Droning On: Controversy Surrounding Drone Warfare Is Not Really About Drones
Brown Journal of World Affairs, Vol. 19, p. 1, 2013
11 Pages Posted: 8 Feb 2014
Date Written: March 18, 2013
Drones, or unmanned aircraft systems (UASs), seem to be everywhere these days. Journalists report on use of UASs in everything from intelligence collection to border patrol, law enforcement, disaster response, UN missions, and, most famously, lethal operations against terrorists. Academics and commentators fill the pages of journals and hold discussions on the pressing challenges posed by “drone warfare.” Public officials and human rights groups caution against and express concern about the use of UASs in public statements and reports. U.S. government officials steadfastly defend UAS strikes in speeches, court filings, and articles. Over the past decade, drones have moved from the realm of science fiction to the forefront of America’s conflicts and to a prominent place in the global consciousness. Former senior U.S. government official John Bellinger III has written that drones risk becoming “Obama’s Guantánamo,” and he may be correct. But similar to how the concept of wartime detention under President George W. Bush became controversial for mostly the wrong reasons, lethal UAS operations under President Barack Obama generate a great deal of misdirected controversy.
The question of whether a drone strike is legal when it is carried out within the setting of an armed conflict, performed by lawful combatants, and properly conducted in accordance with the law of armed conflict has been repeatedly answered in the affirmative by a number of commentators and practitioners, including this author. Conducted in the proper context and in compliance with the principles of necessity, distinction, proportionality, and humanity, a lethal UAS strike is no different from one that any other weapon or platform conducts. The same rules that apply to UASs apply to fighter planes, surface-to-air missiles, any other method of aerial delivery, or any means of warfare, generally. The use of remotely operated UASs to perform targeting operations presents few, if any, new or unique legal questions. Calls by critics to ban or restrict the use of UASs for lethal strikes therefore largely miss the real and difficult issues.
Indeed, the most significant, meaningful, and consequential controversies surrounding drone warfare are not really about UASs at all. However, the discussions related to UASs — like those related to detention — typically evoke visceral reactions and in turn have the potential to promote debate and provide a valuable opportunity to assess the truly important and challenging legal and policy issues unique to America’s current armed conflict with al-Qaeda. This article asserts that the three most important issues UAS strikes prompt, which have nothing to do with the weapons system itself, are those associated with identifying the appropriate legal framework for the conflict with al-Qaeda, assessing the legal status of individual combatants from both sides of the conflict, and defining the battlefield in a conflict with a transnational nonstate actor. As this article will demonstrate, these are the critical issues at the core of the controversy — issues brought to the surface by drone strikes but not actually about the drone as a weapon platform per se.
Keywords: Drone, UAV, UAS, RPA, al Qa'ida, terrorism, law of armed conflict, law of war, IHL, military
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