After 'Top Gun': How Drone Strikes Impact the Law of War

Abstract:     
The U.S. drone program has sparked extensive and intense public commentary – academic, policy-oriented, and media – regarding targeted killing of terrorist operatives using armed drones. However, such attacks are only a small portion of how drones are used and how they can be used. Drones are used extensively for intelligence, surveillance and reconnaissance (ISR), including identification of targets, and to support troops on the ground. This article focuses on contemporary jus in bello questions posed by the use of drones and will analyze drones as a weapons system within the law of armed conflict, leaving the jus ad bellum questions aside.The first section will address foundational questions regarding the application of the law of armed conflict to drones, including the legality of armed drones as a weapons system and their use in accordance with the key law of armed conflict requirements of distinction, proportionality and precautions in attack. Although many argue that the “joystick mentality" of remotely piloted aircraft and weapons can lead to desensitization and a decreased likelihood of adherence to international norms, the examination here demonstrates that drones indeed offer extensive and enhanced opportunities for compliance with the law of armed conflict. In the second section, this article will explore how the burgeoning use of armed drones raises new questions for some traditional concepts and categories within the law of armed conflict, such as the status of persons and the geographical locus of attacks and hostilities and potentially new challenges in the implementation of distinction and proportionality. Notwithstanding significant hue and cry regarding their use over the past several years, the use of armed drones offers the potential for improved law of armed conflict compliance and protection of civilians during armed conflict.

Number of Pages in PDF File: 44

Keywords: drones, UAVs, distinction, proportionality, law of armed conflict, geneva conventions, international humanitarian law, targeted killing, jus in bello, drone strikes

Accepted Paper Series