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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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latimes.com/2011/dec/31/business/la-fi-stealth-drone-20111231 (discussing the advantages of the Avenger compared to earlier drones and noting the $15 million purchase price). In contrast, the cost of an F-22 has risen to nearly $412 million per aircraft and the continually rising cost estimates for the proposed F-35 now approach $150 million per aircraft. W.J. Hennigan, Sky-High Overruns, Safety Ills Plague Jet, L.A. TIMES, (Aug. 7, 2011), http://articles.latimes.com/2011/aug/07/business/la-fi-fighter-jets-grounded-20110807; Bob

Cox, Defense Department Says F-35 Fighter Program’s Costs to Significantly Rise, FORT WORTH STARTELEGRAM, Apr. 7, 2010, at C1. The B-2 stealth bomber costs over $1.2 billion per aircraft. Factsheets:

B-2 Spirit, U.S. AIR FORCE (Apr. 23, 2010), http://www.af.mil/information/factsheets/factsheet.asp?id=82.

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 297 hours for the Predator B and twenty hours for the Predator C (Avenger).14 This gives drones more than ten times the endurance of unrefueled manned aircraft,15 enabling them to observe and track a target for many hours at a time before deciding whether to employ ordnance. For manned aircraft to achieve the same loiter time extensive airborne refueling support would be required. To achieve the same unbroken surveillance of a potential target offered by a single drone, multiple manned aircraft would be needed to avoid losing track of the target when the aircraft left its station to refuel. This makes drones an ideal surveillance and striking weapon in counterinsurgency or counterterrorism operations, where the targets are usually individuals rather than objects.16 Another operational advantage that drones provide is greater legal compliance with IHL’s requirements of military necessity and proportionality. Although many of the early criticisms of drones were directed at their allegedly indiscriminate nature, which purportedly resulted in disproportionate civilian casualties,17 the reality of drone strikes is that they provide many more opportunities for disproportionate attacks to be halted prior to weapons employment. For manned aircraft both the target identification and the final proportionality decision are left in the hands of one or two crewmembers whose attention is divided between flying the aircraft, looking for (and possibly evading) surface-to-air missiles and ground fire, identifying the target, assessing the proportionality of the attack, and accurately delivering the weapon.18 In contrast, the longer loiter time of drones allows for a much higher level of confidence that the target has been properly identified, thereby meeting the

14. Predator B UAS, GENERAL ATOMICS AERONAUTICAL SYSTEMS INC., http://www.ga-asi.com/ products/aircraft/predator_b.php (last visited Jan. 31, 2012); Predator C Avenger UAS, GENERAL ATOMICS AERONAUTICAL SYSTEMS INC., http://www.ga-asi.com/products/aircraft/predator_c.php (last visited Jan. 31, 2012).

15. See, e.g., The F-16 Fighting Falcon, FED’N OF AM. SCIENTISTS, http://www.fas.org/programs/ ssp/man/uswpns/air/fighter/f16.html (last visited Jan. 31, 2012) (observing that the F-16’s average combat endurance is only two hours and ten minutes); see also F/A-18 Hornet, FED’N OF AM. SCIENTISTS, http://www.fas.org/programs/ssp/man/uswpns/air/fighter/f18.html (last visited Jan. 31, 2012) (observing that even the most modern variant of the F-18 can only stay airborne for two hours and fifteen minutes before requiring refueling).

16. In more traditional inter-state wars many airstrikes are directed at fixed targets such as communications links (headquarters buildings, microwave relays, radio transmitters), transportation infrastructure (bridges, road or rail networks), combat support facilities (ammunition dumps, fuel depots, munitions factories), or air defense systems (radars, surface-to-air missile sites, airfields). Other attacks may be directed at mobile targets (concentrations of troops, aircraft, artillery, or armor) but they seldom involve the individualized targeting that underlies most of the strikes being conducted in the current conflict with al-Qaeda.

17. See Anderson, supra note 8 (noting that many of the early reports of high civilian casualties were a result of the uncritical assessment of casualty figures provided by the Taliban or local Pakistani media);

see also Farhat Taj, Drone Attacks: Challenging Some Fabrications, DAILY TIMES (Jan. 2, 2010), http://www.dailytimes.com.pk/default.asp?page=2010%5C01%5C02%5Cstory_2-1-2010_pg3_5 (proposing that the U.S. and Pakistani media do not accurately report civilian casualties caused by drone strikes); C.

Christine Fair, Drones Over Pakistan—Menace or Best Viable Option?, HUFFINGTON POST (Aug. 2, 2010, 9:56 AM), http://www.huffingtonpost.com/c-christine-fair/drones-over-pakistan----m_b_666721.html (arguing that reports by U.S. and Pakistani media exaggerate civilian casualties caused by drones).

18. The multitasking that goes on in the cockpit at the moment of weapons delivery can perhaps best be understood by analogizing the divided attention of the aircrew to that of a driver who is texting while driving. The human instinct for self-preservation being what it is, this divided attention problem becomes all the more pronounced when the aircrew is flying in an environment where ground fire and surface-to-air missile fire are occurring or anticipated.





TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2

298 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 47:293

military necessity requirement. Even more critically, the drone’s sensors allow many sets of eyes, including those of JAG lawyers trained to assess proportionality, to make a proportionality determination at the time of weapons release. Even if the drone is evading fire at the time of weapons release, those making the final decision to carry out the attack are not dealing with the decision-impairing effects of mortal fear. Although the sanitary environment of the drone control room has been criticized for making war too much like a video game,19 it undoubtedly leads to much sounder proportionality determinations.

B. Limitations

Like any weapons system drones have significant limitations in what they can achieve. Drones are extremely vulnerable to any type of sophisticated air defense system. They are slow. Even the jet-powered Avenger recently purchased by the Air Force only has a top speed of around 460 miles per hour,20 meaning that it cannot escape from any manned fighter aircraft, not even the outmoded 1970s-era fighters that are still used by a number of nations.21 Not only are drones unable to escape manned fighter aircraft, they also cannot hope to successfully fight them. Their airto-air weapons systems are not as sophisticated as those of manned fighter aircraft,22 and in the dynamic environment of an air-to-air engagement, the drone operator could not hope to match the situational awareness23 of the pilot of manned fighter aircraft. As a result, the outcome of any air-to-air engagement between drones and manned fighters is a foregone conclusion. Further, drones are not only vulnerable to manned fighter aircraft, they are also vulnerable to jamming. Remotely piloted aircraft are dependent upon a continuous signal from their operators to keep them flying, and this signal is vulnerable to disruption and jamming.24 If drones were

19. See Ryan J. Vogel, Drone Warfare and the Law of Armed Conflict, 39 DENV. J. INT’L L. & POL’Y 101, 133 (noting the ethical concerns arising out of the comparison between operating a drone and playing a video game).

20. Hennigan, supra note 13.

21. See Unmanned Military Aircraft: Attack of the Drones, THE ECONOMIST: TECH. Q. (Sept. 3, 2009), http://www.economist.com/node/14299496 (“Small and comparatively slow UAVs are no match for fighter jets....”). In December 2002 a Predator drone was shot down by a 1970s era MiG-25 fighter over Iraq. See Pilotless Warriors Soar to Success, CBS NEWS (Feb. 11, 2009), http://www.cbsnews.com/stories/ 2003/04/25/tech/main551126.shtml (describing drones’ success against ground targets as well as the MiG-25 shoot-down). I am unaware of any situation in which a drone has shot down a manned fighter aircraft.

22. Compare Factsheets: MQ-9 Reaper, supra note 13 (listing no air-to-air weapons systems among the armament of one of the Air Force’s most advanced armed drones), with Factsheets: F-22 Raptor, U.S.

AIR FORCE (Nov. 25, 2009), http://www.af.mil/information/factsheets/factsheet.asp?id=199 (describing the Air Force’s most advanced manned aircraft’s armament as consisting of at least two air-to-air missiles and a 20-millimeter cannon for use in air-to-air combat).

23. “Situational awareness” is the term used to describe a pilot’s understanding of the tactical positioning of all the aircraft in an engagement. Knowing where all the aircraft are relative to one another and projecting which aircraft will be vulnerable and which will pose an imminent threat several seconds in the future is critical to surviving an air-to-air engagement. Drone operators’ ability to assess and react to the changing situation would be seriously impaired by their remote location and sensor limitations. Cf.

Jason S. McCarley & Christopher D. Wickens, Human Factors Concerns in UAV Flight, FEDERAL AVIATION ADMINISTRATION 1, available at www.hf.faa.gov/docs/508/docs/uavFY04Planrpt.pdf (last visited Jan. 31, 2012) (noting that accident rates are higher in UAVs than manned aircraft in part because, in addition to the normal problems of flight, UAV operators and the aircraft are not in the same place).

Their delayed reactions would be decisive in an engagement against any trained military pilot.

24. See Brendan Gogarty & Meredith Hagger, The Laws of Man over Vehicles Unmanned: The Legal Response to Robotic Revolution on Sea, Land and Air, 19 J.L. INF. & SCI. 73, 138 (“This link [between the TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 299 perceived to be a serious threat to an advanced military, a serious investment in signal jamming or disruption technology could severely degrade drone operations if it did not defeat them entirely.25 These twin vulnerabilities to manned aircraft and signal disruption could be mitigated with massive expenditures on drone development and signal delivery and encryption technology,26 but these vulnerabilities could never be completely eliminated. Meanwhile, one of the principal advantages that drones provide—their low cost compared with manned aircraft27—would be swallowed up by any attempt to make these aircraft survivable against a sophisticated air defense system. As a result, drones will be limited, for the foreseeable future,28 to use in “permissive” environments in which air defense systems are primitive29 or non-existent. While it is possible to find (or create) such a permissive environment in an inter-state conflict,30 permissive environments that will allow for drone use will most often be found in counterinsurgency or counterterrorism operations.

C. Drones and the Boundaries of the Battlefield

The legal determination of what constitutes “the battlefield” has particular significance for the use of drones, particularly armed drones. This is because “the battlefield” is used to effectively define the scope of IHL’s application.31 In situations outside the scope of IHL, international human rights law (IHRL)32 applies. For the UAV and the controller] is a prime target for interception, jamming, and ‘digital warfare.’”).

25. An “arms race” between drone controllers and signal disrupters would be similar to the contests across the radar frequency spectrum. One side finds a way to disrupt certain radar frequencies; the other side develops radar that uses a different frequency band, or multiple frequencies, until those are compromised, etc. Such a contest would also share similarities with the cyberwar contest between data encryption and data interception and hacking.

26. See Declan McCullagh, U.S. Warned of Predator Drone Hacking, CBS NEWS (Dec. 17, 2009), http://www.cbsnews.com/8301-504383_162-5988978-504383.html (reporting on Predator vulnerability to hacking and the high costs of encryption).

27. See supra note 13 and accompanying text.

28. Advances in artificial intelligence (AI) could one day allow for the use of “untethered” drones that would execute their missions based upon preprogrammed parameters. Because this would mean that the proportionality assessment done at weapons release would be performed by the AI chip in the drone, such developments would require the creation of new IHL provisions specifically addressing such weapons systems and their performance. See supra note 7.

29. Limited to ground fire or shoulder launched surface-to-air missiles.

30. The United States was able to eliminate the Iraqi air defense systems fairly rapidly at the beginning of the 2003 war, which allowed for some drone use prior to the time that the conflict became a counterinsurgency operation. See Michael R. Gordon, After the War: Preliminaries; U.S. Air Raids in ‘02 Prepared for War in Iraq, N.Y. TIMES, Jul. 20, 2003, http://www.nytimes.com/2003/07/20/world/after-thewar-preliminaries-us-air-raids-in-02-prepared-for-war-in-iraq.html (discussing use of air raids to weaken Iraqi air defenses and the early use of drones in the war).

31. See infra Part II.

32. See JEFF A. BOVARNICK ET AL., LAW OF WAR DESKBOOK 207 (Gregory S. Musselman ed., 2011) http://www.loc.gov/rr/frd/Military_Law/pdf/LOW-Deskbook-2011.pdf [hereinafter LAW OF WAR DESKBOOK] (“Traditionally, human rights law [IHRL] and the [law of war (IHL)] have been viewed as separate systems of protection. This classic view applies human rights law and the [law of war] to different situations and different relationships respectively.”). IHRL includes international treaties such as the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess.

Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, at 52 (Mar. 23, 1976), subject-specific international treaties such as the Convention Against Torture and Other Cruel, Inhuman or Degrading TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2

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