stories of Innovation, www.unicefstories.org/2017/06/29/africas-first-humanitarian-drone-testing-corridor-launched-in-malawi-by-government-and-unicef/, 29 June 2017).

  9. 9.

    Information related to public contracts for the supply of UUAVs that have been awarded by the International Atomic Energy Agency can be accessed at www.ungm.org/Public/ContractAward.

  10. 10.

    OCHA Policy Paper cit., p. 7.

  11. 11.

    www.unitar.org/unosat-carries-out-first-uav-mission-iom-haiti.

  12. 12.

    UNDP Innovation Facility-Innovation for the Sustainable Development Goals Build Peaceful Society, Prevent Violent Conflict, 2016, Year in Review, p. 37 (www.undp.org/content/dam/undp/library/innovation/IF%202015%20Report%20For%20Web%20final(1).pdf).

  13. 13.

    Recently, the Under-Secretary General for Peacekeeping Operations, in a press interview with the Africa Section of the United Nations Department of Public Information, affirmed that “UAVs do a better job in protecting civilians because they provide real-time pictures of situations as they develop on the ground” (www.un.org/africarenewal/web-features/unmanned-aerial-vehicles-are-effective-protecting-civilians%E2%80%94herv%C3%A9-ladsous).

  14. 14.

    The study “Performance Peacekeeping. The Final Report of the Expert Panel on Technology and Innovation UN Peacekeeping” notes that “[i]n 2006, the European Union Force (EUFOR) flew Belgian B-Hunter UAVs during the tense election period in the DRC. UN personnel were invited to view UAV imagery on large screens in EUFOR headquarters near Kinshasa, but the UN did not have its own data feed” (www.peacekeeping.un.org/sites/default/files/performance-peacekeeping_expert-panel-on-technology-and-innovation_report_2015.pdf, 22 December 2014, p. 134). Likewise, it was reported that in 2008 a Contributing State brought surveillance drones while participating in the transition process between the EUFOR and UN mission in the Central African Republic (MINURCAT), to protect refugees and IDPs (see in this regard Karlsrud and Rosén 2013, p. 2).

  15. 15.

    The episode is reported in Dorn (2009), p. 816.

  16. 16.

    See Sect. 3 below.

  17. 17.

    Dorn and Webb (2017), p. 413.

  18. 18.

    Surveillance drones were later engaged in 2016 in the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), whose peculiar and innovative mandate has been recently outlined in Pineschi (2018), pp. 5–57. The UN Procurement Division issued a Request for Expression of Interest (EOI) “for the provision of Unmanned Aerial System (UAS) with multiple Unmanned Aerial Vehicles (UAVs) in support of peace-keeping operations in Mali” (www.innercitypress.com/icpeoi9777mali.pdf). A three-year contract was awarded to Thales UK Ltd, a British company, for 61,000,000 dollars (www.un.org/Depts/ptd/contract-awards/hq-Contracts/pdc024515). Moreover, Mali’s UNDP office uses drones and satellite imagery “to enable real-time monitoring to support the activities of humanitarian and development actors in the field, particularly those working on community development for emergency services” (see UNDP Innovation Facility, Innovation for the Sustainable Development Goals, www.undp.org/content/dam/undp/library/innovation/Version%2024%20web%20friendly%20-%20August%202%20-%20%20Annual%20Report%202016%20V17.pdf, p. 37).

  19. 19.

    See Performance Peacekeeping. The Final Report of the Expert Panel on Technology and Innovation UN Peacekeeping cit.

  20. 20.

    Ibid., p. 79.

  21. 21.

    The full story is available at www.un.org/apps/news/story.asp?NewsID=47727#.U6CtbPl_tqU.

  22. 22.

    See www.dailymail.co.uk/wires/afp/article-3312855/UN-sends-peacekeepers-drones-C-Africa.html.

  23. 23.

    According to some authors “[t]here is no doubt that the ‘MONUSCO drones’ represent a defining moment in the history of UN peacekeeping and aerial surveillance” (Karlsrud and Rosén 2013, p. 2).

  24. 24.

    For the background of the UN mission in Congo, see www.monusco.unmissions.org/en/background.

  25. 25.

    Letter dated 27 December 2012 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2013/43.

  26. 26.

    Latter dated 22 January 2013 from the President of the Security Council addressed to the Secretary-General, UN Doc. S/2013/44.

  27. 27.

    On the “offensive” feature of the UN peacekeeping in Congo and its consequences as a precedent for future UN missions see Kearney (2016), pp. 100–141. The initial legal issues related to the mission in Congo were addressed by Simmonds (1968).

  28. 28.

    UN Doc. S/RES/2098 (2013), para. 12.

  29. 29.

    See Andrews (2017), p. 5.

  30. 30.

    In this latter regard, the New York Times recalled an episode whereby UN personnel were under attack by rebel groups and the use of drones proved to be crucial in preventing it from occurring (see Unarmed Drones in Aid U.N. Peacekeeping Mission in Africa, New York Times, 2 July 2014, the full story can be accessed at www.nytimes.com/2014/07/03/world/africa/unarmed-drones-aid-un-peacekeepers-in-africa.html).

  31. 31.

    “Since their operationalization, the unmanned aerial systems have provided MONUSCO with a responsive, controlled and timely source of information, particularly in terms of supplementing the Force’s intelligence, surveillance and reconnaissance efforts against the illegal activities of armed groups” (UN Doc. S/2014/157, para. 43).

  32. 32.

    UN Doc. S/2015/486, 26 June 2015, para. 18.

  33. 33.

    Performance Peacekeeping. The Final Report of the Expert Panel on Technology and Innovation UN Peacekeeping cit., p. 134.

  34. 34.

    Ibid., p. 79.

  35. 35.

    Ibid., p. 54. The Report affirms that “such operational-level assets, such as the system in MONUSCO, provide powerful surveillance and visualizations capabilities in addition to functioning, under the right circumstances, as a commanding deterrent”, thus concluding that “the MONUSCO experience could be replicated in many other missions with requirements for medium-altitude long-endurance UAVs”.

  36. 36.

    Notably, the delegate from the Russian Federation welcomed the experimental deployment of UAVs in Congo, but noticed that a deeper analysis of the legal, operational and financial consequences was needed (UN Doc. GA/PK/221, 18 February 2015, p. 3, available at www.un.org/press/en/2015/gapk221.doc.htm). For further considerations on the use of UAVs in peacekeeping operations expressed by UN Member States, see Sect. 4 below, especially footnote 49.

  37. 37.

    Drones were used for the foregoing rescue of a boat in the Lake Kivu and in assisting an NGO to monitor humanitarian projects (full story is reported at www.monusco.unmissions.org/node/100043465). See above footnote 21. For an overview of the main goals achieved by UUAVs see Dorn and Webb (2017), p. 414; Morrell Andrews (2017), pp. 4–5.

  38. 38.

    The case was reported by Karlsrud and Rosén (2013), who cited a media source of Washington Post dated October 2006 (www.washingtonpost.com/wp-dyn/content/article/2006/10/03/AR2006100300778.html) and by Sari and Wessel (2012), p. 23, footnote 126.

  39. 39.

    The full story can be read at www.foreignpolicy.com/2015/09/10/how-a-u-n-drone-crashed-in-congo-and-was-promptly-forgotten/.

  40. 40.

    From an exchange of e-mails with the reporter, it emerged that the sum arrived only when an intermediary (a male neighbor from the local community where the victim resided) went to the UN headquarters to fill out a demand for compensation at the UN claims department in Goma.

  41. 41.

    Normally, military air assets are acquired by the United Nations through letter of assists signed with troop-contributing States, whereby assets and services are provided for reimbursement (in this regard see Novosseloff 2017, p. 7, footnote 21). A template of a Letter of Assist signed by the UN and Member States is available at www.cc.unlb.org/COE%20Documents/Letters%20of%20Assist%20(LOA)/Sample%20LOAs/Sample%20Short-Term%20Air%20Transport%20LOA%20(As%20at%205%20Mar10).pdf.

  42. 42.

    From the information available on the website of Procurement Division of the United Nations, it can be inferred that Vendor Selex ES S.p.A. (now Leonardo S.p.A.) was awarded the contract to provide unmanned aerial systems from November 2013 to November 2016, for the payment of 50,000 dollars (www.un.org/Depts/ptd/contract-awards/hq-Contracts/pdc010313). This news was also covered by several media outlets, such as the Italian IlSole24Ore (www.ilsole24ore.com/art/notizie/2013-12-07/i-droni-italiani-falco-azione-congo-172937.shtml?uuid=ABVGmci) and by the New York Times (www.nytimes.com/2014/07/03/world/africa/unarmed-drones-aid-un-peacekeepers-in-africa.html).

  43. 43.

    UN Doc. S/2013/757, 17 December 2013.

  44. 44.

    UN Doc. S/2014/956, 30 December 2014.

  45. 45.

    UN Doc. S/2014/450, 30 June 2014, para. 75.

  46. 46.

    Leonardo S.p.A. offers its clients a full package of utilities, which includes not only the provision of the goods, but also several associated services (see www.leonardocompany.com/-/falco-evo-service-monusco).

  47. 47.

    This issue was addressed by Morrell Andrews (2017), p. 7 and by De Pascali (2014), p. 29. The latter author made reference to the UN Policy on Monitoring and Surveillance Technology in Field Missions which, building on the presumption that “[m]onitoring and Surveillance Technology comprises system such as Remotely Piloted Vehicles (RPV)”, states that “[p]rocessed information will be shared within the UN only, including UN HQ. The Head of Mission will decide on the distribution list within the United Nations Country Team (UNCT) based on the ‘need-to-know principle’, and taking into account safety and privacy of individuals” (UN DPKO and DFS Ref. 2010.34, paras. 11 and 23).

  48. 48.

    See Østensen (2011), p. 30. The risk in this regard is that the use of high-tech equipment in peacekeeping operations might result in an illegitimate interference with the internal affairs of a State and that the information gathered can be exploited in other contexts.

  49. 49.

    The delegate from Venezuela questioned the access to the information gathered through drones, the protection of the confidentiality of the information, especially when provided by private companies. Similarly, the delegate from Cuba spoke critically on this subject. The Turkish delegate noted, from a more general standpoint, that UUAVs must be used in line with international law, the Charter of the United Nations and the principle of transparency (see UN Doc. GA/PK/221 cit.).

  50. 50.

    “The main concern of regulators is safety and liability” (OCHA Report cit., p. 9).

  51. 51.

    According to Section 29 of the Convention on the Privileges and Immunities of the United Nations “[t]he United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. The content of the latter provision is indirectly recalled in Article VII of the UN Model Status of Forces Agreement (UN Model SOFA) which affirms that “any dispute or claim of private character to which the operation or any member thereof is a party and over which the courts of [host State] do not have jurisdiction because of any provision of the present Agreement, shall be settled by a standing claims commission to be established for that purpose” (see UN Model Status of Forces Agreement, UN Doc. A/54/595, 9 October 1990, para. 51). However, the permanent standing commission has never come to light. Tort liability disputes are, instead, addressed by local claims review boards established in every peacekeeping operation, with financial and temporal limitations stemming from resolution 52/247 of the General Assembly (UN Doc. A/RES/52/247, 26 June 1998; in this respect see Bodeau-Livinec (2013), Forteau (2013), Palchetti (2015); see also the Secretary-General’s 1996 Peacekeeping Budget Report, UN Doc. A/51/389, 20 September 1996, para. 20 and Administrative and budgetary aspects of the financing of the United Nations peacekeeping operations, UN Doc. A/51/903, 21 May 1997, para. 10). On the shortcomings of these dispute settlement mechanisms see, among many, Dannenbaum (2010) and Boon (2016).

  52. 52.

    Needless to say, the UN, like every International Organization, can be held responsible according to the 2011 Draft Articles on the Responsibility of International Organizations for Wrongful Acts (hereinafter DARIO) when the conduct in question (i) is attributable to the Organization under international law; and (ii) constitutes a breach of an international obligation of that Organization (see Draft Articles on the Responsibility of International Organizations, with commentaries, in Yearbook of the International Law Commission, 2011). Detecting what obligations are breached and who the holder of respective rights is becomes crucial for the purposes of who—between individuals and/or States—the injured party is and who is entitled to the right of reparation; on the much broader debate on the existence of an individual right to reparation see, among many, Pisillo Mazzeschi (1999), and contra Tomuschat (1999)).

  53. 53.

    While the general trend towards the use of private contractors in conflict settings has been already outlined by several authors (see ex multis Francioni and Ronzitti 2011 and Spinedi 2006, pp. 67–103), and is currently under study within the United Nations Human Rights Council (see the HRC open-ended intergovernmental working group to consider the possibility of elaborating an international regulatory framework on the regulation, monitoring and oversight of the activities of private military and security companies), the engagement of private contractors in UN peacekeeping operations performing security and even military functions has been studied only relatively recently (see Pressler 2015, pp. 152–187 and Lilly 2000, pp. 53–62). It is worth noting that the recent Status of Forces Agreement (SOFA) signed between the Organization of the United Nations and the South Sudan included the category of “contractors”, that was not originally envisioned in the 1990 UN Model SOFA, as a subject under the regulation thereby provided. According to this SOFA “contractors means persons, other than members of UNMISS, engaged by the United Nations, including juridical as well as natural persons and their employees and sub-contractors, to perform services for UNMISS and/or to supply equipment, provisions, supplies, materials and other goods including spare parts and means of transport, in support of UNMISS activities” (the text of the Agreement is available at www.un.org/en/peacekeeping/missions/unmiss/documents/unmiss_sofa_08082011.pdf).

  54. 54.

    See above Sect. 3. Interesting figures on the number of UUAVs supplied to the United Nations by private companies—through public procurement—and by Member Contributing States–through letters of assists—can be accessed in Novosseloff (2017), p. 8. For the purpose of the present analysis, the fact that a portion of the companies’ shares is often held by the States is not relevant, because this circumstance doesn’t imply—per se—that such companies can be considered as “organs” of the States.

  55. 55.

    According to the letter of interests that are normally released by the UN Public Procurement Division, private companies are requested to provide their own staff to “track, control, monitor the drones and provide analysis of data received” (the letter of interests can be accessed at www.unmannedsystems.ca/wp-content/uploads/2016/02/UN-expression-of-interest-UAS-11-Feb-2016.pdf).

  56. 56.

    When wrongdoings in peacekeeping operations are committed by military forces put at the disposal of the Organization by the State contributing troops, it becomes critical to establish whether such conduct is imputable to the sending State and/or to the receiving Organization. The approach adopted by the DARIO—enshrined in Article 7 thereof—relies on the degree of “effective control” exercised by the States and/or by the Organization (see UN Doc. A/CN.4/541, 2 April 2004, para. 7). This criterion, as is well known, has led to different interpretations both in the literature and in judicial decisions, thus providing more questions than solutions (in this regard, the literature is particularly extensive; the issue of the attribution of wrongful acts committed by peacekeepers has been addressed in the pioneer study conducted by Condorelli (1995), further developed in Condorelli (2014), as well as in several works of Palchetti, among many, see Palchetti (2007), p. 681).

  57. 57.

    See Draft Articles cit., p. 17 (emphasis added).

  58. 58.

    As is well known, the definition of “agent” endorsed by the International Law Commission is largely based on the definition given by the International Court of Justice. In the advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations, it was affirmed that “[t]he Court understands the word ‘agent’ in the most liberal sense, that is to say, any person who, whether a paid official or not, and whether permanently employed or not, has been charged by an organ of the organization with carrying out, or helping to carry out, one of its functions – in short, any person through whom it acts” (ICJ, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, I.C.J. Reports 1949, p. 177).

  59. 59.

    On this point, the Commentary of the Draft Articles on the Responsibility of International Organization makes it clear that “[b]y not making the rules of the organization the only criterion, the wording of paragraph 2 is intended to leave the possibility open that, in exceptional circumstances, functions may be considered as given to an organ or agent even if this could not be said to be based on the rules of the organization” (Draft Articles cit., p. 19, para. 9).

  60. 60.

    See Draft Articles cit., p. 6.

  61. 61.

    Generally, the functions that are mostly outsourced to private contractors in peacekeeping operations cover three areas: logistical and support service, security and policing tasks as well as military support (see Lilly 2000, p. 55). Equally, the outsourced activities conducted by drones can serve—in certain circumstances—as a support for one of these three areas with a view to fulfilling the UN mandate.

  62. 62.

    See Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, 2001, Article 5. In this regard, the International Law Commission explained in the DARIO that “Article 5 of the articles on the responsibility of States for internationally wrongful acts concerns ‘conduct of persons or entities exercising elements of governmental authority’. This terminology is generally not appropriate for international organizations. One would have to express in a different way the link that an entity may have with an international organization. It is however superfluous to put in the present draft articles an additional provision in order to include persons or entities in a situation corresponding to the one envisaged in article 5 of the articles on the responsibility of States for internationally wrongful acts. The term ‘agent’ is given in subparagraph (d) of article 2 a wide meaning that adequately covers these persons or entities” (Draft Articles cit., p. 19, para. 10). Interestingly, paragraph 5 of the Elements for the Draft Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights has been drafted along the same lines of Article 5 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (see www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/LegallyBindingInstrumentTNCs_OBEs.pdf, p. 9). Unfortunatelly, the Draft Legally Binding Instrument does not address—for the time being—the responsibility of International Organizations for actions and omissions committed by their contractors companies.

  63. 63.

    Arguably, this circumstance might open the door, in the future, to the deployment of drones to launch directly offensive actions.

  64. 64.

    See, for instance, the Request for Expression of Interest (EOI) published in 2016 and available at www.ungm.org/Public/Notice/42758.

  65. 65.

    As for the different question of strict liability under domestic law arising from damages caused by drones, it is likely that private contractors do rely on insurance schemes of compensation covering loss or damage sustained by third parties on the ground.

  66. 66.

    The tender procedure launched by the United Nations normally contains contract clauses that read as follow: “the flight operating crew and all maintenance personnel shall at all times remain the servant or agent of the contractor” and that “[t]he UAS provider will be an independent contractor who remains in control of the system and aerial vehicles and shall be responsible for operation and maintenance of the Unmanned Aerial System. All personnel as part of the vendor’s offer, including but not limited to, flight crew (pilots and payload operators), Data Analysts and all maintenance personnel shall at all times remain the servant or agent of the contractor” (www.ungm.org/Public/Notice/42758).

  67. 67.

    In this regard we fully agree with Magi (2010), pp. 753–780, especially para. 4.

  68. 68.

    On the events before and after the fall of Srebrenica and the role played by the Dutchbat see, among many, Baehr (2010), pp. 269–286.

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Buscemi, M. (2019). The Use of Unarmed Drones in UN Peacekeeping Operations: Issues of Attribution. In: Carpanelli, E., Lazzerini, N. (eds) Use and Misuse of New Technologies. Springer, Cham. https://doi.org/10.1007/978-3-030-05648-3_13

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