The Legitimacy of Drones:

UCAVs for Cross-Border Counterterrorism

Forthcoming: 2015
Publisher: Ashgate
Series: Emerging Technologies, Ethics and Int’l Affairs

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“[W]hen we cannot explain our efforts clearly and publicly, we face terrorist propaganda and international suspicion, we erode legitimacy with our partners and our people and we reduce accountability in our own government.”

<em>– President Barak Obama</em

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Do counterterrorism policies need to be perceived as legitimate? Positing an affirmative response, this book explores the legitimacy of exercising lethal force across international borders with the emerging technology of unmanned combat air vehicles (UCAVs). To do so, the esteemed and rising scholars of this volume will analyze the essential questions by peering through the conceptual lenses of legality, morality and efficacy.

The use of combat drones is here to stay. Yet their use being recognized as legitimate is of importance, particularly if we consider the hypothesis that the legitimacy of a government has become a target in asymmetrical conflict. In other words, individuals or groups who wish to attack the much more powerful state using terrorist tactics must move the conflict off the traditional battlefield where they are at an enormous disadvantage. A ‘strategy of provocation’ is thus employed to goad an overreaction, or abuse of power, eroding the legitimacy of the ruling government. The use of a developing technology that is poorly understood by the citizens of governments which deploy them in their name, along with the societies menaced by them, has the alarming potential to eat away at government legitimacy.

Chapter Outline

Through the Lens of Legality – Formal Validity

Jus ad bellum: Crossing Borders to Use Force against Individuals

– Christian Tams (Professor, University of Glasgow)

Who Can Be Killed?: Legal Targets in Non-International Armed Conflicts

– Patrycja Grzebyk (Assistant Professor, Warsaw University)

Boundaries of the Battlefield: The Geographical Scope of the Laws of War

– Katja Schöberl (Legal Advisor, German Red Cross)

Lethal Force with Drones: The Human Rights Question

– Gloria Gaggioli (Legal Adviser, ICRC)

– Jelena Pejic (Senior Legal Adviser, ICRC)

Through the Lens of Morality – Axiological Validity

What Can We Learn from History?: Machiavelli and the Debate on Artillery

– Alexis Keller (Professor, University of Geneva)

The Question of ‘Imminence’: A Historical View on Anticipatory Attacks

– Steven J. Barela (Assistant Professor, University of Geneva)

Correcting the Record: Civilians, Proportionality and Jus ad Vim

– Avery Plaw (Associate Professor, UMass-Dartmouth)

Clean War v. Just War

– Delphine Hayim (Post-Doc Fellow, University of Geneva)

Through the Lens of Efficacy – Empirical Validity

Data on Leadership Targeting and Potential Impacts for Communal Support

– Jenna Jordan (Assistant Professor, The Sam Nunn School of Int’l Affairs)

Tactical Efficacy: Notorious UCAVs and Lawfare

– Marek Madej (Assistant Professor, Warsaw University)

Strategic Efficacy: The Opinion of Security and a Dearth of Data

– Steven J. Barela (Assistant Professor, University of Geneva)

Systemic Efficacy: “Potentially Shattering Consequences for International Law”

– Robert Kolb (Professor, University of Geneva)

Offense and Defense: Debating a Drone Court

Establishing a Drone Court: Restraints on the Executive Branch

– Amos Guiora (Professor, University of Utah and former JAG lawyer for IDF)

– Jeffrey S. Brand (Dean and Professor of Law Emeritus, University of San Francisco)

A Liberal Grand Strategy: Defending the Rule of Law

– Frédéric Bernard (Lecturer, University of Geneva)

– Tom Farer (Professor and Former Dean, Korbel School of Denver University)

Chapter Details & Biographical Sketches

Jus ad bellum: Crossing Borders to Wage War against Individuals

Although the ban on the use of force across borders has been described as the ‘cornerstone’ of the contemporary international system, the precise scope of the legal rules governing this prohibition is by no means beyond debate. The UN Charter lays down the legal framework, but the contours of the current interpretation of this shifting regime must be explored to understand where the law stands today. As the particular use of armed drones has become a publicly recognized truth, this chapter will argue that over the last 25 years the legal rules have been re-adjusted to permit forcible counterterrorism under more lenient conditions. Nevertheless, the risks posed by current practice might indeed compel further readjustment to a legal regime undergoing stress as this act of force becomes more common.
Christian Tams is Professor of International Law at the University of Glasgow and currently holds the Vincent Wright Visiting Chair at Sciences Po Paris. He is a member of the ILA Committee on the Use of Force and sits on the scientific advisory board of the EJIL. In addition to his academic work, he has advised states in proceedings before the International Court of Justice and the International Tribunal for the Law of the Sea.

Who Can Be Killed? Targets in Non-International Armed Conflicts

Combat drones are weapons, and not unique from a legal point of view. However, there continue to be particular difficulties in identifying legal targets in non-international armed conflicts and this chapter addresses those challenges. It delves into the problems related to the principle of distinction between those engaging in hostilities (members of armed groups with a continuous combat function) and civilians who do not directly participate. Additionally, there will be a discussion of the elimination v. the neutralization of legitimate targets –i.e. the obligation to capture if possible.
Patrycja Grzebyk is an Assistant Professor at the University of Warsaw and holds a doctoral degree in law and international relations. She is the author of a monograph on Criminal Responsibility for the Crime of Aggression, Routledge 2013 (Polish version of this book was awarded with Manfred Lachs Price) and has published over 30 other articles.

Boundaries of the Battlefield: The Geographical Scope of the Laws of War

The use of armed drones in operations labelled as counterterrorism has raised important questions about where one can properly apply the rules of international humanitarian law. This has become of particular consequence as UCAVs have made it easier for armed conflict to be conducted well beyond the traditional combat zone, and perhaps without any territorial limit. This contribution gives an overview of the debate and subsequently analyzes the geographical scope of international and non-international armed conflicts both within and outside the territory of belligerent States. It thereby focuses on a possible extraterritorial application of the law of non-international armed conflicts.
Katja Schöberl is a Legal and Dissemination Advisor at the German Red Cross, Berlin. She has also worked for the ICRC and the Geneva Academy of IHL and HR. She has published on the geographical scope of the law of armed conflict in English and German and is currently completing her Ph.D. in law under the supervision of Marco Sassòli on this topic.

Lethal Force with Drones: the Human Rights Question

Armed drones are being used – and are likely to be increasingly used – in situations in which the rules on the conduct of hostilities provided for in international humanitarian law do not apply. This can occur when force is used outside of armed conflict situations, but also, in certain cases, in the context of an ongoing armed conflict. It is often stated that the use of lethal force by means of drones in such scenarios is covered by the law enforcement paradigm mainly derived from human rights law. The practical and legal consequences of this position remain unexplored however: beyond the issue of extraterritorial application of human rights law, can drone attacks be used in law enforcement? Can they (ever) respect the principles of absolute necessity and proportionality? How can an escalation of force procedure be applied in such situations? These are some of the key questions this chapter will investigate.
Jelena Pejic is Senior Legal Adviser at the ICRC’s Legal Division. She holds an LL.M. degree from Columbia University Law School and a degree from Belgrade University Law School, where she was also a lecturer. She has written and presented extensively on various issues of international humanitarian law, human rights law and criminal law.
Gloria Gaggioli serves as a Legal Adviser at the ICRC’s Legal Division. She works on the use of force in armed conflicts, and notably the interplay between the conduct of hostilities and law enforcement paradigms. She published her doctoral work as a book on this subject with Pedone in 2013.

The Question of ‘Imminence’: An Historical View on Anticipatory Attacks

Although there is general agreement that an anticipatory attack can be used to thwart an imminent strike, President Obama’s top counterterrorism advisor has explained, “the question turns principally on how you define ‘imminence’”. This chapter will discuss a revealing bifurcation in the just war doctrine that occurred in the seventeenth century on this very question. This historical moment, and the ideas advanced in that context which helped to give birth to international law, illuminate the distorting definition given to this critical standard by the Obama administration (following directly in the steps of its predecessor). Because there is indeed an overlap between legal positivism and natural law due to the universally shared goal of survival, it is possible to discern the untenable interpretation of ‘imminence’ being used in the US targeted killing program today.
Steven J. Barela is an Assistant Professor at GSI, University of Geneva

Correcting the Record: Civilians, Proportionality and Jus ad Vim

Some critics have forcefully rejected US officials’ claims that drone strikes away from conventional battlefields meet applicable standards of proportionality on the basis that they do not appear compliant with the requirements of Jus ad Vim (referring to a set of developing rules to regulate the just use of force short of war). The case advanced by these critics involves two key claims: (1) the relevant standards for assessing these strikes are those which they envision for Jus ad Vim; and (2) US drone strikes away from conventional battlefields actually fail to meet the standard they envision for Jus ad Vim. This chapter shows that both claims are doubtful. Moreover, it argues that critics’ resort to this elevated Jus ad Vim standard reflects a grudging recognition that the best available evidence generally supports the claims of US officials that the great majority of drone strikes kill no civilians. Likewise, it is far from clear that the cases in which civilians are killed constitute violations of the more conventional jus ad bellum standard of proportionality. The key issue then is not how proportionality should be assessed for Jus ad Vim, but whether the US has compelling grounds for invoking the more conventional jus ad bellum standards.
Avery Plaw is an Associate Professor of Political Science at UMass-Dartmouth specializing in political theory and international relations, with a particular focus on strategic studies. He published a book in 2008 entitled Targeting Terrorists: A License to Kill? in Ashgate’s Ethics and Global Politics series, and he’s currently co-editing a collected volume entitled the Metamorphosis of War (Oxford: Inter-Disciplinary Press).

Clean War v. Just War

This chapter will posit that the clean war doctrine is progressively supplanting the just war theory as a moral and legal justification for armed conflicts. In other words, cleanliness of effects is replacing the legality/legitimacy of the cause. Technologies for conducting warfare are altering the nature of conflict in that public acceptance of war is now garnered through faith in scientific advances, trust in experts and the use of medico-surgical terminology. This chapter will attempt to grasp to what extent this clean war doctrine leads to a redefinition, or at least to a new interpretation of, international humanitarian law rules and principles. And considering the prospects for developing entirely automated and robotized wars, there will be a highlighting of the moral dimension of the clean war doctrine and the ethical problems that are closely intertwined with the emergence of (semi)-autonomous weapons.
Delphine Hayim is a post-doctoral fellow at the Law Faculty of the University of Geneva. She holds a LL.M. from the Geneva Academy of IHL and HR and a PhD in international law from the Graduate Institute (Geneva). Her current work focuses on the effects of the new generation of warfare devices on the nature of contemporary armed conflicts.

Tactical Efficacy: Notorious UCAVs and Lawfare

This chapter will start with a brief overview of the current state of technological development of UAVs in use worldwide. Then the actual and potential advantages and limitations of that category of military equipment will be discussed, with particular attention devoted to decisive factors for their effectiveness as a tool of disruption and elimination of targets assumed hostile (combatants, terrorists). To conclude, the question of so-called ‘lawfare’ against entities using drones will be considered, with an analysis of practical implications for tactical efficacy of UAVs operations, including the implications of such weapons becoming more autonomous.
Marek Madej is an Assistant Professor at the University of Warsaw. His main areas of expertise include NATO affairs, terrorism and other asymmetric threats posed by non-state actors to state security, including technological aspects and the question of the privatization of war. He is the author of two monographs and numerous articles on these issues.

Strategic Efficacy: The Opinion of Security and a Dearth of Data

The primary objective of counterterrorism is to increase security for the targeted population. Yet this concept was properly spotlighted as subjective by Montesquieu; “[p]olitical liberty consists in security, or, at least, in the opinion that we enjoy security.” With such recognition, we begin to understand the immense difficulty in putting forward a scientific measurement of strategic efficacy. Additionally, a US program cloaked in secrecy, and largely taking place in some of the world’s most remote regions with little or no independent journalism, has led to a constellation of data that is thus far impossible to collate systematically and completely. Hence this chapter will present and analyze suggested proposals by scholars to illuminate the currently insurmountable impediment to definitive conclusions on this pressing question.
Steven J. Barela is an Assistant Professor at the GSI, University of Geneva

Systemic Efficacy: “Potentially Shattering Consequences for International Law”

International jurist Antonio Cassese identified “potentially shattering consequences for international law” in the UNSC Resolutions passed in the aftermath of the attacks of 9/11. His concern was that they introduced a disruption of crucial legal categories, and this disquiet becomes amplified with the use of drones employing lethal force across international borders. This chapter will address what this strain means to the global structure as we know it. In other words, even if the use of drones were shown to be tactically and strategically efficacious, the resulting damage to the international system could negate such theoretical gains. Under discussion in this chapter is the history of the contemporary global system and the disturbance caused between the bodies of international law that come into play with such action.
Robert Kolb has taught at the Geneva Academy of IHL and HR, as well as the Catholic University of Milan, and was appointed as a Professor at the University of Geneva in 2007. He has worked as a legal advisor for the ICRC and in 2011 acted as a counsel for the German Government in the Jurisdictional Immunities case (Germany v. Italy) at the ICJ.

Data on Leadership Targeting and Potential Impacts for Communal Support

Leadership targeting has become a key feature of current counterterrorism policies with both academics and policy makers arguing that the removal of leaders is an effective counterterrorism strategy. However, leadership decapitation is not always successful, and existing empirical work is insufficient to account for this variability. In this chapter, a new dataset on leadership targeting will be examined and it will be argued that decapitation has not been an effective counterterrorism strategy in the past. The role that communal support plays in understanding organizational resilience will also be discussed to broach the overall efficacy of drone strikes. Communal support is essential to the ability of a terrorist group to withstand attacks on its leadership; it provides the resources necessary for a terrorist group to function, survive, and avoid detection by security forces. In particular, “signature” strikes will be discussed within this theoretical model to show that not only are they unlikely to result in the long term decline of militant and terrorist organizations, but they may have the counterproductive consequence of bolstering local support for the militants cause.
Jenna Jordan is an assistant professor in the Sam Nunn School of International Affairs at the Georgia Institute of Technology. Her research interests include terrorism, population transfers, attachment to territory, and international security. Her book manuscript focuses on the leadership decapitation of terrorist organizations. Jordan received her Ph.D. in political science from the University of Chicago, M.A. in Political Science from Stanford University.

The Establishment a Drone Court

The combination of broad definitions of imminence and new technological capabilities drastically affects the implementation of targeted killing based on legal and moral principles. To both minimize collateral damage and enhance narrow application of a target-specific, criteria-based drone policy, it is recommended that Congress create a Drone Oversight Court. By applying a strict scrutiny standard this court would minimize intelligence-based mistakes in operational counterterrorism thus contributing significantly to conducting operational counterterrorism in accordance with the Rule of Law. Accordingly, this step forward would allow for attacks on legitimate targets while ensuring that such offensive measures are legal, moral and ultimately effective.
Jeffrey S. Brand joined the faculty at USF School of Law in 1986 and was the 17th dean of the USF School of Law from 1999-2013. Additionally, he continues to serve as the Chairman of the Center for Law and Global Justice. His scholarly and professional work has focus on human rights, global justice, constitutional law, and various civil procedure and evidence issues, including recovering statutory attorney’s fees in civil rights actions.
Amos Guiora is Professor of Law and Co-Director of the Center for Global Justice at the S.J. Quinney College of Law at the University of Utah. He served for 19 years in the Israel Defense Forces as Lieutenant Colonel (retired) and held senior command positions, including Commander of the IDF School of Military Law and Legal Advisor to the Gaza Strip.

A Liberal Grand Strategy: Defending the Rule of Law

In the wake terrorism, governments often enact policies designed to prevent any recurrence. This “post-terrorist” logic aims at intervention as early as possible in a circumstance of facts that may –or may not– lead to a future terrorist act. This can lead to the weakening of principles such as the presumption of innocence, the right to liberty or the prohibition of torture. The use of drones preemptively killing individuals deemed to be threats, without any guarantee of due process or certainty that they are directly participating in hostilities, also illustrates such compromising of principles. In doing so, a state jeopardizes what makes it a democracy governed by law. To avoid an erosion of government legitimacy, a state must first defend the rule of law by accepting a certain amount of risk that no democracy can exist without, while still offensively tightening security where it can make substantive advances.
Frederic Bernard, is a lecturer at the University of Geneva, and is admitted to the Geneva Bar. He published his doctoral dissertation on the relationship between the rule of law and the fight against terrorism (Schulthess, 2010), along with several articles on the subject.
Tom Farer is University Professor, Josef Korbel School of International Studies, University of Denver (2010-present), Dean of the Josef Korbel School (1996-2010) and Director, Center for China-United States Cooperation. His most recent publication on this question is entitled Confronting global terrorism and American neo-conservatism: The framework of liberal grand strategy with Oxford University Press (2008).

Added Value to the Literature

This book will provide an added value to the literature on this subject by investigating the questions at stake with a coherent interdisciplinary approach to analyze one of the central concerns in contemporary asymmetrical conflict; what is the legitimate use of UCAVs for counterterrorism? The intention is to provide a truly interdisciplinary book for students and researchers alike who understand that the complex and essential subject of legitimacy cannot be properly addressed without attention to the various fields of study which are touched by this novel technology deployed in the most remote areas of the globe.

It will use international law as its foundational framework with nearly all of its contributors credentialed or deeply grounded in the discipline. Government officials, diplomats and common citizens alike are increasingly looking to the norms of international law to begin their assessment of legitimate force across borders, particularly as the technology of UCAVs presents the possibility that the geographical scope of such action is unbounded. Thus an accessible text for a more general public, authored by experts in law without becoming arcane, will surely occupy its share of the market.

This book will first be divided into three sections of formal validity (law), axiological validity (morals) and empirical validity (effectiveness). This structure will help achieve two specific goals. The first is to consciously separate the work into clear disciplinary lines to illuminate the various questions at stake from important and valid perspectives. The second, made possible with the sharp distinctions in place, is to then promote dialogue between the disciplines so as to explore the space in which they interact. The book will then provide a final section investigating the tension created between offensive and defensive measures. The conceptual framework, submitted as an added value to the literature, is organized as follows:

Legality – Formal Validity

To lay the foundation of formal validity we begin with the undeniable strength behind the logic of legal positivism. Due to the ever increasing technicality and complexity of legal doctrine, and the deliberate use of law as a steering mechanism for societies, the modern state has commonly turned to legal codification (a domestic and international trend since the Second World War). Thus this section will analyze the applicable legal treaties, customary law as evidenced by state practice, general principles of law and opinio juris to peer through the lens of legality.

Morality – Axiological Validity

Nonetheless, to assert that black-letter law is sufficient, or that the sphere of morality shares no space with legality, eclipses a central feature of legitimacy: its inherent integrative nature. To speak about legitimacy in a thorough manner one needs to not only address the questions of axiological validity, but also where there is conceivably overlap with the more formal questions of legality. In other words, attention here will be focused on what consummate positivist H.L.A. Hart has called “the minimum content of Natural Law” as the unstated assumption that all human activity is properly understood as perpetuating survival. As lethal force is the most grave and disturbing facet of the use of armed drones and terrorism alike, the destruction of human life poses problems that cross disciplinary boundaries since there is an overlap of legality and morality in the prohibition of free, unconstrained violence. It is with such an approach that this section will gaze through the lens of morality.

Efficacy – Empirical Validity

While at first glance the realm of efficacy is often considered to be straightforward, this sphere is tremendously complex and deceptively simple. The fact that empirical research questioning the effectiveness of drones can arrive at opposite conclusions can be the result of a divergence in the definition of the desired outcome, a difficulty with lines of causality, the introduction of counterfactual claims and a dearth of empirical evidence. To avoid sweeping assertions of little utility, the authors will remain measured and modest in their assessment of empirical validity. Additionally, this section will be divided into chapters on ‘tactical efficacy’, ‘strategic efficacy’, ‘systematic efficacy’ so as to delineate some of the results as we look through the lens of efficacy.

Offense and Defense: Debating a Drone Court

If the legitimacy of a government is a battleground in conflicts waged by non-state actors, exercising force that does not compromise citizens’ pull towards compliance to the regime in office is about defending this target. At the same time, there is a legitimacy in pursuing, and attacking if necessary, those who are directly involved in hostilities against the government. In the final section of this book we will debate the option of a drone court to authorize the use of such lethal force and discuss how this might reconcile or ease this tension between counterterrorism offense and defense.

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