Drones and Distinction: How IHL Encouraged the Rise of Drones
Michael W. Lewis
Ohio Northern University - Pettit College of Law
University of Sydney - Faculty of Law
May 3, 2013
Georgetown Journal of International Law, Vol. 44, No. 3, pp. 1127-1166, 2013
Sydney Law School Research Paper No. 13/35
The principle of distinction, which requires participants in an armed conflict to differentiate themselves from civilians and which demands that attackers distinguish between lawful targets and civilians, stands at the core of IHL. The use of armed drones presents challenges for this principle, particularly with regard to who operates them. While this topic has been discussed frequently, little has been said about the role that the principle of distinction played in encouraging the development of armed drones.
A combination of the rise in the strategic effectiveness of asymmetric warfare and the manner in which the principle of distinction was applied to asymmetric armed conflicts contributed to the rise of the armed drone. The practice of irregular armed groups blending with the civilian population challenged IHL and put pressure on the principle of distinction. On one hand IHL recognized that utilizing the civilian population to shield military objects was unlawful, but on the other it did not want this behavior to absolve attacking forces (in most cases regular state military forces) from continuing to take precautions to avoid civilian casualties. This conundrum was resolved by finding shielding to be illegal but legally effective, in that attacks upon shielded targets were judged to be illegal by several UN commissions of inquiry and by guidance offered by the ICRC.
State militaries reacted to these restrictions in one of two ways. Some ignored these restrictions and carried on campaigns against shielded targets that caused massive civilian casualties. Others, seeking to comply with IHL, sought smaller, more accurate weapons and more reliable sources of real-time intelligence. This is where drones entered the picture. Some have argued that drones were developed because they eliminate the risk to aircrew rather than for their ability to comply with IHL. But the operational benefits of using drones instead of manned aircraft in places like Afghanistan and Yemen are very slight. Coalition pilots are at very little if any risk in these environments. It is the improved real-time intelligence and the superior command control over weapons employment decisions (factors critical to IHL compliance) that are the most important benefits provided by drones.
Who controls the drones is also a critical issue for IHL. Are CIA drone operators civilians directly participating in hostilities (DPH)? Does that make them legitimate targets? Is there any way that they might acquire combatant status? The answer to all three of these questions is yes. They are legitimate targets whether as civilians directly participating in hostilities or as combatants. From the information available they appear to be civilians, but they could acquire combatant status if they are subject to a command structure that enforces the laws of war. While there is evidence that these operators have been trained in the laws of war, the enforcement of these laws by their command structure is a factual question that is not able to be answered with information that is publicly available.
Lastly, many commentators have criticized the legal basis for the US use of drones as being based on an “ever-expanding entitlement” to use force, and they have warned that the proliferation of drones will result in terrorist drone attacks against the United States. After briefly reviewing the practical impediments to terrorist drone attacks, this article closes by examining the legal framework that the US appears to be relying upon in conducting drone strikes against al Qaeda targets outside Afghanistan.
Number of Pages in PDF File: 47
Keywords: drones, distinction, IHL, proportionality, API, asymmetric warfare, Geneva Conventions, DPH, direct participation in hostilities, human shields
JEL Classification: K00, K33, K39Accepted Paper Series
Date posted: May 4, 2013 ; Last revised: December 4, 2013
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