One of the difficulties with the debate on drones is that it has become a sort of lightning rod for all kinds of anxieties about the use of force in today’s world. Drones are, often problematically, the emblematic weapon for a range of other phenomena, and unsurprisingly, attract much polemic. The challenge, therefore, is to find the specific problem with drones as a technology in armed conflict that could not be dealt with better by invoking a larger genus of problems. To do this, this Article outlines ways in which drones have been seen as problematic, which this Article argues are either not specifically humanitarian or are really dealing with something else such as what the legal framework applicable to the War on Terror should be. Separating these very important debates from the humanitarian questions about drones is crucial to making conceptual headway. This Article then examines whether drones have any specific or inherent characteristics that other weapons lack and addresses whether one such characteristic is a drone’s ability to cause unwarranted harm to civilians. It seeks to explain how, regardless of the answer to that complicated question, drones are much more likely to be perceived as inflicting excessive damage due to their highly discriminatory potential but also, crucially, the way in which they maximize the safety of the drone operator. Drones’ unique ability to ensure the absolute safety of the operator not only maximizes States’ ability to minimize collateral harm, as has already been observed elsewhere, but also has the potential to fundamentally alter the laws of war’s tolerance for collateral harm, which it is argued was always based on the assumption of a tradeoff between harm to the attacker and to “enemy civilians”—a tradeoff that has now been rendered moot. Moreover the one-sidedness of drone warfare in many cases goes to the heart of the humanitarian compact in that it makes one side to a conflict entirely vulnerable to the other. The Article then attempts to contextualize the drone problem within a larger history of exogenous technological shock to international humanitarian law. It finishes with a reflection on how anomalous drone warfare is, and in particular whether it manifests a radical novelty or reconnects with old themes already evident in colonial warfare. Overall, the Article is interested in determining not so much whether drone use may or may not be “legal,” than more broadly, how it impacts some of the moral underpinnings of the laws of war.
2013 ULR 1283 (2013)