Texas international law journal, Vol. 47, no. 2, Spring 2012, p. 293-314
Michael W. Lewis
While drones have been criticized for causing a disproportionate number of civilian casualties or for merely sending the wrong message about American power, the most serious legal challenges to the use of drones in the modern combat environment involve questions of where such unmanned aircraft may be legally employed. It is contended that drone strikes in places like Yemen and Pakistan violate international law because there is currently no armed conflict occurring in these nations. Although theoretically the limitations imposed by this view of the boundaries of the battlefield are not specifically directed at the use of drones and apply with equal force to any use of the tools of armed conflict, from a practical standpoint the view that the boundaries of the battlefield are strictly defined by geopolitical lines has a particularly significant impact on the use of drones.This Article briefly discusses drone use in the combat environment and explains why the debate about the boundaries of the battlefield is of particular importance to the employment and development of drones. It will then describe the geographically limited scope of International Humanitarian Law (IHL) proposed by commentators critical of drone use in areas like Pakistan and Yemen. This view of the boundaries of the battlefield will be compared with the historical understanding of where the laws of armed conflict apply in international armed conflicts and the role that geography has traditionally played in restricting IHL’s scope. It concludes by arguing that the more traditional view of IHL’s scope of application should apply with even more force to transnational armed conflicts because any other interpretation threatens to undermine the basic theoretical underpinnings upon which IHL is constructed.