A Means-Methods Paradox and the Legality of Drone Strikes in Armed Conflict

Abstract

This article examines the legality of drone strikes. It limits the analysis to conduct within a traditionally defined armed conflict, in order to focus more clearly on the question of whether features inherent to the drone as a weapons system might make it conducive to violations of international law.

The article reviews the applicable legal principles from international humanitarian law (IHL) and international human rights law (IHRL), and examines the record of civilian deaths caused by drone strikes in Afghanistan. While transparency and accountability are a problem, the study suggests that the drone strike operations may be characterised by more direct systemic violations of international law. In examining such potential violations the article considers the features inherent to the drone as a “means” of warfare, and the features of the policy and practices that underlie the “methods” of warfare related to drone strikes, with the aim of determining which is more responsible for any violations.

The features of the armed drone as a weapons systems appear to make it more conducive to compliance with IHL than competing aerial weapons systems. Conversely, aspects of the policy governing drone operations, such as the criteria used for “signature strikes”, are more likely to contribute to violations of international law. However, examining the issue from the perspective of a particular strike, and through the lens of cognitive consistency theory on misperception, the article suggests that the picture may be more complex. Paradoxically, the very features that are most likely to make the drone compliant with IHL –its ability to linger undetected for protracted periods over potential targets, feeding intelligence back to an operations team that can make targeting decisions in a relatively stress-free environment – may facilitate targeting errors caused by misperception and misinterpretation of the target data. In short, both the “means” and “methods” of drone strikes may combine to facilitate violations of IHL.

Keywords: drone, UAV, armed conflict, IHL, laws of armed conflict, humanitarian law, human rights, international law, Afghanistan. cognitive consistency, misperception

JEL Classification: K33