Drone warfare and the law of armed conflict.

• Author: Vogel, Ryan J.

"[I]n all of our operations involving the use of force, including those in the armed conflict with al Qaeda, the Taliban, and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law.... [I]t is the considered view of this Administration ... that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."

Harold Koh, U.S. State Department Legal Adviser (1)

"My concern is that these drones, these Predators, are being operated in a framework which may well violate international humanitarian law and international human rights law."

--Philip Alston, United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (2)

The United States has increasingly relied upon unmanned aerial vehicles (UAVs), or "drones," to target and kill enemies in its current armed conflicts. Drone strikes have proven to be spectacularly successful--both in terms of finding and killing targeted enemies and in avoiding most of the challenges and controversies that accompany using traditional forces. However, critics have begun to challenge on a number of grounds the legality and morality of using drones to kill belligerents in the non-traditional conflicts in which the United States continues to fight. As drones become a growing fixture in the application of modern military force, it bears examining whether their use for lethal targeting operations violates the letter or spirit of the law of armed conflict. In this article I identify the legal framework and sources of law applicable to the current conflicts in which drones are employed," examine whether, and if so in what circumstances, using drones for targeting operations violates the jus in bello principles of proportionality, military necessity, distinction, and humanity; and determine what legal boundaries or limitations apply to the seemingly limitless capabilities of drone warfare. I then evaluate whether the law of armed conflict is adequate for dealing with the use of drones to target belligerents and terrorists in this nontraditional armed conflict and ascertain whether new rules or laws are needed to govern their use. I conclude by proposing legal and policy guidelines for the lawful use of drones in armed conflict.

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In an effort to reach remote territory and targets, save American blood and treasure, achieve optimal accuracy and efficiency in targeting operations, and perhaps to avoid the controversies (3) surrounding the insertion of ground forces, the United States has increasingly relied upon unmanned aerial vehicles (UAVs), or "drones," (4) to target and kill enemies in its current armed conflicts. (5) The United States has utilized drones to support combat and counterterrorism efforts across its theaters of armed conflict. (6) Drone targeting has proven to be spectacularly successful--both in terms of finding and killing targeted enemies and in avoiding most of the challenges and controversies that accompany using traditional forces. However, critics have begun to challenge on a number of grounds the legality and morality of using drones to kill belligerents in the non-traditional conflicts in which the United States continues to fight. (7) After much anticipation and speculation in the international law community, and after promptings by the UN and other organizations for the United States to deliver a legal justification for its drone strikes, U.S. State Department Legal Adviser Harold Koh addressed the American Society for International Law's (ASIL) 2010 Annual Meeting and used the occasion to present the "considered view" of the Obama Administration in regards to U.S. targeting operations, particularly those conducted with drones. (8) Koh explained that "great care is taken to adhere to [the principles of distinction and proportionality] ... in both planning and execution" of lethal targeting operations, and asserted that such operations "comply with all applicable law, including the laws of war." (9) As drones become a growing fixture in the application of modern military force, it bears examining whether their use for lethal targeting operations violates the letter or spirit of the law of armed conflict. (10)

In this article, I identify the legal framework and sources of law applicable to the current conflicts in which drones are employed; (11) examine whether, and in what circumstances, using drones for targeting operations violates the jus in bello principles of proportionality, military necessity, distinction, and humanity; and determine what legal boundaries or limitations apply to the seemingly limitless capabilities of drone warfare. I then evaluate whether the law of armed conflict is adequate for dealing with the use of drones to target belligerents and terrorists in this non-traditional armed conflict and ascertain whether new rules or laws are needed to govern their use. I conclude that the law of armed conflict adequately governs drone warfare and provides guiding principles for conducting drone strikes within the letter and spirit of the law.

1. INTRODUCTION

   1. Background

      The use of unmanned drones to target belligerents presents complex legal issues for modern warfare. However, the appearance of new and advanced weapons in warfare is hardly a new challenge in the history of armed conflict. Technological progress has produced increasingly sophisticated means for fighting, while laws to moderate or police their use have typically lagged far behind. At different times in history, developments such as the crossbow, gunpowder, machine guns, tanks, airplanes, noxious gasses, nuclear bombs, and a number of other deadly inventions, irreversibly changed the landscape of warfare and required groups and states to reassess the laws governing armed conflict. The United Nations' call, then, for the United States to justify the legality of its drone strike program (12) should not come as a surprise. Public officials, experts, practitioners, operators, and lawyers are just now coming to grapple with the rules and legal framework for the emerging use of drones in order to determine guidelines for the use of this new technology. (13)

      Some of this concern is understandable, as drones seem to have moved overnight to the front line of America's current armed conflicts. In reality, UAVs languished for years in development and obscurity (14) before becoming, as CIA Director Leon Panetta famously put it, "the only game in town." (15) Even in the early years of the current wars in Afghanistan and Iraq, the U.S. military rarely utilized the emerging technology. In 2001, the Predator UAV fleet numbered only ten and was typically relegated to reconnaissance missions, when used at all. (16) By 2007, Predators numbered more than 180, with plans to nearly double that number over the next few years. (17) In addition to the Predator drone (about 27 feet long and capable of flying for 24 hours at up to 26,000 feet), the best known of the American UAV fleet, the United States has increasingly employed a number of other drones in the current conflicts, including the Global Hawk (the largest of the fleet at 40 feet long and capable of flying for 35 hours and up to 65,000 feet), the Shadow (only 12 feet long and capable of flying for 5 hours or 70 miles), the Hunter (around 24 feet long and capable of flying twice as long as the Shadow), the Raven (just 38 inches long and only 4 pounds, capable of flying for 90 minutes at about 400 feet), and the Wasp (even smaller than the Raven). (18) The smaller drones of the UAV fleet are used primarily for reconnaissance and target acquisition, while the larger drones are armed with Hellfire missiles and used to conduct strikes, in addition to higher altitude reconnaissance. (19) A number of other UAVs are expected to be operated in the near future to update and expand capabilities, including the Reaper, the Peregrine, and the Vulture. (20) The Pentagon has made producing and evolving all aspects of its drone fleet a top budgetary and strategic priority for the coming years. (21)

   2. Framing the Issues

      It seems clear that the United States intends to advance and expand its UAV program, including for lethal strike operations. (22) Reportedly, more drone strikes were carried out in President Barack Obama's first year in office than in the previous eight years combined under George W. Bush, and 2010 has almost doubled the pace of 2009. (23) Indeed, over the past two years, a number of senior Obama Administration officials have come out in defense of drone warfare. (24) However, while the U.S. Government has been clear about its intent to use drones for targeting operations, and while it has broadly defended its policy of conducting strikes against parties contemplated by the Authorization for the Use of Military Force (AUMF), (25) the government's public proponents have rarely delved into some of the weightier issues presented by drone warfare. A few hypotheticals may help illustrate the preeminent issues:

      Hypothetical 1: A military operator in Afghanistan identifies a Taliban target within Afghanistan, determines through intelligence sources that the target is reachable at his home and that the operation would meet the proportionality, necessity, and humanity requirements under the law of armed conflict, and employs a drone to conduct the kill operation.

      Hypothetical 2: A military operator on a ship off the Horn of Africa identifies a high-level al Qaeda target within Yemen, determines through intelligence sources that the target is reachable while at a funeral and that the operation would meet the proportionality, necessity, and humanity requirements under the law of armed conflict, and employs a drone to conduct the kill operation.

      Hypothetical 3: A CIA operator in Kabul identifies a group of Jaish-e-Muhammad fighters (known al...