Drones Over Libya

by Kenneth Anderson

The US has now deployed armed drones over Libya, according to press reports.  Drone systems have been operating as surveillance systems for weeks now, but acting on a NATO request, the US has now put up at least two weaponized drones in the Libya conflict.

The logic of this move is inescapable.  NATO countries launch air strikes against Libyan army assets, making tanks and regular military vehicles a death sentence.  The Libyan army shifts to “technicals” and eventually to commingling with civilians on the ground to avoid easy identification.  The attack aircraft cannot loiter long enough to develop the intelligence necessary to separate the targets from the civilians.  Bring in the drones in a surveillance role.  However, because the targets move so easily, it makes far more sense to use the drones as both surveillance and weapons platform, and strike directly from them.  The precision targeting of the drones is likely to mean that they will be far more discriminating than regular manned aircraft.  Of course, none of this is possible without having first suppressed air defense systems. Moreover, the evolution of tit-and-tat tracks one of the essential logics of drones:  they are an attempt to use technology to overcome an adversary’s behavioral violations of the laws of war.  Lawfare is one of the drivers of drone warfare.

Query whether this deployment of drones in Samantha Power’s War, if that isn’t too snarky, wars of humanitarian altruism, will cement the acceptability of drones and targeted killing in conflict.  Likewise the acceptability, and not just utility, of the CIA in using force when political reasons preclude military boots on the ground.  If targeted killing and drones and CIA are okay in humanitarian adventures, they are okay in Pakistan and Afghanistan and wars in which the US has interests at stake.  It is possible, but not persuasive, that wars of humanitarian intervention support a different set of rules for fighting and “jus in bello” than regular wars, but that would defy the fundamental principle of the conduct rules of armed conflict, viz., that the rules are the rules regardless of the motive for fighting.

But the real shift here is a gradual acceptance among the critics of targeted killing and drone warfare that, in fact, it is more discriminating.  I sense a change of heart underway — a recognition that although far from perfect, targeted killing through this technology is, well, targeted.  In that case, the focus inevitably shifts from a question of proportionality (being about civilians) to necessity (being about who is targeted) within the framework of ethics and war.  I write about these topics in a new, short working paper up on SSRN, on the idea “efficiency” in jus in bello and jus ad bellum.

http://opiniojuris.org/2011/04/21/drones-over-libya/

5 Responses

  1. Ken – why do you assume that these are CIA drones?  Their deployment was announced by the Secretary of Defense and Vice Chairman of the Joint Chiefs of Staff, strongly implying that these are Air Force assets, i.e., privileged belligerents raising none of the international law issues posed by CIA employment.  This does not, of course, address the constitutional issue of U.S. participation in a conflict that has not been authorized by Congress and is not an actual response to an attack against U.S. forces or assets.  But given the UN Security Council authorization, at least this employment seems to comply with international law.  I would hope that Americans are savvy enough to recognize that drones, like any other weapons system, are capable of both lawful and unlawful employment, and that their superior attributes over manned aircraft which render them perfect for this mission do not mean that their employment by unprivileged belligerents, or in other roles, are necessarily equally valid.

  2. I realise this is line of comment is pursuing a side-point, but if the CIA were operating the drones, and if they were unprivileged belligerents, in my view that would not be ‘unlawful’ under international law — rather, it merely would not be sanctioned. In other words, the CIA operators would not enjoy the combatant’s privilege. I suggest that is not the same thing as acting contrary to international law.

  3. David – sorry, my fault for running two things together.  They are not CIA drones so far as I know.  However, the CIA has been on the ground under a Presidential finding since, apparently, at least since hostilities per UNSCR 1973 and perhaps before, with (again apparently) a broad authorization to engage in covert activities.  I’ve been told that they were acting as forward spotters for US attacks, but I don’t have any corroboration.  However, any role there aside, my broader point was that the CIA has been tasked to play a role on the ground that the US is not filling with uniformed military, and which the uniformed military are happy not to play in this instance, for political reasons.  My political point was that, whether regards it as unlawful for the CIA to participate, presidents including this one always conclude that they need some kind of covert or deniable actor other than the military.  So far as I can tell, when this occurs in a humanitarian intervention war which began on a heroic rescue-the-civilians basis, the CIA is far from unhappy to have its services called upon by the president.  All legal questions aside, of course.

  4. Also, I agree with Ian’s point above.  I wouldn’t be surprised if the internal USG legal memos have concluded that they are civilians accompanying the armed forces and therefore not unlawful.  They might well be integrated with the intelligence side of drone operations, among other activities.  It is possible, I suppose, though doubtful, that they might be wearing sufficient insignia to be distinguishable as participants in the prevailing circumstances, with legal consequences that we could debate.

  5. Of course, the covert deniable actor vision works only if one goes along with the ruse.  These US assets aren’t there because they happened to be on vacation.  The President may want to be able to deny their presence officially – though the fig leaf is getting pretty flimsy in these settings.
    Best,
    Ben

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