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
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.
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. …