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«TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 Drones and the Boundaries of the Battlefield MICHAEL W. LEWIS SUMMARY INTRODUCTION I. DRONE USE ...»

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TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2

Drones and the Boundaries of the

Battlefield

MICHAEL W. LEWIS

SUMMARY

INTRODUCTION

I. DRONE USE IN A COMBAT ENVIRONMENT

A. Capabilities

B. Limitations

C. Drones and the Boundaries of the Battlefield

II. COMPETING VIEWS OF THE SCOPE OF IHL

A. Strict Geographical Limitations: Internal Non-International Armed Conflicts

B. Traditional Boundaries of the Battlefield: International Armed Conflicts

C. Neutrality Law: The Graf Spee Incident

D. Transnational Armed Conflicts

III. HOW THE LEGALITY OF DRONE STRIKES IN TRANSNATIONAL ARMED

CONFLICTS RELATES TO THE CORE PRINCIPLES OF IHL

A. Legal Challenges to Drone Strikes in Transnational Armed Conflicts.. 308 B. Core Principles of IHL

C. Applying Strict Geographical Limits on the Scope of IHL to Transnational Armed Conflicts Rewards Groups like Al-Qaeda........... 312 CONCLUSION

 Associate Professor of Law at Ohio Northern University Pettit College of Law. I would like to thank the members of the Texas International Law Journal for creating an excellent Symposium to discuss the Air and Missile Warfare Manual and all of the participants at the symposium for their comments and suggestions concerning this essay. In discussing the capabilities, limitations, and near-term uses of drones, I draw upon my experience flying F-14s for the U.S. Navy from 1989 to 1993.

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2

–  –  –

INTRODUCTION

The military use of drones or Unmanned Aerial Vehicles (UAVs) and Unmanned Combat Aerial Vehicles (UCAVs)1 in combat operations is one of the more legally controversial issues confronting international humanitarian law (IHL)2 as we move into the second decade of the twenty-first century. The legality of drones has been questioned for a variety of reasons, some more grounded in fact than others, but in spite of these criticisms there is little question that the use of drones in surveillance and combat roles is on the rise. The next decade will undoubtedly see their continued use by an increasingly large number of nations, particularly in counterinsurgency operations. The panel of experts that created the Manual on International Law Applicable to Air and Missile Warfare (AMW Manual) recognized this emerging technology and ensured that the Manual addressed the laws applicable to such aircraft. Unfortunately, the most prominent legal issues confronting the use of drones are somewhat beyond the Manual’s scope.

The AMW Manual generally treats drones in the same way as manned aircraft.

It equates UCAVs with other military aircraft for the purposes of conducting attacks3 and requires that the same level of precautions be taken before initiating an attack with UCAVs as would be required when employing manned aircraft.4 It also states that civilians controlling drones are directly participating in hostilities, giving them the same status that civilians would have if they were to fly a military aircraft.5 This legal equivalence between manned and unmanned aircraft is broadly accepted by commentators.6 In spite of the Terminator-like creepiness associated with machines

1. PROGRAM ON HUMANITARIAN POLICY & CONFLICT RESEARCH, MANUAL ON INTERNATIONAL

LAW APPLICABLE TO AIR & MISSILE WARFARE r. 1(dd)-(ee), 6 (2009) [hereinafter AMW MANUAL] (differentiating between UAVs and UCAVs on the basis of whether the vehicle can carry or control a weapon).

2. International Humanitarian Law is the term given to the body of law that governs armed conflicts.

It is also referred to as the Law of Armed Conflict (LOAC) and encompasses the Geneva and Hague Conventions, the Additional Protocols to the Geneva Conventions, and the customary law that has developed around these treaties.

3. AMW MANUAL, supra note 1, r. 17(a).

4. Id. r. 39.

5. Id. r. 29(vi).

6. See, e.g., Rise of the Drones II: Examining the Legality of Unmanned Targeting: Hearing Before the Subcomm. on Nat’l Sec. & Foreign Affairs of the H. Comm. on Oversight & Gov’t Reform, 111th Cong.

32 (2010) [hereinafter Drones II] (prepared statement of David W. Glazier, Professor of Law, Loyola Law School L.A.), available at http://www.fas.org/irp/congress/2010_hr/drones2.pdf (warning that “CIA personnel are civilians, not combatants, and do not enjoy any legal right to participate in hostilities”); Rise of the Drones II, supra at 20 (prepared statement of Mary Ellen O’Connell, Robert and Marion Short Chair in Law, Univ. of Notre Dame) (arguing that unmanned drones are “battlefield weapons,” and as such should not be used outside of “combat zones”); Rise of the Drones II, supra at 44–46 (prepared statement of William C. Banks) (describing how legal authority for use of drones in targeting can be found in existing law governing armed conflict but urging modernization of policy and law); Rise of the Drones II, supra (statement of Michael W. Lewis, Professor of Law Ohio N. Univ. Pettit College of Law), available at http://oversight.house.gov/images/stories/Hearings/pdfs/LewisDrones.doc (“In circumstances where a strike by a helicopter or an F-16 would be legal, the use of a drone would be equally legitimate.”);





Rise of the Drones: Unmanned Systems and the Future of War: Hearing Before the Subcomm. on Nat’l Sec.

& Foreign Affairs of the H. Comm. on Oversight & Gov’t Reform, 111th Cong. 3 (2010) [hereinafter Drones] (written testimony of Kenneth Anderson, Professor of Law, Washington College of Law Am.

Univ. and Member, Hoover Task Force on Nat’l Sec. & Law), available at http://oversight.house.gov/ images/stories/Hearings/pdfs/20100323Anderson.pdf (noting that “use of drones... on traditional battlefields.... is functionally identical to the use of missile fired from a standoff fighter plane”).

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 295 seemingly7 making war on human beings, there is nothing legally unique about using unmanned drones as a weapons delivery platform that requires the creation of new or different laws to regulate their use. As with any other attack launched against enemy forces during an armed conflict, attacks launched from UCAVs are governed by IHL and must meet its requirements of military necessity and proportionality if those attacks are to be considered legal. But it is not this view that manned and unmanned aircraft are legally equivalent that is being challenged.

While drones have been criticized for causing a disproportionate number of civilian casualties8 or for merely sending the wrong message about American power,9 the most serious legal challenges to the use of drones in the modern combat environment involve questions of where such unmanned aircraft may be legally employed.10 It is contended that drone strikes in places like Yemen and Pakistan violate international law because there is currently no armed conflict occurring in these nations.11 Although theoretically the limitations imposed by this view of the boundaries of the battlefield are not specifically directed at the use of drones and

7. In actuality, of course, UCAVs are under human, albeit remote, control. During his presentation at the Symposium, Professor Anderson discussed the more disturbing idea that someday UCAVs may be disconnected from their human remote controllers, allowing them to make independent targeting determinations based upon pre-programmed decision trees for launch/no launch decisions. Kenneth Anderson, Remarks at the Texas International Law Journal Symposium: The 2009 Air and Missile Warfare Manual: A Critical Analysis (Feb. 11, 2011). Should such technology become a reality, the legal equivalence between manned and unmanned aircraft would be at an end and a new group of provisions specifically applicable to unmanned aircraft would become necessary.

8. See, e.g., Murray Wardrop, Unmanned Drones Could Be Banned, Says Senior Judge, THE TELEGRAPH (July 6, 2009), http://www.telegraph.co.uk/news/uknews/defence/5755446/Unmanned-dronescould-be-banned-says-senior-judge.html (quoting Lord Bingham, a former Law Lord, who cited civilian casualties as a possible justification for banning the use of armed drones); Kenneth Anderson, Am I Arguing a Strawman About Drones and Civilian Casualties?, VOLOKH CONSPIRACY (Apr. 27, 2011, 9:51 AM), http://volokh.com/2011/04/27/am-i-arguing-a-strawman-about-drones-and-civilian-casualties (arguing that the recent acknowledgement by many human rights advocates of the superior target discrimination of drones does not alter the fact that many of the early criticisms of drones were related to excessive civilian casualties). The author’s experiences at a variety of events in which the legality of drones was discussed were similar to that of Professor Anderson in that, until recently, many—if not most—of the criticisms of drones were based upon civilian casualties.

9. David Ignatius, Drone Attacks in Libya: A Mistake, WASH. POST: POST PARTISAN (Apr. 21, 2011, 4:52 PM), http://www.washingtonpost.com/blogs/post-partisan/post/drone-attacks-in-libya-a-mistake/2011/ 03/04/AFtZrRKE_blog.html.

10. See, e.g., Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 9 (D.D.C. 2010) (describing the plaintiff’s contention that because Anwar al-Aulaqi was located in Yemen he was “outside the context of armed conflict”); see also Mary Ellen O’Connell, Combatants and the Combat Zone, 43 U. RICH. L. REV. 845, 860–64 (2009) (describing a geographically limited zone of combat in which IHL applies); Civil Liberties and National Security: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 103–04 (2010) (testimony of Mary Ellen O’Connell, Professor of Law, Univ. of Notre Dame), available at http://judiciary.house.gov/hearings/hear_101209.html (stating that drone strikes in Pakistan are illegal under international law because they are occurring outside the zone of combat); Human Rights Watch, Letter from Kenneth Roth, Exec. Dir., Human Rights Watch, to President Barack Obama (Dec. 7, 2010), available at http://www.hrw.org/en/news/2010/12/07/ letter-obama-targeted-killings [hereinafter HRW letter] (urging the Obama Administration to reject the concept of a “global battlefield”); Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum, Study on Targeted Killings, para. 86, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston) [hereinafter Alston Report] (stating that there “are very few situations” where the legal standards for use of drones could be met when a state deployed them “[o]utside its own territory (or in territory over which it lacked control) and where the situation on the ground did not rise to the level of armed conflict”).

11. Id.

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2

296 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 47:293

apply with equal force to any use of the tools of armed conflict, from a practical standpoint the view that the boundaries of the battlefield are strictly defined by geopolitical lines has a particularly significant impact on the use of drones.

This Article briefly discusses drone use in the combat environment and explains why the debate about the boundaries of the battlefield is of particular importance to the employment and development of drones. It will then describe the geographically limited scope of IHL proposed by commentators critical of drone use in areas like Pakistan and Yemen. This view of the boundaries of the battlefield will be compared with the historical understanding of where the laws of armed conflict apply in international armed conflicts and the role that geography has traditionally played in restricting IHL’s scope. It concludes by arguing that the more traditional view of IHL’s scope of application should apply with even more force to transnational armed conflicts because any other interpretation threatens to undermine the basic theoretical underpinnings upon which IHL is constructed.

–  –  –

The driving force behind the western militaries’ development of drone technology was to minimize the number of human lives placed at risk to collect intelligence and to deliver small amounts of ordnance with some degree of precision.

However, it is the relatively low cost of drones compared to that of modern combat aircraft that will drive the proliferation of drones over the next decade. More basic drones cost less than 1/20th as much as the latest combat aircraft and even the more advanced drones that feature jet propulsion and employ some stealth technology are less than 1/10th the cost.13 With defense budgets around the world under increasing pressure, drones will be seen as an attractive alternative to manned aircraft for certain types of missions.

However, the value of drones cannot be measured solely in lives and dollars saved. Operationally, drones provide a couple of significant advantages over manned aircraft that make them particularly valuable in certain types of modern armed conflicts. Their biggest advantage is their very long endurance: over thirty

12. Some of the following analysis is based upon the author’s experience in naval aviation from 1989 to 1993.

13. Predator drones cost approximately $5 million per aircraft. Factsheets: MQ-1B Predator, U.S.

AIR FORCE (Jan. 5, 2012), http://www.af.mil/information/factsheets/factsheet.asp?fsID=122. Reaper

drones, the armed version of the Predator, cost approximately $10–15 million per aircraft. Factsheets:

MQ-9 Reaper, U.S. AIR FORCE (Jan. 5, 2012), http://www.af.mil/information/factsheets/factsheet.

asp?id=6405. The Avenger, a more advanced drone with jet propulsion and some limited stealth technology, is projected to cost $13–17 million per aircraft. See W.J. Hennigan, Air Force Buys an Avenger, Its Biggest and Fastest Armed Drone, L.A. TIMES (Dec. 31, 2011), http://articles.



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