Unmanned aerial vehicles were outside the legal field.
A drone (translated from English as “the drone”) is an unmanned aerial vehicle (UAV), as well as any device, a military or non-military robot, operating autonomously or remotely under the control and control of the operator in the water area and on land.So far, regarding drones special normative acts have not been adopted, and thus, in fact, they are outside the domestic and international humanitarian legal field, as well as outside the theory of war.
The lack of legal regulation of the use of drones leads to a violation of human rights, the rules of warfare and the fight against terrorism.
NECOMBATANT
Gaps in international and domestic law are easier to trace using the example of the use of combat UAVs - the most popular drones in world practice. The use of civilian drones in this material is not considered. At its core, drones are a new least common type of weapon, which has been around for about 100 years.
Persons using or guiding drones in accordance with the Hague Conventions 1899 and 1907 and the Geneva Convention for the Protection of Victims of War 1949 cannot be classified as combatants - members of the armed forces and having the right to use military force. Thus, servicemen who secretly control drones or program them for autonomous operation are classified as non-combatants - persons who themselves do not have the right to use military force (for example, military lawyers and correspondents, doctors, quartermasters ...) and to whom the highest The measure of violence is physical destruction.
The paradox is that non-combatants who manage drones, in violation of international law, virtually unrestrictedly apply all measures of violence against their opponents-combatants, but against themselves, these legitimate combatants are denied the right to use retaliatory military force. In addition, in accordance with the Additional Protocol from the 1977 of the Year to the Geneva Convention 1949 of the Year (Protocol I), it is stipulated that during the preparation or conduct of military operations, combatants are required to distinguish themselves from the civilian population.
In this case, there is no contact between the opposing warring parties, and therefore the establishment of any differences, as well as qualifying characteristics, including the very belonging of non-combatants to the armed forces, makes their troop identification impossible, which is contrary to international military law. This means that non-combatants who control the drones and execute any order of the chief remain outside the control of not only the enemy, but also of any third party, and therefore are virtually exempted from liability; they cannot claim recognition of their status as prisoners of war typical of combatants. Also, a noncombatant - the executor of orders may be outside the control of their own combatants, who give him orders.
ATTRIBUTES
Signs of drones are manufacturability, functionality, secrecy of their use. Depending on the parameters, the UAVs are divided into classes, which allow using these drones in unmanaged, automatic or manned mode. It is important that in Article 1 of the RF Law of 18.07.1999 of the year No. 183-ФЗ “On Export Control” there are unmanned aerial vehicles (UAVs) capable of delivering weapon mass destruction.
It is also of interest to use drones mainly in independent combat work with their possible use both in an automated command and control system and in an autonomous manner as reconnaissance vehicles, electronic warfare equipment or for applying aviation blows. In any case, the introduction by a non-combatant into a drone of a software product that provides, in the event of a delay or a gap in time, the possibility of striking the enemy, leads him to the indirect use of aggression, when the execution of a military order, in essence, depends on the operating conditions of the electronic systems of the drone and the technical capabilities of the UAV ...
Thus, when planning and performing a combat task, the level of training of a military order performer is not taken into account, thereby leveling out his responsibility for the operation of a drone guided or programmed by him. In this case, the factors adopted in aviation that determine the presence of an aviation echelon and air corridor, regardless of the class of the UAV, taking into account the intensity of flights and other factors, come to the fore. It also takes into account what kind of weapons, depending on the class, can carry and use the drone. In this case, there is a substitution of concepts, when the technical characteristics of the UAV become the main and decisive factor in the fighting, and the mental humanitarian attitude of the non-combatant - the executor of the military order to the drone he controls and the operation as a whole is not considered.
It should be noted that the drone is not a personal weapon of a non-combatant operator. The verification of the legality of a military order issued by a combatant by a non-combatant operator is also not performed. Therefore, the non-combatant operator does not bear any responsibility for the combat use of weapons not belonging to him and not assigned to him. Formally, the non-combatant operator is also not responsible for the loss of control or interception of the drone entrusted to him. In fact, it performs the functions of an operator of the electronic guidance system of a combat aviation complex at a target, and the guidance can be carried out both in on-line mode and to control the actions of drones in a given program with autonomous (without human participation) combat use of weapons.
The excess of the performer during combat work with the drone by the non-combatant operator cannot also be ruled out. In addition, when using a UAV, there are no objective criteria for identifying and isolating a drone as a carrier of weapons or recognizing oneself as a weapon type or system.
DOUBLE PURPOSE GOODS
In 1996, in Wassenar (Holland), an international treaty was signed to exchange information on the supply of dual-use goods and technologies to control the export of conventional weapons and high technologies, to which drones should be attributed. The Wassenar Arms List includes 22 categories, among which drones are not directly named.
Of course, drones are dual-use goods that can be used in the military and civilian areas, and therefore they are subject to state regulation according to the Russian government resolution No. 07.06.2001 from 447. Thus, according to this decree, drones should be used only for the stated purposes, should not be copied, modified, re-exported or transferred to anyone without the written permission of the Russian exporter, agreed with the Federal Service for Technical and Export Control.
At the same time, at the stage of preparing R & D in the manufacture of drones, military, special and dual-purpose data must be taken into account in accordance with the order of the Ministry of Justice of the Russian Federation and the Ministry of Industry and Science of the Russian Federation dated July 17 2003 No. 174 / 179. In this case, the requirements for the protection of information about the results of intellectual activity in the regime of official or commercial secrets in accordance with the legislation of the Russian Federation are mandatory. Thus, it becomes possible to include drones in the lists of controlled goods and dual-use technologies in accordance with Art. 6 of the RF Law “On Export Controls”.
The UN mission in the Congo uses the UAV to monitor the activities of the rebels in the border areas with Uganda and Rwanda.
It is important that, according to presidential decree of 05.05.2005 of the year No. 580, the technologies used in drones remain under control, even when they are applicable to any uncontrolled subject. This circumstance should prevent the spread and application of droning technologies for terrorist acts. The possibility of uncontrolled use of drones by the state for criminal or terrorist purposes should also not be excluded. In addition, drones can be an instrument of state terrorism. Therefore, the lack of a regulatory framework creates opportunities for the use of drones by terrorists and complicates the methods of control and interception by the forces of special units.
TOOL NETCENTRIC ACTIONS
The combat characteristics and intended use of drones make it possible to classify them as conventional weapons. The cheapening and availability of drone technologies in the future, as well as the absence of a regulatory framework, makes it possible to violate the order of production and distribution of drones in the territory of residents or their illegal export for subversive purposes from the territory of non-residents. However, the use of drones is not regulated by UN Resolution 08.12.2005 / 60 of 93, “Convention on the prohibition or restriction of the use of specific types of conventional weapons that may be considered to cause excessive damage or have indiscriminate effect.” Ratified by Federal Law of 16 of May 2008 of the Year No. 72-ФЗ Protocol V to the above Resolution also does not provide for any restrictions for drones, since the latter, for example, are not abandoned, but unexploded ordnance.
The UN resolution 24.12.2001 of the Year No. 56 / 24 “General and Complete Disarmament” allows establishing effective control over conventional weapons at the regional and subregional levels and confirms the importance of taking all necessary measures to combat terrorism in all its forms and manifestations, but does not directly apply to drones, since they do not apply, for example, to rockets.
It should be noted that drones can be carriers of both conventional weapons and weapons of mass destruction. In this case, there follows an obvious decision of the Ottawa Declaration on Combating Terrorism from 12.12.1995 to eliminate the gaps in the national laws of various countries to prevent the acquisition of weapons and the free movement of terrorists. It is in Ottawa that the principle has been proclaimed that strong legislation, effectively applied in practice, is still a convincing deterrent in the fight against terrorism. Also, the possible failure to comply with the requirements of this Declaration currently allows the use of drones as a tool of state terrorism in the Middle East.
It should be noted that the new threats to the world, noted in Ottawa, are not formally yet directly related to the use of drones, and their use in UN operations suggests that no international ban on the use of drones should be planned. In addition, it becomes possible to use drones in individual combat work, as well as when combining them for conducting combat operations in a single network, in the so-called Network-centric warfare or in network-centric terrorism, in large-scale or pinpoint armed provocations and individual terrorist acts. In this regard, it is necessary to coordinate efforts at the international level to take measures aimed at preventing terrorists from using nuclear, chemical and biological materials in a network-centric attack.
GASES IN INTERNATIONAL LAW
Undoubtedly, drones belong to modern models of weapons, military and special equipment (VVST). But in the absence of a regulatory framework for drones, it is necessary to recognize the possible application of the principle of analogy of international law - current international conventions. Although the conventions do not allow to take into account the characteristics and rules of the use of drones in the combat work of precision weapons.
It should be borne in mind that the dual purpose of drones contributes to the technical progress of civilian and military technologies. The civilian use of drones basically involves their use for applied purposes: in energy, agriculture, forestry and fisheries, geodesy and geology, media, emergency situations and communications.
Currently, there is no legislative ban on the use of drones as a conventional weapon or carrier of conventional weapons, as well as on reconnaissance and striking with them. But it should be noted that the lack of a regulatory framework leads to a violation of the rules of warfare and human rights, while anonymous non-combatants are fighting with the help of drones in violation of international law. In this regard, the non-combatant operator, the executor of military orders, is relieved of responsibility for the combat use of drones.
It should be noted that in the Federal Law of March 28 1998 No. 53-ФЗ “On Military Duty and Military Service” there is no concept of “combatant”. In addition, the lack of legal status of non-combatants using drones theoretically suggests the impossible, when anyone serving in military service, or people in non-military or alternative civilian service, can be used as operators of combat orders 25.07.2002 of the year No. 113-ФЗ, as well as other persons, including those who did not take the military oath or foreign citizens, or persons not called up for military service in accordance with the mobilization plan According to Art. 17 of the Federal Law of the Russian Federation on 26.02.1997 of the Year No. 31-ФЗ “On mobilization preparation and mobilization in the Russian Federation”.
When determining the legal status of non-combatant operators, it should be taken into account that drones are not analogues of other known types of weapons, and therefore they cannot be correlated, for example, with the Shkval torpedo or Kh-55 missile, which are not robots. Also, in cases stipulated by international conventions regarding the prohibition of the proliferation of weapons of mass destruction, the use of drones is illegal. In addition, the procedure for the interception or elimination (self-destruction) of drones on foreign territory, outside the jurisdiction of the country of the non-combatant operator, has not yet been determined.
Of particular importance is the gap in international law when using drones by an international organization on the territory of another independent sovereign state. For example, the UN peacekeeping forces use drones to monitor terrorists and illegal armed groups in the Congo, but with certain reservations that drones cannot leave the airspace and territory of the country for the entire period of their use. At the same time, the issue of attracting persons allowed to manage drones as operators and determining their powers at the domestic and international level is still not resolved by law.
In the absence of an international legal regulation of military specialty for a UN contingent, a non-combatant operator drones are not allowed to involve citizens of the Russian Federation in this combat work under Federal Law No. 23.06.1995-FZ of 93, “On the procedure for providing the Russian Federation with military and civilian personnel to participate in support or restoring peace and security "in full.
NON-RESPONSIBLE BORDERS OF BORDERS
The use of drones on foreign territory by non-residents in relation to resident citizens or the use of non-resident drones in foreign airspace is doubtful. Characteristically, in this case, the use of drones involves the illegal use of radio frequencies, air corridors and trains by non-residents over a foreign territory without the sanction of competent and competent authorities of a sovereign state. Therefore, the use of drones in foreign sovereign territory and in foreign sovereign airspace must be resolved internationally.
It is necessary to take effective measures to curb unauthorized violation of foreign airspace for drones of any classification, including “micro” and “mini”. In this case, the drones must have devices (ultramicrochips) of the “friend-foe” identification system used in aviation for determining the nationality of mobile objects. Drones should not have “neutral” or “offshore” jurisdiction, more precisely, they should not lack legal status. It is obvious that the use of weapons located in the drone on foreign territory and in foreign airspace should be made in accordance with the requirements of the jurisdiction of the resident country.
Of course, the use of drones, like any weapon, in a network-centric war should be regulated internationally. Legal provisions should also be extended to the practice of using drones in countering domestic and international terrorism. Thus, the status, rules and order of humane individual or mass use of drones in peacetime and wartime should be specified in international and domestic law.
Drones should not become an instrument for the destruction of the existing collective security system.
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