The new way of war : is there a duty to use drones ?
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Florida law review, Vol. 67, no. 1, January 2015, p. 1-72
The discussion on drone attacks has focused on whether states have the legal right to deploy drones and to use them. Little attention has been given to the use by the military of drones to carry out attacks in battlefield zones such as Afghanistan, Iraq, and Libya and to the question whether a legal duty exists or ought to exist obligating states that possess drone technology to use that technology on the battlefield. The central claim of this article is that such a duty can, in fact, be derived from the cardinal principles of the law of armed conflict. It suggests that such an interpretation is merited if we accept that drones combine remote use of accurate force that reduces lethality both among friendly forces and innocent civilians. Drones are not, per se, unlawful under LOAC. Rather the critical question is the same for drones as for other types of weapons, i.e., whether the specific use of the weapon complies with LOAC. In this context, the weapon must be deployed in accordance with LOAC’s fundamental principles of humanity, proportionality, distinction, taking precautions, and military necessity. The article applies the general principles of LOAC to drones in three stages. It analyzes the general trajectories of weapons’ development throughout human history, trading off three main considerations, namely distance, accuracy and lethality. It then examines the rise of precision-guided munitions as an attempt to balance these three considerations, increasing military efficiency while minimizing harm to civilians and civilian objects. Looking at drones through the prism of that analysis, the article discusses drones as a combination of remote use of accurate force that reduces lethality and closely examines both the promise that the use of drones may bring to the battlefield as well as the challenges to their deployment.