(Un)leashing the Drones: Legal Motives for a Geographic Limitation of Drone Warfare

By Samit D'Cunha

Abstract: Determining when and where the use of drone warfare is legal is no easy task. The discourse surrounding the legality of drone warfare has been obfuscated by arguments founded in politics and rhetoric, but not the law. To inspire clarity in this discourse, this paper explores the use of combat drones in the “war” against Al-Qaeda and its affiliates through a legal framework, and finds that the use of combat drones against Al-Qaeda operatives and its affiliates is a legitimate use of force in established war zones and, as such, is legal in the United States’ war in Afghanistan. This war however, like all other wars, is confined to a “zone of combat,” and the use of drones falling outside combat zones is illegal. Thus, regardless of rhetoric, the vast majority of drone strikes occurring in the tribal regions of Pakistan, as well as other regions abroad, are illegal uses of force. Founded in an argument based on contemporary understandings of the Hague and Geneva law, the Additional Protocols, and customary international law, which together comprise International Humanitarian Law (IHL), this paper explores whether, targeted killings by drones can adhere to the fundamental principles of the Law of War, whether the current war against Al-Qaeda and its affiliates can be qualified as either an international or non-international armed conflict, and whether there is a “zone of conflict” which constitutes the exclusive zone in which drone warfare is legal.

About the Author
Samit is from Montréal, Canada, and received his B.A. in International Relations and War History from McGill University. He is currently pursuing a joint degree at American University’s School of International Service and the Washington College of Law and will receive his J.D./M.A. in 2014. During his time at American University, Samit has pursued studies related to war crimes, international humanitarian law, and the general intersection of international politics and the law.

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