Oren Gross, The New Way of War: Is There a Duty to Use Drones?

67 Fla. L. Rev. 1 (2015) |

Part I of this Article briefly describes the newest battlespace occupants. Robotic systems have been taking active part in combat. They now inhabit the air, the land, and the sea. They carry out missions ranging from surveillance and bomb disposal to “destroy and disable.” Part II examines the relevant principles of LOAC. It argues that drones are not, per se, unlawful under LOAC. Rather, the critical question is the same for drones as for other types of weapons, i.e., whether the specific use of the weapon complies with LOAC. In this context, the weapon must be deployed in accordance with LOAC’s fundamental principles of humanity, proportionality, distinction, taking precautions, and military necessity. Even if a specific type of weapon is not unlawful per se (or has not been specifically prohibited by particular treaties), it may not be used improperly, e.g., in a manner that would run afoul of these principles. Part III applies the principles of LOAC to drones. First, it analyzes the general trajectories of the development of new weapons throughout human history, which has involved trading off between three main considerations, namely distance, accuracy, and lethality. Second, it examines the rise of precision-guided munitions as an attempt to balance these three considerations, increasing military efficiency while minimizing harm to civilians and civilian objects. Part IV discusses the ability of drones to combine both remote exercise of force and high accuracy to reduce lethality. Part IV also closely examines both the promised benefits that the use of drones may bring to battlespace and the challenges to their deployment. Part V returns to the question of whether states and their military commanders have an obligation to use drones in the context of an armed conflict. It argues that although there are no treaties that deal specifically with the use of drones in armed conflict and no customary norms obligating the use of drones, such a duty may be derived from the cardinal principles of the law of armed conflict. It suggests that such an interpretation is merited if we accept that drones offer the possibility of a more humane war by combining remote and accurate use of force to reduce lethality among both friendly forces and innocent civilians. Part V concludes by setting out further challenges that ought to receive careful attention in developing and elaborating on the obligation to use drones in the battlefield.

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