Italy wants to arm its drones, amidst lights and controversy: but reality says that ...

(To Avv. Marco Valerio Verni)
06/05/22

That unmanned aerial vehicles (UAVs: remotely piloted aircraft) have become a game changer in modern conflicts and, more generally, in military operations, it is an established fact, even if, in reality, their use is not so new, if only one thinks that the first armed aircraft of this kind date back to the beginning of the XNUMXs, while those used for surveillance were already used in the Vietnam War.

Today, alongside the United States and Israel (which have made extensive use of it in the war on terror), Europe is at the forefront of adopting this technology, although other Powers are adopting it, as well as the same groups. terrorists.

Also in the Russian-Ukrainian war in recent months we are witnessing an important use, by both sides, of this instrument of war and, it is no coincidence that, in the military supplies allocated from time to time by the Pentagon for assistance to Ukraine's own security, there are also such devices1

Our Armed Forces too, of course, are equipped with them and, recently, the news has returned to the media that the aforementioned have indicated their intention to arm them.

In reality, this possibility had already been feared last year, following the publication of the three-year planning document 2021-2023 by the Ministry of Defense (see below), which indicated the allocation of a budget to be allocated precisely to this purpose: among the programs listed there, in fact, the one concerning the"Update of the MQ-9 payload", where MQ-9 is, precisely, the acronym that indicates drones Reaper. On the other hand, as stated in the same document, the purpose is clear: “In particular, the aircraft will guarantee increased levels of safety and protection in the context of convoys escort missions, making available a flexible defense capability that can be expressed from the air. It will also introduce a new protection option both aimed at forces on the ground and for the benefit of aerial devices during high intensity / valence operations ".

But, even before that, the Berlusconi government was already interested in the question which, in 2010, in the middle of the campaign against the Taliban, had asked Washington for authorization to arm the Italian drones and purchase the guidance devices, only to receive an answer. negative because the system was considered top secret; subsequently, in 2015, Italy renewed the request, this time getting the go-ahead from the US government.

A decision, that of the Italian Ministry of Defense, which, as regards its "ratio", seems to be in line with the changing global scenarios and the emergence of an increasingly complex picture of threats and the relative way of dealing with them, in a context characterized by a renewed military competition between states, many of which have also "changed posture", and which, in addition to traditional domains and modalities, are expressed with increasingly technologically advanced characteristics even in so-called emerging dimensions, such as space and cybernetics.

The advantages deriving from the use of this (new) technology

In general, drones (the reference, of course, is to the higher categories), thanks to their characteristics (speed, ability to fly at medium and high altitudes, great flight range, low operating costs) allow to obtain high performance both in the conduct of ISTAR (Intelligence, Surveillance, Target Acquisition and Reconnaissance) missions, both in the maritime and terrestrial environment, in the context of Patrol, Search and Rescue operations.

The Predator B, in particular, that is those with which the Italian Air Force is equipped, are able to perform a wide range of tasks, thanks to the high qualities of flexibility, versatility and effectiveness that distinguish them.2. Among them, one that is, and has been, particularly important, for example, was that of detecting the presence of threats such as improvised explosive devices (IEDs) which represent the most insidious and widespread danger in today's operational theaters.

But the advantages are also other, since, continuing, missions can be carried out in hostile operating environments, in the presence of nuclear, biological, chemical or radiological contamination, or acquire data and information relating to small and large targets in potentially areas. subject of operations.

All this, mind you, without any danger for the pilots, who act remotely (except for what will be said shortly thereafter), and with a more in-depth assessment of the situation on the ground.

The Reaper armament

As for the weapons our APRs will be equipped with (they will also be integrated new electronic warfare equipment which will allow to operate in "higher military contrast" scenarios), the relative typology is not yet known: in general, an Mq-9 Reaper it can carry war loads of up to 1400 kg. Normally it is a combination of 4 Agm-114 Hellfire air-to-ground missiles to which 2 230 kg GBU-12 laser-guided bombs are added alternatively. Paveway II o 2 GBU 38 JDAM (Joint Direct Attack Munition) Gps-guided bombs of the same weight. But, both in the case of missiles and bombs, it is extremely precise armament suitable for hitting specific objectives, both in motion (tanks, armored vehicles, pick-ups and vehicles in general), and static (buildings, bunkers, shelters of various types)3.

The use of drones in military operations in the light of international law

In general, with regard to military operations, there are two aspects of greatest interest as regards international law and which, on the other hand, are those that the chronicles bring to light most often:

1) the classic targeting against enemy forces (of which we have an example, as mentioned, in the current Russian-Ukrainian conflict);

2) the so-called targeted killings (“Targeted killings”), which had great input as a result of the US policy of war on terror after the attack on Twin Towers of 2001.

The reason for the targeted killings

Starting with the latter, they respond to the following logic which, simplifying, can be explained as follows: if, after so much effort, for example, it is possible to identify a terrorist, who is hiding in a specific place, and there is a reasonable suspicion that , the next day, he can no longer stay there, and go who knows where, perhaps to carry out an (other) attack, it will be necessary to act quickly, and put various aspects on the scales, following the general criteria, that is, in particular , those of military necessity (and its mandatory nature), the advantage deriving from the action in question, the proportionality of the means employed, precisely to avoid, or minimize, the losses of innocent people.

The side effects

The main side effects concern, of course, the victims: on the one hand, the alleged criminals / terrorists, often killed in the absence of a formally declared war and "condemned" without a regular trial (the "trust us" rule applies) , almost always affected, not in the immediacy of one or more criminal facts ascribable to them but at a distance (even considerable) of time4.

On the other hand, innocent civilians who, in fact, represent the ultimate side effect, whether one is killed, ten or twenty or more are killed. When this happens, what is considered is, as already mentioned, whether the "spilled blood" is proportional to the "military" advantage achieved by the action performed through the drone.

In this regard, however, the investigation by the New York Times last December caused a sensation, which resulted from a raid in Kabul in August of that same year, when Biden's drones killed a family rather than a direct ISIS commando against the American military engaged, in those days, in the evacuation of the airport, would have led to ascertaining the death of thousands of civilians, many of them children, caused by "inaccurate intelligence information, hasty decisions and inadequate choice of objectives "5.

International and war law.

As for the first scenario (the classic targeting against enemy forces), if the use of armed UAS falls within a formal conflict between states, there would be no problem from the point of view of compliance with the rules of the ius ad bellum

On the contrary, if they were used "in peacetime" and, therefore, in this case, clearly for the targeted killings of individuals belonging to terrorist groups or suspected of having carried out and / or directed actions in their favor (and the reference, therefore, it is the scenario examined above), albeit in contexts of transition or strong political instability, it would be necessary, in order to support the legitimacy of these missions under international law, to first ascertain whether the "war on terrorism" is attributable to a of the two exceptions to the general prohibition of the use of force, or whether the use of such new remotely controlled military technology is appropriate ex se to qualify the aforementioned missions differently from those carried out by "traditional" means of war and to introduce, as a result, a new exception to the aforementioned prohibition.

The first orientation is, of course, that adopted by the United States: in the aftermath of the attack on the Twin Towers (i.e. September 14, 2001), the American Congress released to the President of the United States Authorization for the use of military force against terrorists (AUMF), to allow the use of any means necessary to prosecute those responsible for the attacks of three days before and each individual or group of supporters, interpreting extensively that concept of right to self-defense in response to an attack by others who, alongside the United Nations Security Council authorization, where necessary "maintain or restore international peace and security" (art. 42), is provided as a derogation (art. 51 of the UN Charter) to the ban on the use of force there sanctioned by art. 2, paragraph 4, "against the territorial integrity or political independence of any state" o "in any other way incompatible with the purposes of the United Nations".

The latter (United Nations), for their part, have always viewed this approach with a certain diffidence, arguing that, however serious the terrorist phenomenon is, it cannot be considered, due to its intensity, as an armed conflict, and which would be a stretch, if not a practice contra ius that of fighting a war without place and time and highlighting (see, for example, the Report on extrajudicial, summary or arbitrary executions- A doc. A / HRC / 14/24 / Add.62 of 28 May 2010 - of the Special Rapporteur of the Human Rights Council Philip Alston, or that “on Promotion and protection of human rights and fundamental freedoms while countering terrorism "- A doc. A / 68/389 of 18 September 2013-, drawn up by Special Rapporteur Ben Emmerson), therefore, as, outside of a formally established armed conflict, the possibility of a "intentional, premeditated and deliberate use of lethal force" achieved through the use of APR cannot be considered admissible "under international law".

Employment that, conversely, would be considered lawful in the event of a formal conflict between States, ie in the presence of one of the two exceptions to the use of the aforementioned force, provided for by the UN Statute, always having regard, however, to the rules of "ius in bello".

Orientation, the latter, also shared by the International Committee of the Red Cross, through an interview released, in 2013, by its president, Peter Maurer, according to which, once the lawfulness of a conflict has been ascertained according to the rules of the "ius ad bellum", the use of RPAs is certainly not prohibited by the regulations of international humanitarian law (which, of course, does not express an explicit reference to them, but implies their equation with conventional weapons), but it is clear that it is , their use, must conform. Therefore: respect for the distinction between military objectives and civilian goods, respect for the civilian population, military operations carried out according to certain criteria (necessity, proportionality, suitability of the means and methods used, (yes, you can learn it)).

Besides Enduring Freedommoreover, practices have also developed in other situations (see the Israel-Lebanon conflict in 2006 or the interventions of the Russian Federation in Georgia) which have considered legitimate, in the light of the above, the legitimate defense against non-state groups : certainly, in those cases we were not talking about drones, but about other weapons, but the way is that (on the other hand, as the Special Rapporteur United Nations Philip Alston, a missile fired from a drone is like a missile fired by any jet aircraft)6.

In perspective, however, given the characteristics of the war on terror, and the new military technology available, focused precisely on the use of UAVs, and the advantages deriving from it, there are those who suggest to deepen and develop the aforementioned idea, that is to create, alongside the category of formal conflicts between States, and those falling under the exceptions provided for by the UN Charter, a tertium genus, which provides for the possibility of fighting a "widespread" armed conflict (as it is potentially exportable to any geographical location) and "permanent" (because it is destined to end only when the terrorist threat is definitively averted), along the lines of that hypothesized by the USA by 2001, with the AUMF first recalled.

The road, however, is long and uphill because this would presuppose, on the one hand, the possibility of making the whole world a battlefield, perhaps indefinitely, on the other, the possibility of leading a conflict, or perhaps , to carry out individual missions involving the use of lethal force on the territory of a foreign state without the consent, even implicit, of the latter. Not considering that, even if it were granted, we would still face the right to life (and therefore the prohibition of arbitrary killings) which, as such, is protected, in its essential core, by general rules of an imperative nature and , therefore, beyond the conventional derogation.

To return to the starting point, the Italian Armed Forces have (and have always had) a high sensitivity in compliance with international legislation: what is needed is a serious, qualified and in-depth political (and ethical) debate in this regard which, free from clichés, take into account the reality of things, including the dramatic Russian-Ukrainian situation7, is representing in all its cynical rawness.

3 See the report of the Centro Studi Internazionail - Cesi, available at the link

https://www.parlamento.it/application/xmanager/projects/parlamento/file/...

4 Among the recent targeted killings, one of the most discussed, in terms of lawfulness, was that of the Iranian general Qassem Suleimani, which took place in Baghdad, Iraq, on January 3, 2020, which also, on this newspaper, was: https://www.difesaonline.it/evidenza/diritto-militare/luccisione-di-sole...

6 United Nations Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston. Addendum-Study on targeted killings, May 28, 2010, UN Doc. A / HRC / 14/24 / Add.6, para. 79 ("[...] a missile fired from a drone is no different from any other commonly used weapon, including a gun fired by a soldier or a helicopter or gunship that fires missiles")

7 See what was reported, for example, by the Chief of Staff of the Air Force, Air Squad General Luca Goretti, to the joint defense commissions of the Chamber and Senate last February 16: https://it.insideover.com/difesa/la-svolta-dellaeronautica-italiana-poss...

Images: US Air Force / Ministry of Defense / Air Force / Defense of Ukraine