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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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purposes of this Article, the salient difference between these two bodies of law lies in their disparate provisions regarding the use of lethal force. IHL allows for lethal force to be employed based upon the status of the target.33 A member of the enemy’s forces may be targeted with lethal force based purely on his status as a member of those forces.34 That individual does not have to pose a current threat to friendly forces or civilians at the time of targeting.35 In contrast, IHRL permits lethal force only after a showing of dangerousness.36 Under IHRL (the law enforcement model), lethal force may only be employed if the individual poses an imminent threat to law enforcement officers attempting arrest or to other individuals.37 Further, IHRL requires that an opportunity to surrender be offered before lethal force is employed.38 Because drones are incapable of offering surrender before utilizing lethal force, armed drones may not be legally employed in situations governed by IHRL.39 This absolute prohibition does not apply to other forces commonly used in counterinsurgency or counterterrorism operations, such as special forces units, because it is possible for them to operate within the parameters of IHRL. Although the use of special forces in law enforcement operations has the potential to be legally problematic,40 appropriately clear and restrictive rules of engagement that include the requirement of a surrender offer can allow special forces to operate under an IHRL regime.41 Similarly, almost any other part of the armed forces, from regular army units to military police to Coast Guard and naval forces, can adapt their operating procedures to comply with IHRL’s requirements. Armed drones cannot.

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, regional human rights treaties such as the American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 143, 9 I.L.M. 99, as well as the customary international law that has developed around such treaties.

33. See infra notes 92–99 and accompanying text.

34. See infra notes 92–99 and accompanying text.

35. See infra notes 92–99 and accompanying text.

36. Alston Report, supra note 10, para. 32.

37. See NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 101 (2008) (explaining that a deprivation of life violates IHRL “when the use of potentially lethal force as such is not ‘strictly unavoidable’ or ‘strictly necessary’ to protect any person, including the law enforcement officials themselves, from imminent death or serious injury, to effect an arrest or prevent the escape of a person suspected of a serious crime, or to otherwise maintain law and order or to protect the security of all”) (footnotes and emphasis omitted). Lethal force could be employed against a violent criminal suspect even if he drops his weapon and attempts to flee because his escape poses a foreseeable threat of harm to future victims.

38. Alston Report, supra note 10, para. 75.

39. See id. para. 85 (“A targeted drone killing in a State’s own territory, over which the State has control, would be very unlikely to meet human rights law limitations on the use of lethal force.”).

40. See McCann v. United Kingdom, 324 Eur. Ct. H.R. (ser. A) at 39 (1995) (finding that the United Kingdom’s use of Special Air Service special forces to attempt the arrest of three Irish Republican Army (IRA) terrorists in Gibraltar foreseeably led to the IRA members’ deaths, thus violating the European Convention on Human Rights).

41. Some have even gone so far as to argue that the killing of Osama bin Laden by special forces was a law enforcement operation outside the scope of IHL, although this view is not widely shared. See Mary Ellen O’Connell, The Death of bin Laden as a Turning Point, OPINIO JURIS (May 3, 2011, 3:10 PM), http://opiniojuris.org/2011/05/03/the-death-of-bin-laden-as-a-turning-point (O’Connell argued that the killing was a law enforcement operation, but comments following the post indicated that this characterization of the operation was not widely shared. That disagreement, however, was based upon the facts of the operation, not on the ability of special forces units to conduct operations in accordance with IHRL).

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 301 As a result, the debate about what constitutes the legal boundaries of the battlefield has a particularly significant impact on the use and development of drones. Because their operational limitations prevent drones from being employed outside of the permissive environments found in counterterrorism or counterinsurgency operations, their usefulness as a weapons system is strongly tied to the scope of IHL’s application. If the strict geographic approach to defining IHL’s scope (described in more detail below) is accepted, then drone use would be considered illegal everywhere outside Afghanistan.

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A. Strict Geographical Limitations: Internal Non-International Armed Conflicts Advocates of strict geographical limitations on the scope of IHL often summarize their position by stating that the concept of a “global battlefield” is “contrary to international law.”42 The laws of armed conflict cannot apply in a place where there is no armed conflict, and the determination of whether an armed conflict exists is based upon the intensity of the violence occurring there and the organization of the forces involved, as laid out in the Tadic opinion.43 If the minimum threshold of violence that defines an armed conflict is met, then IHL applies within that geographical area. If the Tadic threshold is not met, the laws of armed conflict do not apply there. In IHL’s absence IHRL would apply, as would the law enforcement restrictions on lethal force, including the requirement of a surrender offer. This would preclude any use of armed drones within the geographical area governed by IHRL, regardless of whether the state whose territory was involved consented to their use.

This argument—that the conditions on the ground at the place where the strike occurs is the determining factor in whether IHL applies to that strike, or whether it is instead governed by IHRL—has a number of supporters.44 Because the Tadic factors are broadly accepted, their absence at the location of the strike is viewed as dispositive as to the question of which body of law controls. If the Tadic factors are not met, then IHRL controls. If IHRL does not control, it is argued, then nothing would prevent the United States from conducting drone strikes in London, nor

42. HRW letter, supra note 10, at 2; see also Drones, supra note 6, at 5 (describing the legal view held by some that the “legal rights of armed conflict are limited to a particular theatre of hostilities”; outside of this geographic area, ordinary human rights law would apply, including the prohibition against extrajudicial execution).

43. The idea that an armed conflict may only exist when a minimum threshold of violence has been met is widely accepted. The International Criminal Tribunal for the Former Yugoslavia enunciated factors for determining the existence of an armed conflict, including its intensity and the organization of the forces involved. Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgment, paras. 561–62 (Int’l Crim. Trib. for the Former Yugoslavia May 7, 1997) (“[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”).

44. See supra note 10; see also Kevin Jon Heller, Rebuttal: Judge Bates’ Infernal Machine, 159 U. PA.

L. REV. PENNUMBRA 183, 183 (2011), http://www.pennumbra.com/debates/pdfs/Targeted_Killing.pdf (arguing that in the absence of combat that is “sufficiently protracted or intense” IHL cannot apply to authorize targeted killings and that, instead, IHRL governs).



would anything prevent other nations from employing drones in this country, resulting in an “escalating spiral of unconstrained violence.”45 This view that the Tadic factors determine whether an armed conflict is occurring within a particular geographical area makes sense in the context of an internal non-international armed conflict. Internal armed conflicts usually occur in portions of a state where control is disputed or where the opposition’s actions and forces are concentrated. Applying IHL throughout the entire country and thus relaxing the IHRL restrictions on lethal force outside the areas in which the Tadic factors are met would likely lead to unnecessary loss of life and improper deprivation of liberty. However, the fact that this view is appropriately applied to internal armed conflicts does not mean that it can be universally applied. As demonstrated below, the coherence of this view begins to break down when it is applied to more traditional international armed conflicts.

B. Traditional Boundaries of the Battlefield: International Armed Conflicts

If the strict geographical view can be summarized with the phrase “the whole world cannot be a battlefield,” the more traditional view of the boundaries of the battlefield might be encapsulated by the statement “the law of armed conflict goes where the participants in the armed conflict go.” I term this the “traditional” view because it is the how the boundaries of the battlefield have long been understood in international armed conflicts which, until very recently, have been considered the paradigmatic way that armed conflicts are thought about. The 1949 Geneva Conventions applied almost exclusively to international armed conflicts, addressing conflicts “not of an international character” in a single article.46 By 1977, noninternational armed conflicts were prevalent enough to warrant a separate protocol, although it was still much shorter and less detailed than its companion, which addressed international armed conflicts.47 Commentators have suggested that the scope of IHL in international armed conflicts is also subject to increasingly strict geographical restrictions. Although these proposed restrictions are not specifically related to the Tadic factors, those advocating such restrictions describe them in terms of proximity to the current “area

45. Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 724 (2004); see also HRW letter, supra note 10, at 2 (arguing that the Obama Administration’s use of drones for targeted killings “sets a dangerous precedent for abusive regimes around the globe”).

46. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva II]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, August 2, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva IV].

47. Compare Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I] (addressing international armed conflicts), with Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609 (1987) [hereinafter Additional Protocol II] (addressing non-international armed conflicts).

TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 303 of operations” where active fighting is occurring.48 Christopher Greenwood opined that “it cannot be assumed—as in the past—that a state engaged in an armed conflict is free to attack its adversary anywhere in the area of war.”49 As an example, he claimed that it would have been legally problematic for a British warship to attack an Argentine warship during the Falklands War if they encountered one another in the Pacific Ocean, far from the disputed islands.50 Similarly, Mary Ellen O’Connell has claimed that the shooting down of Admiral Yamamoto’s plane over Bougainville by U.S. fighter aircraft during World War II would today be considered illegal because it occurred “far from [the] battlefield.”51 The claim that there are legal restrictions on the employment of combat force during an international armed conflict based solely upon the distance from the “front lines” finds no support in practice. This is because no nation in the world would ever accept such blanket limitations upon its military’s ability to act. Success in warfare at any level, from single combat to global military strategy, is based upon the ability to strike your opponent in places where he is vulnerable and in ways he does not expect. The history of warfare since the adoption of the Geneva Conventions is replete with examples of combat force being employed far from the “front lines.” Early in the Korean War General McArthur directed an amphibious assault by U.N. forces on Inchon, more than 150 miles from the fighting that was going on near Pusan, and thereby changed the course of that conflict.52 The 1991 Persian Gulf War opened with a thirty-eight-day air campaign by Coalition forces against targets throughout Iraq and Kuwait.53 Strikes on targets in northern Iraq occurred more than 550 miles from Kuwait City, and the command and control targets in Baghdad were well over 300 miles from the “front lines” of the Saudi-Kuwaiti border.54 When the ground campaign began, the jumping off point for the French 6th Light Division on the left flank of the advance into Iraq was almost 300 miles from Kuwait City and more than 200 miles from the nearest Kuwaiti territory.55 Most recently, after the U.N. Security Council authorized the use of force against Libya, many airstrikes and cruise missile strikes conducted on the first day of the military intervention targeted

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