Wanted Dead or Alive: Ethical Concern in UAV Warfare. Abstract. First draft please do not cite without permission of the author

Transcription

1 Wanted Dead or Alive: Ethical Concern in UAV Warfare ECPR General Conference 2015, Montreal Andree- Anne (Andy) Melancon PhD Candidate The University of Sheffield First draft please do not cite without permission of the author Abstract Terrorism is a central concern in contemporary international security and unmanned aerial vehicles (UAVs), are rapidly becoming the counterterrorism weapon of choice. However, this is not without raising important ethical questions. This paper argues that UAV warfare poses significant challenges to Just War s two key jus in bello requirements: discrimination and proportionality. Firstly, UAV warfare challenges the discrimination criterion. Indeed, although UAVs offer the possibility of highly discriminate and precise strikes, the targeting principles behind the strike are cause for concern, especially with signature strikes. Secondly, UAV warfare is challenging for the proportionality requirement since it removes possibility for capture, surrender, or non- lethal strikes, which can lead to a highly disproportionate use of lethal force. Finally, the paper argues that the focus should be on the strategies behind UAV use as opposed to the technology itself if their use is to be just in regards to the just war tradition. 1

2 Introduction The use of drones in counterterrorism is one of the first steps towards the robotization and the automatization of warfare. The use of this new technology has not occurred without raising many concerns. On an ethical level, apprehensions can be linked back to one central issue: does the fact that an unmanned aerial vehicle (UAV hereafter) is doing the killing as opposed to the use of other conventional weapons make a difference? More broadly, the questions focus on whether old rules can apply to new weapons or a revision of criteria is necessary. As Michael Walzer asks: does it make any difference if the actual killing is the work of a drone, operated by a technician sitting in an office 3,000 miles away? Surely the same criteria apply to the drone as to any more closely manned machine. 1 For Walzer, the ethical concern with the use of UAVs is with jus ad bellum requirements. In that sense, he argues: But here is the difficulty: the technology is so good that the criteria for using it are likely to be steadily relaxed. That s what seems to have happened with the U.S. Army or with the CIA in Pakistan and Yemen. 2 Rather than looking at the impact of UAVs in jus ad bellum, this paper will focus on ethical issues of UAV use in jus in bello. Indeed, concerns and debates on the ease of war and drones overshadow greater ethical issues brought by drone warfare: the direct challenges to jus in bello requirements. There are multiple interpretations and approaches to just war theory but generally, two principles are considered central: discrimination and proportionality. Some scholars add a third criterion but there is no consensus on what ought to be added. Most notably, Jeff McMahan s list also includes the necessity or minimal force 3 but this requirement can be assimilated to the proportionality criterion. This paper will review the way the use of UAVs challenge both the discrimination and the proportionality requirements of jus in bello. After this review, it will be argued that in order for drone warfare to overcome these ethical concerns, focus ought to be placed on the strategies behind the use of UAVs. Two clarifications are necessary before tackling the ethical concerns for jus in bello in drone use. Firstly, contrary to popular belief, targeted killing is not equal to drone strike. Rather, a targeted killing is a strategy, a way to use weapons such as UAVs. A targeted killing is the intentional, premeditated and deliberate use of lethal force by a State or their agents acting under 1 Michael Walzer, Targeted Killings and Drone Warfare Dissent Magazine, 11 January 2013, Available online: 2 Ibid. 3 Jeff McMahan, 'Rethinking the 'Just War'' The New York Times Online, (2012) < the- just- war- part- 1/> [last accessed 26 July 2015] 2

3 colour of law, or by an organized armed group in armed conflict against a specific individual who is not in the physical custody of the perpetrator. 4 Secondly, throughout this paper, it will be held that jus ad bellum and jus in bello components of just war theory are independent one from the other. This independence means that a war can be fought justly even if it is declared on unjust grounds. Thus, in the current context where UAVs are being deployed in counterterrorism, the ethics and legality of the War on Terror (or the War on al- Qaeda) will not be discussed. Instead, the discussion will focus on the use of UAVs directly and its implications for jus in bello. 1. Drones and Discrimination The first and perhaps most important jus in bello requirement is the discrimination criterion. This requirement, also sometimes referred to as the distinction requirement, is one of the oldest and most codified rules of war. At its core, it states that the use of force ought to be limited to legitimate targets. Indiscriminate strikes or attacks on illegitimate targets are unjust. Indeed, the International Committee of the Red Cross (ICRC) recognizes discrimination as the first rule of international humanitarian law. The 2005 Customary International Humanitarian Law handbook states: Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. 5 It is important to note here that the principle of discrimination is not synonymous to non- combatant immunity. Rather, discrimination and non- combatant immunity are analogous. In that sense, discrimination calls for the distinction between legitimate and illegitimate targets in war whereas the principle of non- combatant immunity differentiates between combatants and non- combatants. This means that not all non- combatants are illegitimate targets and not all combatants are legitimate targets. The best example of this would be a civilian munitions factory worker: considering the fact they that are producing what is needed to wage the war as well as the fact that a munitions factory is a military objective, then the civilian worker can be considered a legitimate target. 4 Ian Graham Ronald Shaw and Majed Akhter, The Unbearable Humanness of Drone Warfare in FATA, Pakistan Antipode 44:4 (2012), p Jean- Marie Henckaerts and Louise Doswald- Beck, Customary International Humanitarian Law: Volume 1, Rules (Cambridge, U.K.: Cambridge University Press, 2005), p. 4. 3

4 Further, the ICRC handbook states: Rule 3. All members of the armed forces of a party to the conflict are combatants, except medical and religious personnel. 6 This definition is easily applicable in classic international armed conflict where two or more identified armies are fighting each other, but it is harder to apply in non- international armed conflict or non- traditional conflicts. For example, who are the legitimate targets in the context of asymmetrical warfare, where non- traditional armies are generally involved in the conflict? In an attempt to clarify this issue, the handbook states: While State armed forces may be considered combatants for purposes of the principle of distinction (see Rule 1), practice is not clear as to the situation of members of armed opposition groups. Practice does indicate, however, that persons do not enjoy the protection against attack accorded to civilians when they take a direct part in hostilities. 7 Thus, the combatant label is used in the generic literal sense of the word without referring to the legal conception of combatant. Members of a State s armed forces, excluding medical and religious workers, are always combatants unless they are hors de combat (out of combat) because of illness, injury, capture, etc. In short, the classic approach to discrimination is that all regular soldiers are combatants and thus legitimate targets. The status of non- traditional soldiers, such as insurgent fighters or terrorists, remains problematic. It is important to bear in mind that discrimination is not the only jus in bello requirement and that proportionality calculations also come into play in determining if a strike is just or not. Briefly, identifying someone as a legitimate target does not automatically imply they are liable to be killed because the use of force ought to be proportional, as will be discussed later. It is here that questions on the applicability of the old rules to new situations come into play: how is the discrimination criterion implemented in the use of UAVs? The classic understanding of discrimination is the one that reflects the codification of international humanitarian law and follows the soldier- civilian line. This approached worked well in the past and it is a clear reflection of the state of affairs in the post- World War II environment, when the rules of discrimination were codified. Yet, this classic soldier- civilian line is unsatisfactory when looking for a general and comprehensive way to differentiate legitimate from illegitimate targets in contemporary asymmetrical warfare. This is important as the difficulty to apply this approach to discrimination in real- life situations leads to the use of generalizations, which poses important challenges to the discrimination criterion. Indeed, the rigid soldier and civilian categories difficulty apply in the context of asymmetrical warfare and insurgency. 6 Henckaerts and Doswald- Beck, Customary International Humanitarian Law: Volume 1, Rules. p Ibid. 4

5 In UAV warfare, the challenges to discrimination come from the targeting principle behind each strike, seeing as the targeting is a direct application of the differentiation between legitimate and illegitimate targets. Thus, the challenge is with the selection of targets and the identification of legitimate targets. Understandably, the majority of insurgent fighters or terrorists do not walk around with easily identifiable uniforms or nametags, for example. Therefore, how are the legitimate targets identified and differentiated from the illegitimate targets? Currently, the classic soldier- combatant line is still used to identify legitimate targets. However, this combatant group is increasingly difficult to identify. In an attempt to overcome this challenge, the Obama administration has adopted a rather questionable way of counting causalities and identifying legitimate targets in drone warfare: all military- aged men in a strike zone are considered combatants, and thus legitimate targets. 8 In that sense, former American ambassador to Pakistan, Cameron Munter, identified targets for drone strikes as The definition is a male between the ages of 20 and This approach, often abbreviated to MAM, dates back to the Vietnam War and more often than not amounts to guilt by association. Further, it is an excessive expansion of the combatant group. This makes drone warfare rather indiscriminate rather than the hyper- discriminate and quasi- surgical type of war made possible with the use of UAVs. On the ground, the discrimination criterion takes the form of the targeting strategies behind each strike. There are three targeting strategies currently associated with UAV warfare: personality strikes, signature strikes, and double tap strikes. A rapid overview of these strategies demonstrates that there is a difficulty in applying the classic soldier- civilian line of discrimination in the context of counterterrorism and asymmetrical warfare. The first strategy is personality strikes. Here, the individual identity of the target is known before the attack is launched and the future targets are placed on a kill list. This is the strategy most commonly associated with UAV strikes and is the least problematic on an ethical level. Indeed, in the context of the War on Terror and the War on al- Qaeda, high- level leaders can be considered legitimate targets and placed on a kill list. More broadly, in the context of asymmetrical warfare, this naming on a list serves the same purpose as a soldier s uniform to identify him or her as a 8 Daphne Eviatar Warning: Avoid Military- Age Men in Muslim Countries The Huffington Post 21 November Available online: < eviatar/warning- avoid- military- ag_b_ html> [Last accessed: 5 August 2015] 9 Cited in Tara McKelvey A Former Ambassador to Pakistan Speaks Out The Daily Beast 20 November 2012, Available online: < former- ambassador- to- pakistan- speaks- out.html> [Last accessed: 5 August 2015] 5

6 legitimate target. Thus, the targeting of legitimate targets in personality strikes is possible and has the potential to yield a discriminate use of UAVs. Things are more complicated with the second strategy used in UAV warfare, which is signature strikes. In these attacks, the personal identity of the target is not known prior to launching the strike. Rather, targets are identified because of patterns of life or patterns of behaviour. 10 It is here that the danger of generalisations and excessive widening of the combatant group arise. Kevin Jon Heller of the Melbourne Law School identifies 14 signatures that are currently in use: 1. Planning attacks; 2. Transporting weapons; 3. Handling explosives; 4. Al- Qaeda compound; 5. Al- Qaeda training camp; 6. Military- age men in area of known terrorist activity; 7. Consorting with known militants; 8. Armed men traveling in trucks in al- Qaeda in the Arabian Peninsula- controlled areas; 9. Suspicious camp in al- Qaeda- controlled area; 10. Groups of armed men travelling towards conflict; 11. Operating an al- Qaeda training camp; 12. Training to join al- Qaeda; 13. Facilitators; 14. Rest areas. 11 Here, the discrimination between legitimate and illegitimate targets is more problematic and the use of generalisations such as the MAM approach is clear. The first three signatures consist of acts that can be considered as a direct implication in the conflict, thus making the agent a legitimate target because it is involved in the combat activities. In the context of a war against al- Qaeda and its associates, the group s compounds and training camps are to be considered military objectives, thus legitimate targets. However, signatures six through fourteen are problematic and raise serious ethical concerns in regards to whether strikes bases on such criteria can be considered discriminate. The final strategy of drone warfare is double tap strikes. In these attacks, the UAV operators fire a first missile at a target, identified by one of the two strategies presented previsouly. Shortly after, a second missile is fired at the same location as the first one this time targeting the rescuers and survivors. 12 This leads to highly indiscriminate strikes and is problematic on an ethical level. 10 Michael W. Lewis, Drones: Actually the Most Humane Form of Warfare Ever The Atlantic 21 August Available online: < actually- the- most- humane- form- of- warfare- ever/278746/> [last accessed: 27 July 2015] 11 Kevin Jon Heller, One Hell of a Killing Machine: Signature Strikes and International Law Journal of International Criminal Justice 11 (2013) pp Kristina Benson, Kill Em and Sort it out Later : Signature Drone Strikes and International Humanitarian Law Global Business & Development Law Journal Vol. 27 No. 1 (2014), p

7 In short, the strategies of UAV warfare show that for a strike to be just, the burden lies on targeting principles behind the strike. Indeed, a UAV strike will only be just if it is based on a just interpretation and application of the discrimination criterion. Further, ethically problematic approaches to discrimination, such as signature strikes for example, stem from the fact that an old rule is being applied to a new context. Indeed, the old soldier- civilian line is used to differentiate between legitimate and illegitimate targets but it does not take into account the non- traditional methods and tactics characteristic of asymmetrical warfare, which leads to generalisations and indiscriminate strikes. The following section will review issues of proportionality in UAV strikes before moving on to the final section, which will examine the possibility for a just use of drones. 2. Drones and Proportionality The second jus in bello criterion is the principle of proportionality. In short, this requirement states that attacks ought to be proportional to the sought objective. Proportionality implies utilitarian concerns minimizing unnecessary harm and destruction in war. Returning to the ICRC handbook, it states: Rule 14. Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. 13 The use of drones brings a unique challenge for proportionality: these weapons are limited to the use of lethal force. Indeed, a UAV only has two options when facing a potential target: launch a strike or abstain. Therefore, the discrimination between legitimate and illegitimate targets ought to take into account that the legitimate targets ought to be liable to be killed. In other words, proportionality calculations are integrated into the identification of legitimate targets and discrimination. This means that the identification of a legitimate target must also include considerations as to whether they are liable to be killed since the harm caused ought to be proportional to the outcomes and minimal harm ought to be used. The most important ethical concerns in regards to UAV warfare and proportionality has to do with the radical asymmetry brought by the use of drones. This asymmetry goes beyond asymmetrical warfare to become a greater form of imbalance. Indeed, radical asymmetry, 13 Henckaerts and Doswald- Beck, Customary International Humanitarian Law: Volume 1, Rules. p

8 however, is an imbalance so obvious and so profound that one side is apparently unable to apply in a just fashion, at least any strength at all against the other. 14 The concern here is that the imbalance is so important the conflict becomes a non- war and falls into the realm of political violence because there is a lack of reciprocity and mutual risk. 15 Similarly, UAVs are limited to lethal force and cannot use any alternative forms of force. Therefore, the only way in which drones can accept the surrender of a target is by abstaining to use lethal force. Also, drones have no capture capabilities. This emphasizes the radical asymmetry. Further, there is no way to communicate with the operators from the ground. To add to this difficulty, individuals on the ground have no way of determining whom the drones are tracking. 16 Former vice- chairman to the Joint Chief of Staff General James Cartwright argues: To me, the weakness in the drone activity is that if there s no one on the ground, and the person puts his hands out, he can t surrender. I have to have the authority to go after you or not. I can t be an assassin. [ ] What makes it worse with a Predator is you re actually watching it. You know when he puts his hands up. 17 Also, the missiles fired by UAVs travel faster than the speed of sound, thus targets do not know they are about to be the victim of a strike leaving no time to surrender. 18 Yet, there is no duty to offer enemy combatants an opportunity to defend themselves prior to launching an attack. Further, there is no duty to offer an opportunity to surrender before strikes. In fact, the duty to at least attempt capture before using lethal force as well as concerns of reciprocity and self- defence are rooted in domestic criminal law and not the law of armed conflict. As Jens David Ohlin of the Cornell Law Scholl states: the duty to capture is far more relevant in law enforcement situations. Police officers have a duty to attempt capture and are only permitted to use lethal force against a fleeing felon if the police have probable cause to believe that the felon constitutes a danger to the public. 19 As for international humanitarian law, there is no doctrine establishing the duty to attempt the capture before using lethal force. Indeed: to suggest that combatants could only be killed if capture was unfeasible would make the modern practice of aerial bombardments per se illegal. 20 Although this is an interesting moral argument, it would call for a 14 Christian Enemark, Armed Drones and the Ethics of War: Military Virtue in a Post- heroic Age (New York: Routledge, 2014) p Ibid. 16 James DeShaw Rae, Analyzing the Drone Debate: Targeted Killing, Remote Warfare, and Military Technology (New York: Palgrave Macmillan, 2014), p Cited in Tara McKelvey, Interview With Harold Koh, Obama s Defender of Drone Skrikes The Daily Beast 4 August 2012 Available online: < with- harold- koh- obama- s- defender- of- drone- strikes.html> [Last accessed 26 June 2015] 18 Rae, Analyzing the Drone Debate, p Jens David Ohlin The Duty to Capture Minnesota Law Review, 18 August 2012, Vol. 97(2013), p Ohlin The Duty to Capture, p

9 revision of warfare as a whole. Further there is no duty for soldiers to announce their presence and give the opportunity to surrender prior to launching an attack like the one that exists for police forces in law- enforcement. 21 However, there is a duty not to kill an enemy who has surrendered but this does not imply a duty to offer the opportunity to surrender. Ohlin rightly argues that there is a fundamental difference between the duty to offer surrender and the duty to accept surrender. 22 The former is not a requirement, in the same way that there is no duty to capture rather than kill enemy combatants. Yet, this is limited by the requirement to accept surrender when it is genuine. 23 Indeed, Protocol I of the Geneva Convention states that there is a legal requirement to accept the surrender of an individual who expresses the intent to surrender himself. Such a person is literally considered outside of combat and thus even if he is a combatant at the point where he surrenders he is as illegitimate a target as any other civilian. 24 Briefly, the ethical problem with UAVs and proportionality are due to the fact that drones are limited to the use of lethal force. Thus legitimate targets ought to be liable to be killed for a drone strike to be just. Issues of reciprocity, self- defence, and capture in UAV warfare arise when concerns of domestic law- enforcement and human rights law are applied to war, which is in the realm of international humanitarian law. Moreover, proportionality calculations are integrated to target selections, which is the implementation of the discrimination criterion in UAV strikes, seeing as drone operators can only use lethal force. 3. Towards a Just Use of UAVs Finally, the previous two sections have highlighted the ethical challenges the use of UAVs pose to the jus in bello requirements. This final section will examine the question of whether it is possible for drone warfare to overcome these issues in order to become more just. Looking back at the issues presented previously, the legitimacy of a UAV strike can be traced back to the targeting principle behind the strike, since proportionality calculations are assimilated to 21 Ibid., p Jens David Ohlin Surrendering to the Drones Lieber Code, 6 December Available online: < to- drones.html > [Last accessed: 29 June 2015] 23 Ibid. 24 Murtaza Hussain, Is Drone War Moral? Salon 6 August Available online: < /08/06/is_drone_war_moral/> [Last accessed: 25 June 2015] 9

10 the application of the discrimination criterion. Ergo, for the use of war to be just, strikes ought to be limited to legitimate targets. Since the targeting strategies in UAV use represent an interpretation and application of the discrimination criterion to drone warfare, it is important that these strategies only identify legitimate targets, without using generalizations such as seeing all military- aged men as combatants, for example. Much attention has been given to the fact that UAVs have no capture capabilities, that they are limited to the use of lethal force, and especially to the fact that they are remotely controlled. However, focussing on these issues, which relate to UAVs as weapons, overshadows the more important and problematic aspect in the use of drones: the targeting strategies used. Indeed, as was argued earlier, it is the target selection in UAV strikes that leads to unjust and indiscriminate strikes. Therefore, the starting point in making drone use more just in regards to jus in bello is the way the discrimination criterion is understood. Indeed, this requirement is at the root of the identification of legitimate targets and striking in UAV use. Thus, returning to the question of whether old rules apply to new weapons, the review of drone use above shows that a revision of the criterion is rather necessary. Indeed, the way the discrimination is currently being understood, following the old soldier- civilian line, leads to abuse and indiscriminate strikes, as exemplified by the use of the MAM approach to target selection. It is important for the interpretation of discrimination to have the most just line between legitimate and illegitimate targets in war whilst maintaining an awareness of the realities and implications of modern warfare. In the context of counterterrorism and the War on al- Qaeda, where UAVs are currently used, and in all of asymmetrical warfare more broadly, the line between soldiers and civilians (the classic legitimate- illegitimate targets categories) is blurred. This makes the identification of the truly legitimate targets in war a serious challenge and this is why a re- evaluation of the rule of discrimination is necessary. Further, a better understanding of discrimination will lead to more just and discriminate targeting strategies behind UAV strikes. A move towards just targeting strategies in UAV warfare begins with the elimination of double tap strikes. Secondly, signature strikes ought to be limited to the five signatures that are a direct implication in the conflict or military objectives (planning attacks, transporting weapons, handling explosives, al- Qaeda compound, al- Qaeda training camp). These signatures represent an interpretation of the distinction between legitimate and illegitimate targets based on direct implication in the conflict and threat, moving away from the indiscriminate out- dated soldier- civilian line, guilt by association, and targeting generalisations. This approach to discrimination bear many similarities with the one presented by Brian Orend, who states: A legitimate target in wartime is anyone or anything engaged in harming. All non- harming persons, or institutions, are thus ethically 10

11 and legally immune from direct and intentional attack by soldiers and their weapon systems. 25 Finally, personality strikes can remain just and legitimate if the target is identified as being liable to be killed and not simply to some limited degree of harm. In other words, the implication of the identified targets ought to be sufficient to make them liable to be killed. Here, the discrimination criterion is understood as being based on moral responsibility for the war: known terrorists are responsible for their actions and that is why they are legitimate targets. This second approach to discrimination represents Jeff McMahan s revisionist approach to discrimination, where moral combatants bear a moral responsibility for the war, which makes them liable to being legitimately targeted. 26 In short, for UAV strikes to be just, the targeting strategies ought to based on an interpretation of discrimination that moves away from the out- dated soldier- civilian line. Rather, discrimination between legitimate and illegitimate targets ought to be a two- fold approach: firstly, legitimate targets bear a moral responsibility for the war and can be targeted by personality strikes. Secondly, legitimate targets can be identified by the fact that they pose an immediate threat because of their direct implication in the conflict. This second approach is implemented with the use of limited signature strikes. Conclusion In summary, it was argued that UAV warfare poses an important challenge to both the discrimination and proportionality jus in bello criteria. The most important issue in drone warfare is the target selection and the implementation of the discrimination criterion. In addition to these issues, concerns on proportionality in UAV strikes are also important seeing as these weapons have no capture capabilities, cannot accept surrender, and are limited to the use of lethal force. In order to move beyond these issues and to make the use of drones more just in regards to jus in bello, a re- evaluation of the current rules is necessary. This means that the discrimination between legitimate targets ought to move beyond the out- dated soldier- civilian line and be understood on two levels. Firstly, legitimate combatants are differentiated from innocent illegitimate targets by their moral responsibility for the war. Secondly, in cases where information on responsibility is not available but there is an immediate threat to be addressed, discrimination is to 25 Brian Orend The Morality of War (Peterborough, ON, Canada: Broadview Press, 2006), p Jeff McMahan The Ethics of Killing in War Philosophia 34:1(2006), pp

12 be based on whether a person is posing an immediate and imminent threat or is currently engaged in harming. Finally, for UAV warfare to be just, the discrimination between legitimate and illegitimate targets ought to draw the line between the targets who can be killed legitimately and those who cannot. This doesn t mean that illegitimate targets in drone warfare are completely immune from any attack but rather that they are not liable to be killed because of the proportionality requirement. In short, the case of UAV warfare is unique because it partly assimilates calculations of proportionality in the use of force in the review of the discrimination between legitimate and illegitimate targets. 12

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