Gross: The New Way of War: Is There a Duty to Use Drones?

Oren Gross (Univ. of Minnesota - Law) has posted The New Way of War: Is There a Duty to Use Drones? (Florida Law Review, forthcoming). Here's the abstract:

Drones have become the poster child for America’s continuing fight against terrorism under President Obama, playing the role that torture had occupied during the Bush administration: a morally, legally, and politically controversial issue that drives a wedge between the United States and much of the rest of the world. Covert drone attacks orchestrated by the CIA around the world, including in areas that lie outside recognized war zones, raise a range of difficult questions that have been heavily debated by scholars, policy-makers and in the general media. However, that discussion has focused on whether states have the legal right to deploy drones and to use them. Little attention has been given to the use by the military of drones to carry out attacks in battlefield zones such as Afghanistan, Iraq, and Libya and to the question whether a legal duty exists or ought to exist obligating states that possess drone technology to use that technology on the battlefield.

The central claim of the article is that such a duty can, in fact, be derived from the cardinal principles of the law of armed conflict. It suggests that such an interpretation is merited if we accept that drones combine remote use of accurate force that reduces lethality both among friendly forces and innocent civilians.

Drones are not, per se, unlawful under LOAC. Rather the critical question is the same for drones as for other types of weapons, i.e., whether the specific use of the weapon complies with LOAC. In this context, the weapon must be deployed in accordance with LOAC’s fundamental principles of humanity, proportionality, distinction, taking precautions, and military necessity. The article applies the general principles of LOAC to drones in three stages. It analyzes the general trajectories of weapons’ development throughout human history, trading off three main considerations, namely distance, accuracy and lethality. It then examines the rise of precision-guided munitions as an attempt to balance these three considerations, increasing military efficiency while minimizing harm to civilians and civilian objects. Looking at drones through the prism of that analysis, the article discusses drones as a combination of remote use of accurate force that reduces lethality and closely examines both the promise that the use of drones may bring to the battlefield as well as the challenges to their deployment.

Coming back to the question of whether states and their military commanders have an obligation to use drones in the context of an armed conflict, the articles that although there are no treaties that deal specifically with the use of drones in armed conflict and no customary norms obligating the use of drones, such a duty may be derived, by way of nuanced interpretation, from the cardinal principles of the law of armed conflict. Such a nuanced interpretation is merited if we accept that drones offer the possibility of a more humane war by combining remote, distant use of accurate force that reduces lethality both among friendly forces and innocent civilians.