The US Drone Program and International Law: The Challenge of Radical Uncertainty to the Use of Force

摘要

In this project we argue that the logic of precaution, embedded in the US drone program, fundamentally challenges the logic of reaction embedded in international law. We employ a three-step approach in order to substantiate this argument: First, we outline methodological tools grounded in post-structuralist discourse theory, and aimed at investigating the structuring of particular systems of meaning. We employ nodal points, chains of signification and the concept of logics as tools for establishing the particular meaning given to the empty signifier of legitimate use of force in the two systems. Second, employing these tools to a reading of doctrinal texts and key legal frameworks, guided by the construction of analytical pointers drawn from the contemporary academic debate on the drone program, we establish the structuring logics of the two systems - precaution in the US drone program and reaction under international law. The four analytical pointers are knowledge, threat, responsibility and accountability. We argue that the logic of precaution in the US drone program is conditioned by a radical uncertainty, which co-constitutively structure the conception of the terrorist threat as catastrophic and constant, thereby invoking an expansion of time, based on radical uncertainty to the system. Under international law, we argue that a logic of reaction can be ascertained from the reading of positive legal frameworks as well as judicial rulings and advisory opinions from the International Court of Justice on both positive and customary law. We establish a system which is structured by pre-existing legal vocabularies, arresting the conception of time as present, and based on the ability to establish legal compliance through the ascertainment of facts and evidence. The conception of threats under international law is constructed around acts of aggression and the immediate threat to life - conditioning the use of force under self-defence and as a last resort to save life. We argue that both rely on a logic of reaction, and that the interdependence between jus ad bellum and jus in bello under the laws of war establish this logic, as they cannot be disjoined when establishing legality of the use of force, even though they can be applied. Third, we discuss the challenges between the systems posed by these particular logics of precaution and reaction embedded in the two systems. We argue that the premise for action is constituted differently in the two systems in their conception of time and certainty. We show that the logic of precaution invokes an expansion of time in the conception of threats, challenging the logic of reaction manifested most significantly in the case of the customary principle of anticipatory self-defence under international law.