Ethics and Drones Revisited19.03.13

Ethics and Drones Revisited 19.03.13

by

Howard Adelman

If you skip the bibliographical references, this is not a long blog.

I thought the debate over drones would cool off again after the initial flurry of articles following the leak and publication by NBC News of the Obama memo justifying their use in a confidential Justice Department 16-page memo (on 4 February 2013). That memo concluded that the U.S. government could order the killing of American citizens (Anwar al-Awlaki and Samir Khan) if they were believed to be “senior operational leaders” of al-Qaeda (or “an associated force”) even in the absence of intelligence indicating they had been engaged in an active plot to attack the U.S. Between the immediate aftermath of the release of the memo until the publication of my blog on Obama and Drones (Obama 19. Drones: The Normative Debate 27.02.13), the commentary certainly seemed to cover all sides of the issue. This is a sampling that I added to my bibliography on the topic between the release of the memo and my blog:

  • Nick Gillespie, "Do You Agree with White House that Drone Strikes are ‘Legal’, ‘Ethical’ and W’ise’," Reason.com, 5 February 2013
  • Matt Willstein, "White House Responds To Drones Memo: Strikes are ‘Legal’, ‘Ethical’ and ‘Wise," Media, 5 February 2013
  • Doug Powers, "Jay Carney: Drone Strikes constitutional, ethical, wise, and completely within the province of a Nobel Prize Winner," Michele Malkin, 5 February 2013
  • Maryann Cusimano, "Love White House: Drone Program ‘legal’, ‘ethical’ and ‘wise’. Is it?," The Washington Post, 5 February 2013
  • Adam Clark Estes, "The Future of Drone Warfare is Scary," Atlantic Wire, 6 February 2013
  • Owen Schaefer, "The double standard of objections to drone strikes against US citizens," Practical Ethics, 6 February 2013
  • Robert Murray, "The Ethics of unmanned killer drones still evolving," The Province,7 February 2013
  • Andrew Reddie, "Beyond Ethics: Drones in Realpolitik," Georgetown Journal of International Affairs, 8 February 2013
  • Eugene Robinson, "Drones bend the rules of ethics," Tennessean, 10 February 2013
  • "Drone Ethics: The Policy and the Memo," Ethics Alarms, 11 February 2013

· George Clifford, "Drones and targeted killings – Part1," Ethical Musings, 11 February 2013

  • Jane Mayer, Jeff McMahan and Michael Walzer, "The Ethics of Drone Warfare," on Live Chat with Amy Davidson, 14 February 2013
  • David Post, "Drone Attacks Spur Legal Debate on the Definition of ‘Battlefield’," Huffington Post, 14 February
  • Travis Normand, "The war on terror without geographically defined battlefields," Blog response to Post’s article in The Huffington Post
  • Bill Darrow and David Kaiser, "Drones: The Ethics and Strategy," Williams College, 19 February 2013
  • Amy Davison, "Can a President Use Drones Against Journalists?" The New Yorker, 20 February 2013
  • Meghan Topp, "The Secret Drone Wars," RELEVANT Magazine, 21 February 2013

· George Clifford, "Drones and targeted killings – Part 2," Ethical Musings, 21 February 2013

However, in March thus far the debate has continued apace:

," The New York Times, 17 March 2013

  • Shane Newell, "The ethics surrounding drone strikes need more discussion," DAILY49ER, 10 March 2013
  • Michael Walzer, "Is the Military Use of Drones Ethically Defensible?" The Berkley Center, the Master of Science in Foreign Service Program, and the Mortara Center for International Studies, 13 March 2013
  • Ben Emmerson, UN special rapporteur on human rights and counterterrorism, "Report on the Use of Drones by the United States in Pakistan," Office of the High Commission for Human Rights, Geneva. [The report itself is not available
    but its contents have been widely reported in the media, beginning with a
    breaking news item on CBC and then in published reports in The New York Times and a wide array
    of other news outlets around the world
  • "EC Community discusses the ethics of drone
    strikes," The Leader, 19
    March 2013
  • The Kroc Institute for
    International Peace Studies, Conference:
    "The
    Ethical, Strategic & Legal Implications of Drone Warfare," Chicago, 20-21 March
  • Kenneth Roth, "How We Should Control
    Drones," The New York Review of Books, 4 April
    2013

 

Reading this
last one after the issue of the NYRB arrived in the mail yesterday provoked me
to take up the subject once again, but focusing exclusively on the ethical
issues. I suspect that the forthcoming book by Christian Enemark entitled Armed Drones and the Ethics of War: Military
Virtue in a Post-Heroic Age
to be published by Routledge on 31 August 2013
will be out of date before it hits the bookstores. Old fashion book publishing
is just too slow in the modern age of electronic publishing.

 

Roth is not
opposed to the use of drones, even though they appear to make war and lethal
killing easier because their use reduces the risk to the party which owns the
drones. However, insofar as they increase pinpoint accuracy, can hover over the
target to confirm the individual(s) to be hit and can choose the optimum moment
for a strike, the use of drones has the potential of reducing civilian
casualties. Roth also recognizes the difference between the justifications used
for the use of lethal weaponry for a just cause – self-defence employed after
proper congressional authorization, and ius
in bello

issues such as proportionality and the principle of not targeting
civilians. 

 

However, Roth
found the leaked memo of 5 February not only to be deliberately ambiguous but
designed to allow plenty of wiggle room while claiming to employ killer drones
strictly within the bounds of international law. Roth launches seven arguments
against the Obama administration's justification for the use of drones.

 

First, Roth argues
that the range of geographical areas where drones can be used are limited to any
actual battlefield where American troops are engaged. Yemen, Somalia,
Mali and the untamed
territories of Pakistan
lie outside that battlefield. Roth's second argument concerns the
combatant/belligerent status of the targeted individual; the laws of war
prohibit targeting civilians not actively engaged in belligerency – such as
cooks or drivers – there must be direct participation in hostilities. If a
third rationale for targeting individuals is used, namely, the rules of
prevention in a criminal action (rather than a military justification), Roth
argues that such a justification of an immanent threat only applies to war
powers and not to anti-criminal activities; in a criminal situation, the threat
must really be immanent — such as individuals holding a gun to an innocent
civilian's head. Fourth, Roth argues that in non-battlefield situations,
capture is by far the preferable criterion but though the administration
appears to agree, that principle is not applied; capture never seems to be
feasible. Roth's next two arguments concern process. His fifth argument is that
the decisions are too secret and not sufficiently transparent. Sixth, the
decisions are unilateral and not subject to institutional constraints. Finally,
Roth argues that the Pentagon, not the CIA, should be the proper and legal
agency to use drones because the military have a proper chain of command and a
tradition of stronger accountability to the law.     

 

Though Roth
himself is confusing when he flits back and forth between strategic (is the use
of drones counter-productive in creating more civilian resentment and more
terrorists) and ethical issues, and though he makes his arguments in the form
of a trial brief rather than a legal or ethical analyst weighing the different
sides of the question, nevertheless he offers a fairly concise view of one
school of thought on the ethics and laws of war applied to drones. For
elaborations of that argument, see Nils Melzer (2008) Targeted Killing in International Law (OUP). More succinct versions,
but one more elaborate than the one Roth offers, can be found in the writings
of Mary Ellen O'Connell.

 

I myself find it
somewhat exasperating to read repetitions of arguments, especially when not
precisely stated, enunciated virtually since the Obama administration took
office without taking into account the arguments made on the other side. I'll
examine each argument in turn.

 

Does the law of
war restrict belligerency to the battlefield? If it does not, Roth argues that
the US could be allowed to
hit an individual in London.
Functionalists argue that there are no such restrictions in international law
of war. Contrary to Melzer, O'Connell and Roth, the functionalists seem to be
supported by the overwhelming tradition in international law applied to war. The
official US
government view is that fighting follows the belligerents and is not restricted
to battlefields. In ius in bello, hostilities
take place where hostiles are to be
found not where battles take place. The exception is when hostiles are in
neutral territory of a state determined to protect its neutrality.

 

However, neither
the preponderance of authorities nor the weight of tradition makes an
interpretation correct. Those are simply empirical issues about ethics. They
weigh as precedents and arguments from authority but are insufficient in
themselves to determine the outcome of a debate. Mary Ellen O'Connell offers a
more elaborate argument than merely a confusing reiteration and a throw away
line about the opposite argument leading to killing targets in Paris
and London. I
distil her arguments published in various scholarly articles in books and
journals and legal briefs, largely relying on her Pakistan study and her legal brief
to Congress.

 

(2004) "Ad
Hoc War," in Krisensicherung and
Humanitärer Schutz – Crisis Management and Humanitarian Protection
405

(2005)
"Enhancing the Status of Non-State Actors Through a Global War on
Terror," Journal of Transnational
Law
43:435

(2009) "Combatants
and the Combat Zone," University of Richmond Law Review, 43:845

(2010a) "The
Choice of Law Against Terrorism," Journal
of National Security Law

(2010b) "Unlawful
Killing with Combat Drones: A Case Study of Pakistan, 2004-2009," Notre
Dame Legal Studies Paper No. 09-43," republished in Simon Bronit (ed.) Shooting to Kill: The Law Governing Lethal
Force in Context

(2010c)
"Lawful Use of Combat Zones," legal brief to the Subcommittee on
National Security and Foreign Affairs, House of Representatives, Washington, 28
April

 

In the school of
thought on the international law of war to which O'Connell (as well as Roth and
Melzer) subscribe, O'Connell is more precise for she does not make the error of
insisting that belligerency per se is
restricted geographically to battlefields, but rather that drones drop bombs;
bombs may only be used lawfully in areas where armed hostile conflict is taking
place and international law does not recognize the right to kill with battlefield weapons outside an
actual armed conflict. Melzer goes even further and argues that weapons can be
used extra-territorially to a battlefield (257-261) provided the target is a
combatant in the armed conflict and is directly participating in armed
conflict. Thus, Roth has offered the most restrictive argument of all for those
who want to restrict the use of drones very severely.

 

O'Connell's
argument depends on a second premise: militant operations outside of
battlefield conditions are police not military operations. Police actions
require that warnings be issued before lethal force is used. The very nature of
the use of drones dropping explosives depends on surprise, so notice cannot be
given. Since the use of drones does not conform either to a police operation against
criminals nor a battlefield scenario, drones, though lawful for use in
Afghanistan by US forces, are not lawful for use in Somalia, Yemen, Mali or even
Pakistan, though there is more dispute over the last. The reference to London and Paris
are just red herrings.

 

David Post's 15
February Huffington Post article,
drawing on O'Connell, argued that the break with the law of war began with the
use of a predator drone over Yemen
in Bush's war on terror on 3 November 2002 when six suspected al-Qaeda terrorists
were blown up by a missile shot from a drone over Yemen. However, Post was wrong in
claiming that this was the first use of a battlefield weapon outside a
recognized war zone. The debate over the destruction of the battleship ARA Belgrano
in the Falklands War (Guerre de las Malvinas)
in 1982 hung on whether battlefield weapons were restricted to recognized war
zones or could be used outside the exclusion zone of 200 miles. The United States
has never recognized such a restriction. Nor has the UK. Ironically, in the case of the
Belgrano, evidence recently came to light from the British navy that the
Belgrano was not heading back to port when the missiles hit but in fact had
been ordered to sail towards the exclusion zone. (Thomas Harding, "RAR Belgrano
was heading to the Falklands secret papers
reveal," MercoPress, 26 December
2011) Nevertheless the issue remains – the Belgrano was struck by lethal
weapons and sunk outside the exclusion zone defining the battlefield.

 

The US
"Authorization for the Use of Military Force" in the war on terror,
subsequently amended by Barack Obama to the war on al-Qaeda and its affiliate,
authorizes the "use of all necessary and appropriate force against those
nations, organizations, or persons he (the President) determines planned,
authored, committed, or aided the terrorist attacks that occurred on September
11, 2001, or harboured such organizations or persons." The authorization
focuses on hostiles, not geographical areas.

 

This American
official opinion is backed by a number of eminent experts on the international
law of war. [For example, see
Nicholas
Rostow (2011) "Combating
Terrorists: Legal Challenges in the Post-9/11 World
, in Paul A. Pedoza & Daria P. Wollschlaeger (eds.) International Law and the Changing Character
of War.
The same two schools also are divided over who can be detained and
where. Cf.
Curtis A. Bradley & Jack L.
Goldsmith (2005) "Congressional
Authorization and the War on Terrorism," Harvard Law Review 118:2047; Robert Chesney (2011) "Who May Be Held? Military Detention Through
the Habeas Lens, British Columbia
Law Review
52:769] Essentially, subject to the usual constraints of just war theory re proportionality and discrimination, states have an inherent right to use lethal military weapons in a war of self-drefensewherever the enemy is to be found.

But that still leaves open the question whether attacking those six men in the car in Yemen "appropriate" force was used when a battlefield weapon was employed. There are two schools of thought. The English functionalist school (most just war and laws of war scholars and officials in the USA, Canada, the UK) focus on where the alleged enemy is, subject to certain debatable constraints. The human rights school centred in continental Europe, particularly Geneva, which suborn international laws of war as a subset of human rights norms, limit war to wide scale armed conflict in specific geographic zones with specific exceptions by some scholars. Generally, police operations are law enforcement operations applicable outside such areas and these operations are governed only by human rights norms. Reading Roth’s human rights polemic, one would never be aware that another school of thought was in contention or that there were divisions among the adherents to his own school of thought.

Jennifer Paskal, a Fellow at the Center on Law and National Security at the Georgetown University Law Center has written articles trying to overcome the divisions between the two schools. Her paper, "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone," forthcoming in The University of Pennsylvania Law Review 161 specifically deals with this impasse. She offers the argument, repeated by Roth, that focusing on hostiles instead of hot military zones would mean that Russia could go after Chechnyans anywhere in the world, including the U.S.A. This is as big a red herring as the Paris and London or Times Square arguments bandied about, for law permits but does not prescribe. There are other limitations imposed by prudence and not law.

Paskal in her effort ends up on the side of the functionalists for she recognizes both the need and the right of states to deal with enemies wherever they are found, and, therefore, that conflict follows the enemy, but extends that territory beyond hot zones to include territories where the rule of law cannot or is not being imposed. In fact, this merely encapsulates in proposed legal norms actual operating policies based on prudence. She "explicitly recognizes that the set of current rules, developed mostly in response to state-on-state conflicts in a world without drones, fail to adequately address the complicated security and liberty issues presented by conflicts between a state and mobile non-state actors in a world where technological advances allow the state to track and attack the enemy wherever he is found. New rules are needed, she argues. Drawing on evolving state practice, underlying principles of the laws of war, and prudential policy reasons, the paper proposes a set of such rules for conflicts between states and transnational non-state actors – rules designed to both promote the state’s security and legitimacy and protect against the erosion of individual liberty and the rule of law."

As Kenneth Anderson has written, "armed conflict law applied under conditions of hostilities, and although hostilities could and sometimes did follow the participants around to far-flung places, on account of technological limits and related practical reasons, armed conflict tended to have a de facto geographical space. Moreover, if one wanted to invoke the law of armed conflict in some place, the presence of combatants would not by itself suffice; someone would in fact have to undertake hostilities (including initiating them). So the conduct of hostilities, rather than geography as such, was the traditional touchstone – but in fact hostilities for all sorts of practical reasons tended to stick to geographical zones. The hostilities standard also had the virtue of keeping jus ad bellum issues (including sovereignty, neutrality, borders) distinct from the jus in bello issues (irrespective of whether ad bellum law was violated, the law of armed conflict would apply in the conduct of active hostilities)." [See his 2011 essay, "How We Came to Debate
Whether There Is A Legal Geography Of War," and his introductory framework
essay of Lawfare for the Naval
War College
workshop on the legal geography of the battlefield.] The norms guiding the conduct of war are merely catching up with changes in technology and the prevalence of asymmetrical wars against non-state actors.

What about Roth’s argument with respect to those who can be targeted. The authorization for the war against al-Qaeda and affiliates was wide open. The policy tended to focus on high level policy makers and medium level operatives. Roth would further restrict targets to those actually engaged in conflict, in effect, hostiles with a gun. This is far too restrictive and would outlaw capturing or killing bin Laden except by law enforcement authorities. On the other hand, targeting individuals based on patterns of behaviour (signature strikes) rather than individual identification has resulted in costly mistakes where civilians were killed and should be prohibited on the traditional rule of discrimination and minimizing collateral damage.

I will ignore the issue of immanent threat governing the actions of police officials given that I have already accepted that these are military and not civilian police actions. What about Roth’s fourth argument for prioritizing capture. As I indicated above, both schools agree on this preference. The real difference here in not over principle but over practice. In all cases, the authorities argue that capture was not feasible, including some cases – such as the infamous bin Laden case – where it was feasible. This is an argument over practice and not rules of war per se, but perhaps over process rules, the issue of Roth’s fifth and sixth arguments. The issue is not, in my mind, transparency, but the need for a legislative body to provide better worked out procedural guidelines for specific decisions but without setting up a proposed court of review or an equivalent ex ante review before the executive could take action. Legislative oversight could require the executive to set standards of threat and provide criteria for determining when such standards have been met. Legislatures can help provide normative frameworks. This is important and valuable, but legislative bodies should not partner in executive decisions. That legislative body should be empowered to define the constraints within which the policy should be carried out.

Finally, what about the argument that the use of drones should be assigned to the Pentagon and not the CIA because the former has a proper chain of command and a tradition of stronger accountability to the law? This issue is moot since the Obama administration has already announced that it intends to shift the implementation of drone use overwhelmingly to the Pentagon, a policy incidentally that was publicly supported by John Brennan both before and since he became head of the CIA.

Kenneth Roth is the Executive Director of Human Rights Watch. He has had enough on his plate defending himself against his former chair and the founder of HRW, Robert Bernstein and the record of bias on the Israeli-Palestinian conflict as well as by Islamic states on his stands in defence of Islamic women. He has also been criticized for being too defensive of American policy in Latin America. My concern is not with any of these. There is a great need, and possibly obligation as well, when presenting a case dealing with normative issues with respect to drones to clarify, analyze and then argue for a position and not simply serve as an advocate ignoring all other counter-evidence and arguments, variations and opponents.

[Category:
Ethics]

[Tags: drones,
just war, laws of war, geographical restrictions, target restrictions,
constraints]

Ethics and Drones Revisited19.doc

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