23 septLaura Dickinson (GWU), « Challenges to Domestic and International Legal Frameworks: Drones, Contractors, and Automated Weapons », Mardi 13 Octobre, 2015

Laura Dickinson (George Washington University)

This paper grapples with the impact of new military technologies on two bodies of law governing the use of force overseas (1) the domestic constitutional and statutory allocation of power between the President and Congress in U.S. law; (2) international humanitarian law. Unmanned aerial systems, often referred to as drones, as well as other increasingly automated weapons systems, are so radically reshaping the nature of war that they are distorting and changing time-worn legal calculations about the decision to use force abroad, as well as the way force is used once that decision is made. Moreover, the growing use of contractors, who invent, maintain, and in many cases operate these technologies, enhances this effect. By minimizing U.S. casualties and augmenting more conventional air campaigns, drones and contractors together reduce the political costs of engagement, making it easier for states to contemplate using force abroad. Perhaps even more significantly, in the United States these new methods and means of warfare enable legal arguments that change the balance of power between Congress and the President enshrined in domestic law – tilting it toward the President. At the same time, deploying these new technologies fragments authority and diffuses decision-making, which now often involves multiple actors who are removed from the actual battle. As a result, responsibility for the calculations governed by international humanitarian law is harder to pinpoint. Thus, even putting aside the vigorous debate about the scope and content of humanitarian law as it applies to the U.S. terrorist targeting program and the campaign against terrorism more broadly, we can see that the increasingly automated means of conducting that campaign, combined with the prominent role for contractors, diminishes the restraining power of international humanitarian law. To illustrate these points, the paper will focus on three examples in which the U.S. President did not receive explicit Congressional authorization for the use of force: the Kosovo intervention in 1999, the intervention in Libya in 2011, and the current campaign against the Islamic State in Iraq and Syria.

Discussant: Roger-Philippe Garner (Univ. of Toronto)

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