A number of reasons have been put forward to explain the USA’s resort to use of drones. Brunstetter and Braun argue that the number of troops for the USA has waned, resulting in an increase in the number of drones being used for combat operations.636 Instead of committing personnel to fight the global war on terror, the USA has deployed drones to carry out strikes on persons perceived as enemies of the USA. Kreps and Kaags also argue that the United States resorted to the use of drones since they offer the advantage of penetrating more adversarial environments than piloted aircraft.637 This is because drones are unmanned and remote controlled, thus avoiding putting any personnel in danger. Therefore, it can be argued that one of the reasons why the United States of America resorted to the use of drones as weapons is to protect the lives of members of the armed forces as well as to cover up for the reduction in the size of their armed forces.
Lewis and Crawford argue that the development of drones was promoted by the principle of distinction.638 The authors argue that while the principle of distinction provides clear rights and obligations for combatants during armed conflicts, the non-state actors who take direct part in hostilities such as Taliban and al-Qaeda militants deliberately avoid complying with the principle of distinction.639 For example, while the principle of distinction requires parties to the conflict to distinguish themselves from civilians, militants deliberately disguise themselves as civilians in order to avoid easy identification and targeting. Furthermore, these non-state actors are known for using the civilian population as shields from attacks as well as keeping their weapons in civilian environment. While the principle of distinction prohibits such acts, Lewis and Crawford argue that “the obligations of irregular armed forces have not been interpreted nearly as rigorously as those that apply to state militaries”.640 For example, the authors argue that “determinations of whether irregular armed groups improperly
636Brunstetter and Braun 2011 Ethics & International Affairs 341.
637S Kreps, J Kaag “The Use o f Unmanned Aerial Vehicles in Contemporary Conflict: A Legal and Ethical Analysis” (2012) Northeastern Political Science Association
http://s3.amazonaws.com/academia.edu.documents/15484619/Polity.pdf?AWSAccessKeyId=AKIAJ56TQJRT W SMTNPEA&Expires=1471363806&Signature=9pcwZafSJ9GymmA7kTk7PFpQ%2Bn8%3D&response - content-disposition=inline%3B%20filename%3DEthics o f Drones.pdf (accessed 27 March 2016).
638See Lewis and Crawford 2012-2013 Georgetown Journal o f International Law 1127.
639Ibid.
640Lewis and Crawford 2012-2013 Georgetown Journal o f International Law 1151. 114
intermingled themselves with the civilian population have mainly been centred on whether the irregular armed groups subjectively had an intention for the civilian population to act as a shield, not on their proximity to the civilian population when they initiated offensive operations”.641 The learned authors further argue that even though the use of civilians as shields by irregular armed groups is unlawful and punishable under IHL,642 this produces effective results since the unlawful conduct of irregular armed groups “does not release the attacker from his obligations with respect to the civilian population”.643 In other words, if irregular armed groups blend with civilians in order to prevent regular armed forces from attacking them, the regular armed forces are effectively barred from proceeding with the attack. More so, the regular armed forces cannot justify an attack which causes disproportionate civilian casualties if they knew that an irregular armed group they were attacking was using civilians as shields.644 Therefore, the widespread use of human shields by irregular armed groups has the effect of hindering military operations by regular armed forces. This practice swings the pendulum in favour of irregular armed forces since they can violate the law by using human shields in order to get protection from the rule that prohibits indiscriminate attacks.
States fighting asymmetric conflicts have reacted to the restrictions imposed by use of human shields in two ways.645 While some states have ignored the requirement of not attacking irregular armed groups that have blended with civilians (thus ignoring the principle of distinction), others have attempted to comply with the IHL restrictions by changing the weaponry and tactics used in armed conflicts.646 Use of drones is one of the measures.647 According to the authors, drones offer two advantages to their users, particularly in relation to irregular armed forces who use human shields.648 Firstly, drones provide robust intelligence by flying above the enemy for long hours while “accurately identifying the individual targets
641Ibid.
642Use o f human shields is prohibited under Article 51(7) o f Additional Protocol I to the Geneva Conventions which provides that “the Parties to the conflict shall not direct the movement o f the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations”.
643Lewis and Crawford 2012-2013 Georgetown Journal o f International Law 1151.
644Ibid.
645Lewis and Crawford 2012-2013 Georgetown Journal o f International Law 1152. 646Ibid.
647Ibid.
648Ibid.
as well as establishing their patterns of movement”.649 This would provide commanders with more information in determining whether to attack or not. Further, drones are equipped with missiles which provide armed forces with small weapons that can be used in a way that would target individuals without causing too many civilian casualties as compared to conventional weapons.650 Therefore, in terms of this theory, the development of drone weapons was encouraged by the principle of distinction’s failure to address the challenges raised by irregular armed groups in armed conflicts.
It is plausible that the above reasons could have led to the rise of drone warfare. The conduction of war using drones reduces the number of personnel that can be deployed by a party to the conflict as well as save the lives of personnel who could be deployed in hostile environment during armed conflicts. More so, with the increase in asymmetrical wars where irregular armed forces tend to violate the principle of distinction by conducting war in civilian environment or blending with the civilian population, it may be true that drones offer a more precise weapon that minimises the number of civilian casualties. Whatever the reasons behind the rise of drone warfare is, this method of warfare should comply with IHL, particularly the principle of distinction. While states have the right to introduce new weapons and means of warfare, this needs to be done within the bounds of IHL. Therefore, the question which this chapter will attempt to answer is whether drone warfare is capable of complying with the principle of distinction.