PKSOI/GLOBAL TRENDS CASE STUDIES A Drone's Strike Away | Page 15

Case Study #1118-08
PKSOI TRENDS GLOBAL CASE STUDY SERIES
The Laws of War
The laws of war that govern soldiers carrying guns on the battlefield also govern drones and other unmanned military
technology. The principles of customary international law (CIL) in this context refers to the UN Charter Article 51,
which acknowledges a country’s right to self-defense when under an armed attack. 116 Law of Armed Conflict (LOAC)
principles, codified in the Hague and Geneva Conventions, requires armed forces to follow two general rules: propor-
tionality and distinction. The National Security Law defines both principles as follows: “Proportionality prevents a state
from using force that will result in too much collateral damage, and distinction requires states to use force only when
civilians and combatants can be separated.” 117
On March 25, 2011, Harold Koh, then Legal Advisor to the US Department of State, crafted a legal defense of US
targeted-warfare and use of unmanned military technology based on these two principles. For legal purposes, drones
are considered conventional weapons and must abide by CIL and LOAC. 118 The CIA’s targeted killing program in
Pakistan, Yemen, and Somalia has raised concerns among lawyers and human rights advocates who claim that US drone
strikes outside of declared war zones violate the laws of war. At issue is whether these strikes conform to the principles
of discrimination and proportionality. The principle of discrimination asserts that war should only be directed at enemy
combatants and not towards civilians caught in a set of circumstances they did not create. Proportionality assumes that
the harm to civilians ought not exceed the direct military advantage gained by an attack on a legitimate military tar-
get. 119
Viewed this way, using drones is no different from using any other means of military force during war. In his analysis of
the lawfulness of using drones under international law, Durham Law Professor Michael Schmitt argued:
Drones are, however, not a panacea. While reliable data is difficult to obtain, civilians have at times been
wrongly identified as targetable insurgents or terrorists. It is equally incontestable that many civilians have
been killed incidentally during drone strikes. Tragic as such losses are, they do not necessarily render the
attacks unlawful. In the confusion of battle, mistakes are inevitable; but they are only unlawful when the
attacker has acted unreasonably. 120
Schmitt concludes, “the sole relevance of drones operations is that they may not be mounted if less forceful measures
would suffice … and must be conducted if likely to suffice in lieu of more forceful and invasive measures.” 121
Meanwhile, in the United States, a parallel legal debate took place over the President’s authority under the 2001 Con-
gressional Authorization for Use of Military Force (AUMF) to engage in targeted killings across the globe. 122 The
debate centered primarily on President Obama’s framing of the fight against the Islamic State. Generally, the president’s
constitutional right to order airstrikes extends only so far as it involves the protection of US citizens against a credible
threat. Since Obama’s original order for airstrikes, the narrative has turned into one of being on “the offensive,” a termi-
nology some in Congress consider to be within the congressional purview of declaring war. However, others in Congress
see the president’s unilateral approach to war as a way to avoid the political repercussions of seeking a declaration of
war. 123 Said for instance Sen. Angus King (I-ME),
It just makes me uncomfortable that the president, whoever it is, is the prosecutor, the judge, the jury and the
executioner, all rolled into one. So I’m not suggesting something that would slow down response. But where
there is time to submit it to a third party, a court, in confidence, and get a judgment that, yes, there’s sufficient
evidence, that feels to me like that’s, its not full compliance with the Fifth Amendment … but some indepen-
dent check on our executive is healthy for the system. 124
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