The setup is familiar by now, if only because the image has long-since bled into pop culture ubiquity. A four-wheel-drive races across the desert floor somewhere in the badlands of eastern Yemen, a long wake of dust trailing behind in the baking air.



Unbeknownst to the five occupants of the vehicle, this scene exists also in cyberspace. The car’s precise location, its speed and bearing, a detailed dossier on one of the passengers and considered speculation on the others. A pixelated image of the tiny glittering speck is routed through a small constellation of satellites, through a ground station in central Australia, parsed through an operations centre in the United States, and bounced back again to the reaper drone wheeling two miles above. The feedback loop is seamless, conducted at the speed of light.

Time’s up. An anti-tank missile howls out of the sky. The vehicle detonates.

It will later be alleged that one of the dead is a member of Al Qaeda in the Arabian Peninsula (AQAP), a group who shares its political lineage with the network that flew passenger aircraft into the Pentagon and the World Trade Centre in September 2001. Two things about terrorism were burned into the western collective consciousness on that bleak morning: terrorists kill indiscriminately, and they have casual regard for international law. The fiery catastrophe in downtown Manhattan casts long shadows even today.

Australia is a long way from Yemen. It is also well-insulated from the fierce debates that rage in the United States and halls of the United Nations about the wisdom and legality of US president Barack Obama's radical expansion of drone warfare into half a dozen countries. So when it was revealed in April 2014 that one of the casualties of the drone strike in back-country Yemen was Australian and another a dual Australian–New Zealand citizen, we paused.

Journalists from the Australian press tried to piece the story together. They didn't have much to go on: a terse statement from the Australian and New Zealand governments, and some brief comments from an unnamed intelligence source. The two Australians were alleged to have been placed on an Australian Federal Police watch list because of their associations with AQAP, and Julie Bishop, the foreign minister, sharply denied any prior knowledge of the operation that killed them.

Then… nothing. Over the horizon, the war on terror continues, and in wars, people are killed. Christopher Havard, formerly of Townsville, Queensland. Muslim bin John, formerly of Christchurch, New Zealand.

Australia got on with the business of the early 21st century. An unreasonably warm summer. A royal visit to Uluru, not far from the Pine Gap joint defence facility that probably transacted the extrajudicial death sentence last November. The harshest, most ideologically unhinged budget in modern history. The State of Origin came and went.

The time for Havard's family to raise $30,000 to repatriate his remains ran out, and now the drone strike that killed two Australians is buried under the accumulated strata of news, gossip and sport laid down in successive months.

That is how our attorney-general would like it to remain: forgotten and inconsequential. In two estimates hearings in late May he took a brief respite from the doomed defence of his racial vilification amendments to address my questions on the killing of the Australians last summer. In six years of sharing a workplace with senator George Brandis, I’ve developed personal strategies to deal with his pompous blend of condescension and inadequacy. I must admit, they failed me the other night.

I asked whether the government was confident that such strikes are in fact legal at international law. The attorney-general replied “I am not aware that the Australian government has a view of legality of these matters in any event,” and later, “this has nothing to do with Australia”.

'Serious civil society debates are now underway on the best path to formally ban fully-autonomous weapons.' Photograph: EPA

The rest of the conversation was the usual smug invocation of national security, the great blindfold through which the country shall not be permitted to see – for our own safety of course. That this is “nothing to do with Australia” demonstrates Brandis' calculated ignorance: jointly operated installations like Pine Gap almost certainly play a central role in drone warfare in the Middle East and Africa, supposedly with the “full knowledge and concurrence” of Australian authorities.

The fact that finding yourself on an AFP watchlist – not charged with any crime in particular – can result in a death penalty meted out on the other side of the world, is bad enough. The US bureau of investigative journalism estimated more than a thousand civilians have been killed in drone strikes in Pakistan, Yemen and Somalia, including dozens of children. The real number of civilians killed in these assassinations is likely to be much higher, as the US military considers any male of fighting age who happens to be in the blast radius of a listed target to be a combatant, unless post-strike evaluation shows otherwise.

For targeted communities on the ground, being killed in a drone strike is indistinguishable from being killed by a cruise missile or a piloted warplane. Nothing exempts the operators of remote-piloted vehicles from either human rights law or the laws of war just because the technology is novel. In a speech in Pakistan in 2013, UN secretary-general Ban Ki-moon noted:

[T]he use of armed drones, like any other weapon, should be subject to long-standing rules of international law, including international humanitarian law … Every effort should be made to avoid mistakes and civilian casualties…

The framers of the UN Charter, working after the trauma of the second world war, laid down the modern legal foundation for non-aggression between states. We can hardly blame them for failing to foresee the emergence of stateless terror networks like Al Qaeda, the privatisation of war, or the relentless development of ever-more autonomous weapons systems.

The US government has relied on a combination of secrecy, remoteness, legal ambiguity and the overriding imperatives of the war on terror to insist that their drone strikes are lawful, do not amount to extrajudicial killings, and minimise civilian harm in all instances. The question for us is twofold.

First, the legal standard we accept from our ally is the standard we will be stuck with when unregulated swarms of weaponised Russian, Chinese, Iranian and Indonesian drones begin incinerating people in the name of their own legally dubious wars on "terror".

Second, the march of technology is removing human agency further from the decision to strike. Serious civil society debates are now underway on the best path to formally ban fully-autonomous weapons, using some of the same legal tools applied to chemical and biological weapons.

The first step is to acknowledge that turning a blind eye to this conduct, on behalf of our ally the US – or anyone else – is wrong. Superpowers kill with little regard for international law. In the age of the drone, an increasingly porous and borderless world, what constitutes genuine human security is now an open question.