We will have two final posts in our discussion sparked by Mark Mazzetti’s New York Times Magazine article, The Drone Zone. This one by Michael Lewis, a former Navy fighter pilot and now professor at Ohio Northern State University Pettit College of Law, who is a frequent guest poster at Opinio Juris and other blogs on the laws of war. Thanks to Mike for this. (Earlier chain: Anderson original post; Corn; Rona, Dunlap.)
Mark Mazzetti, like many other journalists writing about drones, seems taken with the idea that these technologies are something new as a strategic matter. They’re not; drones just offer a new, shiny version of a very old concept: remote warfare. In reality, though, not only has remote warfare been with us since the dawn of military history – likewise the social stigma discussed by many of the commenters attached to being a “remote warrior” has often gone along with it. The archers at Agincourt were considered to be unchivalrous and socially inferior by the French knights they defeated. Napoleonic-era generals favored the cavalry charge with sabers and lances and openly despised (see the Duke of Wellington) most of their own infantry. Even in WWI the French doctrine of attaque á outrance which called for massed infantry bayonet charges in the face of machine guns was emulated by German, British and Russian generals out of a belief that this was how true warriors behaved. (I have often wondered whether in today’s world there would be any legal theory under which generals like Foch, Hague and Falkenhayn could be charged with a war crime for getting so many of their own conscripts killed out of some misguided sense that the military ethos demanded such sacrifice).
Now Mazzetti wants us to mourn the fact that our military may no longer require some of the daredevil “heroics” performed by the likes of Col. Stapp and Capt. Kittinger. The quotes around the word heroics is not meant to in any way disparage the bravery of these men or many others who risked (and in many cases gave) their all both in training and combat. I have just known too many people that have died in aviation to mark this development with anything other than relief. Drones will not eliminate the need for manned aircraft and the risks associated with them, but to the extent that they lessen the requirement for men to take such risks, that is a good thing.
And contrary to Gabor’s under-application concern, I believe it is generally a good thing for the civilians on the ground as well. While US claims of zero civilian casualties from drone strikes are justifiably questioned, I think there can be little doubt that drones have proven to be the most discriminating counterterrorism tool currently available. This is due in large part to the fact that drones eliminate the need for accurate split-second decision making by someone whose life is on the line, and because they allow many more trained eyes (of JAG’s and senior military commanders) to assess a shot before it is taken. There is every indication that the requirement for such assessment is taken seriously at all levels of the military. (I would strongly recommend this article from last Friday’s NY Times on the way manned aircraft are currently utilized in Afghanistan; this is definitively NOT how close air support was conducted 15 years ago).
Gabor’s over-application concern is more interesting. Who is expanding the application of IHL to places like Yemen, Somalia or even Mali at the expense of human rights law? Is it the United States that relies upon IHL to govern its use of force? Or is it al Qaeda and “associated forces” (Gabor’s derision of this term implies that AQAP could perhaps legally benefit by changing the name on the return address label on its next toner cartridge bomb) that seek sanctuary in such places while continuing to plot attacks on the United States? I believe it is the latter. Even if Gabor is right and it is the US that is undermining IHL by abiding by its limitations in places like Yemen and Somalia, his concern that such actions encourage men like Radislav Krstic, Ratko Mladic and Bashar al-Assad to ignore IHL seems far-fetched. It is impossible to imagine such men being constrained by anything other than force.
Lastly, there seems to be an unspoken undercurrent present in much of the criticism of “zero-casualty” warfare being governed by IHL rather than human rights law. I have not seen this explicitly stated, but there is a sense that if we can wage a zero-casualty war then it can no longer be considered war. After all, even law enforcement is not a zero casualty proposition. But there is a fallacy in judging the existence of a conflict by focusing solely upon the number of casualties that the US military is taking. To the extent that we are helping the Yemeni military in their struggle with AQAP, how many Yemeni soldiers have been killed? How many Yemeni civilians? How many serious attempts to kill American civilians has AQAP engaged in and how many people did they put at risk? It is when these numbers approach zero, not just when US military casualties approach zero, that IHL should no longer be applied. If AQAP were not engaged in a conflict with the Yemeni government, we might have approached that point already, but that is not the current situation.