Flying into the future: drone warfare and the changing face of humanitarian law: keynote address to the 2010 Sutton Colloquium.

• Author: Newton, Michael A.

It is a delight to be here today, particularly in the presence of Professor Ved Nanda. I do hope that you realize how privileged you are to be here under his tutelage, and I salute him as one whose influence has affected both the content of the law and the character of those who have learned from him in this great law school. The discussion regarding the scope and propriety of drone warfare cannot be undertaken in isolation. Drones and the parameters of their appropriate use are very much at the forefront of the modern consciousness, and thus I think it wholly appropriate to carefully consider the best way ahead for both the legal profession and the profession of arms.

Before we consider the specifics of drone warfare, we must remember two predicate points. Firstly, the discipline of international criminal law has never been healthier as the era of accountability is irreversibly underway. While the challenges of administering justice in the midst of profound political and personal passions remain, there is no current shortage of young and inspired advocates who wish to contribute. Furthermore, they do so against the backdrop of a developed discipline. It cannot be forgotten that the discrete discipline that we term international criminal law, and that many of us teach in our law schools, has taken form and root only over the past fifteen years. Thus, any discussion of drone warfare must be cognizant of the backdrop of criminality and prosecutorial prerogatives that did not exist until relatively recently. The long list of leaders and policymakers that have been held accountable bears witness to the authority of the criminal law regime. This pool includes a rogue's gallery of political leaders and powerful personalities. Moreover, individuals at the leadership level will be those that authorize drone warfare in the future. No one is truly above the law in this modern era. (1)

Secondly, in my opinion, the debates over drone warfare should not be seen through an isolated lens. Drone warfare takes place against the broader backdrop of many issues. To a certain extent, the interaction of these issues clarifies where we are and where we are heading, but at the same time the interaction creates complexity. For example, the changing face of conflict has spawned a revision of counterinsurgency doctrine that has changed the way we define the very nature of armed conflict.

What does the very scope of the phrase "armed conflict" now mean in light of our modern experience? How does jus in bello interface with the established law of peace in a new era of seemingly perpetual conflict? What does it mean to achieve victory in an era of transnational conflict against established non-state terrorist organizations? What are the key operational dynamics and how do civilized nations best remain within the legal regime while still attacking the relevant terrorist organizational centers of gravity? The United States' position on these doctrinal areas has evolved significantly. Moreover, this evolution has not taken place in isolation, as the United States has evolved in conjunction with its allies.

The earlier panel alluded to the complexities introduced by the intersection of differing international law regimes. Two of these colliding regimes are the tectonic plates of international human rights law and international humanitarian law ("IHL"). As drone warfare becomes not only necessary, but a new normality, the clash between these great, huge, moving icebergs of law becomes ever more pointed. From my perspective, it is an oxymoron to argue that humanitarian law is a mere subset of human rights law. No, IHL has a much richer, longer, and diverse history. The Martens clause (2) and other aspirational phraseology in the corpus of humanitarian law do little to change the relationship between these two international regimes. Additionally, it cannot be forgotten that all of the Geneva principles derived from a strongly stated consensus to improve humanitarian protections. (3)

The principle of command and control is central to IHL. The idea that a commander's orders operate with the force of law to limit the application of violence arose independently in widely disparate cultures and historical periods. (4) This suggests that command and control is more than just a legal technicality, but rather is fundamental to the nature of warfare itself. Hence, the body of IHL sprang from the realities of military practice and the demands of military duty. Despite the fact that states in the modern era have obligations arising from human rights awareness, this normative development did not simply eviscerate the preexisting body of law. Human rights law has obviously evolved in a specialized and, in some sense, universalized context. However, international human rights law should not be perceived as the Pac-Man that ate IHL.

The key point to understand in the context of drone warfare is that this clash of the tectonic plates of law is immensely important and directly relevant to the way we view rapidly evolving technology. To be more precise, these international law regimes are wholly determinative of the best practices and professional norms by which we appropriately apply the evolving technology of drones, or remotely piloted vehicles ("RPVs').

The other notable legal development in the post 9/11 era is of course our changing perceptions regarding the rights and duties attached to non-state actors or, to be more precise, non-state participants in armed conflict. Where should the line be drawn concerning humanitarian human rights protections and humanitarian obligations or conversely humanitarian rights begin? That is the core of the question; and it is derived from both of those bodies of law. As the earlier panelists noted, any attempt to address drone warfare that ignores the changing legal terrain is doomed to be incomplete despite the reality that the questions are inherently complex. Not to state a tautology too bluntly, but inadequate framing of the key issues will result in incomplete answers that ignore the broader doctrinal and legal debates.

The law of state responsibility has also been changing dramatically. Remember, in the context of human rights law, the state itself is primarily responsible for protecting the human rights of those persons within their jurisdiction. (5) Well, we all know that. By the way, that should be on your Bar exam. Currently, it is not, but it should be for you law students. I am advocating for the day when we will have core international human rights questions on the Bar exam. Human rights are a fundamental, foundational knowledge necessary for good lawyering. Practicing lawyers cannot become successful in the world today without understanding these basic principles. I really believe that, so keep studying your human rights law. But I digress.

Of course, the entire debate regarding drones takes place in the context of a sea change in our understanding of the authoritative actors in an armed conflict. The keen international sense of vulnerability in the aftermath of the al Qaeda attacks in New York and Washington D.C spawned an extremely rare fever of international unity. President Bush declared a state of national emergency, (6) and the U.N. Security Council swiftly passed Resolution 1368 unanimously. (7) Resolution 1368 categorized the attacks as a "threat to international peace and security," (8) affirming the "inherent right of individual or collective [self-defense]" (9) expressed in Article 51 of the U.N. Charter, and specifically directing "all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks." (10) For the first time in its storied existence, the North Atlantic Treaty Organization ("NATO") invoked the principle of Article 5 of the Washington Treaty, thereby recognizing that the attacks constituted an "armed attack" consistent with the treaty's provisions that trigger NATO obligations to assist another member so attacked. (11) NATO aircraft helped to fly combat air patrols over U.S. airspace in the immediate wake of the attacks. (12)

Despite the modern consensus that the sovereign right of self-defense did not originate in Article 51 of the United Nations Charter and is not restricted to responses enumerated therein, there remains a great deal of debate over the appropriate principle that ought to apply to non-state actors that conduct conflicts that transcend national borders. Does the responsibility for protecting human rights jump from border to border as the combatant engages in transnational conflicts? States, as a matter of state responsibility, remain responsible for combatant activities conducted from their territories. Conversely, states are, of course, responsible for protecting and defending the human rights of those people and those persons in their territories.

Lastly, an ostensibly obvious point, which cannot be overlooked is that the nature of the conflict is changing. Until 9/11, there was a huge debate on the proper relationship between state actors and non-state actors. Before the al Qaeda attacks many scholars debated whether it was even possible to enter an armed conflict with a non-state actor. As I just noted, that seems so passe after 9/11; so quaint. Today it is widely accepted that the very essence of civilization, central to...