Current U.S. Air Force drone operations and their conduct in compliance with international humanitarian law - an overview.

• Author: Drake, Aaron M.

1. Introduction II. Command and Control During USAF RPA Operations A. Overview of Current USAF RPA Operations 1. A Typical USAF RPA Combat Air Patrol 2. USAF RPA Operations in Compliance with Distinction and Proportionality B. USAF RPA Systems' Vulnerabilities III. Addressing Vulnerabilities while Advancing Toward Autonomy A. Command and Control During Deployment of Fully Autonomous Vehicles B. Indiscriminate Weapons and Attacks IV. Command Responsibility: Accountability for Compliance with IHL A. The Yamashita Standard for Command Responsibility B. Command Responsibility During USAF RPA Operations V. Conclusion I. INTRODUCTION

   They are most commonly referred to as "drones." The United States Air Force (USAF) calls them "Remotely Piloted Aircraft" (RPAs) or "Unmanned Aircraft Systems" (UASs). (2) Pilots and operators might call them "Reapers" or "Preds." No matter the name or acronym, these remotely-controlled machines have risen dramatically during the last decade to the forefront of war fighting capabilities--and international law debate. However, the employment of drones on the battlefield is not new. During at least the last 50 years, the United States (U.S.) military has employed drones and RPAs principally as a platform for reconnaissance--allowing operators, far removed from danger, to safely observe the battlefield. (3) Over the last decade, however, RPAs have evolved into a comprehensive "combat support asset," being used for both reconnaissance operations and targeting operations, among other functions. (4)

   Remotely Piloted Aircraft targeting operations, sometimes called strikes, have become a prominent feature of the U.S.'s worldwide battle against individual terrorists and terrorist organizations. One of the U.S.'s first notable strikes of this modem RPA era occurred in Yemen on November 3, 2002. (5) The U.S. and Yemeni Governments had been tracking several men who were allegedly involved in the bombing of the USS Cole in October 2000. (6) On several occasions, officials attempted to apprehend the men, but were unsuccessful. (7) The priority target among them, Ali Qaed Senyan al-Harithi, was believed to be the top al Qaeda operative in Yemen. (8) Wanted and pursued by both governments, Harithi had been hiding amongst and moving between armed tribal villages. (9) On at least one occasion, villagers had demonstrated their willingness and ability to forcefully repel Yemeni government security forces, turning back a raid and killing 18 Yemeni soldiers in the process. (10)

   It was against this backdrop that the U.S., with cooperation from the Yemenis, tracked, targeted, and killed Harithi and five of his associates using a Predator drone armed with Hellfire missiles. (11) The strike took place in Yemen as the men traveled in a vehicle near a tribal stronghold. (12) The strike was notable because in conducting so-called "covert action," (13) the U.S. took an unmanned reconnaissance aircraft, attached missiles to it, and used it to kill people in a country where arguably no armed conflict existed. (14) This was not the first time an RPA had been used to deliver a lethal strike in this manner and it certainly would not be the last. In December 2008, then-CIA Director Michael Hayden briefed President-elect Barack Obama on the numerous covert activities then underway at the CIA. (15) Reportedly, foremost among the activities discussed was the multitude of RPA strikes "on terrorists and terrorist camps worldwide." (16) "80 percent" of the CIA's worldwide RPA strikes, Director Hayden told the president-elect, were taking place in Pakistan. (17) A 2009 congressional report noted that

   [t]he accelerated drone campaign in western Pakistan that began in mid-2008 appears to have taken a significant toll on Al Qaeda operatives.... According to Pakistani intelligence officials, who reportedly are now providing targeting information to the United States, drone attacks have eliminated more than half of the top 20 Al Qaeda "high-value targets" in western Pakistan since mid-2008. (18) Even by al Qaeda members' own admissions, RPAs have been critical to knocking out top leaders in the Taliban and al Qaeda organizations. (19) In January 2011, al Qaeda's chief of media and preaching in Pakistan admitted in a broadcast to his followers that its network is losing territory, people, and resources as "drones are flying in the sky." (20) The USAF has described RPAs and their effects as "one of the most 'in demand' capabilities the USAF provides...." (21) In the fall of 2010, the U.S. government revealed that RPAs had proven the key to success in Afghanistan against U.S. troops' formidable foe, the Improvised Explosive Device (IED). (22) In less than a two-week period, an RPA task force contributed to the killing of at least 26 individuals who were taking part in planting IEDs. (23) Among this and various other operational benefits that will be discussed in this article, RPAs also provide the USAF reduced operation and maintenance costs (24) and, of course, the ability to keep pilots and operators out of harm's way as they control their aircraft from remote locations.

   Strikes like the Yemen strike described above, often referred to as "targeted killings," (25) began largely under President George W. Bush and have increased significantly under President Barrack Obama. (26) These strikes now occur regularly along and inside Pakistan's northwestern border with Afghanistan. (27) For reasons to be discussed in this article, some war fighters, politicians, and scholars praise the relatively new weapon system and its many capabilities--including targeted killings. (28) However, questions exist as to whether the U.S. has the legal right, domestic or international, to resort to the use of force outside the traditional battlefield, especially to the extent the CIA is involved. (29) Some have condemned targeted killings as "extrajudicial executions" and failing to comply with international human rights law, (30) as well as international humanitarian law (IHL). (31) The U.S., however, maintains that being in a state of "armed conflict with al-Qaeda, as well as the Taliban and associated forces" justifies using "force consistent with its inherent right to self-defense under international law." (32) The U.S. further maintains that even lethal force is justified inasmuch as it is used in compliance with the IHL principles of distinction and proportionality. (33)

   This article does not further address the U.S.'s legal basis for use of force in current conflicts, (34) nor does it address RPA operations conducted by the CIA. (35) Rather, this article focuses specifically on U.S. Air Force (USAF) RPA operations. The first section gives an overview of a typical USAF RPA operation in terms of command and control. The first section also addresses compliance with IHL principles which govern the use of force--particularly distinction and proportionality. The next section addresses the evolution of semi or fully autonomous drones and their implications for command and control on the battlefield. The final section identifies command responsibility as the principle under IHL that holds accountable those commanders and military members who might fail to comply with IHL during RPA operations.

2. COMMAND AND CONTROL DURING USAF RPA OPERATIONS

   "Command and control" is a term of art in the military. (36) The military is trained to understand that uncontrolled force or indiscriminate application of force is nothing more than violence. The U.S. Marine Corps teaches that "[w]ithout command and control, campaigns, battles, and organized engagements are impossible, military units degenerate into mobs, and the subordination of military force to policy is replaced by random violence." (37)

   The U.S. Air Force defines command and control as "the exercise of authority and direction by a properly designated commander over assigned and attached forces ... performed through an arrangement of personnel, equipment, communications, facilities, and procedures employed ... in the accomplishment of the mission." (38) Accordingly, command and control is required at all times and over all aspects of the military mission. This is no less true when it comes to RPA operations. As a former RPA pilot for a small research team at the U.S. Air Force Academy, this author can provide a personal account of the requirement for continuous command and control, even during small-scale RPA research flights. The next several paragraphs will detail the command and control experience.

   With final ground safety checks complete, an operator inside the ground control station (GCS) (39) gives control of the aircraft to me, the "aircraft commander." (40) During takeoffs and landings, I stand outside the GCS and fly the RPAs by sight, using a hand-held controller. I add power to the RPA, direct it down the runway and lift off. Once airborne, I ensure the RPA is functioning properly, fly the RPA to a specific altitude, and say, "Passing off RPA 1." When the operator inside the GCS verifies that he (via the autopilot software on his computer) has control of the aircraft, command and control goes to this operator in the GCS, who is accountable for the remainder of that portion of the mission. We follow the same process for each aircraft until all aircraft are airborne and controlled by the GCS (usually two or three at a time for each research mission). Once the flying objective or experiment is complete, we follow a similar process in landing the aircraft. The GCS directs the RPA to a designated point in the airspace and I say, "Taking RPA 1 ." I take control of the aircraft and land them in the same order I took them off.

   Current USAF RPA operations on the battlefield are similar in that commanders at various levels exercise command and control during their corresponding mission segment. At no time during the operation is there a command and control void, where the RPA might command...