Drones: Mapping the Legal Debate

The International Journal of Human Rights, 2015

Open Journal of Political Science, 2014

There is a notable absence of legal approaches to the discourse evaluating use of drones. Even when drones are discussed in a legal context, arguments assert that drones require a new legal regime to adapt to modern qualities and circumstances. In the alternative, this paper argues that drones compatibly fit into existing legal regimes, particularly international criminal law (ICL) and international humanitarian law (IHL) in accordance with general principles of international law. This paper argues that use of drones in armed conflict fits within existing laws governing use of force as the frameworks in use today. It demonstrates that ICL and IHL provide flexible guidelines appropriately suitable to particulars of drones, such as types and capabilities, but more importantly, they continue to provide legal governance applicable to drones as weapons. Legal uncertainty as to the use of drones is thus evaluated within the hypothetical exploration of drone usage culminating in a war crime before the International Criminal Court (ICC).

Using Unmanned Aerial Systems (UAS) as an analytical tool, this paper will argue that these are good for reflecting on the legal, ethical and moral dilemmas inherent to US’s remote control warfare. Firstly, viewed in the context of ‘virtuous warfare’ (Der Derian, 2009), UAS mark a turn in the advent of an Information war which is redefining political violence and geography. This will lead us to explore issues of legality in US’s covert warfare. Secondly, denouncing the bio-political motives behind their use, we will question the moral permissibility of violence wielded by UAS, Moreover, the new temporalities and spacial relationships created by UAS will enable us to critique the asymmetrically of remotely controlled warfare by tackling the ethical implications raised by the ‘distant-intimacy’ phenomenon. Thirdly, we will conclude by underscoring the quixotic task of eliminating risk from war, showing how UAS have positioned the US in a paradoxical situation where virtuous wars generate riskier futures and insecure environments, at home and abroad.

Open Journal of Political Science, 2014

There is a notable absence of legal approaches to the discourse evaluating use of drones. Even when drones are discussed in a legal context, arguments assert that drones require a new legal regime to adapt to modern qualities and circumstances. In the alternative, this paper argues that drones compatibly fit into existing legal regimes, particularly international criminal law (ICL) and international humanitarian law (IHL) in accordance with general principles of international law. This paper argues that use of drones in armed conflict fits within existing laws governing use of force as the frameworks in use today. It demonstrates that ICL and IHL provide flexible guidelines appropriately suitable to particulars of drones, such as types and capabilities, but more importantly, they continue to provide legal governance applicable to drones as weapons. Legal uncertainty as to the use of drones is thus evaluated within the hypothetical exploration of drone usage culminating in a war crime before the International Criminal Court (ICC).

This article examines whether American drone-based targeted killing program represents a fundamentally new challenge to the traditional legal and ethical standards of armed conflict. It argues that the novelty of drones flows less from the technology itself than from the Obama administration's articulation of a presumptive right of anticipatory self-defense, which allows it to strike anywhere in the world where al Qaeda and its allies are present. It highlights five new legal and ethical dimensions to the Obama administration's drones policy, all of which may lower the traditional barriers to the use of force if other actors begin to follow contemporary American practice.

Unmanned combat air vehicles, or in common parlance “drones”, have become a prominent instrument in US efforts to counter an objective (and subjective) cross-border terrorist threat with lethal force. As a result, critical questions abound on the legitimacy of their use. In a series of multidisciplinary essays by scholars with an extensive knowledge of international norms, this book explores the question of legitimacy through the conceptual lenses of legality, morality and efficacy; it then closes with the consideration of a policy proposal aimed at incorporating all three indispensable elements. The importance of this inquiry cannot be overstated. Non-state actors fully understand that attacking the much more powerful state requires moving the conflict away from the traditional battlefield where they are at an enormous disadvantage. Those engaging in terrorism seek to goad the ruling government into an overreaction, or abuse of power, to trigger a destabilization via an erosion of its legitimacy. Thus defending the target of legitimacy—in this case, insuring the use of deadly force is constrained by valid limiting principles—represents an essential strategic interest. This book seeks to come to grips with the new reality of drone warfare by exploring if it can be used to preserve, rather than eat away at, legitimacy. After an extensive analysis of the three key parameters in twelve chapters, the practical proposition of establishing a “Drone Court” is put forward and examined as a way of pursuing the goal of integrating these essential components to defend the citizenry and the legitimacy of the government at the same time. Table of Contents Introduction: Legitimacy as a Target Through the Lens of Legality – Formal Validity 1) Jus ad bellum: Crossing Borders to Wage War against Individuals o Christian Tams o James Devaney 2) Who Can Be Killed?: Legal Targets in Non-International Armed Conflicts o Patrycja Grzebyk 3) Boundaries of the Battlefield: The Geographical Scope of the Laws of War o Katja Schöberl 4) Lethal Force and Drones: The Human Rights Question o Gloria Gaggioli Through the Lens of Morality – Axiological Validity 5) Old Ideas in New Skins: The 16th Century Debate over Artillery o Alexis Keller 6) The Question of “Imminence”: A Historical View on Anticipatory Attacks o Steven J. Barela 7) Correcting the Record: Civilians, Proportionality and Jus ad Vim o Avery Plaw o Carlos Colon 8) From Just War to Clean War: The Impact of Modern Technology on Military Ethics o Delphine Hayim Through the Lens of Efficacy – Empirical Validity 9) Data on Leadership Targeting and Potential Impacts for Communal Support o Jenna Jordan 10) Tactical Efficacy: Notorious UCAVs and Lawfare o Marek Madej 11) Strategic Efficacy: The Opinion of Security and a Dearth of Data o Steven J. Barela 12) Systemic Efficacy: “Potentially Shattering Consequences for International Law” o Robert Kolb Creating a Drone Court: Integration via a Policy Proposal 13) Establishment of a Drone Court: A Necessary Restraint on Executive Power o Amos N. Guiora (IDF, Lt. Col., Ret.) o Jeffrey S. Brand 14) Can UCAVs be Reconciled with Liberal Governance?: The Substantive Law of a Drone Court o Tom Farer o Frédéric Bernard Conclusion: Defending Legitimacy

International and Comparative Law Quarterly , 2016

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike. Keywords: classification of conflicts, consent and use of force, direct participation in hostilities, drones, extraterritorial application of right to life, human rights in armed conflict, non-international armed conflicts, self-defence, self-defence and non-State groups.

Global Journal of Human-Social Science Research, 2015

With the advancement of technology, the shape and nature of warfare has changed. In recent times, there has been the proliferation of armed drones technology and its usage. From when drones were made operational in the Balkans war, they have been used particularly by the US in places like Afghanistan, Yemen, Somalia and Iraq and controlled by the CIA. With these rapid development and proliferations, machines are starting to take the place of humans in the battlefield. The proliferation and usage of these armed drones poses challenges to the principles of international humanitarian and human rights laws especially when they are operated by non- military personnel like the CIA, the parameters of their detention and prosecution. This paper therefore analyses the effects that the proliferation and usage of armed drones has on the basic principles of international humanitarian and human rights law and concludes that the ability of armed drones to carry out targeted killings without exerc...

Critical Studies on Terrorism, 2018

The conventional wisdom among US foreign policymakers is that drones enable precise strikes, and therefore limit collateral damage. In contrast, critics point out that many civilian casualties have ensued, and they variously cite poor intelligence and imprecision of the strikes as reasons for this. Critics have also raised concerns that the US and its allies are engaging in “lawfare” to legitimise violations of human rights law. As such, some have questioned whether academic engagement with the legal questions surrounding targeted killings amount to collusion with state attempts to legitimise human rights violations. This article will argue that by conceptualising the targeted killings programme as a form of state terrorism, we are better equipped to provide a critical analysis of the drones programme within the context of a long history of violence and terrorism which has underpinned the imperial and neo-imperial projects of the UK and US. The article will then argue that there are important similarities between the targeted killings programme, and previous UK and US counterinsurgency operations, including prior uses of air power, and operations involving the internment of terror suspects, and the targeting of specific individuals for interrogation and torture or disappearance. Common to these programmes is that they are forms of policing aimed at crushing rebellions, stifling disorder and constructing or maintaining particular political economies, through terror. Also common to these programmes are the attempts made either to conceal illicit actions, or in the event they are exposed, to shroud them in a veil of legitimacy. The article concludes by offering some brief reflections on why we should not abandon the quest to resolve the thorny legal questions around the targeted killings programme.

Steven James Barela (ed.), The Legitimacy of Drones, 2015

Drones are being used – and are likely to be increasingly used- in peacetime policing. The likelihood that drones could be armed to use force domestically in order to maintain or restore public, security, law, and order in the near future should, however, not be underestimated. In the multifaceted fight against terrorism, armed drones have moreover been widely used against persons extraterritorially, including outside armed conflict situations. Even in armed conflicts, drones may be used – like in peacetime- to conduct law enforcement activities. The use of lethal force by means of drones in such cases is governed exclusively by international human rights law and its rules and standards for the use of force. The practical and legal consequences of this position remain, however, unexplored. While the legal and humanitarian issues posed by drone strikes have been extensively examined under the lens of international humanitarian law, the issue of the potential conformity of drone strikes with the law enforcement paradigm has been overlooked. Can the use of force by drones (ever) respect the principles of absolute necessity and proportionality? How can an escalation of force procedure be applied in such situations? There are some of the key questions this chapter will address.