WASHINGTON - The legality of drone strikes was a recurring theme among panelists speaking on national security and armed conflict at the 22nd Annual Review of the Field of National Security Law, held Friday at the Ritz Carlton in Washington, D.C.
While all the panelists agreed that the issue needed more consideration, Laurie Blank, professor of law and director of the International Humanitarian Law Clinic at Emory University School of Law discussed how drone capabilities exceed the requirements set out in the military’s Law of Armed Conflict (LOAC). However, she noted that issues related to intelligence gathering and the classification of conflicts could cause problems in the future.
Rules govern the use of weapons under the law of armed conflict. The first is the law of targeting. This states that, in using the weapon, U.S. armed forces must be able to distinguish between those fighting and innocent civilians. With drones, said Blank, the armed forces are able to make these distinctions with much greater accuracy that ever before.
The same is true of the second law, that of proportionality. Under this requirement, the military must gauge whether an attack will have an unduly high rate of civilian casualties in relation to the military advantage gained by attack. Drone attacks, according to Blank, are launched after gathering a great deal of intelligence. She notes that the military requires extensive surveillance for days before a strike can be ordered. This “pattern of life" analysis is conducted to determine what innocent civilians may be nearby a target.
“The mass media creates a perception of robots in the sky that have no connection to events on the ground,” said Blank. “This is the opposite of what happens with unmanned aircraft.”
However, Blank notes that other aspects of the LOAC could muddy the waters on the legality of drone strikes. For example, the law requires that, before launching an attack, the military must process all the available information to a degree that is “reasonable.”
This part of the law, which was written assuming that the military would never have all the information on a target, was designed to allow attacks based on the best available intelligence. “What happens with drones, now that we have too much information?” asked Blank. “What is reasonable in terms of processing that information?”
Blank also says that the Obama Administration has used conflicting rationales for the use of drone strikes. She notes that Defense Secretary Leon Panetta has publicly stated that the U.S. uses drones in its ongoing armed conflict with Al Qaeda and also that the drones are necessary for self-defense. These are two very different types of engagements, notes Blank, and they both have different requirements. “If you are in an armed conflict, you can kill rather than capture,” she said. “In self-defense, you must try and capture first.”