Article

Drone attacks under the jus ad bellum and jus in bello : clearing the "fog of law"

Michael N. Schmitt

• Yearbook of international humanitarian law, Vol. 13, 2010, p. 311-326

English

Bibliographie : p. 326

As the war in Afghanistan and the fight against transnational terrorism wage on with no immediate end in sight, US forces have increasingly turned to drone (technically labelled an unmanned aircraft system or UAS) strikes to target Taliban insurgents and Al Qaeda terrorists, especially in Pakistan’s tribal areas of North and South Waziristan. Despite their evident military utility, controversy has erupted over the operations. Most legal criticism focuses on two issues—the use of drones in other states’ territory and the incidental civilian deaths caused by the drone attacks. The former derives from the jus ad bellum, that aspect of international law restricting the resort to force by states, whereas the latter is based in the jus in bello (international humanitarian law), which governs how combat operations may be conducted. Unfortunately, discourse over these and related issues has evidenced serious misunderstanding of the strictures of international law. This brief article explores both the jus ad bellum and jus in bello implications of drone attacks. It is intended to clear the ‘fog of law’ that surrounds the operations, much of it resulting from either misunderstanding of the weapon system or misinterpretation of the applicable law. The article concludes that there is little reason to treat drones as distinct from other weapons systems with regard to the legal consequences of their employment. Nor is there a sound basis for heightened concern as to their use. On the contrary, the use of drones may actually, in certain cases, enhance the protections to which various persons and objects are entitled under international humanitarian law (IHL).

• Full text : only from ICRC headquarters

• Yearbook of international humanitarian law
• Yearbook of international humanitarian law [Vol. 13, 2010]