Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law

By McNab, Molly; Matthews, Megan | Denver Journal of International Law and Policy, Fall 2011 | Go to article overview

Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law


McNab, Molly, Matthews, Megan, Denver Journal of International Law and Policy


I. INTRODUCTION

By now it is common knowledge that the United States employs weaponized unmanned drones in its conflict with al Qaeda. Predator drones, equipped with Hellfire Missiles, were first deployed shortly after the September 11, 2001 terrorist attacks to target al Qaeda leaders in Afghanistan. (1) The first reported drone strike outside Afghanistan occurred in 2002 in Yemen. (2) The basic facts of the United States' conflict with al Qaeda are relatively well known. However, the law that governs the conflict is murky at best, and there is little consensus among the legal experts on many relevant legal issues. This article is designed to lay out the basic framework of the law and highlight the major areas of contention, providing the foundation for understanding the intricacies and nuances discussed by the eminent publicists writing in this edition of the Denver Journal of International Law & Policy.

To explain the laws governing the use of force, applied in a modern context, this article first briefly describes in Section II the historical context in which the law surrounding the use of force developed. Then, Section III explains the basic legal paradigms that apply to an analysis concerning the legality of drones as weapons of war, including human rights, self-defense, the law of armed conflict, and international humanitarian law (IHL). A brief examination of terrorism and the background history relating to difficulties in defining terrorism follows in Section IV. Section V examines the different approaches to the jus ad bellum analysis, which is the first step in determining legality of the use of force. Finally, Section VI lays out the jus in bello assessment that governs how a State may use force when carrying out a specific campaign.

II. BACKGROUND

In the mid-1600's, Hugo Grotius, the Dutch scholar widely considered the father of international law, (3) recognized the paramount principle of territorial sovereignty, and that all sovereigns are perpetually either in a state of peace governed by human rights law or a state of war governed by humanitarian law. (4) These revelations were considered to be new concepts of international law designed to reflect new legal realities. (5) Such a paradigm shift is now termed a "Grotian Moment." (6) Some scholars argue that September 11th created a Grotian Moment regarding the use of force to combat terrorism, (7) while others argue the traditional bipartite legal paradigm of humanitarian law and human rights law ensconced by Grotius' original Grotian Moment prevails (8) and the fundamental principle of territorial sovereignty (9) remains inviolable. (10)

Regardless of whether September 11th constituted a Grotian Moment, the challenge the international community faces today is applying law, which developed over the course of the last four centuries, to new situations and technologies that were previously unimaginable. While international law continuously evolves, arguing that September 11th caused total destruction to the foundational principles governing the use of force is unsupportable. Rather, use of force law may have evolved in some manners, but it did so within the confines of well-established basic principles.

Since Grotius, significant evolution of the foundational concept of war and peace has occurred. Two of the most momentous developments emerged from the rubble of World War II. First, the United Nations (U.N.) was formed, and now, virtually all States are party to the U.N. Charter. (11) Accordingly, Article 2(4) of the U.N. Charter, which codifies a general prohibition on the use of force, is binding upon nearly every State. (12) This prohibition can only be overcome in very narrow exceptions, one of which is a State's inherent right to self-defense, laid out in Article 51 of the U.N. Charter. (13)

The second post-World War II development was the introduction, and subsequent adoption, of the Fourth Geneva Convention, which provides for the protection of civilians during armed conflicts. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.