Though weaponized unmanned aerial vehicles, or armed drones, have generated extensive legal and policy criticism, the U.S. military considers drones to be a weapon of choice to achieve strategic, operational, and tactical objectives against contemporary non-state threats. In fact, the military is seeking to expand the development of lethal drone capability.A recently released report states, “Unmanned systems can be used in significantly different operating and threat conditions than manned platforms, come in a much wider range of classes and sizes than manned systems, can exhibit greater persistence and endurance than manned systems, and have the potential to support a large range of mission sets.” The cost effective combination of standoff attack capability, real time target intelligence data, exceptional strike precision, and lethality make these ideal weapons in a conflict against an unconventional enemy.
Drones also facilitate compliance with fundamental international law obligations of distinction and proportionality in regards to the targeting process, perhaps better than any other currently available combat capability. Drone capability substantially diminishes the tactical disadvantages associated with an enemy that seeks to appear indistinguishable from civilians. This is especially useful in a seemingly endless low-level armed conflict in which public perceptions of legitimacy and alienation of local populations may have near decisive strategic consequences.
Nonetheless, the evolution of drone capability has been mirrored by an evolving vilification. Critics responsible for this vilification routinely conflate challenges associated with implementation of drone operations with the validity of the military operations in which drones are employed, i.e. the U.S. characterization of the struggle against al-Qaeda and associated groups as an armed conflict. This leads to assertions that drone usage devalues the lives of innocent civilians killed or wounded during such attacks, and even the lives of terrorist operatives because drones allow the use of deadly force before the United States exhausts all lesser means of incapacitating these individuals. Critics also claim that drones are being used overzealously in areas beyond the geographic bounds of what many have labeled the ‘hot’ battlefield and that they are used to attack individuals who should not be treated as ‘targets’ pursuant to the law of armed conflict, but instead be incapacitated through law enforcement means. These criticisms have produced a distorting effect on the analysis and critique of drones as both a means and method of warfare.
In a very real sense, drones have replaced Guantanamo detentions as a parable for what has euphemistically been labeled the ‘Global War on Terror,’ but this is analytically overbroad. Drone capability is not remotely responsible for either the legal characterization of the struggle against al-Qaeda nor the geographic scope of accordant operations; rather, it is the strategic decision to characterize the struggle against al-Qaeda and associated forces as an armed conflict that provides the legal basis for tactical drone use. Furthermore, the assertion of armed conflict as a legal foundation for counter-terror operations does not, ipso facto, justify the use of drones to attack human and other physical targets. Rather, while the armed conflict characterization is a necessary first step in drone legality analysis, it merely leads to the decisive implementation issues related to ensuring The Law of Armed Conflict (LOAC) compliance—most notably compliance with the principles of distinction, proportionality, and precautionary measures.
To understand the role of drones in contemporary military operations, it is therefore necessary to distinguish between jus ad bellum issues related to the permissible geographic scope of armed conflict and the jus in bello issues related to the permissible utilization of any particular means or method of warfare within the context of an existing armed conflict. In short, the utilization of drones neither justifies resort to armed force to advance national security interests nor influences the legitimacy of the resort to force pursuant to the jus ad bellum. Instead, drones are, like any other means of warfare, simply tools available to military commanders tasked with producing tactical and operations effects to fulfill the strategic objectives defined by the nation’s leaders.
While drones may symbolize the complexities of complying with the jus in bello when engaging in armed conflict against unconventional enemies, their use also demonstrates the impact of technology to enable states like the United States to expand the reach of their military operations with minimal risk to friendly forces. But policy makers who mistakenly equate drone capabilities with some type of unjustifiable expansion of the legal basis to conduct military operations may become more hesitant to use this remarkably precise and efficient tactical capability. Aversion to drone use as a reaction to objections to the characterization of counter-terror operations and the scope of these operations may produce unnecessary pressures to utilize methods and means of warfare that pose greater risks to both U.S. forces and local civilians, dilute the confidence in the likelihood of mission accomplishment, and lead to hesitation to engage these threats with decisive force. Indeed, President Barack Obama’s May 2013 speech at the National Defense Universityannouncing policy constraints on drone use appears to reflect this type of impact. Ironically, these consequences are fundamentally inconsistent with thejus in bello principles that are supposed to regulate the use of combat power: an obligation to mitigate the risk to civilians by using combat capabilities that maximize the likelihood of mission accomplishment in a manner that creates the least risk to the civilian population.
The debate over drones is similarly distorted by the failure to differentiate between the challenges of tactical threat identification and the propriety of attacking as belligerent targets individuals who appear overtly indistinguishable from the general civilian population. Distinguishing between enemy belligerent operatives—individuals presumed to represent an ongoing threat and subject to lawful attack by virtue of their status—from civilians—individuals presumed to be inoffensive and subject to attack only when directly participating in hostilities—is unquestionably legally and morally important. However, attacking commanders cannot look to traditional indicators of enemy status such as uniforms and distinctive military equipment when assessing who qualifies as a lawful object of attack. Instead, they must assess that status using a totality intelligence analytical[LC1] approach that considers a much broader range of threat identification indicators, such as location, association, communications, and patterns of movements. As a result, it is a necessary aspect of threat identification involving such threats that the conduct of the suspected target often times indicates association with enemy forces.
This approach simply reflects the different nature of the combat operations against unconventional forces; the indicators of threat status are fundamentally different in unconventional warfare, but their function remains the same: identify who falls within the status of enemy belligerent and thereby qualifies as a lawful object of attack. Ironically, this explains in large measure why drones are considered such an ideal weapon system during modern conflicts. Few other platforms exist with the capability to enable a commander to make targeting assessments with the same level of comprehensive clarity as drones.
Ultimately, the vilification of drones, or the assertion that they must be confined to the so-called ‘hot’ battlefield, is misplaced. Drones are and will continue to be considered an ideal weapon system by those tasked with disrupting and disabling unconventional threats. While the issues highlighted by their use—the complexity of unconventional threat identification and the challenge of defining the geographic scope of armed conflicts against transnational non-state groups—are both important focal points of international legal and policy discourse, the role of drones must be assessed as a distinct issue.