Now Hear This - We Need a New Legal Code for the Drone War

By Lieutenant Dennis Harbin, Judge Advocate General's Corps, U.S. Navy

Furthermore, as 2001 recedes further into the past, the causal link between those we target today and those who planned and carried out the 9/11 attacks becomes increasingly difficult to show. The laws of armed conflict codified in the Geneva and Hague Conventions recognize civilians and members of the armed forces. They do not recognize terrorists. This gap has forced the administration to be creative when targeting individuals overseas—often leading to political pressure and increased scrutiny. To help fill this gap, the International Committee of the Red Cross (ICRC) has published interpretive guidance on how to treat civilians who engage in direct hostilities. 5 However, the ICRC recommendations do not carry the weight of law.

Given the administration’s intent to institutionalize the drone war post-Afghanistan, the gap between the traditional laws of armed conflict and how we intend to defend this country needs to close. As a way forward, the United States ought to work with international partners to establish an updated legal framework that recognizes this new era in international conflict that is now almost 12 years old. They could start by explicitly recognizing as aggressors transnational terrorist organizations such as al Qaeda and its affiliates. An updated legal framework would help maintain our ability to continue preventing future attacks, even in the face of increasing international scrutiny.

1. Attorney General Eric Holder letter to Senator Rand Paul (R-KY), 7 March 7 2013, .

2. Scott Shane, “Election Spurred a Move to Codify U.S. Drone Policy,” The New York Times , 24 November 2012.

3. Associated Press, “UN Expert Investigates US Drone Attacks, Targeted Killings That Involve Civilian Casualties,” Washington Post , 24 January 2013.

4. John O. Brennan remarks at the Woodrow Wilson International Center for Scholars in Washington, DC, 30 April 2012, .

5. “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,” International Review of the Red Cross 90, no. 872 (December 2008), .

Lieutenant Harbin is a qualified surface warfare officer and was selected for the Navy’s Law Education Program. He is currently enrolled at Penn State Law.


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