Essay: M W Lewis – Drones and the Boundaries of the Battlefield

Lewis, M., W.(2012). Drones and the Boundaries of the Battlefield. Texas International Law Journal. 47 (2), p 294-314.
Through the years mankind has taken part in warfare and the advancement in technology is ever-changing that warfare. An example of such advancement is drones. These drones are capable of minimizing loss of life and have a relatively low cost. Moreover, the drones have longer endurance compared to normal fighter jets and more compliant to military necessity, distinction and proportionality in International Humanitarian Law. Despite these advantages, drones have vulnerabilities which make them more of a liability. They are very slow, vulnerable to advanced air defense systems and unable to escape an attack from a manned aircraft.
As it is the norm in the current international system a form of regulation had to be developed thus,the Manual on International Law Applicable to Air and Missile Warfare came about. However, the most challenging issues on the use of drones are beyond the scope of the Manual. This is a pattern which is slowly developing where states and non-state actors are finding ways to act beyond the scope of the existing humanitarian laws. Although International Human Rights Law captures situations outside the scope of humanitarian law, some situations are outside its scope as well. The most prominent question in regards to drones is whether they can comply to either international humanitarian or human rights law as they are unmanned. This does not however stop states from developing and using them.
Military strategy is based upon striking the opponent unexpectedly and exploiting their vulnerability. With this in mind, the traditional view of the battlefield of where the conflict is will change to anywhere possible using drones. For example, hypothetically speaking the United States of America may attack a military base in Afghanistan in the name of gaining military advantage over the Taliban or the al-Qaeda. This concept is more applicable to non international armed conflict as they form majority of warfare worldwide. Even though external countries may not be involved in the warfare, they may use the drones for surveillance purposes. For example, the United States, France or England may deploy drones in Somalia which is the home of the al-Shabaab. The al-Shabaab majorly fight against the government in Somalia but have ties with the al-Qaeda which warrants surveillance by the above states.The neutrality of these states in Somalia comes under question as they are not directly involved in warfare but the aspect of surveillance clearly invokes their neutrality and become part of the war. Additionally, the United States, France and England are part of the Security Council and as such supposed to uphold international humanitarian law but seem to be the first to revoke the law.
Transnational warfare has largely enabled states to revoke international humanitarian law. For example, al-Aulaqi was a prominent threat from Afghanistan and his presence in Yemen did not mean that his geographical location made him immune from attack. The basis for his attack was that his contribution to the war in Afghanistan made him targetable. Hence, anyone anywhere can drop dead by being attacked using a drone. Considering what triggered World War One was an assassination , a drone is less likely to be traced unless a state has an advanced air defense system. Moreover, it may trigger a third world war, hypothetically speaking.
However, if geographical location in warfare was strictly followed, terrorists groups would highly be rewarded. The United States would not have been able to retaliate against the al-Qaeda for the 9/11 attack. The al-Qaeda has no geographical territory and thus the United States would have no right to attack them in Afghanistan. Surprisingly enough, the same goes for Israel attacking the Hezbollah in Pakistan while their location is in Lebanon. An interesting twist is that Pakistan is not even recognized as a state by the United Nations. With this argument, the Islamic State which is also not recognized cannot be attacked.
Another factor in transnational warfare is the inability to distinguish between combatants and civilians. Traditionally, a combatant is identifiable by a uniform , being a member of the armed forces and carrying arms openly. Today, a person can be a civilian by day and becomes a combatant by night.Moreover, the combatant blends in with the other civilians making it difficult to identify their true identity. As per international humanitarian law regulations civilians are under no circumstances whatsoever to be attacked unless they revoke their own immunity.The most relevant example is that of members of the al-Qaeda group who are neither civilians because of invoked immunity nor combatants. However, the International Committee of the Red Cross’s Notion of participation in hostilities states that if they assume continuous combatant roles they are considered combatants. If they are to be identified using a drone, the drone may consider them and the civilians as the same thing and target them equal.
In conclusion, drones are legal in warfare as per the Manual on International Law Applicable to Air and Missile Warfare. The drones do however have to comply with International Humanitarian Law. However, if they do not comply with the law this does not stop states from developing them. States may even use them outside the scope of either international humanitarian or human rights law all in the name of protecting their sovereignty and territory.