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The Use of Unmanned Aerial Vehicles in Contemporary Conflict: A Legal and Ethical Analysis

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Abstract

The increased use of unmanned aerial vehicles (UAVs) in contemporary conflict has stirred debate among politicians, government officials, and scholars. Spokespeople for the U.S. government often highlight the precision of UAVs and argue that this quality enables military action to comply with the international humanitarian law principles of distinction and proportionality. This article criticizes the technologically advanced weapons on the same ground on which the U.S. government has defended them: meeting international standards of distinction and proportionality. The article opens with a discussion of the legal implications of Just War theory. It then offers a critique of the politico-military discourse surrounding UAVs and presents a philosophical framework that might lessen the confusion surrounding the ethics of modern warfare. The article closes with a discussion of the various ways that defenders of the UAVs overstate the ability of technology to answer difficult legal and political questions that the principles of distinction and proportionality pose.

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Notes

  1. International Committee of the Red Cross, http://www.icrc.org/eng/war-and-law/index.jsp, accessed January 26, 2012.

  2. ICRC, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL,” International Review of the Red Cross 90 (December 2008): 991–1047; at 1021.

  3. Joint Vision 2010 (Washington DC: Department of Defense, 1997), 1.

  4. As Neta Crawford observes, the expansion of war goals to “near infinity” also means that “mobilization and war are constant” since the assumption is that everything is a legitimate threat and target. “Just War Theory and the U.S. Counterterror War,” Perspectives on Politics 1 (March 2003): 5–25.

  5. Peter Bergen and Katherine Tiedemann, “New American Foundation,” Counterterrorism Strategy Initiative, 2010, http://counterterrorism.newamerica.net/drones/2010, accessed October 22, 2011.

  6. Map illustrating the locations of American UAV strikes, available at http://maps.google.com/maps/ms?ie=UTF8&hl=en&msa=0&msid=111611283754323549630.00047e8cdfc55d220dee7&ll=33.100745,70.444336&spn=4.41699,7.03125&t=p&z=7&source=embed, accessed October 22, 2011.

  7. Author's interview with Colonel Michael Fleck, former U-2 reconnaissance pilot, September 25, 2011.

  8. Michael Hoffman, “New Jet-Powered UAV Makes Debut,” Air Force Times, April 27, 2009; “U-2 Pilot Application” fact sheet, available at http://www.beale.af.mil/library/factsheets/factsheet.asp?id=5077.

  9. David Fulgham, “Israel's Next-Gen UAVs,” Aviation Week, August 27, 2010, accessed October 22, 2011.

  10. David Axe, “Air Force Plans for All-Drone Future,” Wired, July 17, 2009.

  11. “US Airstrikes in Pakistan called very effective,” CNN, May 18, 2009.

  12. Ibid.

  13. Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009,” Law School, University of Notre Dame (2010); Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Human Rights Council, May 28, 2010; Jane Mayer, “The Predator War,” New Yorker, October 26, 2009.

  14. Harold Koh, “The Obama Administration and International Law,” Annual Meeting of the American Society of International Law (Washington DC: United States Department of State, 2010).

  15. Ibid.

  16. Another legal question, sidestepped by Koh in his ASIL remarks, deals with the legality of strikes in a country other than one against which the U.S. is at war. This question has received considerable treatment (see, e.g., O’Connell “Unlawful Killing with Combat Drones”). So, we have concentrated our analysis on the questions of proportionality and distinction.

  17. Judith Gail Gardam, “Proportionality and Force in International Law,” American Journal of International Law 87 (1993): 391–413.

  18. International Committee of the Red Cross, “What is International Humanitarian Law?,” Advisory Service on International Humanitarian Law, Legal Fact Sheet 31-07-2004 (2004).

  19. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

  20. Article 57 Additional Protocol 1 to the Geneva Conventions,” (1977). It should be noted that even though the United States has not ratified AP I, the principles embedded in it are generally considered customary law. Jean-Marie Henckaerts, Louise Doswald-Beck, Customary International Humanitarian Law: Rules (Cambridge: ICRC and Cambridge University Press, 2005), 51.

  21. Common Article 3 of the Geneva Conventions, available at http://www.icrc.org/ihl.nsf/WebART/375-590006, accessed August 27, 2011.

  22. International Committee of the Red Cross, “Convention (III) Relative to the Treatment of Prisoners of War,” International Humanitarian Law—Treaties and Documents, 1949, http://www.icrc.org/.

  23. Article 50 of the Additional Protocol defines civilians as “any person who does not belong to one of the categories of persons referred to in Article 4 A of the Third Convention.”

  24. Anisseh van Engeland, Civilian or Combatant?: A Challenge for the 21st Century (New York: Oxford University Press, 2010); Thomas Bogar, “Unlawful Combatant or Innocent Civilian? A Call to Change the Current Means for Determining Status of Prisoners in the Global War on Terror,” Florida Journal of International Law 21 (April 2009): 29–92.

  25. ICRC, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL,” International Review of the Red Cross 90 (December 2008): 991–1047.

  26. Combatants can exploit the intermingling of contemporary conflict environments and launch weapons from densely populated areas in order to provoke return fire that kills civilians and elicits international condemnation. See, for example, Sarah Kreps, “The Second Lebanon War: Lessons Learned,” Parameters (Spring 2007): 72–84.

  27. Customary International Humanitarian Law, March 2005, available at http://www.icrc.org/ihl.nsf/FULL/612?OpenDocument, accessed September 17, 2011.

  28. ICRC, “Interpretive,” 1021.

  29. “Direct Participation in Hostilities: Questions and Answers,” available at http://www.icrc.org/eng/resources/documents/faq/direct-participation-ihl-faq-020609.htm, accessed August 27, 2011.

  30. William J. Fenrick, “The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities,” Journal of International Criminal Law 5 (2007): 332–38.

  31. Divergent answers to these questions can be found in Michael Gross, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (Cambridge; New York: Cambridge University Press, 2009); and Stephen Rockel and Rick Halpern, Inventing Collateral Damage: Civilian Casualties, War, and Empire (Toronto: Between the Lines, 2009).

  32. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge; New York: Cambridge University Press, 2004).

  33. Inis Claude Jr., “Collective Legitimization as a Political Function of the United Nations,” International Organization 20 (1966): 367–79; Kenneth Abbott and Duncan Snidal, “Hard and Soft Law in International Governance,” International Organization 53 (2000): 421–56.

  34. Dinstein, The Conduct of Hostilities, 84.

  35. Antonio Cassese, International Law (Oxford: Oxford University Press, 2001).

  36. Tami Davis Biddle, Rhetoric and Reality in Air Warfare: The Evolution of British and American Ideas about Strategic Bombing, 1914–45 (Princeton, NJ, Princeton University Press, 2004).

  37. Ronald Schaffer, Wings of Judgement: American Bombing in World War II (Oxford; New York: Oxford University Press).

  38. Nicholas Wheeler, “Dying for ‘Enduring Freedom’: Accepting Responsibility for Civilian Casualties in the War on Terrorism,” International Relations 16 (2002): 205–25, at 210.

  39. Michael W. Lewis, “The Law of Aerial Bombardment in the 1991 Gulf War,” American Journal of International Law 97 (July 2003): 481–509.

  40. Additional Protocol I, 1977; Part IV: Civilian Population.

  41. Prosecutor of the International Criminal Court Luis Moreno-Ocampo, “Letters to Senders regarding Iraq” (February 9, 2006). As with AP I, the US is not a party to the Rome Statute, although it came into force on July 1, 2002.

  42. Chris Jenks, “Law from Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict,” North Dakota Law Review 85 (2010): 649–71.

  43. Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, (1998): 887–917; Emilie Hafner-Burton, “Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem,” International Organization 62 (2008): 689–716.

  44. Richard MacKay Price, The Chemical Weapons Taboo (Ithaca, NY: Cornell University Press, 1997).

  45. Lt. Gen. Buster Glosson, “Impact of Precision Weapons on Air Combat Operations,” Airpower Journal (Summer 1993): 4–10.

  46. David Mets, The Long Search for a Surgical Strike: Precision Munitions and the Revolution in Military Affairs (Montgomery, AL: Air University Press, 2001), 39.

  47. Phillip Meilinger, “Precision Aerospace Power Discrimination, and the Future of Warfare,” Aerospace Power Journal 15 (2001): 1–2.

  48. Harold Koh, “The Obama Administration and International Law.”

  49. Areas are selected based on data fusion from a number of different sensors. See Belur Dasarathy, “Sensor Fusion Potential Exploitation—Innovative Architectures and Illustrative Applications,” Proceedings of the IEEE 85 (January 1997): 24–38.

  50. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Human Rights Council, May 28, 2010.

  51. John Kaag and Whitley Kaufman. “Military Frameworks: Technological Know-How and the Legitimation of Warfare” Cambridge Review of International Affairs 22 (December 2009): 585–606. For a similar argument, see P.W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin Press, 2009).

  52. International Committee of the Red Cross, Protecting Civilians in 21st Century Warfare: Target Selection, Proportionality and Precautionary Measures in Law and Practice (Nijmegen: Wolf Legal Productions, 2001).

  53. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 2006).

  54. John Kaag, “Another Question Concerning Technology: The Ethical Implications of Homeland Defense and Security Technologies,” Homeland Security Affair (January 2008); Michael Foley, American Credo: The Place of Ideas in American Politics (New York: Oxford University Press, 2007).

  55. David Hume, A Treatise of Human Nature (Oxford: Clarendon Press, 1888); G.E. Moore, Principia Ethica (Cambridge: Cambridge University Press, 1959).

  56. Moore's attack of Henry Sedgwick anticipates Michael Walzer's criticism of Sedgwick in Just and Unjust Wars. The logical confusion of the naturalistic fallacy arises in part from a desire to avoid the Humean skepticism concerning empirical truths and from a desire to affix morality to something certain and universal. These desires, however, can lead one to confuse statements of fact, which one holds with near-apodictic certainty, with highly questionable normative claims. The fallacy continues today to wreak havoc in moral reasoning. For a description of the naturalistic fallacy, see: Robert Sylvester, The Moral Philosophy of G.E. Moore (Philadelphia: Temple University Press, 1990).

  57. A second problem associated with the naturalistic fallacy has been brought to light by a diverse set of theorists who hold that factual claims are never simply reports on the world, but are always already shot through with normative judgments. For example, statements about the categories of “women,” “African Americans,” and “fit organisms” already presume certain moral commitments that are not an issue of empirical or logical fact. This is an important point of agreement between post-modern thinkers (such as Michel Foucault and Judith Butler), analytic philosophers (such as W.O. Quine, Hilary Putnam, and Alasdair McIntyre), and scholars in political theory (such as Alexander Wendt and Hans Joas).

  58. Kaag, “Another Question Concerning Technology.”

  59. Harold Koh, “The Obama Administration and International Law.”

  60. Michael Gross, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (Cambridge: Cambridge University Press, 2010).

  61. This is different from the claim about whether smart bombs are actually all that precise. Zehfuss implies, for example, that if precision weapons were actually precise and had low errors, they would limit civilian damage. But this assumes we can distinguish civilians from combatants, which we argue is a fundamentally more complicated ethical task.

  62. Koh, “The Obama Administration and International Law.”

  63. USAF Targeting Intelligence Guide. Pamphlet 14–210. at 180. http://www.fas.org/irp/doddir/usaf/afpam14-210/part20.htm#page180.

  64. Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms, May 30, 2008.

  65. President George W. Bush, “Press Briefing,” Remarks by the President Upon Arrival—South Lawn (September 16, 2001).

  66. Hilary Putnam, “The Epistemology of Unjust War,” in Political Philosophy, ed. Anthony O’Hear (Cambridge; New York: Cambridge University Press, 2007), 185.

  67. Carl Schmitt. Die Wendung zum diskriminierended Kriegsbegriff (Munich, 1938).

  68. Moreno-Ocampo, “Letters to Senders regarding Iraq,” 7.

  69. Michael Walzer, Just and Unjust Wars, 120.

  70. Scott Wilson and Al Kamen, “Global War on Terror is Given a New Name,” Washington Post (March 24, 2009).

  71. A growing number of observers has noted similarities between Obama and his predecessor's approach, notwithstanding name changes. See, for example, Sarah Kreps, “American Grand Strategy after Iraq,” Orbis 53 (Autumn 2009): 629–45; Charlie Savage, “Obama's War on Terror May Resemble Bush's in Some Ways,” New York Times, February 17, 2009.

  72. Michael Walzer, Just and Unjust War, 119.

  73. Mark Mazzeti, Eric Schmitt and Robert F. Worth, “Two-Year Manhunt Led to Killing of Awlaki in Yemen,” New York Times, September 30, 2011.

  74. Milan Vego, “Effects Based Operations: A Critique,” Joint Forces Quarterly, 41 (2006): 52.

  75. Vego, “Effects Based Operations.”

  76. Michael Walzer, Just and Unjust Wars, 129.

  77. Vego, “Effects Based Operations.”

  78. This is not to suggest that troop losses either determine the popularity of military conflicts or affect the willingness of strategists to commit additional resources to a conflict. The ideals that underpin military activity often provide adequate impetus, regardless of troop losses. For more on the ideals underpinning the Global War on Terror, see Robert Jackson and Philip Towle, Temptations of Power: The United States in Global Politics After 9/11 (New York: Palgrave, 2006), 30–42.

  79. John Mueller and Karl Mueller, “Sanctions of Mass Destruction,” Foreign Affairs 78 (May–June 1999): 43–53, at 52.

  80. Walzer, Just and Unjust Wars, 157.

  81. Walzer notes the inverse of this practice in the Vietnam War, in which the U.S. used indiscriminate force to minimize U.S. casualties. Just and Unjust Wars, 188.

  82. For more on radical responsibility and the risks associated with military ethics, see: Walzer, Just and Unjust Wars, 156–57. See also Michael Walzer, “The Triumph of Just War Theory—The Danger of Success,” Social Research 69 (2002): 925–44.

  83. Avishai Margalit a nd Michael Walzer, “Israel: Civilians and Combatants,” The New York Review of Books, May 14, 2009.

  84. Asa Kasher and Amos Yadlin, “Assassination and Preventive Killing,” SAIS Review 25 (Winter–Spring 2005): 41–57; at 51.

  85. US Army, Counterinsurgency (Ft. Leavenworth: Army Field Manual, 2006).

  86. Ibid., Chapter 1.

  87. Donald MacKenzie and Judy Wajcman, The Social Shaping of Technology (Open University Press, 1999); Langdon Winner, “Do Artifacts have Politics?” Daedalus 109(1), (Winter 1980), 121–36.

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Authors and Affiliations

  1. Cornell University,

    Sarah Kreps

  2. University of Massachusetts Lowell,

    John Kaag

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  1. Sarah Kreps
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The authors thank Janina Dill, Matt Evangelista, Sinja Graf, Peter Katzenstein, Whitley Kaufman, Mary Ellen O’Connell, Judith Reppy, Henry Shue, Anna-Marie Smith, Sid Tarrow, and the participants of the Cornell Law School International Law/International Relations colloquium for their helpful comments on this research.

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Kreps, S., Kaag, J. The Use of Unmanned Aerial Vehicles in Contemporary Conflict: A Legal and Ethical Analysis. Polity 44, 260–285 (2012). https://doi.org/10.1057/pol.2012.2

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