Putting lethal force on the table : how drones change the alternative space of war and counterterrorism
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Harvard national security journal, Vol. 8, issue 2, 2017, p. 426-472
Contrary to the prevailing view that drones spare more civilian lives, this article argues that drones place more civilians at risk for the simple reason that drones are used outside areas of active hostilities in civilian populated areas where no other weapon could be used. Many commentators assume that if we were not using drones, we would use some less precise and more destructive alternative, but this assumption is wrong. Drones put lethal force on the table where it would otherwise be absent and highlight the lack of law designed to regulate their use. Because the law of armed conflict was developed for active war zones, it is inadequate to govern drone strikes in areas away from active hostilities. As a result, this article argues that the laws of distinction and proportionality must be reformulated for drone strikes. Rather than focusing solely on the commander’s intent to target enemy combatants, distinction should require a functional analysis of the geographic area to be destroyed by a strike—the death zone. Where the death zone by its nature, location, purpose or use is substantially a civilian object, such as an outdoor market or a civilian apartment building, the death zone as a whole should be deemed a civilian object, regardless of the presence of an otherwise valid military objective, such as an enemy militant.
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