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Abstract
Over the last several years there has been an explosion of scholarly interest in drones, their impact on armed conflict, and the ethics of using such unmanned weaponry. While this attention and inquiry is to be welcomed, an examination of this scholarship reveals that much of it frequently gets drones wrong – focusing too much on the questionable ‘newness’ of the technology, misunderstanding or misapplying the legal principles which govern such conventional weaponry (especially proportionality) and searching for definitive answers from problematic data. This article highlights the trouble with the contemporary debate over drones and sets out a research agenda in a world of murky campaigns and imperfect information.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Stephanie Carvin is a fellow at the Centre for International Policy Studies (CIPS) at the University of Ottawa. She holds a PhD in International Relations from the London School of Economics and is the author of Prisoners of America's Wars (2010) and co-author of Law, Science, Liberalism and the American Way of Warfare (2014) with Michael J. Williams.
Notes
1 Cited in Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts (London: Methuen, 1983), 160.
2 Dave Blair, ‘Remote Aviation Technology – What Are We Actually Talking About?’, Centre for International Maritime Security Blog. http://cimsec.org/remote-aviation-technology-actually-talking/
3 Of course this would not be the first time that there have been efforts to ban weapons which do not yet exist. Protocol I of the 1980 Convention on Certain Conventional Weapons (CCW) prohibits ‘weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays'. Such weapons did not exist at the time that the CCW was drafted, were not under development and do not exist today.
4 See the Campaign to Stop Killer Robots: http://www.stopkillerrobots.org/
5 Blair, ‘Remote Aviation Technology’.
6 Best, Humanity in Warfare, 159. See also Martin van Creveld, Technology and War: From 2000 BC to the Present (London: The Free Press, 1989), 217.
7 van Creveld, Technology and War, 218.
8 It may, of course, be argued that such a distinction had historically been honoured more in the breach than in reality. After all, neither medieval nor Napoleonic warfare has been noted for its humanity. However, the idea that non-combatants should be protected in war had gained traction during the Enlightenment period and was arguably an important norm by which international society could and often did judge the conduct of armies. See Best, Humanity in Warfare, especially Chapter I: ‘The Later Enlightenment Consensus'.
9 P. Whal and D.R. Toppel, The Gatling Gun (London: Herbert Jenkins, 1966), 18. See also, C.J. Chivers, The Gun (New York: Simon & Schuster, 2010), especially Chapter 1.
10 Howard P. Segal, Technological Utopianism in American Culture (Chicago: University of Chicago Press, 1985), 1.
11 It is worth noting that the creators of the First World War's gas weapons seem to have applied similar logic as Gatling to their inventions. The German chemist, Fritz Haber argued that gas weapons were humane alternatives to the other technologies that had been deployed on the battlefield. W. Lee Lewis, the inventor of Lewisite (a systematic poison that can kill by being deposited on a person's skin or exposure in a concentration of only 50 parts per million) argued that the gas was ‘the most efficient, most economical, and most humane single weapon known to military service’. See P.D. Smith, Doomsday Men: The Real Dr Strangelove and the Dream of the Superweapon (London: Allen Lane, 2007), especially Chapter 5. Smith cites W. Lee Lewis, ‘Is Prohibition of Gas Warfare Feasible?’, Atlantic Monthly 129 (June 1922): 834, in Gilbert F. Whittemore, Jr, ‘World War I, Poison Gas Research, and the Ideals of American Chemists', Social Studies of Science, no. 5 (May 1975): 135–63, 158.
12 Bernard Brodie and Fawn M. Brodie, From Crossbow to H-Bomb: The Evolution of the Weapons and Tactics of Warfare (Bloomington and Indianapolis: Indiana University Press, 1973), 139–40, and 191.
13 Geoffrey Best, Law and War Since 1945 (Oxford: Oxford University Press, 1994), 53.
14 There is an interesting question that may be raised here regarding whether or not this period was really the first occasion where soldiers did not witness the immediate consequences of their actions. For example, it could be argued that this has been a feature of certain weapons (i.e. cross-bow) and tactics (i.e. siege warfare) for centuries. However, I think it may be argued that the difference in the physical distances experienced for the first time in the late nineteenth century – from yards to many miles away – created a situation that was unique for armed forces on the ground. Sieges were difficult and time-consuming (not to mention expensive and frequently ineffective). Armies besieging a castle would have had to be within line of sight to employ any siege weapons they were using – something that made their task very difficult from the well-defended fortresses of the medieval period. Additionally, a besieging army would likely have to have been in relatively close range, surrounding their target fortress to ensure it was completely isolated (another difficult feat to accomplish effectively). In this sense, while medieval soldiers may not have experienced the absolute immediate effects of their actions, by the late nineteenth century soldiers might not have seen their target at all. I do, however, concede that this is a relative point, open for debate. Thanks to Michael Boyle for raising this point. On siege warfare see C.W.C. Oman, The Art of War in the Middle Ages, ed. John H. Beeler (Ithaca, NY: Cornell University Press, 1953), especially Chapter IV; John Keegan, A History of Warfare (London: Pimlico, 1993), 150–2; and Konstantin Nossov, Ancient and Medieval Siege Weapons: A Fully Illustrated Guide to Siege Weapons and Tactics (Guilford: The Lyons Press, 2005), especially Chapter 10.
15 Best, Law and War Since 1945, 53.
16 It is worth noting that this is true regardless of what those aims might be. The laws that govern when a state is permitted to engage in armed conflict, the jus ad bellum, is separate and distinct from the law which governs the means states use to achieve their goals, the jus in bello.
17 The definitions here are based on those found in Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd edition (Oxford: Oxford University Press, 2005), 10.
18 Michael N. Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’, Virginia Journal of International Law 50, no. 4 (2010), 796–837, 796.
19 William H. Boothby, Weapons and the Law of Armed Conflict (Oxford: Oxford University Press, 2009), 69.
20 Roberts and Guelff, Documents on the Laws of War, 9–10.
21 It is important to note that the idea that states only ban weapons that they tend not to use or that are out of date tends to apply better to conventional weapons rather than weapons of mass destruction. There have been several international treaties which govern the use of biological, chemical and nuclear weapons – weapons still clearly in the arsenal of many states. Thanks to Michael J. Boyle for raising this point.
22 Christopher Greenwood, ‘The Law of Weaponry at the Start of the New Millennium’, in The Law of Armed Conflict: Into the New Millennium, ed. Michael N. Schmitt and Leslie C. Green, International Law Studies, Vol. 71 (Newport: Naval War College, 1998), 185–232.
23 And of course most modern states felt that they had a strategic interest in protecting their captured soldiers.
24 There is an important debate as to whether the CIA's drone programme is legitimate as it is unclear as to whether their operators have any training in the laws of war or follow a responsible chain of command as required by the 1949 Geneva Conventions. This would have implications on the legal protections afforded CIA operators in the drone programme. As of 2013, the Obama administration reportedly began to transfer responsibility for this programme over to the DoD, although at time of writing it is not clear to the extent this has occurred. However, the point here is that regardless of who is operating the drones, the principles governing their use remain the same. Though it was unlikely the CIA programme was conducted without extensive legal guidance, the question of accountability/responsibility is important. It would be addressed by the transfer of responsibility to DoD.
25 See the series of stories and reports by the Bureau of Investigative Journalism, http://www.thebureauinvestigates.com/category/projects/drones/. There is, of course, a considerable normative component to the work of the bureau, with considerable attention devoted to speaking with victims and anti-drone activists.
26 At the time of writing, the most recent of these was ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’, 28 February 2014, A/HRC/25/59. http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-HRC-25-59.doc
27 Human Rights Watch, ‘A Wedding That Became a Funeral: US Drone Attack on Marriage Procession in Yemen’, 20 February 2014. http://www.hrw.org/node/123245
28 Amnesty International, ‘“Will I be Next?” US Drone Strikes in Pakistan’, 22 October 2013. http://www.amnestyusa.org/research/reports/will-i-be-next-us-drone-strikes-in-pakistan
29 Boothby, Weapons and the Law of Armed Conflict, 79.
30 Additional Protocol I 51(5) b.
31 Gotovina et al. (2011). A summary of the original ruling can be found at the ICTY website: http://www.icty.org/x/cases/gotovina/tjug/en/110415_summary.pdf
32 This argument was raised by a series of former military lawyers from several countries in an Amicus Brief to the Appeals Chamber in January 2012. Available online at: http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Application/NotIndexable/IT-06-90-A/MSC7958R0000353013.pdf
33 Prosecutor v. Ante Gotovina, Mladen Markač, November 2012. http://www.icty.org/x/cases/gotovina/acjug/en/121116_judgement.pdf
34 Letta Taylor, ‘The Truth about the United States Drone Programme’, Policy Review, March 2014. http://www.policyreview.eu/the-truth-about-the-us-drone-programme/. Taylor refers to a HRW report she researched and authored, ‘Between a Drone and Al Qaeda: The Civilian Cost of US Targeted Killings in Yemen’, 22 October 2013. The report notes that there may have been violations in the other incidents but they cannot draw a definitive conclusion. Available online at: http://www.hrw.org/reports/2013/10/22/between-drone-and-al-qaeda-0
35 ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’. Emphasis added.
36 For example, there is no such legal obligation in the laws of war but there is in human rights law under the guarantee of ‘right to life’. Whether such an investigation would be possible in the tribal areas of Afghanistan/Pakistan and Yemen is, likewise, another issue entirely.
37 See the ‘Interim Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’, 25 October 2013. http://www.lawfareblog.com/wp-content/uploads/2013/10/Emmerson-Report.pdf
38 Of the remaining 26%, 11% were by ‘pro-government’ forces, of which 8% were the Afghan national forces and 3% international forces. A further 10% seem to have been caught in the cross-fire between anti- and pro-government forces and the remaining 5% the result of unknown causes, but mostly explosive remnants of war. United Nations, ‘Afghanistan Annual Report 2013: Protection of Civilians in Armed Conflict’, February 2014. http://unama.unmissions.org/Portals/UNAMA/human%20rights/Feb_8_2014_PoC-report_2013-Full-report-ENG.pdf; see also, Tim Craig, ‘Civilian Casualties Are Up in Afghanistan, a New U.N. Report Says', Washington Post, 8 February 2012. http://www.washingtonpost.com/world/asia_pacific/civilian-casualties-are-up-in-afghanistan-a-new-un-report-says/2014/02/08/de7389f0-90e5-11e3-878e-d76656564a01_story.html
39 Antoine Bousquet, The Scientific Way of Warfare: Order and Chaos on the Battlefields of Modernity (London: Hurst, 2009), 96.
40 van Creveld, Technology and War, 319–20.
41 Brodie and Brodie, From Crossbow to H-Bomb, 192.
42 van Creveld, Technology and War, 76 and 221–2.
43 The author has written about the effectiveness of targeted killing in greater detail in Stephanie Carvin, “The Trouble with Targeted Killing”, Security Studies 21, no. 3 (2012): 529–55. This section draws on some of the research and conclusions reached in that article.
44 See Kenneth Anderson, ‘Predators over Pakistan’, The Weekly Standard, 8 March 2010, 26–34; Daniel Byman, ‘Do Targeted Killings Work?’, Foreign Affairs 85, no. 2 (2006): 95–111; Steven R. David, ‘Fatal Choices: Israel's Policy of Targeted Killing’, Mideast Security and Policy Studies 51 (2002); and Steven R. David, ‘Israeli's Policy of Targeted Killing’, Ethics and International Affairs 17, no. 1 (2003), 111–26; Amitai Etzioni, ‘Unmanned Aircraft Systems: The Moral and Legal Case’, Joint Force Quarterly 57, no. 2 (2010): 66–71.
45 Philip Alston, ‘The CIA and Targeted Killings Beyond Borders' (New York University School of Law: Public Law & Legal Theory Research Paper Series Working Paper No. 11-64). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1928963; Michael L. Gross, ‘Fighting by Other Means in the Mideast: a Critical Analysis of Israel's Assassination Policy’, Political Studies 51 (2003): 350–68; and Michael L. Gross, ‘Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defence?’, Journal of Applied Philosophy 23, no. 3 (2006): 323–35; Mary Ellen O'Connell, ‘Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009′ (Notre Dame Legal Studies Paper No. 09-43, 2010). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1501144; Yael, Stein, ‘By Any Name Illegal and Immoral’, Ethics and International Affairs 17, no. 1 (2003): 127–37.
46 Gross, ‘Fighting by Other Means in the Mideast’.
47 Andrew M. Exum, Nathaniel C. Fick, Ahmed A. Humayun, and David Kilcullen, Triage: The Next Twelve Months in Afghanistan and Pakistan (Washington, DC: Center for a New American Security, 2009). http://www.cnas.org/files/documents/publications/ExumFickHumayun_TriageAfPak_June09.pdf, 18.
48 Brian Michael Jenkins, ‘Should Our Arsenal Against Terrorism Include Assassination?’ (RAND Paper P-7303, January 1987). http://www.rand.org/pubs/papers/P7303.html, 8.
49 Audrey Kurth Cronin, How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns (Princeton, NJ: Princeton University Press, 2009), 232.
50 See Cronin, How Terrorism Ends; Mohammed M. Hafez and Joseph M. Hattfield, ‘Do Targeted Assassinations Work? A Multivariate Analysis of Israeli Counter-Terrorism Effectiveness during Al-Aqsa Uprising’, Studies in Conflict & Terrorism 29, no. 4 (2006): 359–82; Jenna Jordan, ‘When Heads Roll: Assessing the Effectiveness of Leadership Decapitation’, Security Studies 18, no. 4 (2009): 719–55; Edward H. Kaplan, Alex Mintz, Shaul Mishal, and Claudio Samban, ‘What Happened to Suicide Bombings in Israel? Insights from a Terror Stock Model’, Studies in Conflict & Terrorism 28, no. 3 (2005): 225–35; and Aaron Mannes, ‘Testing the Snake Head Strategy: Does Killing or Capturing its Leaders Reduce a Terrorist Group's Activity?’, Journal of International Policy Solutions 9 (2008) 40–9.
51 Peter Bergen and Katherine Tiedemann, ‘Washington's Phantom War: The Effects of the U.S. Drone Program in Pakistan’, Foreign Affairs 90, no. 4 (2011).
52 The same point from a more critical perspective can be found in Michael J. Boyle, ‘Is the US Drone War Effective?’, Current History 113, no. 762 (2014): 137.
53 This is a point also made by Patrick B. Johnston, ‘Does Decapitation Work: Assessing the Effectiveness of Leadership Targeting in Counterinsurgency Campaigns', International Security 36, no. 4 (2012): 47–79.
54 Jordan, ‘When Heads Roll’, 731–2.