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The New Way of War: Is There a Duty to Use Drones?, 67 Fla Florida Law Review Volume 67 | Issue 1 Article 1 January 2016 The ewN Way of War: Is There A Duty to Use Drones? Oren Gross Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Military, War, and Peace Commons Recommended Citation Oren Gross, The New Way of War: Is There A Duty to Use Drones?, 67 Fla. L. Rev. 1 (2016). Available at: http://scholarship.law.ufl.edu/flr/vol67/iss1/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Gross: The New Way of War: Is There A Duty to Use Drones? THE NEW WAY OF WAR: IS THERE A DUTY TO USE DRONES? Oren Gross* INTRODUCTION ........................................................................................ 1 I. BATTLESPACE’S NEW INHABITANTS ......................................... 15 II. THE FUNDAMENTAL PRINCIPLES OF THE LAW OF ARMED CONFLICT ............................................................... 25 III. DISTANCE, ACCURACY, AND LETHALITY ................................. 30 A. Distance ............................................................................ 32 B. Lethality: Responding to Lack of Accuracy ..................... 39 C. Back to Accuracy .............................................................. 41 IV. THE PROMISE OF DRONES: REDUCING RISKS TO OUR SOLDIERS AND THEIR CIVILIANS .............................................. 47 V. A DUTY TO USE DRONES? ........................................................ 60 A. Might Makes Ought? ........................................................ 60 B. Scope of Obligation: The Road Ahead ............................. 68 CONCLUSION ........................................................................................... 71 INTRODUCTION Drones, also referred to as unmanned aerial vehicles (UAVs),1 have become the poster child for America’s continuing fight against terrorism under President Barack Obama, filling the role that torture had occupied during the George W. Bush Administration: as a morally, legally, and politically controversial issue that drives a wedge between the United * Irving Younger Professor of Law and Director, Institute for International Legal & Security Studies, University of Minnesota Law School. Earlier drafts of this Article were presented as the Irving Younger Professorship in law renewal lecture at the University of Minnesota Law School, February 11, 2014, as well as at the World Summit on Counter- Terrorism at the International Institute for Counter-Terrorism, the Interdisciplinary Center Herzliya, in Israel; the New America Foundation; Arizona State University Sandra Day O’Connor College of Law; and to the Faculty of Law at the Hebrew University of Jerusalem, in Israel. I wish to thank Stephanna Szotkowski for her excellent research assistance. 1. The U.S. military prefers to refer to drones as remotely piloted vehicles (RPVs) or unmanned aerial vehicles (UAVs), emphasizing the fact that they are controlled by human operators. Ulrike Franke, Commentary, On “Drones and US Strategy: Costs and Benefits,” 43 PARAMETERS 119, 119 (2013). In fact, by some accounts, the military needs about thirty people to operate a Predator or Reaper drone, and another eighty people to analyze the incoming information. Kate Brannen, U.S. Options Limited by Lack of Drones Over Syria, FOREIGN POL’Y (Oct. 7, 2014), http://www.foreignpolicy.com/articles/2014/10/08/us_options_limited_by_lack_ of_drones_over_syria. That article notes that this personnel burden has constrained the U.S. military’s use of drones in Syria. Id. 1 Published by UF Law Scholarship Repository, 2016 1 Florida Law Review, Vol. 67, Iss. 1 [2016], Art. 1 2 FLORIDA LAW REVIEW [Vol. 67 States and much of the rest of the world. While the United States has relied increasingly on drones to carry out an ever-greater portion of its military operations overseas, including targeted killing of individuals suspected of terrorist activities,2 many of America’s allies regard drone attacks as a manifestation of the United States’ unilateralism, arrogance, and disregard for international law.3 The use of drones is not only fraught with difficulties in the international sphere,4 but is also saddled with severe constitutional and legal challenges under U.S. law.5 The United States has been conducting drone programs with increasing frequency since the mid-2000s.6 One program, run by the military, operates armed drones in Afghanistan and has similarly deployed drones in Iraq and Libya, targeting those fighting against U.S. 2. See Joseph Pugliese, Prosthetics of Law and the Anomic Violence of Drones, 20 GRIFFITH L. REV. 931, 932 (2011); Nathalie Van Raemdonck, Vested Interest or Moral Indecisiveness? Explaining the EU’s Silence on the US Targeted Killing Policy in Pakistan 3–4 (Instituto Affari Internazionali, Working Papers No. 1205, 2012), available at http://www.iai.it/pdf/DocIAI/iaiwp1205.pdf. 3. See PEW RESEARCH CTR., GLOBAL OPINION OF OBAMA SLIPS, INTERNATIONAL POLICIES FAULTED 11 (2012), available at http://www.pewglobal.org/files/2012/06/Pew-Global- Attitudes-U.S.-Image-Report-FINAL-June-13-2012.pdf (providing that “U.S. drone strikes—a key element of the Obama administration’s anti-terrorism policy—are widely unpopular nearly everywhere, although the U.S. itself is a clear exception”). 4. See Rosa Brooks, Drones and the International Rule of Law, 28 ETHICS & INT’L AFF. 1, 1–2 (2014) (explaining that the United States’ use of drones challenges the international rule of law because it defies straightforward legal categorization); Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 751 (2004) (questioning the salience of international human rights law in elucidating a satisfactory principle with respect to U.S. predator drone attacks on suspected terrorists); cf. Patrick A. McDade, A Legal Analysis of the Obama Administration’s Position on Targeted Killings 3 (May 5, 2012) (unpublished manuscript), available at http://ssrn.com/abstract=2175677 (providing that, in the context of targeted killings by means of drone attack, “no universal definition of targeted killings has been established in international law”). 5. See David W. Opderbeck, Drone Courts, 44 RUTGERS L.J. 413, 418–19, 456–57 (2014) (noting the “thorny” legal and constitutional issues associated with the use of drones); Michael McAuliff & Ryan Grim, Obama Rebuffs Democrats on Drone Kill Memos, Asserts Executive Secrecy Prerogative, HUFFINGTON POST (Mar. 13, 2013, 5:38 PM), http://www.huff ingtonpost.com/2013/03/13/drones-obama-rebuffs-demo_n_2869156.html; Geert-Jan Alexander Knoops, Legal, Political and Ethical Dimensions of Drone Warfare Under International Law: A Preliminary Survey, 12 INT’L CRIM. L. REV. 697, 701 (2012) (presenting the argument that the War Powers Resolution may not limit the President’s power to conduct drone attacks as these are “limited operations” and if the “war on terror” does not necessarily trigger the laws of war then this leaves Congress powerless to control the use of drones by the President). 6. Jane Mayer, The Predator War, NEW YORKER (Oct. 26, 2009), http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer; see also Ryan J. Vogel, Drone Warfare and the Law of Armed Conflict, 39 DENV. J. INT’L L. & POL’Y 101, 104– 05 (2010) (“In 2001, the Predator UAV fleet numbered only ten and was typically relegated to reconnaissance missions, when used at all. By 2007, Predators numbered more than 180, with plans to nearly double that number over the next few years.” (footnote omitted)). http://scholarship.law.ufl.edu/flr/vol67/iss1/1 2 Gross: The New Way of War: Is There A Duty to Use Drones? 2015] IS THERE A DUTY TO USE DRONES? 3 and NATO troops in those countries.7 Recently, the United States deployed drones in airstrikes against forces of the Islamic State in Iraq and Syria.8 The second, much more controversial program is a covert operation run by the Central Intelligence Agency (CIA),9 which is aimed at targeting and killing al-Qaeda and Taliban commanders who are mostly based in Pakistan’s northwestern region and who use their Pakistani bases to stage attacks against NATO forces in Afghanistan,10 as well as to plan attacks against “soft” targets in Europe and the United States.11 This covert CIA program has targeted top al-Qaeda leaders, al- Qaeda’s external operations network, and Taliban leaders and fighters.12 7. See Shashank Bengali & David S. Cloud, U.S. Drone Strikes up Sharply in Afghanistan, L.A. TIMES (Feb. 21, 2013), http://articles.latimes.com/2013/feb/21/world/la-fg- afghanistan-drones-20130222 (discussing the drone program in Afghanistan); Christopher Drew, Drones Are Playing a Growing Role in Afghanistan, N.Y. TIMES (Feb. 20, 2010), http://www.nytimes.com/2010/02/20/world/asia/20drones.html (same); Mayer, supra note 6 (providing that the military’s drone program “operates in the recognized war zones of Afghanistan and Iraq, and targets enemies of U.S. troops stationed there”); Dylan Matthews, Everything You Need to Know About the Drone Debate, in One FAQ, WASH. POST (Mar. 8, 2013), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/08/everything-you-need- to-know-about-the-drone-debate-in-one-faq/ (“[D]rones have seen service in Libya, Afghanistan and Iraq as part of the United States’s more traditional military campaigns in those countries.”); Mark Thompson, The New U.S. “Smalls” Air Force Over Afghanistan, TIME (June 26, 2011), http://nation.time.com/2011/06/26/the-new-u-s-smalls-air-force-over-afghanistan/ (discussing the proliferation of drone use by the U.S. military in Afghanistan, Libya, Pakistan, and Yemen); Ryan Grim & Michael McAuliff, Afghanistan Drone Strike Data No Longer Reported by U.S. Air Force, HUFFINGTON POST (Mar. 10, 2013, 5:57 AM), http://www.huffingtonpost.com/2013/03/ 10/afghanistan-drone-strike-data-no-longer-reported-us-air-force_n_2847296.html (same). 8. Brannen, supra note 1; Chelsea J. Carter et al., U.S. Jet Fighters, Drones Strike ISIS Fighters, Convoys in Iraq, CNN.COM (Aug.
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