Drones and the International Rule of Law

The international rule of law hinges on the existence of a shared lexicon accepted by states and other actors in the international system. With no independent judicial system capable of determining (and enforcing) the meaning of words and concepts, states must develop shared interpretations of the law and the concepts and terms it relies on, and be willing (mostly) to abide by those shared interpretations. When such shared interpretations exist, key aspects of the rule of law can be present even in the absence of an international judicial system; state behavior can be reasonably predictable, nonarbitrary, and transparent; and accountability can also be possible, albeit mainly through nonjudicial mechanisms.

U.S. drone strikes represent a significant challenge to the international rule of law. This is not because recent U.S. drone strikes “violate” international law; ironically, they might be less destabilizing, from a rule-of-law perspective, if they could be easily categorized as blatant instances of rule-breaking. Rather, U.S. drone strikes challenge the international rule of law precisely because they defy straightforward legal categorization. In fact, drone strikes—or, more accurately, the post-9/11 legal theories underlying such strikes—constitute a serious, sustained, and visible assault on the generally accepted meaning of certain core legal concepts, including “self-defense,” “armed attack,” “imminence,” “necessity,” “proportionality,” “combatant,” “civilian,” “armed conflict,” and “hostilities.”

This essay will proceed in four parts. First, it will briefly discuss the concept of the international rule of law. Second, it will offer a short factual background on U.S. drone strikes (to the extent that it is possible to provide factual background on a practice so shrouded in secrecy). Third, it will highlight some of the key ways in which post-9/11 U.S. legal theories relating to the use of force challenge previously accepted concepts and seek to redefine previously well-understood terms. Fourth, it will offer brief concluding thoughts on the future of the international rule of law in light of this challenge.

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