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Targeted killing by remote-control with unmanned drones may be the future face of war. Drones reduce the cost of using force, and tempt states to resort to force more readily. Legitimacy and Drones brings together a multinational group of scholars to ask all the right questions—when are drones lawful, ethical, and effective, and what limits must be imposed on their use. An invaluable collection on one of the most pressing issues of our time.

— David Cole, Georgetown University Law Center, USA

This timely, rich and occasionally provocative volume will help set the parameters of debate and legal reflection on the vital questions posed by the use of drones, not least the fundamental relationship between legality, morality and legitimacy.

— Philippe Sands QC, University College London, UK

Unmanned combat air vehicles, or in common parlance “drones”, have become a prominent instrument in US efforts to counter an objective (and subjective) cross-border terrorist threat with lethal force. As a result, critical questions abound on the legitimacy of their use. In a series of multidisciplinary essays by scholars with an extensive knowledge of international norms, this book explores the question of legitimacy through the conceptual lenses of legality, morality and efficacy; it then closes with the consideration of a policy proposal aimed at incorporating all three indispensable elements.

The importance of this inquiry cannot be overstated. Non-state actors fully understand that attacking the much more powerful state requires moving the conflict away from the traditional battlefield where they are at an enormous disadvantage. Those engaging in terrorism seek to goad the ruling government into an overreaction, or abuse of power, to trigger a destabilization via an erosion of its legitimacy. Thus defending the target of legitimacy—in this case, insuring the use of deadly force is constrained by valid limiting principles—represents an essential strategic interest.

This book seeks to come to grips with the new reality of drone warfare by exploring if it can be used to preserve, rather than eat away at, legitimacy. After an extensive analysis of the three key parameters in twelve chapters, the practical proposition of establishing a “Drone Court” is put forward and examined as a way of pursuing the goal of integrating these essential components to defend the citizenry and the legitimacy of the government at the same time.

Table of Contents

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Introduction: Legitimacy as a Target

Steven J. Barela

1. Through the Lens of Legality—Formal Validity
   1. Jus ad Bellum: Crossing Borders to Wage War against Individuals
      • Christian Tams
      • James Devaney
   2. Who Can Be Killed?: Legal Targets in Non-International Armed Conflicts
      • Patrycja Grzebyk
   3. Boundaries of the Battlefield: The Geographical Scope of the Laws of War
      • Katja Schöberl
   4. Lethal Force and Drones: The Human Rights Question
      • Gloria Gaggioli
2. Through the Lens of Morality—Axiological Validity
   5. Old Ideas in New Skins: The Sixteenth Century Debate on Artillery
      • Alexis Keller
   6. The Question of “Imminence”: A Historical View on Anticipatory Attacks
      • Steven J. Barela
   7. Correcting the Record: Civilians, Proportionality, and the Jus ad Vim
      • Avery Plaw
      • Carlos R. Colon
   8. From Just War to Clean War: The Impact of Modern Technology on Military Ethics
      • Delphine Hayim
3. Through the Lens of Efficacy—Empirical Validity
   9. Data on Leadership Targeting and Potential Impacts for Communal Support
      • Jenna Jordan
   10. Tactical Efficacy: “Notorious” UCAVs and Lawfare
       • Marek Madej
   11. Strategic Efficacy: The Opinion of Security and a Dearth of Data
       • Steven J. Barela
   12. Systemic Efficacy: “Potentially Shattering Consequences for International Law”
       • Robert Kolb
4. Creating a Drone Court—Integration via a Policy Proposal
   13. Establishment of a Drone Court: A Necessary Restraint on Executive Power
       • Amos N. Guiora
       • Jeffrey S. Brand
   14. Can UCAVs be Reconciled with Liberal Governance?: The Substantive Law of a Drone Court
       • Tom Farer
       • Frédéric Bernard

Conclusion: Defending Legitimacy

Steven J. Barela

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This interdisciplinary book explores how those who employ terrorist tactics across international borders intend to achieve their strategic goals by targeting a government’s legitimacy. The dramatic increase in global cooperation throughout the twentieth century—between international organizations and their state missions of diplomats, foreign officers, international civil servants, intelligence officers, military personnel, police investigators, judges, legislators, and financial regulators—has had a bearing on the shape and content of the domestic political order. The rules that govern all of these interactions, and the diplomats engaged to monitor and advocate for compliance, have undergone a mushrooming development following the conclusion of each world war. This dramatic growth is arguably the most significant change the international structure has experienced since the inception of the state-based system ushered in with the Peace of Westphalia in 1648.

International Law, New Diplomacy and Counterterrorism explores the impact of this growth on domestic legitimacy through the integration of two disciplines: international law and political philosophy. Focusing particularly on the cross-border counterterrorism actions launched by the United States, the author investigates how civil societies have often turned to the standards of international law to understand and judge the legitimacy of their government’s counterterrorism policies reaching across international borders. The book concludes that those who craft counterterrorism policies must be attentive to defending the target of legitimacy by being wholly mindful of the realms of legality, morality and efficacy when exercising force.

Contents: overview

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Introduction: The Genii of the City

1. Conceptualizing Legitimacy as a Target
2. International Counterterrorism and a Legitimacy Deficit
3. Through the Lens of Legality: Detention without Judicial Review
4. Through the Lens of Morality: Just War and Public Diplomacy
5. Through the Lens of Efficacy: Torture on Suspicion

Conclusion: Jeopardizing Legitimacy and Drones

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