Drone Warfare: How ‘Precision Engagement’ Enhances the Legal Dialogue

Though weaponized unmanned aerial vehicles, or armed drones, have generated extensive legal and policy criticism,[1] the U.S. military considers drones to be a weapon of choice to achieve strategic, operational, and tactical objectives against contemporary non-state threats. In fact, the military is seeking to expand the development of lethal drone capability.

A recently released report states, “Unmanned systems can be used in significantly different operating and threat conditions than manned platforms, come in a much wider range of classes and sizes than manned systems, can exhibit greater persistence and endurance than manned systems, and have the potential to support a large range of mission sets.”[2] The cost effective combination of standoff attack capability, real time target intelligence data, exceptional strike precision, and lethality make these ideal weapons in a conflict against an unconventional enemy.

MQ-9 Reaper, an unmanned aerial vehicle designed by General Atomics. Image: U.S. Air Force, Staff Sgt. Brian Ferguson.

MQ-9 Reaper, an unmanned aerial vehicle designed by General Atomics. Image: U.S. Air Force, Staff Sgt. Brian Ferguson.

Drones also facilitate compliance with fundamental international law obligations of distinction and proportionality in regards to the targeting process, perhaps better than any other currently available combat capability. Drone capability substantially diminishes the tactical disadvantages associated with an enemy that seeks to appear indistinguishable from civilians.[3] This is especially useful in a seemingly endless low-level armed conflict in which public perceptions of legitimacy and alienation of local populations may have near decisive strategic consequences.[4]

Nonetheless, the evolution of drone capability has been mirrored by an evolving vilification. Critics responsible for this vilification routinely conflate challenges associated with implementation of drone operations with the validity of the military operations in which drones are employed, i.e. the U.S. characterization of the struggle against al-Qaeda and associated groups as an armed conflict. This leads to assertions that drone usage devalues the lives of innocent civilians killed or wounded during such attacks, and even the lives of terrorist operatives because drones allow the use of deadly force before the United States exhausts all lesser means of incapacitating these individuals.[5] Critics also claim that drones are being used overzealously in areas beyond the geographic bounds of what many have labeled the ‘hot’ battlefield[6] and that they are used to attack individuals who should not be treated as ‘targets’ pursuant to the law of armed conflict, but instead be incapacitated through law enforcement means. These criticisms have produced a distorting effect on the analysis and critique of drones as both a means and method of warfare.[7]

In a very real sense, drones have replaced Guantanamo detentions as a parable for what has euphemistically been labeled the ‘Global War on Terror,’ but this is analytically overbroad.[8] Drone capability is not remotely responsible for either the legal characterization of the struggle against al-Qaeda nor the geographic scope of accordant operations; rather, it is the strategic decision to characterize the struggle against al-Qaeda and associated forces as an armed conflict that provides the legal basis for tactical drone use.[9] Furthermore, the assertion of armed conflict as a legal foundation for counter-terror operations does not, ipso facto, justify the use of drones to attack human and other physical targets. Rather, while the armed conflict characterization is a necessary first step in drone legality analysis, it merely leads to the decisive implementation issues related to ensuring The Law of Armed Conflict (LOAC) compliance—most notably compliance with the principles of distinction, proportionality, and precautionary measures.[10]

To understand the role of drones in contemporary military operations, it is therefore necessary to distinguish between jus ad bellum issues related to the permissible geographic scope of armed conflict[11] and the jus in bello issues related to the permissible utilization of any particular means or method of warfare within the context of an existing armed conflict. In short, the utilization of drones neither justifies resort to armed force to advance national security interests nor influences the legitimacy of the resort to force pursuant to the jus ad bellum. Instead, drones are, like any other means of warfare, simply tools available to military commanders tasked with producing tactical and operations effects to fulfill the strategic objectives defined by the nation’s leaders.

While drones may symbolize the complexities of complying with the jus in bello when engaging in armed conflict against unconventional enemies, their use also demonstrates the impact of technology to enable states like the United States to expand the reach of their military operations with minimal risk to friendly forces. But policy makers who mistakenly equate drone capabilities with some type of unjustifiable expansion of the legal basis to conduct military operations may become more hesitant to use this remarkably precise and efficient tactical capability. Aversion to drone use as a reaction to objections to the characterization of counter-terror operations and the scope of these operations may produce unnecessary pressures to utilize methods and means of warfare that pose greater risks to both U.S. forces and local civilians, dilute the confidence in the likelihood of mission accomplishment, and lead to hesitation to engage these threats with decisive force. Indeed, President Barack Obama’s May 2013 speech at the National Defense University[12]announcing policy constraints on drone use appears to reflect this type of impact. Ironically, these consequences are fundamentally inconsistent with thejus in bello principles that are supposed to regulate the use of combat power: an obligation to mitigate the risk to civilians by using combat capabilities that maximize the likelihood of mission accomplishment in a manner that creates the least risk to the civilian population.

The debate over drones is similarly distorted by the failure to differentiate between the challenges of tactical threat identification and the propriety of attacking as belligerent targets individuals who appear overtly indistinguishable from the general civilian population.[13] Distinguishing between enemy belligerent operatives—individuals presumed to represent an ongoing threat and subject to lawful attack by virtue of their status—from civilians—individuals presumed to be inoffensive and subject to attack only when directly participating in hostilities—is unquestionably legally and morally important.[14] However, attacking commanders cannot look to traditional indicators of enemy status such as uniforms and distinctive military equipment when assessing who qualifies as a lawful object of attack. Instead, they must assess that status using a totality intelligence analytical[LC1]  approach that considers a much broader range of threat identification indicators, such as location, association, communications, and patterns of movements. As a result, it is a necessary aspect of threat identification involving such threats that the conduct of the suspected target often times indicates association with enemy forces.

This approach simply reflects the different nature of the combat operations against unconventional forces; the indicators of threat status are fundamentally different in unconventional warfare, but their function remains the same: identify who falls within the status of enemy belligerent and thereby qualifies as a lawful object of attack. Ironically, this explains in large measure why drones are considered such an ideal weapon system during modern conflicts.  Few other platforms exist with the capability to enable a commander to make targeting assessments with the same level of comprehensive clarity as drones.

Ultimately, the vilification of drones, or the assertion that they must be confined to the so-called ‘hot’ battlefield, is misplaced. Drones are and will continue to be considered an ideal weapon system by those tasked with disrupting and disabling unconventional threats. While the issues highlighted by their use—the complexity of unconventional threat identification and the challenge of defining the geographic scope of armed conflicts against transnational non-state groups—are both important focal points of international legal and policy discourse, the role of drones must be assessed as a distinct issue.

 


[1] Issacharoff, Samuel and Pildes, Richard H., “Drones and the Dilemma of Modern Warfare” New York University Public Law and Legal Theory Working Papers. Paper 404 (2013) (after eliminating some of the misconceptions regarding drones, begins to develop a general framework for designing processes and institutions that would allow the drone system to flourish); Farley, Benjamin R. Drones and Democracy: Missing Out on Accountability?. 54 S. Tex. L. Rev. 385 (attacking the methods used by the United States government to avoid international safeguards on drone strikes, while also implementing an environment that allows for a lack of accountability).

[2] See, Brendan McGarry, Pentagon Plans to Weaponize More Drones, Fox News (Jan. 2, 2014), http://www.foxnews.com/tech/2014/01/02/pentagon-plans-to-weaponize-more-drones/ (The Defense Department plans to spend $24 billion on unmanned systems over the next five years, including finding ways to arm the 11,000 aerial drones with existing weaponry.); Douglas Ernst, Pentagon Looks for New Ways to Weaponize 11,000 Drones, The Washington Times, (Jan. 3, 2014), http://www.washingtontimes.com/news/2014/jan/3/pentagon-looks-new-ways-weaponize-11k-drones/.

[3] Michael W. Lewis & Emily Crawford, Drones and Distinction: How IHL Encouraged the Rise of Drones, 44 Geo. J. Int’l L. 1127, 1130-45 (2013) (gives insight into the distinction between civilian and combatant while showing that it is a relatively recent problem); See also, Afsheen John Radsan & Richard Murphy, The Evolution of Law and Policy for CIA Targeted Killing, 5 J. Nat’l Security L. & Pol’y 439, 454-55 (2012) (clarifies the practical and legal use of drones in dealing with combatant distinction issues and advocating for greater safeguards in an attempt to prevent misinformed strikes and tragedies).

[4] See, Laurie R. Blank, After “Top Gun”: How Drone Strikes Impact the Law of War, 33 U. Pa. J. Int’l L. 675, 689-97 (2012)(shows the new challenges in the implementation of distinction and proportionality caused by drone use); Carla Crandall, Ready . . . Fire . . . Aim! A case fore Applying American due Process Principles Before Engaging in Drone Strike, 24 Fla. J. Int’l L. 55, 72-6 (2012)(recognizes the distinction issue but theorizes the implementation of due process protections could act as a safeguard against civilian casualties); See also, Stephen Dycus Et. Al., National Security Law 376-407 (5th ed. 2011)(Discusses evolution of the term ‘targeted killing,’ and the International Humanitarian response to the aggressive use of drones as a weapons platform by the United States.); Geoffrey S. Corn & Eric Talbot Jensen, Transnational Armed Conflict: A ‘Principled’ Approach to the Regulation of Counter-Terror Combat Operations, 42 Isr. L. Rev. 46, 65-68 (2009)[hereinafter Transnational Armed Conflict](in theaters of armed conflict adherence to distinction and proportionality is mandatory regardless of the ability to properly classify individuals).

[5] See, Charlie Savage, U.N. Report Highly Critical of U.S. Drone Attacks, N.Y. Times, June 2, 2010, at A10 (calls on the United States to exercise greater restraint in its use of drones in places like Pakistan and Yemen, outside the war zones in Afghanistan and Iraq); See also, Study on Targeted Killings, Rep. of the Human Rights Council14th Sess., May 28, 2010, U.N. Doc. A/HRC/14/24/Add.6

[6] Jennifer C. Daskal , The Geography of the Battlefield: A Framework for Detention and Targeting Outside the “Hot” Conflict Zone, 161 U. Pa. L. Rev. 1165, 1193-1209 (2013)(draws a distinction between peaceful and ‘hot’ zones, while clarifying that a clear distinction is difficult because most drone operation is in areas that fall in the middle); See also, Mary Ellen O’Connell, Unlawful Killing With Combat Drones: A Case Study of Pakistan, 2004-2009, in Shooting to Kill: The Law Governing Lethal Force in Context (Simon Bronitt ed., forthcoming 2010) Notre Dame Legal Studies Research Paper No. 09-43 at 9, 10  (2009) (drone usage in areas like urban dwellings have become an increasingly popular target, despite the fact that they might not qualify as a ‘hot’ battlefield).

[7] See generally, Letta Tayler, Between a Drone and Al-Qaeda, Human Rights Watch (Oct. 24, 2013), http://www.hrw.org/sites/default/files/reports/yemen1013_ForUpload_1.pdf (offers insight into the toll the drone program is having internationally and in Yemen); See also, Gabor Rona, Comment to The Drone Zone, Lawfare Blog (July 12, 2012, 11:52 AM), http://www.lawfareblog.com/2012/07/gabor-rona-also-comments-on-mark-mazzetti-the-drone-zone-geoffrey-corn-and-kenneth-andersons-posts/#.Uva3mP2vVAQ (“It is whether the principles and rules of warfare mentioned above – military necessity, distinction, proportionality, and obligation to undertake precautions – will be under-applied or over-applied when personal risk is removed from the equation.”).

[8]  Thomas Michael McDonnell, Sow What You Reap? Using Predator and Reaper Drones to Carry Out Assassination or Targeted Killings of Suspected Islamic Terrorists, 44 Geo. Wash. Int’l L. Rev. 243, 281-84 (2012)(points out that the war on terror is not global conflict but reserved to locales where, “al-Qaeda, the Taliban, and its ‘associated forces’ are”).

[9] See Pub. L. No. 107-40, 115 Stat. 224, The Authorization for Use of Military Force Against Terrorists was adopted by a vote of 420-1 in the House of Representatives and 98-0 in the Senate, (enacting the AUMF created the basic authority of the President to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the September 11th attacks, or who harbored said persons or groups thus creating the armed conflict); see also Transnational Armed Conflictsupra note 4, at 50-61(argues that if a state conducts military operations against a non-state, the laws of armed conflict will be the guiding principals in certain situations); but see Geoffrey S. Corn & Eric Talbot Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror, Temp. L. Rev., Vol. 81, p. 787, 791-802 (January 14, 2008), available at http://ssrn.com/abstract=1083849 (due to the unique nature of the war on terror, “attempting to rely on the accepted triggering criteria for either of these categories of armed conflict is like trying to put the proverbial square peg into the round hole. It is therefore unsurprising that designating the struggle against international terrorism a “global war” and announcing that the United States was engaged in an “armed conflict” with al Qaeda was both controversial and ultimately confusing for the armed forces required to execute operations associated with this struggle.”).

[10] See Transnational Armed Conflictsupra note 4, at 19-23 (gives discernment as to the interplay of proportionality and the laws of armed conflict);see also Geoffrey Corn et al., The Law of Armed Conflict: An Operational Approach, Chapter 6 (2012)(shows the effect distinction and proportionality have on targeting); see generally Geoffrey S. Corn & Gary P. Corn, The Law of Operational Targeting: Viewing the LOAC Through an Operational LensTex. Int’l. L. J., (Forthcoming August 21, 2011), available at http://ssrn.com/abstract=1913962 (discusses the broad effect proportionality, and to a lesser extent, distinction, have on commanders decisions in accordance with the laws of armed conflict).

[11] Geoffrey S., Corn, Geography of Armed Conflict: Why It is a Mistake to Fish for the Red Herring, 80 Int’l. L. Stud. 2013, (November 22, 2012),available at http://ssrn.com/abstract=2179720, (asserting that neither international law nor military doctrine impose geographic constraints on the scope of armed conflict, which is instead historically dictated by threat dynamics).

[12] President Barrack Obama, Remarks at the National Defense University (May 23, 2013) transcript available in the White House Office of the Press Secretary, available at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university

[13] See generally Geoffrey S. Corn, Statement to the Senate, Committee on Armed Services, Hearing addressing the Law of Armed Conflict, The Use of Military Force, and the 2001 Authorization for Use of Military Force, May 15, 2013, available athttp://www.armedservices.senate.gov/imo/media/doc/Corn_05-16-13.pdf (while target identification must rely on indicia that are much more subtle than conventional warfare, relying on multiple factors for positive identification can help to mitigate the level of difficulty and error); See also, Harold Koh, “How to End the Forever War?,” Remarks at the Oxford Union, Oxford, U.K. (May 7, 2013)(asserting that if the Obama administration would open up to the idea consultation and transparency regarding the acquisition of drone targets, it could prevent our tactics from empowering our enemy).

[14] Geoffrey S. Corn et al., Belligerent Targeting and the Invalidity of a Least Harmful Means Rule, 89 Int’l. L. Stud. 536, 548-51(2013), available athttp://ssrn.com/abstract=2271152 (examining the LOAC’s interpretation of civilians versus belligerents); see also Geoffrey S. Corn & Chris Jenks, Two Sides of the Combatant COIN: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflicts, 33:2 U. Pa. J. Int’l. L. 313, 335-338 (2011), available at http://ssrn.com/abstract=1604626 (due to the nature of modern warfare, there is no incentive for a party to wear a designation or insignia that indicates he/she is a belligerent).

Geoffrey Corn

Geoffrey S. Corn is Presidential Research Professor of Law, South Texas College of Law (Houston), Lieutenant Colonel, US Army (Retired). His last position in the Army was as senior law of war adviser. He is the lead author of The Law of Armed Conflict: An Operational Approach, and The War on Terror and the Laws of War: A Military Perspective.