Law from above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict

The United States employing armed unmanned aerial systems (UAS) or “drones” against al qaeda and Taliban targets in northwest Pakistan continues to spur discussion and disagreement. Some label UAS “armed robotic killers,” while others describe them as providing a much greater degree of distinction between intended targets and the surrounding population and infrastructure, thus limiting civilian casualties and property damage. The overt disagreement as to whether the strikes are legal masks that the discussants are utilizing wholesale different methodologies, talking past each other in the process. The origin of this divergence is to what extent the law of armed conflict or human rights law applies to the use of force through the U.S. engaging targets in Pakistan with UAS. As a result, the same missile strike may be viewed as “killing the enemy” or extrajudicial killing, targeted assassination, and outright murder. Against that backdrop, the U.S. Air Force (USAF) recently graduated its first pilot training class which did not receive flight training – the graduates are heading not for the cockpit but to the controls of a UAS. The USAF trained more UAS pilots than fighter or bomber pilots in 2009 and its proposed budget for 2011 would double UAS production, resulting in ordering more UAS than manned aircraft. Over 40 countries employ UAS, including China and Iran, as well as non state actors such as Hezbollah. The ubiquitous nature of UAS will only grow, as will their capabilities. What is less certain is whether baseline agreement can be reached as to the applicable legal framework through which to disagree on employing UAS. This article seeks to add clarity to the conversation by outlining the different levels of analysis utilized to assess UAS strikes as a use of force and how those levels lead to disagreement and misunderstanding well beyond differing conclusions on legality. This article examines the permissibility of armed UAS strikes through two normative constructs: jus ad bellum, the law government resorting to force, and jus in bello, the law governing the actual conduct of a UAS strike. How one characterizes the conflict in Pakistan, internally and viz the United States, and whether Pakistan has consented to the strikes, trigger different analytical frameworks, but this article asserts the conclusion is the same – that the UAS strikes are lawful. Yet ultimately, the current discourse demonstrates that constructive dialogue is needed, not just on UAS strike legality, but on the appropriate methodology by which such conclusions are reached