18 Pages Posted: 1 Sep 2011 Last revised: 3 Jun 2012
Date Written: June 2, 2012
The HPCR Manual on International Law Applicable to Air and Missile Warfare appropriately proposes that armed drones be treated as the legal equivalent of manned military aircraft. However it does not address the biggest legal challenge facing the use of drones and that is how the boundaries of the battlefield are defined.
Although the determination of IHL's scope and the boundaries of the battlefield places limitations on the use of any form of armed force, it has particular relevance to the future of drones due to their capabilities and limitations. Their exceptional endurance and real-time target area monitoring makes them an ideal tool for use in counter-insurgency and counter-terrorism operations. But their extreme vulnerability to even moderately capable air defense systems means that their use is currently restricted to permissive air defense environments, and for reasons of cost and effectiveness they will remain so constrained for the foreseeable future.
Because armed drones are not capable of offering surrender before employing lethal force, they may not be legally employed in a law enforcement environment, but may only be used when the laws of armed conflict (IHL) apply. This makes the question of whether counter-insurgency and counter-terrorism operations are governed by human rights law (IHRL) or IHL critical to the future of drones because, unlike traditional airpower which may be effectively employed in any air defense environment, drones are limited to such low intensity environments.
International and non-international armed conflicts take two different approaches to determining how geography cabins the use force and the application of IHL. In international armed conflicts (IAC's) IHL applies to the participants in an armed conflict wherever they are found, subject to the restrictions of neutrality law. Non-international armed conflicts rely upon thresholds of violence and group cohesion (Tadic factors) to determine when internal conflicts within a given geographical area should properly be considered a NIAC.
These approaches work well for IAC's and internal NIAC's. However attempts to determine the scope of IHL in transnational NIAC's (like the conflict between the US and al Qaeda) with reference to Tadic-like factors should fail. Accepting such an approach would turn the Geneva Conventions on their head. It would effectively grant sanctuary to and confer an important strategic advantage upon unprivileged belligerents, the same groups that the Conventions otherwise identify as the least protected and least privileged category. In contrast the application of neutrality law principles to transnational NIAC's would prevent the unilateral use of military force without undermining the foundational principles of the Geneva Conventions.
Keywords: IHL, drones, battlefield, targeted killing, international armed conflict, non-international armed conflict, IAC, NIAC, human rights law, neutrality, Tadic
Suggested Citation: Suggested Citation
Lewis, Michael W., Drones and the Boundaries of the Battlefield (June 2, 2012). 47 Texas International Law Journal 293 (2012). Available at SSRN: https://ssrn.com/abstract=1917461