As operating Unmanned Combat Aerial Vehicles become easier, and their costs decrease over time, some expect the trend in the number of actors using UCAVs to increase. Currently, these UCAVs are flawed and imprecise, casualising the gravity of lethal combat that is tethered to engaging in a just war.

As semiautonomous weapons continue to become increasingly normalised in theatres of warfare, the tendency for governments to immediately resort to UCAVs in zones of conflict has increased. When the Morrison government in 2022 cancelled the purchase of UCAVs due to budgetary concerns, military experts scolded the decision as “the worst in a series of force-structure blunders.” Afterall, the capacity to surveil and strike a target at a distance with no risk of harm to the pilot is a no-brainer.

In the United States, as elsewhere, formally surveillance Unmanned Aerial Vehicles (UAVs) have been equipped with missiles, transforming them into UCAVs. While this development may not appear as nothing more than another incremental advancement in military technology, the operator’s geographical distance from the battlefield has led to an intensification of legal and ethical debates surrounding their use. Can fighting wars with lethal autonomous weapon systems against human combatants be just?

The just war legal framework is governed by jus ad bellum, the justified reasons for going to war, and jus in bello, just conducts during war. The key defining principles of jus ad bellum is necessity, meaning all other non-military options such as diplomacy have been exhausted, and proportionality, meaning a military response is not excessive. The remoteness of UCAV operators and the excessively lethal nature of missiles (like the Hellfire variant in the US) challenge this very principle of proportionality.

Drone advocates champion their capacity to conduct “limited, pinprick, covert strikes,” but, as demonstrated by data on disproportional noncombatant fatalities, such claims are highly challenged.

Separation Factor and the Warrior Ethos

The unique attribute of UCAVs is the absence of risk for the operator, who is engaged in violence. UCAVs represent “the ultimate prize in war – riskless killing,” undermining the necessity of physical risk as a long-standing requirement of legitimate engagement. The proportionality issue lies in total asymmetry, where one side is free to operate against a side limited by access to UCAVs and targets. This asymmetry was demonstrated by the CIA’s covert, drone-led program against Al-Qaeda, in which the latter’s lack of access to UCAVs, and any UAVs for that matter, provided the US with significant aerial superiority.

Some have attached notions of cowardice to UCAV operators as this asymmetry in physical risk violates the principle of reciprocity. Neil Renic has attempted to argue that legitimacy of violence does not stem from physical risk but instead is based on whether the combatant believes in the cause that they fight for. A counter claim, however, is that this justifies and excuses any form of drone violence as long as the operator believes their actions are morally right.

Drone Myth and Discriminating Combatants

Reinforcing the sense of physical dislocation, drone operators lack the situational awareness that an on-ground infantry experiences. The “drone myth” implies that UCAVs are supposedly able to conduct precision strikes with no risk to its soldiers and little likelihood of collateral damage, minimising harm. However, these myths remain myths.

UCAVs have been linked to numerous noncombatant deaths during the US war in Afghanistan. These UCAV operators have evaded accountability by attributing fault to imperfect intelligence. In humanitarian law, legal defensibility can unfortunately be provided by asserting that “foreseen bad consequences are acceptable as long as they are unintended.” The US government has invoked this argument to much effect. Even if these new weapons offered risk-free solutions for the pilots, and the capacity to discriminate combatants with noncombatants, UCAVs are still “bound by the limitations of their human operators and subject to malfunctions and errors.”

Policy Recommendation

Given that current UVAC models cannot sufficiently qualify proportionality under jus ad bellum, UVAC programs should not be pursued by the Australian Defence Force (ADF) until it has demonstrated significant improvements in its capacity to discriminate. The perception that these drone strikes are “necessary but dangerous” is precisely what normalises and legitimates the use of underdeveloped technology in an environment where civilian lives are at risk. As Alejandro Chehtman states, “even if we concede that [UVACs] are more discriminatory in bello than alternative weapon systems, they are not discriminatory enough.” This is exemplified by UVAC records under the Obama administration between 2009-10; for every high value target killed by a drone strike, 147 noncombatants were killed in the process. Such high levels of risk tolerance should never be considered acceptable.

Australia prides itself as the model middle power country, maintaining a rules-based international order. With this in mind, the Commonwealth Government should impose a conditional ban on the acquisition of UCAVs by the ADF for the next ten years. It would be beneficial for the Parliamentary Joint Committee on Intelligence and Security to conduct a review into advancements in UCAV technology to sufficiently discriminate combatants and minimize harm to noncombatants.

The acquisition and use of surveillance UAVs remains permissible as issues of distance and the inflated confidence in drone capability do not apply and potentially even increase the protections of noncombatants. Whetham, Braun and Brunstetter, and others highlight this deterrent effect of surveillance on the actions of bad actors, whose behaviour can be monitored by UAVs equipped with sensors to detect the deployment of any chemical or biological agents. The effectiveness of surveillance UAVs to prevent harm to noncombatants mainly originates from the ability to capture evidence of war crimes and the strength of intergovernmental institutions such as the International Criminal Court (ICC) and the International Court of Justice (ICJ) to enforce accountability on bad actors. Additionally, surveillance UAVs also have operational effectiveness in assisting the ADF in their ability to conduct insurgencies. This maintains an acceptable risk threshold between the two parties in combat as the action of violence still requires physical presence. Such uses, and the presence of risk, are more within the parameters of what constitutes jus in bello.

In sum, the Australian government should never partake in any military action that leads to noncombatants praying for mercy at a seemingly invulnerable and imperceptible drone in the sky.

Harry Jang is a postgraduate from the Crawford School of Public Policy at the Australian National University. With specialisation in international relations and foreign policy, his field of research involves public policy, national security, geoeconomics, and sovereign wealth funds.