Laurie Blank, professor at Emory Law School and director of its International Humanitarian Law Clinic, gives Lawfare the last in the series of guest comments on Mark Mazzetti's New York Times Magazine article, "The Drone Zone." Although the initial hook for a post was Mazzetti's piece, the guest posts have ranged far beyond it, and have mostly focused on the question of the "remoteness" of drone warfare, personal risk to war fighters, and (broadly speaking) the meaning of equality of arms in an era of remote, precision weapons. Earlier posts were offered by Ken Anderson, Geoff Corn, Gabor Rona, Charles Dunlap, and Michael Lewis. Thanks to Laurie for this comment, and thanks to all the guest commenters.
There is a key point woven throughout the previous comments about Mark Mazzetti’s article, but not yet stated bluntly, so I’ll start with that. The law of armed conflict – or international humanitarian law (whichever you prefer) – does not require a “fair fight”. Rather, it requires that each side “fight fairly”. It may seem like a play on words, but it is an essential point.
Nowhere does the law state that you can fight your enemy only with the same set of tactics, manpower, weapons or other tools that he has. Charlie Dunlap’s post details exactly how, throughout history, man has sought to gain an advantage in warfare, and the ability to fight from outside the range of the enemy’s weapons is certainly a highly-sought-after advantage. Add to the list the ability to fly fighter jets above the range of the enemy’s surface-to-air missiles and other defenses. Similarly, nowhere does the law require that one party use only tanks against the other’s tanks, for example, rather than air assets.
What the law does require is that parties to a conflict adhere to the fundamental obligations the law sets forth – that is, fight fairly. With regard to targeting – the key issue lurking behind Mazzetti’s discussion – that means upholding the key obligations of distinction, proportionality and precautions. Drones do not pose particularly grave questions on the basic application of these three central principles: 1) drones enable extensive capabilities for distinguishing between and among targets and innocent civilians; 2) through lengthy and comprehensive surveillance of the target area and pattern of life assessments, drones offer heightened capabilities for gathering and analyzing the information relevant for proportionality considerations; and 3) those same capabilities facilitate the necessary precautions before any weapon is launched.
In some respects, therefore, drones enhance the ability comply with the law, but also emphasize the nature of and questions that accompany asymmetry between the parties to a conflict.
A second point focuses on the interesting interplay about the law that U.S. drone strikes have produced. The Obama Administration has, through a number of top officials, engaged in a remarkably detailed and comprehensive explication – perhaps defense – of how the law applies to a particular strategy and how the U.S. views its obligations under and compliance with the relevant international law. No less than five senior officials, in both legal and policy positions, have made public speeches detailing the government’s view of the legal framework within which it is launching drone strikes in Pakistan, Yemen, Somalia and potentially elsewhere. At the same time, the public clamor for information and legal explanations, notably among the scholarly and advocacy communities, continues unabated, perhaps even stoked by the pronouncements so far. The combination has resulted in a public discourse about international law that now goes far beyond the Beltway, a very positive development.
All of these statements and the attendant discourse have not produced clarity, however. The legal frameworks are clear: during armed conflict, the U.S. can target individuals and objects that qualify as legitimate targets, in accordance with the principles of distinction, proportionality and precautions; when acting in self-defense, the U.S. can target individuals who pose an imminent threat, in accordance with the jus ad bellum principles of necessity and proportionality. What is unclear is which situations fall within armed conflict and which within self-defense. When the U.S. targets a member of al-Shabaab in Somalia, is that part of a broader armed conflict with al Qaeda in which al-Shabaab are associated forces or is it because that individual militant poses an imminent threat to the U.S. that cannot be deterred or eliminated in any other way?
The blurring of legal lines between armed conflict and self-defense raises significant questions about the development and interpretation of the law in several areas, including capture vs. kill, the understanding of proportionality, and the geographical parameters of armed conflict. The Administration does not necessarily have an obligation to specifically delineate in public the legal justification for each strike. But there are consequences for the flexible approach of relying on both justifications in all situations; consequences for how the law is interpreted, applied and developed over time.