«TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 Drones and the Boundaries of the Battlefield MICHAEL W. LEWIS SUMMARY INTRODUCTION I. DRONE USE ...»
Like other forms of aircraft they may be lawfully used to target enemy forces, whether specifically identifiable individuals or armed formations, if they comply with IHL’s requirements of proportionality, necessity, and distinction.
Because drones are only able to operate effectively in permissive environments, the most significant legal challenges facing their development and employment have been based upon where they may be employed. Attempts to apply the strict geographical restrictions that govern the scope of IHL in internal non-international armed conflicts to all non-international armed conflicts, including transnational armed conflicts, threaten to significantly limit the usefulness of drones.
When IHL’s core principles are considered, it becomes clear that the application of strict geographical limitations on IHL’s scope in the context of transnational armed conflicts cannot be defended. The determination of whether the Tadic threshold for an armed conflict is met on the territory of a non-party to the conflict should have no bearing on whether IHL may be applied to the parties to the conflict. In other words, the fact that there is no local violence occurring in Yemen or Somalia should not be used to provide a sanctuary for non-state actors who are involved in an armed conflict with another state.
The answer for how the boundaries of the battlefield and the scope of IHL’s application can be properly determined is found in neutrality law. This is historically how geographical limitations have been imposed upon IHL’s scope in international armed conflicts. It was applied in the aftermath of the 9/11 attacks, with at least tacit international approval, to the situation involving the United States, al-Qaeda, and Afghanistan. Its application is checked by the consent of the sovereign states involved, making an escalating spiral of violence less, rather than more, likely. And perhaps most importantly, neutrality law’s application to transnational armed conflicts does not lead to the anomalous results that are produced when strict geographical limitations are applied to transnational armed conflicts in which IHL is read to favor its otherwise most disfavored groups.
122. See David Hughes, Blair: It’s War on the Taliban: British Forces Will Target Afghanistan’s Brutal Leaders, THE DAILY MAIL, Sept. 26, 2001, at 1–4 (quoting Prime Minister Tony Blair’s remarks, echoing language used by President George W. Bush, that the Taliban’s failure to comply and to expel alQaeda meant that they “were choosing to be enemies of ours”).
123. See Patrick E. Tyler, A Nation Challenged: The Attack; U.S. and Britain Strike Afghanistan, Aiming at Bases and Terrorist Camps; Bush Warns ‘Taliban Will Pay a Price’, N.Y. TIMES (Oct. 8, 2001),