Putting Lethal Force on the Table: How Drones Change the Alternative Space of War and Counterterrorism

Contrary to the prevailing view that drones spare civilian lives, this paper argues that drones actually place more civilians at risk. The reason is simple: drones are used outside areas of active hostilities in civilian populated areas where no other weapon could be used. The oft-repeated mantra that drones are more precise and less destructive and therefore spare more civilian lives rests on a false comparison. Many commentators wrongly assume that if we were not using drones, we would be using some less precise and more destructive alternative, such as cruise missiles. Apart from the difficulties in deploying cruise missiles covertly and their inability to strike with drone accuracy, cruise missile strikes in civilian populated areas would almost certainly violate the laws of distinction and proportionality and, even if technically legal, would be politically unpalatable. Drones thus put lethal force on the table where it would otherwise be absent and they 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, the laws of distinction and proportionality, which govern the use of lethal military force, 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. Once a target satisfies distinction, our assessment of proportionality should take into account not only the civilian casualties likely to result from the strike, but also the strategic costs and negative secondary effects of deploying aerial strikes in civilian areas