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Narrowing the International Law Divide: The Drone Debate Matures

Written by  Michael Schmitt

In late October 2013, two U.N. Special Rapporteurs presented their reports on drone warfare to the U.N. General Assembly. Just days earlier, Amnesty International had published an investigation into drone strikes in Pakistan and Human Rights Watch had issued its examination of such operations in Yemen. The rapid-fire release of complementary investigations captured the attention of the media, of blogosphere aficionados, and of the international law community.

Commentators seized the opportunity to either pillory the U.S. drone program or leap to its defense. The existence of this divide is unsurprising, for international law is inherently ambiguous. After all, such law is the creation of States that are often unwilling to commit themselves to bright-line rules, especially with respect to armed force, lest they limit their scope of discretion. Room for interpretive maneuver results.

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How this maneuver space is understood in the context of drone warfare depends on one’s normative perspective. For instance, States facing terrorist activity will inevitably emphasize their right to self-defense; States into which defensive operations may be mounted and those facing no serious threat will likely tout the impermeability of borders. Such conflicting standpoints contribute, as will become apparent, to a vibrant debate over the parameters of the jus ad bellum (the international law governing the resort to force by States).

Differences in normative perspective similarly plague the jus in bello (inter-national humanitarian law (IHL)) debates surrounding drone strikes. Indeed, IHL is a particularly fertile environment for disparate views since each of its prescriptive norms represents a delicate compromise between a State’s need to conduct military operations effectively (“military necessity”) and its desire to protect its citizens, property, and activities from the ravages of war (“humanity”). Thus, for example, military officers and their civilian counterparts may draw conflicting conclusions as to where the balance lies.

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