465 Cesáreo Gutiérrez Espada Autonomous weapons systems, drones and international law could be one of these grounds. Yet the conditions thereof require that in order to justify the drone strike in this way, the terrorist in question must be leading an ongoing armed attack against, say, to put it generally, the United States, or to admit what seems to be taking place, they have to be preparing an imminent armed attack against the United States. It is not enough for the terrorist to be preparing an isolated terrorist attack, albeit an imminent one, or one that cannot be described as an armed attack62. The arguments that the United States and its president use to justify the use of drones against Al Qaeda and its associates do not seem to account for this ever so fundamental aspect. Neither does it seem that the requirement of Article 51 of the UN Charter, whereby the state that intends to act in self-defence must immediately notify the Security Council of the measures that this state has taken in the exercise of this right63, has ever been respected. B) For the United States, the use of drones against members of Al Qaeda can be justified since it qualifies its fight against terrorism as an armed conflict64, whereby, whilst this is compatible with the basic principles of International Humanitarian Law and International Human Rights Law, it is in no way unlawful. However, is this indeed the case? Like for autonomous robots and for similar reasons, the principles of (a) discrimination and (b) proportionality are those that raise the most serious concerns. Both come into generality and intensity needed in order to talk of an act of aggression (the following should be remembered: the position of the ICJ in its ruling of 6 November 2003 in a case concerning oil platforms, paragraphs 73-77 (ICJ Reports 2003); the prior condemnation by the Security Council of an aggression when an Israeli commando unit, formed by nine members, travelled to Tunis and killed one of the leaders of the Palestine Liberation Organisation (PLO), which appears to be an isolated incident in this respect (Resolution 611, 25 April 1988, for which 14 votes were cast in favour and the United States abstained). 62 The same view is taken by, for instance, CASEY-MASLEN, Stuart: “Pandora’s box? Drones strikes under jus ad bellum, jus in bello, and International Human Rights Law”, International Review of the Red Cross, 94 (2012), Number 886, pp. 597-625, p. 605. For the concepts of armed attack, imminent armed attack and latent armed attack, as well as the admissibility of the right to self-defen-ce when justifying armed response actions against non-state actors see: GUTIÉRREZ ESPADA, Cesáreo y CERVELL HORTAL, María José: El Derecho Internacional en la encrucijada. Curso General de Derecho Internacional Público, Madrid: Trotta, 2012 (3rd edition), pp. 63 In fact, states, such as Pakistan, who did not oppose the use of drones on their territory some years ago, are now wholeheartedly doing so, considering them to be a violation of their sovereignty and territorial integrity and expressing the view that they are not an adequate instrument as part of the fight against terrorism (see the declarations of Ben Emmerson, Special Rapporteur on Counter- Terrorism and Human Rights, made in March 2013 following a visit to the country to gather information on the use of drones (www.ohchr.org, in News and Events, 14 March 2013). 64 Made clear by its Supreme Court in the well-known case Hamdan v. Rumsfeld (548 US 557, 2006) where this is expressly affirmed. Obama stressed the idea in his speech in March 2013 at the National Defense University (op. cit. footnote 54).
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