The introduction of new technology to warfare holds the potential for unforeseen consequences as the law and norms regulating the use of such technologies attempts to catch up. The Obama Administration recently expressed concern over the proliferation of drone technology and called for global rules governing their use. Like the transnational arms trade, bilateral treaties and a few multilateral agreements lacking widespread membership govern the trade of drones.
The lack of a comprehensive regime to govern transfers and use of drone technology is problematic for both the law of war and the national security generally. Despite the debate regarding the legality of targeting, the law of war permits targeting of civilians who directly participate in hostilities for the duration of their participation. References to this doctrine are found either explicitly or implicitly in defining the scope of civilian protection in the Geneva Conventions of 1949 and the Additional Protocols One and Two. Direct participation in hostilities usually takes the form of civilians engaging in attacks with conventional weapons or perpetrating terrorist attacks in an area governed by the laws of war.
The proliferation of drone technology opens a new avenue for participation in two ways: hacking or fielding drones. Drones, as with any other piece of technology that relies on wireless signals to operate, are vulnerable to hacking attacks, a fact demonstrated by students in the US. With the ability to hack drones, it is possible in the not too distant future that a civilian could pilot a drone into a military camp or a crowded street by fooling its guidance signal and video feed.
Assuming interest and demand for drones rises, it is a certainty that drones and the technology to build them will appear on the black market if it has not already. The transnational black market for arms is both virtual and extensive in its offerings. Yet numerous arms deals occur without any online trail. The increase in the civilian use of drones, coupled with continual research and development of military models will ensure future black market vendors could provide more compact lethal models for terrorists and organized crime. Even if more lethal models are currently unavailable on the black market, civilian models can always be repurposed.
The potential for either remotely sabotaging or employing repurposed civilian drone models provides a platform previously unavailable for civilians to attack soldiers or commit terrorist attacks. The use of drones would effectively allow civilians to launch attacks from neighboring countries without ever personally entering a combat zone. Countering these individuals with armed force opens a host of legal problems relating to the sovereignty of States, the law of neutrality in armed conflict, and domestic questions of the legality of force against nationals. Efforts to prosecute individuals engaging in the use of drones to launch attacks from other countries would likely be an ineffective deterrence because of the lengthy legal process required for such. It is also possible the countries being asked to extradite such individuals lack the ability to locate and arrest those individuals in a timely manner.
Those attempting to hack a drone, depending on their location, could effectively render them useless. Insurgents in Iraq, utilizing a $26 computer program, were able to monitor information feeds from US drones, in effect creating an early warning system to evade them. Al Qaeda has used even published a manual on how to evade drones and released it online, allowing such knowledge to proliferate. Countermeasures could be taken to ensure hacking is more difficult by adding certain features, but it is questionable whether such measures would accompany a legal regime designed to make drones more secure generally.
Bilateral agreements, the Wassenaar Arrangement, and the Missile Technology Control Regime (MTCR) collectively govern transnational drone transfers. These voluntary agreements have not stemmed the proliferation of drones as other countries have developed or are developing their own models. Neither the MTCR nor the Wassenaar Arrangement directly address the proliferation of drone technology per se but address them either as a means of missile delivery or dual use technologies employed by drones. Ironically, the US has sold drone technology, increasing the rate in which this technology proliferates.
The proliferation of drone technology cannot be reversed. What is needed is a binding international regime to regulate their use and measures to incorporate cybersecurity practices into security the global positioning satellite technology drones use to navigate. Anything less leaves the law hopelessly behind technology.