Drone Attacks and Just War Theory
Drone Attacks and Just War Theory
by William O’Hara
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The philosopher Cicero once wrote: Silent enum leges inter arma — or laws are inoperative in war. Despite the temptation in the age of technology to utilize new combative innovations to their full and most exact advantage, we must not fall prey to the falsehood presented by our Roman ancestor. With a new capability for waging war comes the requirement of determining in what capacity that capability should be utilized within the confines of a modern limited war. It is with this in mind that the United States tactic of targeted killing utilizing unmanned aerial vehicles (termed drones) must be evaluated. While the Obama administration insists that they have been following all laws of war in the execution of their strikes, not all of the international community agrees.
Utilizing the most fundamental principles of the law of war — Just War Theory (JWT) — this paper aims to frame the discussion surrounding targeted killing. Much of the international law applicable to drone attacks are derived from JWT, but current interpretations of that law are often quite diverse, from the hawkish to the overtly pacifistic. Some insist that the standing law indicates that drone strikes should be nearly unlimited; others argue that the practice should be conducted on a significantly limited basis. This paper will utilize thought from contemporary JWT scholars and the underlying purpose of limited war in an attempt to find a common ground in statutory interpretation.
While JWT offers guidance on both when to use force and how to use force, this paper will focus on the latter, commonly recognized as the jus in bello principles of distinction and proportionality used to conduct a limited war. Part I of the paper will provide a synopsis of JWT jus in bello development and principles, and how it has been adopted into both customary international law and international treaties. Part II of this paper will first apply JWT derived standing law to a standard example of drone targeted killings. Subsequently, JWT principle and law will be applied to two different case studies in which the utilization of drones threatens to breach the boundaries of JWT, while providing guidance as to where hard lines on the jus in bello application of drones should be drawn. The case studies serve one purpose — to create a fertile environment for different interpretations of jus in bello principles (codified into law) to be discussed. These interpretations, as mentioned earlier, are often disparate; in such cases, the original purposes of JWT, and contemporary scholarship on the subject will hopefully help highlight the proper opinion.
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Lieutenant William O’Hara is a graduate of the United States Naval Academy, and is a juris doctor candidate at the George Washington University Law School, where he is the vice-president of the Military Law Association. The views expressed in this paper are the authors and do not represent the views of the United States Navy or the United States Department of Defense.
