Is Jus in Bello in Crisis?
Journal of International Criminal Justice (Forthcoming)
21 Pages Posted: 28 Nov 2012 Last revised: 18 Feb 2013
Date Written: November 26, 2012
It is a truism that new technologies are remaking the tactical and legal landscape of armed conflict. While such statements are undoubtedly true, it is important to separate genuine trends from scholarly exaggeration. The following Essay, an introduction to the Drone Wars Symposium for the Journal of International Criminal Justice, catalogues today’s most pressing disputes regarding International Humanitarian Law (IHL) and their consequences for criminal responsibility. These include: (i) the triggering and classification of armed conflicts with non-state actors; (ii) the relative scope of IHL and international human rights law (IHRL) in asymmetrical conflicts; (iii) the targeting of suspected terrorists under conduct- or status-based classifications that render them subject to lawful attack; (iv) the legal fate of CIA drone operators who participate in armed conflict without the orthodox privilege of combatancy conferred on members of the armed forces; and (v) the principle of proportionality as it applies to drone strikes that produce collateral damage. What emerges from this survey is a portrait of drones as a technological development that has radically escalated pre-existing tensions in IHL that first emerged with manned aerial attacks and artillery. As conflicts with non-state actors proliferate and intensify, these pre-existing tensions will continue to transform, via state practice, the reciprocity usually associated with orthodox IHL.
Keywords: Drones, Targeted Killings, IHL, Jus in Bello, International Humanitarian Law, targeting, armed conflicts, non-state actors, proportionality
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