Drones And The Boundaries Of The Battlefield Summary

TEXAS INTERNATIONAL LAW JOURNAL

Volume 47, Issue 2

Drones and the Boundaries of the
Battlefield
MICHAEL W. LEWIS
SUMMARY
INTRODUCTION ............................................................................................................... 294
I.

DRONE USE IN A COMBAT ENVIRONMENT ...................................................... 296
A. Capabilities................................................................................................... 296
B. Limitations ................................................................................................... 298
C. Drones and the Boundaries of the Battlefield ........................................... 299

II.

COMPETING VIEWS OF THE SCOPE OF IHL ......................................................
Id. r. 39.
5. Id. r. 29(vi).
6. See, e.g., Rise of the Drones II: Examining the Legality of Unmanned Targeting: Hearing Before the Subcomm. on Nat’l Sec. & Foreign Affairs of the H. Comm. on Oversight & Gov’t Reform, 111th Cong.
32 (2010) [hereinafter Drones II] (prepared statement of David W. Glazier, Professor of Law, Loyola Law
School L.A.), available at http://www.fas.org/irp/congress/2010_hr/drones2.pdf (warning that “CIA personnel are civilians, not combatants, and do not enjoy any legal right to participate in hostilities”); Rise of the Drones II, supra at 20 (prepared statement of Mary Ellen O’Connell, Robert and Marion Short
Chair in Law, Univ. of Notre Dame) (arguing that unmanned drones are “battlefield weapons,” and as such should not be used outside of “combat zones”); Rise of the Drones II, supra at 44–46 (prepared statement of William C. Banks) (describing how legal authority for use of drones in targeting can be found in existing law governing armed conflict but urging modernization of policy and law); Rise of the Drones
II, supra (statement of Michael W. Lewis, Professor of Law Ohio N. Univ. Pettit College of Law), available at http://oversight.house.gov/images/stories/Hearings/pdfs/LewisDrones.doc (“In
To achieve the same unbroken surveillance of a potential target offered by a single drone, multiple manned aircraft would be needed to avoid losing track of the target when the aircraft left its station to refuel. This makes drones an ideal surveillance and striking weapon in counterinsurgency or counterterrorism operations, where the targets are usually individuals rather than objects.16
Another operational advantage that drones provide is greater legal compliance with IHL’s requirements of military necessity and proportionality. Although many of the early criticisms of drones were directed at their allegedly indiscriminate nature, which purportedly resulted in disproportionate civilian casualties,17 the reality of drone strikes is that they provide many more opportunities for disproportionate attacks to be halted prior to weapons employment. For manned aircraft both the target identification and the final proportionality decision are left in the hands of one or two crewmembers whose attention is divided between flying the aircraft, looking for (and possibly evading) surface-to-air missiles and ground fire, identifying the target, assessing the proportionality of the attack, and accurately delivering