Drones for the ICC and Drones for Human Rights?

(Photo: Kirsty Wigglesworth/AP)

A recent thought-provoking and provocative op-ed in the New York Times has presented a serious challenge to those who view drones as nothing more than the evil extensions of secretive warfare. According to Andrew Stobo Sniderman and Mark Hanis, “[i]t’s time we used the revolution in military affairs to serve human rights advocacy.”

The use of drones to assassinate alleged terrorists in the Global War on Terror has elicited a heated debate on the ethics and legality of the extra-judicial killing of individuals by un-manned air crafts. Sniderman and Hanis don’t contest that the use of drones, particularly by the US, is legally and ethically controversial. But, they argue, we need to go beyond the myopic focus on drones as military hardware and consider how drones can be employed for good ends and, more specifically, the role drones could play in highlighting and responding to human rights violations. Using the case of Syria, Sniderman and Hanis argue the following:

“A drone would let us count demonstrators, gun barrels and pools of blood. And the evidence could be broadcast for a global audience, including diplomats at the United Nations and prosecutors at the International Criminal Court…

…We could record the repression in Syria with unprecedented precision and scope. The better the evidence, the clearer the crimes, the higher the likelihood that the world would become as outraged as it should be…

…Even if humanitarian drones are not used in Syria, they should assume their place in the arsenal of human rights advocates. It is a precedent worth setting, especially in situations where evidence of large-scale human rights violations is hard to come by. “

On first glance, the authors’ argument is persuasive. Heck, who doesn’t want better protection of human rights and who isn’t frustrated that atrocities often go completely ignored (here’s looking at you, DRC)?

But in their argument, Sniderman and Hanis conflate two key issues which need to be distinguished and considered separately. The first, which I think most will agree with, is that having more accurate information and evidence of human rights violations is a desirable goal. The second is that drones are the answer to how to do this.

Could the International Criminal Court use drones to accumulate evidence of crimes against humanity, genocide and war crimes? It might be an appealing prospect. Consider, for example, the cases of Darfur and Libya where ICC investigators have had virtually no access. Drones could take detailed images of violations which could then be used to form the basis of arrest warrants. Sounds good, right?

No sot fast. If we follow Sniderman and Hanis to their logical conclusion, then the human experience and role in the adjudication of international crimes and human rights violations could – indeed, should – be replaced by the accurate and pin-point evidence offered by “humanitarian drones”. Implicitly they suggest that the human experience and witnessing of crimes risks is insufficient to outrage public opinion and to stir action – and that drone technology is the answer. On this issue, I am highly skeptical.

We are in the midst of a paradigm-shifting trajectory in the conduct of international relations, one which is witnessing the removal of the human from the conduct of warfare. The evolution of military intervention has increasingly removed the human from the conduct of intervention itself. States increasingly hesitate to cross the ‘Mogadishu line‘, viewing it as too costly domestically to risk the lives of soldiers for humanitarian purposes. Thus we have seen military interventions from 10,000 feet in the sky (Kosovo, 1999) to intervention where not a single infantry troop was put on the ground (Libya, 2011). Drones are only one part of this trajectory.

An American aerial photo taken during the Cuban Missile Crisis (1962)

Of course, it would be absurd to suggest that photographic evidence does not evoke passionate responses and mobilize public opinion. Human rights NGOs are masters at using visual materials in order to tap into our latent moral outrage. But in the context of “drones for human rights”, the risk is that the human gets removed from the experience and accounting of human rights violations. What would seem to matter is not personal experience but the particular configuration of pixels on a screen. This is folly. The process of victims, survivors and witnesses being involved shouldn’t be exchanged for the “unprecedented precision and scope” of the photographs offered by drone technology. If anything, the role of victims, survivors and witnesses in the process of seeking and delivering justice should be enhanced.

It is worth noting, in this context, that even in the most inaccessible areas, the ICC has been able to accumulate enough evidence to issue arrest warrants for individuals like Muammar Gaddafi and Omar al-Bashir. In Libya, for example, human rights workers on the ground risked their lives to collect witness statements in Misrata, Benghazi, Tripoli and elsewhere that formed the basis of the arrest warrants against the Tripoli Three. Groups like Lawyers for Justice in Libya were created and spurred to action in order to provide assistance in the pursuit of justice and accountability. Would this have occurred had the ICC simply requested images of the violence?

None of this is to reject the idea of submitting aerial photographs as evidence to the ICC or using such evidence to mobilize and alert public opinion to mass atrocities or human rights violations. Nor am I inherently against the idea of using drones for good ends. But we need to be wary of what it means to remove the human from goals that are fundamentally and forever human, including highlighting and responding to atrocities.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Drones, International Criminal Court (ICC), Justice. Bookmark the permalink.

10 Responses to Drones for the ICC and Drones for Human Rights?

  1. alex@aipr says:

    Excellent points, Mark. To which I would add two more that occur to me: 1) The reason for U.S. failure to act against atrocities has NEVER been lack of evidence/information. 2) The use of drones ultimately supports the already frightening, and probably untenable, dependence of the U.S. economy on military production.

  2. Mark Kersten says:

    Thanks very much for that comment, Alex. I especially appreciate the point that inaction – by the US or otherwise – generally hasn’t been the result of a lack of evidence. There’s no doubt a myriad of historical and contemporary examples that point to precisely that sombre conclusion.

    • Michael says:

      Sure, I generally agree. But what was coming out of Rwanda publicly in the first week? Are you 100% certain that high resolution footage of roadblocks, dead bodies, and tens of thousands of people trapped in churches and on hills throughout the country would not have had some affect on public outcry for involvement or the administration’s decision calculus? I’ve said this before but we also can’t base our future actions on context of public response in the past. A public today confronted with clear evidence of genocide may act differently. So, we have a responsibility to put together the clearest, fastest and most accurate argument for such action.

      An incomplete gathering of facts makes it easier for both a populace and an administration to hide in the fog of war. Better information about exactly what is going on doesn’t solve the problem but it does undermine one of the major excuses for inaction.

      To your second point drones, like robots, are inanimate tools. They do not have an inherently military nature or personality. There is the tendency to view them as such but we need to separate the emotional outrage to arming them as killing tools, which is tragic, with their potential to do other things. Planes can be crop dusters, people movers or bombers. Same goes for pilot-less ones.

  3. Pingback: Drones for Human Rights | MIGRANTS AT SEA

  4. Joe says:

    I’ve got to be honest, I don’t actually see what’s controversial or thought-provoking about the original op-ed… seemed pretty simple and uncontroversial – if human rights groups can make use of drones to get the kind of aerial imagery they normally rely on governments for by using (relatively) low-cost advanced remote control airplanes, isn’t that helpful? And I don’t see the slippery slope from that to removing human rights witnessing and reporting by people on the ground or the suggestion that this would do fix the lack of human rights enforcement. Maybe I’m missing something.

  5. Mark Kersten says:

    Thanks for the comment, Joe. I think whether you think it’s controversial or thought-provoking will inevitably be subjective. I certainly found it thought-provoking, as this post and the next makes obvious!

    It also seems absolutely clear to me that this entire debate is about improving human rights enforcement; it couldn’t really be about anything else. We know the problem: there is too much inaction in the face of mass human rights violations. The question is how to change this – ie. how to guarantee the appropriate enforcement of human rights. Hanis and Sniderman’s answer (or at least part of their answer) is drones. Not sure you’ve seen the second post, but I cover the problems with drones being the answer to effective responses to human rights there.

    As I wrote in the post, I’m not absolutely against the use of images from drones to be used as evidence, complementing other forms of evidence from witnesses, victims and survivors. That being said, it seems obvious to me that if you privilege the precision and clarity of evidence offered by photographs from drones, then you start to marginalize evidence and experience from witnesses, victims and survivors. It’s quite simple, really. The purpose of drones across contexts – from taking images in Fukushima, to surveilling the US-Canadian border, to bombing pro-Gaddafi positions in Libya – is to remove the human from doing those activities.

    Thanks again!

    • Michael says:

      Sorry for the deluge! Three quick points- drones don’t have anything to do with human rights enforcement. We should be talking about 1. creating a better evidenciary record (drones), as well as ways to improve enforcement. The former helps those doing the latter but they’re totally separate.

      I don’t buy the logic that higher clarity in complementary sources marginalizes evidence from people. As I have said before if anything it can help corroborate statements that may be otherwise ignored.

      The logic of drones does take away some of the human role. And this is a good thing. If a citizen doesn’t have to put herself at risk of personal harm in helping expose the predations of a government or rebel force attacking a village, great. Remote evidence collection will still require on the ground verification by people to be taken seriously.

  6. Alex Sanchez says:

    Nice post. I actually can see the logic on having more information to show what’s going on in say the repression in Syria, the North/South violations in Sudan…
    With that said, I’m not enough of a international law expert (my thing is more geopolitics) to know if drone-videos/photos would be admissible evidence in the ICC to begin with? Has that ever even been done before?
    Furthermore, there is a lot of evidence say of the repression Qaddafi carried out in his country or now in Syria thanks to individuals blogging/tweeting about it, taking pictures and uploading videos to youtube etc. Can any of that be used against Assad for example?
    To put the drone videos in a bigger discussion, technological developments like drones/youtube videos mean international/national laws will have to be revisited regarding how much of these images are admissible evidence.

  7. Mark Kersten says:

    Thanks for the very pertinent and interesting comment, Alex. Drone videos/photos would be admissible evidence but I think you’re to be critical of how much it would court in a verdict. The problem with video and photographs as evidence is that there’s no way for the defense (or the prosecution sometimes) to cross-examine the evidence. This has been the case since the video, Nazi Concentration Camp, was aired at the Nuremberg Trials (see Lawrence Douglas for a fascinating account). The video barely figured into the judgement at all despite the fact that it is etched in our imagination of the Nuremberg Trials. In the end, though, it’s up for the judges to decide what evidence is admissible and which isn’t.

  8. Distant Observer says:

    “Darfur and Libya”
    Why not Iraq, Afghanistan, Yemen? Again, it seems war crimes arer committed only by non-white, non-Western states. Perhaps that is the reason the ICC is a racist institution.

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