Applying jus in bello proportionality to drone warfare
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Oregon review of international law, Vol. 16, no. 2, 2014, p. 173-224
This article applies the international humanitarian law (IHL) principle of proportionality to the use of unmanned aerial vehicles (UAVs), commonly referred to as drones, by the United States military forces (U.S. Military) and the United States Central Intelligence Agency (CIA) in its armed conflicts in Iraq and Afghanistan and the “war on terror” in places such as Pakistan, Yemen, Somalia, and Mali. Existing cases and commentary regularly assume that proportionality is a one-size- fits-all rule, whether the impugned attacker is a four-star general or a lowly platoon commander. This article asserts that proportionality requires different applications in the cases of high-ranking and low-ranking belligerents. The article also emphasizes how courts and commentators frequently fall into the trap of retrospectively applying casualty statistics to assess the proportionality of an attack, rather than using those statistics to inform the reasonableness of the attacker’s a priori assessment.