Targeting with Drone Technology: Humanitarian Law Implications

Abstract

The U.S. government’s dramatically increasing use of drone technology has provoked a maelstrom of questions about the law. None of the controversies dwell the possibility that drones, as a weapons platform, are inherently unlawful. To the contrary, most observers recognize the potential benefits of drone technology to minimize unintended casualties or damage to property. While they disagree important legal issues, critics and proponents alike share at least one significant concern: drones may be the future of warfare, and the U.S. may soon find itself on the other end of the drone, as other governments and armed non-state groups develop drone technology. Yet discussions of the legal constraints lag behind the rapid advances in technological capability and deployment. Even those who believe that the U.S. government’s use of drone technology is carefully calibrated to adhere to applicable law worry that other governments or non-state groups will cite the U.S. government’s silence key legal questions as justification to shirk from transparency about their practice or even openly flout the law. In this paper, we describe three questions arising from the U.S. government’s use of drone technology, focusing ambiguities in the government’s position which scholars have debated: the scope of the armed conflict; who may be targeted; and the legal and policy implications of who conducts the targeting. These questions stem not so much from drone technology itself, but from the kind of warfare for which the U.S. is currently using drones. Scholars and experts have sharply disagreed about the answers to these questions, but it is telling that a core set of issues has emerged as the shared focus for individuals from across the ideological spectrum.