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Remote Attack and the Law

Published on November 7, 2012        Author: 

Dr William BOOTHBY Dr Bill Boothby, the former Deputy Director of Legal Services for the Royal Air Force, published through OUP his doctoral thesis on Weapons and the Law of Armed Conflict in 2009; he has now published his second book, again through OUP, on The Law of Targeting.

This post looks at three modern forms of distance attack, by autonomous unmanned platforms, by cyber means and in outer space, and asks whether they challenge, or are challenged by, contemporary law.  It concludes that in any challenge the law is likely to prevail, and suggests the extent to which, and conditions on which, such novel and increasingly controversial technologies may indeed prove to be legally compliant.

On 29 November 2011, The Guardian, discussing US drone strikes in Pakistan, asserted that the US military makes deadly mistakes all the time.  Al Jazeera has reported that during the period May 2011 to March 2012 about 500 people, many of them civilians, were killed in US drone strikes to push Al Qaeda from the Arabian Peninsula.  And yet, CNN recently reported New America Foundation research showing a markedly reduced civilian proportion of casualties in US drone strikes in Pakistan (from about 50 percent in 2008 to close to zero) which the researchers attribute inter alia to a presidential directive to tighten up target selection, the use of smaller munitions, longer linger periods over targets and congressional oversight.

So is new technology challenging the law, or is it the other way round?

There is nothing new about the idea of fighting at a distance.  The heroic Homeric tradition of the phalanx and of the hoplite fighting at close quarters was already in ancient Greek times called into question by the use of the bow, artillery and catapults, and the process of remote attack has continued to develop in succeeding centuries and millennia, spurred on by the evident military advantage such methods yield. But the Homeric objections persisted, for example during the Kosovo conflict in the form of objections to the NATO 15,000 feet bombardment policy.

And yet since World War II, the capacity to deliver ordnance from the air with precision has developed apace –the statistics are startling in terms of the reduced number of sorties required to get a bomb delivered from high altitude to within a given distance of a hypothetical target. So, and forgive a degree of over-simplification, the lay assumption that the closer the pilot is to the target the better has been trumped by technological innovation.

Is there anything qualitatively different about future developments in the realm of remote attack?

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