TABLE OF CONTENTS I. INTRODUCTION II. THE PRINCIPLE OF DISTINCTION: ITS ORIGINS AND PHILOSOPHICAL FOUNDATIONS III. THE PRINCIPLE OF DISTINCTION AS CODIFIED IN MODERN INTERNATIONAL HUMANITARIAN LAW A. Blurring the Principle of Distinction: Civilians Taking Direct Part in Hostilities IV. DISTINCTION FOR IRREGULAR ARMED GROUPS: HOW THE INTERPRETATION OF SHIELDING AND BLENDING WITH THE CIVILIAN POPULATION HAS ENCOURAGED RELIANCE ON DRONES. V. DISTINCTION, DRONES, AND "CUBICLE WARRIORS": IS THIS A GENUINE ISSUE FOR STATES UNDER IHL? A. Drone Operators and Distinction B. The Status of Drone Operators C. U.S. Conduct of Drone Strikes: Setting a Bad Precedent or Developing Law for a New Kind of Conflict? VI. CONCLUSION I. INTRODUCTION
Unmanned aerial vehicles (UAVs)--otherwise known as drones-have emerged as a major source of debate in international humanitarian law (IHL). Discussions have centered on the legality of their usage, (1) ranging from disputes over the disparate reporting of death tolls attributable to drone strikes, (2) the legality of the targeting criteria behind drone strikes, (3) jus ad bellum concerns regarding the use of drones in states such as Yemen and Somalia, (4) and concerns relating to the conduct of drone strikes by non-military government agencies, such as the U.S. Central Intelligence Agency (CIA). (5) However, an unexamined area regarding the rise of drones as a weapon of war has been the degree to which both the principle of distinction, one of IHL's core concepts, and the changing nature of warfare have combined to galvanize the development and use of drones. This Article examines that phenomenon and explores how adherence to the principle of distinction, when applied in the increasingly complex context of twenty-first century asymmetric armed conflict, has encouraged the development of weaponry that offers the potential for more precise attacks.
The principle of distinction is one of the most important concepts of the law of armed conflict. It provides that parties to a conflict must distinguish between combatants and civilians. Legally, combatants are the only people who are allowed to take part in an armed conflict. (6) Combatants are defined as members of an organization that possesses an internal disciplinary system that enforces the laws of war. (7) Civilians are negatively defined as all non-combatants, (8) Civilians are immune from targeting, but they can forfeit that immunity by taking direct part in hostilities. (9) Respect for the principle of distinction also requires parties to the conflict to distinguish themselves from the civilian population and to distinguish between civilian and military objects and installations when targeting. These provisions require that military installations and objects be located away from civilian populations and prohibit locating such installations and objects in civilian-dense areas in an attempt to "immunize" them from attack. (10)
Historically, the question of how one distinguished between a combatant and a civilian was, until the early twentieth century, a relatively unproblematic concept. As a general rule, inter-state wars were decided by soldiers in recognizable uniforms, often on battlefields far removed from civilian populations. (11) Technological practicalities demanded such behavior. The weapons of the day required a degree of physical proximity between adversaries; truly remote or long-distance attacks--attacks launched against an adversary from locations physically remote from kinetic hostilities--were simply impossible. The distinction between the military and civilians in such cases was essentially clear. Prior to launching attacks, soldiers could generally rely on clear visual indicia--uniforms, insignia, livery, and so on--as a means to identify the enemy, and thus distinguish between military and civilian objects. Although a number of pre-twentieth-century conflicts (12) contained examples of asymmetric warfare and guerrilla tactics that blurred the lines between military and civilian objects, the ultimate outcomes of those conflicts were determined by pitched battles between regular forces on battlefields relatively free of civilians. This remained the case until World War II.
The humanitarian disaster that was World War II killed tens of millions of civilians worldwide. Sometimes civilians were exterminated or intentionally targeted. Often they were killed collaterally by the tens of thousands due to their proximity to munitions factories, military barracks, road and rail networks, or raw material storage facilities. (13) And sometimes they were killed accidentally as massive armies fought over cities like Stalingrad, Shanghai, Berlin, Singapore, and Leningrad. Throughout this conflict, most of the existing laws designed to protect civilians and civilian objects (14) were ignored or reinterpreted into oblivion by all parties to the conflict. (15) In the aftermath of this disaster, the international community created treaties, the 1949 Geneva Conventions and the 1977 Additional Protocols, that were designed to curtail or prevent this level of violence against civilians by more clearly and precisely defining the principle of distinction. (16) The past decade has seen further efforts to more fully describe the distinction requirements of IHL. (17) It has also seen the U.N. and other international organizations accept the legally binding nature of these requirements in their assessment of wartime conduct. (18)
During the Cold War, the nature of armed conflict continued to change. Although there were still conflicts fought by more traditional militaries on the Korean peninsula and between Iran and Iraq, there were also an increasing number of asymmetric conflicts involving guerrilla forces and other armed groups. Some of these armed groups aided more traditional armies (the Vietcong actions supported, and were in some cases coordinated with, the North Vietnamese Army (19)), while in other cases these groups fought alone against government forces (e.g., the FARC in Colombia, (20) the Afghan mujahedeen against the Soviets, (21) and the Tamil Tigers in Sri Lanka (22)). More importantly, in some cases these irregular armed groups won their conflicts without ever winning major battles. (23) This elevation of guerrilla warfare from tactical annoyance to strategic threat has changed the way militaries think about armed conflict. (24)
Along with developments in military law and tactics, military technologies have also evolved. In the early twentieth century, the maximum range of a Browning machine gun, a weapon used by the U.S. military during World War I, was around one-and-a-half miles. (25) Today, cruise missiles and UAVs, such as the Predator drone, can strike targets hundreds of miles from their launch point and are often controlled by operators located thousands of miles from the "battlefield." (26) Thus, it is no longer necessary for combatants to share the same geo-physical space in order to wage war. However, despite all of the technological advances, attacks taking place across great geographical distances still principally rely upon visual identification of the target. When a target appears to be military in nature, and intelligence information supports such a contention, attacks are likely to be undertaken. This confluence of the growing strategic relevance of irregular armed groups, the development of remote weapon systems and the increasing specificity and scrutiny of the principle of distinction has resulted in legal complexities unanticipated by the drafters of the Geneva Conventions. Adding to this complexity is the increasing use of civilians by traditional military forces to carry out combat support functions that threatens to further blur the distinction between civilian and military targets.
The United States has publicly stated that it observes all relevant rules, such as the principle of distinction, when making its targeting assessments in its conduct of remote warfare. (27) However, there are those who question this assertion with regard not only to who is attacked, but also as to who launches those attacks. (28) Thus, remote warfare raises two separate distinction concerns. First, whether the remote warrior is doing all that is required of him to distinguish between civilian and military targets. Second, what effect the use of civilians as remote warriors has upon the laws of war. Is such a civilian taking a direct part in hostilities and, if so, for how long will they be considered to be doing so? A civilian UAV pilot is certainly taking direct part in hostilities when piloting the drone, but what about when he leaves his workstation for the day and returns home? Does he regain his immunity for that time? May such so-called "cubicle warriors" (29) call upon the protections of the laws of armed conflict? Is this globalization of the battlefield an illegal expansion of the law of armed conflict or are discussions about the "geography of war" simply sophistry?
The majority of academic and public scrutiny of remote attacks has focused on the question of the legality of the strikes qua strikes: whether the parties conducting the attacks are bound by IHL regarding who, where, and by what means they target. (30) These approaches often ignore or minimize other important aspects of the distinction paradigm. Who conducts the attacks and from where? What responsibility does the law place on those who are targeted to differentiate them selves from the civilian population and how is that responsibility interpreted in practice? (31) Therefore, this Article will examine the problems raised by increasing civilian participation in the conduct of armed conflicts, specifically in the context of remote warfare. It will also describe how the current legal trend minimizing the duty of irregular forces to distinguish themselves from the civilian population has encouraged the expansion of remote warfare and...