Drones Don’t Wear Uniforms. They Should.

The video from Gaza starts with a just-visible multirotor drone juxtaposed against a remarkably blue sky. A group of TV journalists in blue helmets stand at the bottom of the frame, looking up at it. It hangs there for a second, and then tear gas canisters fall from it, issuing waving tails of white smoke. The canisters come to earth immediately in front of the cameras, and the reporters begin to run in all directions, coughing. The camera looks to the blue sky again, and the little black dot recedes, mysteriously, into the distance.

Welcome to the next stage of the drone revolution.

Israel may have become the first-ever nation observed using armed consumer drones in a real-world setting on March 12, when a Lebanese news network ran footage (probably dating from March 9) of one dropping tear gas on Gazan protesters. The deployment of drones against crowds of protesters — even armed ones — raises new and worrying questions about legality, identification, and purpose. Such usage may be unavoidable, but the international community at the very least needs to establish — and enforce — legal and ethical standards as soon as possible.

The origin of these tear gas-dropping drones is no secret. They are manufactured by an Israeli defense company called ISPRA, which specializes in “non-lethal devices for riot control, crowd management, anti-terror equipment and police gear.”

Its website contains an informative brochure for the Cyclone Riot Control Drone System. Beyond Israel, an ever-increasing number of armed groups and other nonstate actors are using consumer drones in war zones. The Islamic State, armed Sunni separatists, extremists in the Philippines, and others have used small drones to drop explosives and to conduct surveillance. The U.S. military was using consumer drones made by Chinese company DJI until last year, when it paused due to security concerns.

The ISPRA Cyclone is also a consumer drone, or at least, it was built on top of one. It is almost certainly an altered version of the DJI S1000+ octocopter model, which is regularly used by photographers, and looks very much like those civilian drones from the ground. The Cyclone, and the IDF’s choice to use it, highlights the blurring of lines between consumer and military drones, and their uncertain status under international humanitarian law.

The drones didn’t appear out of nowhere. Tear gas delivery via drone has been an area of active experimentation among defense contractors since at least 2001: By 2016, multiple companies offered them to defense and law enforcement buyers. ISPRA’s specialized crowd-control drone has been available since at least January 2015, and the company calls itself a “preferred supplier” of Israeli defense and police forces on its website.

The Israel Defense Forces also isn’t a stranger to consumer drone technology: It distributed foldable Mavic drones made by DJI throughout the army in 2017. While Israeli military sources told Haaretz that its new crowd control via drone method was “experimental” and not yet operational on March 12, on March 22, Border Police Deputy Commissioner Yaakov Shabtai went into more detail to “Hadashot” TV news, explaining that the “equipment neutralizes any danger to the troops.”

The drones began to pop up more and more after March 22. As the Palestinian right to return protests intensified after March 30, a self-assembly arms race began: Palestinian protesters started to send gossamer-thin kites that carried flaming material across the border barrier between Gaza and Israel (although they were often thwarted by stiff winds). On May 11, as Haaretz reported, the IDF recruited hobby drone pilots to counter the kites. The insectlike toy drones with neon-colored propellers had been equipped with sharp fishhooks to sever the kites’ strings.

Some Palestinians claim that the IDF drones are using a chemical agent more potent than even those usually deployed against crowds in Gaza. On May 14, witnesses told the Associated Press that Israeli drones have “dropped incendiary materials, setting ablaze tires that had been collected for use in a planned Gaza border protest.” A Twitter video from that day appears to depict a drone dropping a device that punches through the hole of a tent and then bursts into flames.

Mohammed Abu Mosabeh, the head of the emergency and disaster response unit at the Palestine Red Crescent Society, says that people were used to tear gas being fired from guns, but not gas dropped from the air, in unexpected places. Mosabeh says that the gas caused potent reactions, more potent than was usual for tear gas. “Some people had massive convulsions, where the whole body vibrates like electricity,” he tells us. “Others passed out for 20 or 30 minutes.” (This video from April 8 purports to show convulsions caused by this gas).

These reports are worrisome, but they have yet to be confirmed by outside researchers. An Amnesty International researcher told me the gas could simply be exceptionally potent tear gas, which is dangerous in its own right. Whatever it is, both the tear gas and the drones are a departure from the norm not just for Gaza, but for the entire world.

There are two legal frameworks that we can apply to small, weaponized drones — international humanitarian law and international human rights law — and there is fierce debate over which applies in Gaza. In April, Israeli and Palestinian rights groups brought a petition to the Israeli Supreme Court: The groups argued that Israel’s use of lethal fire against the Gazan demonstrators was not permitted in a law enforcement operation under international human rights law. (The International Committee of the Red Cross and Amnesty International, among others, agree with this interpretation).

In response, the Israeli government disclosed its own legal position on its actions on the Gazan border. The state argued that the border protests constitute armed conflict between Israel and Hamas, which is subject to the law of armed conflict, which is also known as international humanitarian law. Controversially, the Israeli state argues that (as Eliav Lieblich describes in an excellent article on the website Just Security) its activities in Gaza fall under a separate law enforcement regime embedded in international humanitarian law, which is “inspired by” but is not actually similar to the law enforcement regime from international humanitarian rights law — thus making it lawful for Israel to use lethal force against protesters in this situation.

Israel’s use of consumer drones is problematic under both international humanitarian law and international human rights law, putting aside the country’s controversial interpretation of the rules.

If international humanitarian law does apply to the Gaza situation, then Israel’s use of tear gas may be illegal. The 1993 Chemical Weapons Convention bans the use of tear gas in warfare in most circumstances. Israel hasn’t ratified the Chemical Weapons Convention, but that doesn’t protect it from criticism under international humanitarian law from the nations that have. On the other hand, if international humanitarian law doesn’t apply in this situation, then using tear gas is permitted: The Chemical Weapons Convention makes an exception for law enforcement, which is why tear gas is a regular feature at protests in the United States.

The IDF’s drones also do not appear to be marked with anything that identifies them as military aircraft or as Israeli. They also don’t seem to carry transponders or other electronic means of identification, which would permit them to self-identify as military aircraft. This presents another potential legal problem. Most interpretations of international law state that military aircraft must bear both nationality markings and markings that identify them as military aircraft.

These markings allow them to be distinguished from civilians under the principle of distinction, ensuring that both other combatants and civilians can tell them apart from civilian aircraft. Under international humanitarian law, an unmanned aerial vehicle (that is controlled by a human, not autonomously) is subject to the same rules and requirements that manned aircraft are. We could interpret this to mean that Israel is obligated to mark its drones to designate them as military, not civilian aircraft — just as Israel marks its other aircraft.

However, unlike for manned aircraft, there are no standardized or customary markings for drones — and the marking standards that suit much larger manned aircraft will need to be modified to work for them. There is still no good way to tell small drones apart in airspace by electronic or radio means; while many researchers are working on an airspace traffic management system suited to small drones, it remains some distance away.

That makes things especially tricky in contexts where military or police drones may be, in the near future, just some of those buzzing around a conflict. Journalists are making increasing use of drones to record events, while aid workers are currently using them to gain situational awareness of disasters and will likely begin using them to deliver medical supplies and other objects in the near future.

That means this organizational problem isn’t just a confusing inconvenience. It’s dangerous, and the death of a young Palestinian drone journalist named Yaser Murtaja in April highlights why. His last video, of the border demonstrations , swooped dramatically from scenes of protesters weeping from tear gas to bird’s-eye views of green fields and black-burning tire fires. One drone shot followed a group of protesters rushing an injured person on a stretcher back to a medical tent, just as Murtaja would be rushed from the field a few days later.

Murtaja wasn’t flying a drone when he was shot, but in the first days after his death, many people assumed he had been. “I don’t know who he is, a photographer, not a photographer — whoever operates drones above IDF soldiers needs to understand that he is endangering himself,” Israeli Defense Minister Avigdor Lieberman told Haaretz on April 9, implying that Murtaja had put himself in danger with the device.

Lieberman inadvertently captured the central problem created by the murky and confused status of small drones and the inability of actors on all sides to gauge what a drone’s intentions are. Before civilian drones became widespread, it was easy to make the argument that everyone who flew a drone in a conflict area was likely a combatant. It was also easy to argue that civilians knew that drones were intrinsically dangerous, and that there was therefore no need to mark them as military aircraft. That’s just not true anymore, in the era of near-ubiquitous consumer drones. Technology has, once again, outpaced both the law and our culture.

We are running out of time to firm up our collective cultural and legal response to small drones in conflict. Israel is unlikely to be the last nation to use drones against protesters — and it is also unlikely that arms manufacturers will stop at tear gas. Take Duke Robotics’ Tikad, a multirotor drone that can carry a machine gun, a grenade launcher, and other offensive weapons. According to Defense One, a consumer-drone prototype of the Tikad killed a target in 2015, and while Tikad doesn’t appear to have been used in battle yet, it is only a matter of time. In 2017, Connecticut lawmakers proposed a bill that would permit police to add lethal weapons to their drones, while North Dakota legalized the police use of nonlethal weapons on small drones in 2015.

Drones should be accessible to the civilians who benefit from them, but freedom must be balanced with safety. First, the international community should establish a standardized, international marking system, light pattern, or color to designate different kinds of drones under international humanitarian law — say blue for press, red for aid, and black for armed groups. The establishment of these markings will allow civilians like journalists and aid workers to distinguish their drones from those used by other actors in conflict, reducing the risk of a deadly case of mistaken identity.

This will be a start, but it won’t be enough. It is fiendishly hard to see a drone in flight, and all parties who operate drones in conflict and other complex environments will ultimately need standardized, reliable electronic solutions to reliably identify drones in airspace. This might take the form of small ADS-B transponders like those used by manned aircraft, or an “electronic license plate.”

There is also a place for new regulations and legal pressure. Researchers at the Omega Research Foundation called in 2015 for the Organisation for the Prohibition of Chemical Weapons to conduct a legal review on the dispersal of chemicals by drones. Lawmakers, on both the national and international level, should follow suit on clarifying the legal status of drones that are used for dispersing tear gas and for other law enforcement purposes, both lethal and less so.

We have already entered the age of the drone. Yet we still don’t know where drones fit into international customary law, or into our existing ethical and operational systems. The drones might have cameras, but everyone else is flying blind.