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Toward a Drone Accountability Regime

  • Allen Buchanan and Robert O. Keohane
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NOTES

1 Kenneth Roth, “The Law of War in the War on Terror,” Foreign Affairs (January/February 2004).

2 Some of the issues addressed in this article also arise in cases of targeted killings in which robotic weapons are not used and in cases where lethal robots other than drones are used, including surface and subsurface marine lethal robots and ground-traveling lethal robots. In addition, some of the issues we address also arise for the use of lethal drones in contexts other than the one in which they are currently being employed. Our focus is limited to lethal drones (defined as aerial weaponized robots) that are properly employed under the war paradigm (as opposed to the policing or law enforcement paradigm). Although we see the advantages of a comprehensive analysis and policy proposal that would address all modes of targeted killings, we believe that at the present time the use of lethal drones under the war paradigm is sufficiently important and controversial to warrant a separate provisional treatment. Later in the article we emphasize, however, that the international regulatory regime we propose is intentionally dynamic—designed to adapt to new challenges in the regulation of lethal drones and also perhaps capable of being supplemented to address other modes of targeted killing.

3 Our concern is with regulation of lethal drone use as it now predominantly occurs and can be expected to occur in the near to medium future. If usage changed, then the difference between drones and boots-on-the-ground occupation might diminish or even disappear. This would be the case if “clouds” of drones permanently patrolled airspace within a country and enforced embargoes at its borders. Such a use of drones would amount to occupation, morally and legally speaking. We thank David Rodin for this point. Similarly, a much more extensive and persistent use of drones than now occurs, with greater collateral damage, might create new or at least more serious concerns, as under these conditions the rights to security of large numbers of people would be violated.

4 How rapidly drone technology is likely to spread, even among states, is contested. For an argument that the barriers to acquiring these capabilities are high, see Andrea Gilli and Mauro Gilli, “The Diffusion of Drone Warfare? Industrial, Infrastructural and Organizational Constraints,” Infrastructural and Oganizational Constraints, April 16, 2014, papers.ssrn.com/sol3/papers.cfm?abstract_id=2425750. In general, drone technology is so new that even thorough discussions of military technology in the book-length literature do not discuss it extensively. See, for example, Horowitz, Michael C., The Diffusion of Military Power: Causes and Consequences for International Politics (Princeton, N.J.: Princeton University Press, 2010), which has chapters on carrier warfare, the nuclear revolution, battle-fleet warfare, and suicide terrorism, but not on drones.

5 For discussions of drone use and regulation from the standpoint of United States foreign policy, see two sets of reports by U.S.-based think tanks. The Council on Foreign Relations has issued two reports: Micah Zenko, “Reforming U.S. Drone Strike Policies” (New York: Council on Foreign Relations Special Report No. 65, January 2013); and Micah Zenko and Sarah Kreps, “Limiting Armed Drone Proliferation” (Council Special Report No. 69, June 2014). The Stimson Center established a task force, chaired by General John P. Abizaid (ret.) and Rosa Brooks, constituted entirely of individuals who had previously served in the Executive Branch of the U.S. government, and including former State Department Legal Adviser John Bellinger. It issued a report in June 2014 entitled, “Recommendations and Report of the Task Force on US Drone Policy” (Washington, D.C.: The Stimson Center, 2014).

6 A recent report from the University of Birmingham argues against development of lethal autonomous weapons systems (LAWS) and proposes that the U.K. government “could help secure a new and widely endorsed international normative framework [within the framework of the Convention on Conventional Weapons] that would helpfully raise the stakes for any government tempted to develop LAWS that would be in breach of existing international humanitarian law.” See The Security Impact of Drones: Policy Implications for the UK (Birmingham: Birmingham Policy Commission, University of Birmingham, October 2014), www.birmingham.ac.uk/research/impact/policy-commissions/remote-warfare/index.aspx.

7 Zenko and Kreps, “Limiting Armed Drone Proliferation,” p. 6.

8 Overuse may also increase the number of violations of the principle of discrimination. Even if, due to their greater precision, drone strikes have a lower rate of violations of the principle of discrimination, a higher volume of use of them may produce a greater number of violations in aggregate. We consider this possibility under the heading of the risk of overuse of the military option.

9 Zenko, in “Reforming U.S. Drone Strike Policies,” calculates that U.S. drone strikes between 2004 and 2012 killed 401 civilians, 12 percent of the total number of killings. Crawford, Neta, Accountability for Killing: Moral Responsibility for Collateral Damage in America's Post-9/11 Wars (New York: Oxford University Press, 2013) cites on p. 128 figures from various reports on drone killings in Pakistan (2004–2012). Excluding the Pakistan Body Count (which counts everyone killed as a civilian unless there is clear documentation of Taliban affiliation), these estimates vary from a low of 142 civilians killed to a high of 476, representing a range from 3 percent to 18 percent of the total number of killings.

10 Stimson Center, “Recommendations and Report of the Task Force on US Drone Policy,” p. 34. The report goes on to say that “despite the undoubted good faith of US decision-makers, it would be difficult to conclude that US targeted strikes are consistent with core rule of law norms” (p. 36). See also the defense of Obama administration policy by Legal Advisor Harold Koh, “The Obama Administration and International Law” (speech, Annual Meeting of the American Society of International Law, Washington, D.C., March 25, 2010), www.state.gov/s/l/releases/remarks/139119.htm. This argument, of course, applies not just to the use of lethal drones but also to other kinds of lethal violence.

11 A full text can be found on the New York Times online under the title “Obama's Speech on Drones,” May 23, 2013, accessed October 30, 2014.

12 We realize that the concept of a “failed state” is not well defined, and not a phrase that would be used in an international legal context, where tests such as “unwilling and unable” are employed instead. But the source of being “unwilling and unable” is, in colloquial terms, state failure, so we use the latter terminology here. We are indebted to Christoph Mikulaschek for pointing out some of the legal ambiguities revolving around the “failed state” terminology.

13 Stilz, Anna, “Why Do States Have Territorial Rights?,” International Theory 1.2 (2009), pp. 185213 .

14 Zenko, “Reforming U.S. Drone Strike Policies,” pp. 12–14.

15 Harold Koh, “How to End the Forever War?” (remarks at Oxford Union, Oxford, UK, May 7, 2013), p. 4, www.law.yale.edu/documents/pdf/Faculty/KohOxfordSpeech.pdf.

16 It is worth pointing out that even those who believe that any use of lethal drones is morally unacceptable should welcome the benefits of an effective regulatory regime for minimizing the harms and wrongs of drone use. Similarly, pacifists may see the benefits of the laws of war. This point is due to Victor Tadros.

17 Two years ago, in a pioneering article, Omar S. Bashir called for the United States to institute an “oversight” system over drone use, to increase transparency and accountability. In our view, this would be a positive step, although a purely national oversight system would be unlikely either to have sufficient credibility with outsiders or to promote one of our major objectives: to ensure that other states also make their use of lethal drones more transparent and accountable. See Omar S. Bashir, “Who Watches the Drones?” Foreign Affairs, September 24, 2012, www.foreignaffairs.com/articles/138141/omar-s-bashir/who-watches-the-drones.

18 Buchanan, Allen, The Heart of Human Rights (Oxford: Oxford University Press, 2013), pp. 119–20.

19 Grant, Ruth and Keohane, Robert O., “Accountability and Abuses of Power in World Politics,” American Political Science Review 99, no. 1 (2005), pp. 2943 .

20 A list of signatories can be found on Wikipedia.

21 Beth A. Simmons shows how important multilateral institutions are in providing a focus for domestic efforts on human rights. See Mobilizing for Human Rights: International Law in Domestic Politics (New York: Cambridge University Press, 2009).

22 “The Missile Technology Control Regime at a Glance,” policy brief by the Arms Control Association, updated December 2012, accessed April 16, 2014. China has cooperated with the MTCR and in 2004 applied for membership, but its application was rejected on the grounds that it continues to provide sensitive technologies to countries such as North Korea that are developing ballistic missiles outside of the constraints of the regime.

23 Simmons, Mobilizing for Human Rights.

24 United Nations Security Council Res. 1904, December 17, 2009, UN document S/RES/1904.

25 Morse, Julia C. and Keohane, Robert O., “Contested Multilateralism,” Review of International Organizations 9, no. 4 (2014). See also Devika Hovell, “Kadi: King-Slayer or King-Maker? The Security Council and Power in Power-Sharing” (paper presented at the ICON-S Conference, Florence, Italy, June 26–28, 2014).

26 On experimentalist governance, see De Búrca, Gráinne, Keohane, Robert O., and Sabel, Charles, “Global Experimentalist Governance,” British Journal of Political Science 44, no. 3 (2014), journals.cambridge.org/abstract_S0007123414000076.

27 The best account of how domestic politics can interact with international regimes to generate accountability is in Simmons, Mobilizing for Human Rights.

28 Both consent to individual drone strikes and waivers for periods of time in which there may be a plurality of drone strikes are revocable at will by the consenting state. Irrevocable consent, in either case, would not be consistent with proper regard for sovereignty.

29 However, the distinctive U.S. constitutional system, combined with the realities of U.S. politics, means that it is very difficult to imagine the U.S. Senate ratifying a formal DAR treaty. This is an important reason for our proposed DAR being informal rather than legalized.

30 One referee asked why we do not propose to extend the DAR to manned aircraft or even to the use of drones on the ground. In our view, it will be difficult enough to implement our proposed regime, much less a more comprehensive regulatory effort.

31 Axelrod, Robert, The Evolution of Cooperation (New York: Basic Books, 1984); Keohane, Robert O., “Reciprocity in International Relations,” International Organization 40, no. 1 (1986), pp. 127 .

* We are grateful to Omar S. Bashir, Mervyn Frost, Christoph Mikulaschek, Joseph S. Nye, and Ardevan Yaghoubi, and to three anonymous referees for their comments on earlier drafts of this article. We thank Janina Dill for inviting us to the Fifth Annual ELAC Workshop of the Oxford Institute for Ethics, Law, and Armed Conflict, “Forcible Alternatives to War,” September 5–6, 2014, at which an earlier version of this article was presented. We also thank participants at that conference, and at the International Relations Colloquium at Princeton University (October 20, 2014) for their helpful comments, which helped to shape the final version of this article.

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