Hypothetically, if a future president—using a rationale similar to that used by the Obama administration—were to initiate targeted or signature drone attacks as part of a counter-terrorism program, would that decision be justified? Why or why not?
Alexander Moseley explains the principles of “Just War Theory,” which “is concerned with ethically justifying war and the forms that warfare may or may not take” (5). Another framework for thinking about war is presented by John Dewey, who argues that “antecedent and abstract principles cannot be assigned to justify the use of force” (13) and instead “The criterion of value lies in the relative efficiency and economy of the expenditure of force as a means to an end” (13). President Barack Obama, in his May 23, 2013 speech to the National Defense University, explained the ethical and practical reasons for his administration’s use of drones to conduct “targeted action against al Qaeda and its associated forces” (1). However, Harry van der Linden, using principles of just war theory, argues that the use of drones for targeted attacks cannot be justified. Question:
Hypothetically, if a future president—using a rationale similar to that used by the Obama administration—were to initiate targeted or signature drone attacks as part of a counter-terrorism program, would that decision be justified? Why or why not?
Instructions: This is a question about a hypothetical situation, and you may use Obama’s speech as an example of a justification that could be offered by a future president. You may consider whether such attacks would be ethically justified (according to just war theory), and whether they would be an efficient and economical means to an end (according to John Dewey’s pragmatism argument). You may agree and/or disagree with Obama’s and van der Linden’s arguments, with reasons. You must use materials from all four of the readings in this reading set, by quoting, summarizing, and paraphrasing them to assist you in explaining and supporting your argument. In addition, define and employ key terms that seem to be central to the arguments of your sources and, therefore, to your argument as well. Among these key terms are: Ethics; just cause; last resort; proper authority; right intention; chance of success/reasonable success; proportional; power/energy; coercive force; violence.
You must attribute to its source any material that you summarize, quote, or paraphrase. Base your essay on the information contained in the set of readings, not on your own life events, on readings from outside the reading set, or on courses you have taken. Your ideas should be the most important feature of your essay, but they should be ideas that develop from your work with the readings in this reading set. Plagiarism in a portfolio, whether it is in the new essay or in one of the supporting essays, will be treated in the manner as outlined in the Student Code of Conduct, which can be downloaded in PDF form at: https://www.umb.edu/life_on_campus/policies/community/code.
The consequences of violating these policies are serious and may include suspension or expulsion.
March 2018 WPE Portfolio Reading Set Table of Contents
University of Massachusetts at Boston Colleges of Education and Human Development, Honors, Liberal Arts, Nursing and Health Sciences, Public and Community Service, Science and Mathematics, and the School for the Environment
March 2018 Writing Proficiency Evaluation (WPE): Portfolio
Portfolio Reading Set: The Ethics of Drone Warfare
The portfolio is due on Friday, March 16, no later than 4:00PM
In the Writing Proficiency Office, CC-1-1300
Table of Contents 1. Obama, Barack. “Remarks by the President at the National Defense University.” The White House, The United States Government, 23 May 2013, https://obamawhitehouse.archives.gov/thepress-office/2013/05/23/remarks-president-national-defense-university.
2. Moseley, Alexander. “Just War Theory.” The Internet Encyclopedia of Philosophy. Web. https://www.iep.utm.edu/justwar/
3. Dewey, John. “Force and Coercion.” International Journal of Ethics, Vol. 26, No. 3 (Apr., 1916), pp. 359-367 Published by: The University of Chicago Press Stable URL: https://www.jstor.org/stable/2377050 Accessed: 05-02-2018 17:33 UTC
4. Van der Linden, Harry. “Drone Warfare and Just War Theory.” Chapter 9 of Drones and Targeted Killing: Legal Moral, and Geopolitical Issues, ed. Marjorie Cohn (Northampton, Mass: Olive Branch Press, 2015). Available from digitalcommons.butler.edu/facsch_papers/651/.
Articles reprinted with permission
Notes: Your portfolio must contain an essay that is at least five (5) full pages (double spaced in 10 or 12 point type) that answers the question above; at least 15 pages of supporting papers, each one attached to a completed Certification Form; and a completed Portfolio Submission Form.
The exception to the 15-page supporting-paper requirement only applies to a new transfer student. If you are a transfer student who has not yet completed your second semester, then you may submit a portfolio that has either two or three supporting papers totaling 10 full pages.
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“Remarks by the President at the National Defense University”1 By Barack Obama2 May 23, 2013
[…W]e have to recognize that these [terrorist] threats don’t arise in a vacuum. Most, though not all, of the terrorism we faced is fueled by a common ideology — a belief by some extremists that Islam is in conflict with the United States and the West, and that violence against Western targets, including civilians, is justified in pursuit of a larger cause. Of course, this ideology is based on a lie, for the United States is not at war with Islam. And this ideology is rejected by the vast majority of Muslims, who are the most frequent victims of terrorist attacks. Nevertheless, this ideology persists, and in an age when ideas and images can travel the globe in an instant, our response to terrorism can’t depend on military or law enforcement alone. We need all elements of national power to win a battle of wills, a battle of ideas. So what I want to discuss here today is the components of such a comprehensive counterterrorism strategy. First, we must finish the work of defeating al Qaeda and its associated forces. … Beyond Afghanistan, we must define our effort not as a boundless “global war on terror,” but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America. In many cases, this will involve partnerships with other countries. Already, thousands of Pakistani soldiers have lost their lives fighting extremists. In Yemen, we are supporting security forces that have reclaimed territory from AQAP3. In Somalia, we helped a coalition of African nations push al-Shabaab4 out of its strongholds. In Mali, we’re providing military aid to French-led intervention to push back al Qaeda in the Maghreb, and help the people of Mali reclaim their future. Much of our best counterterrorism cooperation results in the gathering and sharing of intelligence, the arrest and prosecution of terrorists. And that’s how a Somali terrorist apprehended off the coast of Yemen is now in a prison in New York. That’s how we worked with European allies to disrupt plots from Denmark to Germany to the United Kingdom. That’s how intelligence collected with Saudi Arabia helped us stop a cargo plane from being blown up over the Atlantic. These partnerships work. But despite our strong preference for the detention and prosecution of terrorists, sometimes this approach is foreclosed. Al Qaeda and its affiliates try to gain foothold in some of the most distant and unforgiving places on Earth. They take refuge in remote tribal regions. They hide in caves and walled compounds. They train in empty deserts and rugged mountains. In some of these places — such as parts of Somalia and Yemen — the state only has the most tenuous reach into the territory. In other cases, the state lacks the capacity or will to take action. And it’s also not possible for America to simply deploy a team of Special Forces to capture every terrorist. Even when such an approach may be possible, there are places where it
1 You may watch the entire speech at https://www.nytimes.com/video/us/politics/100000002242352/presidentobama-on-counterterrorism.html. 2According to non-governmental reports, during the eight years of Obama’s presidency, there were 569 drone strikes in Pakistan, Somalia, and Yemen. Drones were first used under George W. Bush (51 strikes). Source: The Bureau of Investigative Journalism (web). 3 AQAP: Al-Qaeda in the Arabian Peninsula. 4 Al-Shabaab: a jihadist fundamentalist group based in East Africa, allied with al Qaeda.
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would pose profound risks to our troops and local civilians — where a terrorist compound cannot be breached without triggering a firefight with surrounding tribal communities, for example, that pose no threat to us; times when putting U.S. boots on the ground may trigger a major international crisis. To put it another way, our operation in Pakistan against Osama bin Laden5 cannot be the norm. The risks in that case were immense. The likelihood of capture, although that was our preference, was remote given the certainty that our folks would confront resistance. The fact that we did not find ourselves confronted with civilian casualties, or embroiled in an extended firefight, was a testament to the meticulous planning and professionalism of our Special Forces, but it also depended on some luck. And it was supported by massive infrastructure in Afghanistan. And even then, the cost to our relationship with Pakistan — and the backlash among the Pakistani public over encroachment on their territory — was so severe that we are just now beginning to rebuild this important partnership. So it is in this context that the United States has taken lethal, targeted action against al Qaeda and its associated forces, including with remotely piloted aircraft commonly referred to as drones. As was true in previous armed conflicts, this new technology raises profound questions —about who is targeted, and why; about civilian casualties, and the risk of creating new enemies; about the legality of such strikes under U.S. and international law; about accountability and morality. So let me address these questions. To begin with, our actions are effective. Don’t take my word for it. In the intelligence gathered at bin Laden’s compound, we found that he wrote, “We could lose the reserves to enemy’s air strikes. We cannot fight air strikes with explosives.” Other communications from al Qaeda operatives confirm this as well. Dozens of highly skilled al Qaeda commanders, trainers, bomb makers and operatives have been taken off the battlefield. Plots have been disrupted that would have targeted international aviation, U.S. transit systems, European cities and our troops in Afghanistan. Simply put, these strikes have saved lives. Moreover, America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war — a war waged proportionally, in last resort, and in self-defense. And yet, as our fight enters a new phase, America’s legitimate claim of self-defense cannot be the end of the discussion. To say a military tactic is legal, or even effective, is not to say it is wise or moral in every instance. For the same human progress that gives us the technology to strike half a world away also demands the discipline to constrain that power —or risk abusing it. And that’s why, over the last four years, my administration has worked vigorously to establish a framework that governs our use of force against terrorists – insisting upon clear guidelines, oversight and accountability that is now codified in Presidential Policy Guidance that I signed yesterday. In the Afghan war theater, we must — and will — continue to support our troops until the transition is complete at the end of 20146. And that means we will continue to take strikes against high value al
5 Osama bin Ladin was the founder and leader of the Islamist group al-Qaeda, which planned and carried out the 9/11 attack on the World Trade Center in New York. Because of that attack, George W. Bush declared war on Afghanistan, which sheltered al-Qaeda (2001-present). 9/11 was also used as a justification for declaring war on Iraq (2003-2011). 6He is referring to a plan for all foreign troops to withdraw from Afghanistan and for that country to assume responsibility for its own security.
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Qaeda targets, but also against forces that are massing to support attacks on coalition forces. But by the end of 2014, we will no longer have the same need for force protection, and the progress we’ve made against core al Qaeda will reduce the need for unmanned strikes. Beyond the Afghan theater, we only target al Qaeda and its associated forces. And even then, the use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists; our preference is always to detain, interrogate, and prosecute. America cannot take strikes wherever we choose; our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals; we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set. Now, this last point is critical, because much of the criticism about drone strikes — both here at home and abroad — understandably centers on reports of civilian casualties. There’s a wide gap between U.S. assessments of such casualties and nongovernmental reports. Nevertheless, it is a hard fact that U.S. strikes have resulted in civilian casualties, a risk that exists in every war. And for the families of those civilians, no words or legal construct can justify their loss. For me, and those in my chain of command, those deaths will haunt us as long as we live, just as we are haunted by the civilian casualties that have occurred throughout conventional fighting in Afghanistan and Iraq. But as Commander-in-Chief, I must weigh these heartbreaking tragedies against the alternatives. To do nothing in the face of terrorist networks would invite far more civilian casualties — not just in our cities at home and our facilities abroad, but also in the very places like Sana’a and Kabul and Mogadishu where terrorists seek a foothold. Remember that the terrorists we are after target civilians, and the death toll from their acts of terrorism against Muslims dwarfs any estimate of civilian casualties from drone strikes. So doing nothing is not an option.
Where foreign governments cannot or will not effectively stop terrorism in their territory, the primary alternative to targeted lethal action would be the use of conventional military options. As I’ve already said, even small special operations carry enormous risks. Conventional airpower or missiles are far less precise than drones, and are likely to cause more civilian casualties and more local outrage. And invasions of these territories lead us to be viewed as occupying armies, unleash a torrent of unintended consequences, are difficult to contain, result in large numbers of civilian casualties and ultimately empower those who thrive on violent conflict. So it is false to assert that putting boots on the ground is less likely to result in civilian deaths or less likely to create enemies in the Muslim world. The results would be more U.S. deaths, more Black Hawks down7, more confrontations with local populations, and an inevitable mission creep in support of such raids that could easily escalate into new wars. Yes, the conflict with al Qaeda, like all armed conflict, invites tragedy. But by narrowly targeting our action against those who want to kill us and not the people they hide among, we are choosing the course of action least likely to result in the loss of innocent life. Our efforts must be measured against the history of putting American troops in distant lands among hostile populations. In Vietnam, hundreds of thousands of civilians died in a war where the boundaries of battle were blurred. In Iraq and Afghanistan, despite the extraordinary courage and discipline of our troops, thousands of civilians have been killed. So neither conventional military action nor waiting for
7 He is referring to a 1993 incident in which three soldiers were killed when a American black hawk helicopter was shot down by an armed faction during the Somali Civil War.
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attacks to occur offers moral safe harbor, and neither does a sole reliance on law enforcement in territories that have no functioning police or security services — and indeed, have no functioning law. Now, this is not to say that the risks are not real. Any U.S. military action in foreign lands risks creating more enemies and impacts public opinion overseas. Moreover, our laws constrain the power of the President even during wartime, and I have taken an oath to defend the Constitution of the United States. The very precision of drone strikes and the necessary secrecy often involved in such actions can end up shielding our government from the public scrutiny that a troop deployment invites. It can also lead a President and his team to view drone strikes as a cure-all for terrorism. And for this reason, I’ve insisted on strong oversight of all lethal action. After I took office, my administration began briefing all strikes outside of Iraq and Afghanistan to the appropriate committees of Congress. Let me repeat that: Not only did Congress authorize the use of force, it is briefed on every strike that America takes. Every strike. That includes the one instance when we targeted an American citizen — Anwar Awlaki, the chief of external operations for AQAP. […] But the high threshold that we’ve set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens. This threshold respects the inherent dignity of every human life. Alongside the decision to put our men and women in uniform in harm’s way, the decision to use force against individuals or groups — even against a sworn enemy of the United States — is the hardest thing I do as President. But these decisions must be made, given my responsibility to protect the American people. Going forward, I’ve asked my administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested — the establishment of an independent oversight board in the executive branch — avoids those problems, but may introduce a layer of bureaucracy into national security decision-making, without inspiring additional public confidence in the process. But despite these challenges, I look forward to actively engaging Congress to explore these and other options for increased oversight. I believe, however, that the use of force must be seen as part of a larger discussion we need to have about a comprehensive counterterrorism strategy — because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the wellspring of extremism, a perpetual war — through drones or Special Forces or troop deployments — will prove self-defeating, and alter our country in troubling ways. So the next element of our strategy involves addressing the underlying grievances and conflicts that feed extremism — from North Africa to South Asia. As we’ve learned this past decade, this is a vast and complex undertaking. We must be humble in our expectation that we can quickly resolve deeprooted problems like poverty and sectarian hatred. Moreover, no two countries are alike, and some will undergo chaotic change before things get better. But our security and our values demand that we make the effort. […]
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“Just War Theory”
By Alexander Moseley8
Just war theory deals with the justification of how and why wars are fought. The justification can be either theoretical or historical. The theoretical aspect is concerned with ethically justifying war and the forms that warfare may or may not take. The historical aspect, or the “just war tradition,” deals with the historical body of rules or agreements that have applied in various wars across the ages. For instance, international agreements such as the Geneva and Hague conventions are historical rules aimed at limiting certain kinds of warfare which lawyers may refer to in prosecuting transgressors, but it is the role of ethics to examine these institutional agreements for their philosophical coherence as well as to inquire into whether aspects of the conventions ought to be changed. The just war tradition may also consider the thoughts of various philosophers and lawyers through the ages and examine both their philosophical visions of war’s ethical limits (or absence of) and whether their thoughts have contributed to the body of conventions that have evolved to guide war and warfare.
1. Introduction Historically, the just war tradition—a set of mutually agreed rules of combat—may be said to commonly evolve between two culturally similar enemies. That is, when an array of values are shared between two warring peoples, we often find that they implicitly or explicitly agree upon limits to their warfare. But when enemies differ greatly because of different religious beliefs, race, or language, and as such they see each other as “less than human”, war conventions are rarely applied. It is only when the enemy is seen to be a people, sharing a moral identity with whom one will do business in the following peace, that tacit or explicit rules are formed for how wars should be fought and who they should involve and what kind of relations should apply in the aftermath of war. In part, the motivation for forming or agreeing to certain conventions, can be seen as mutually benefiting—preferable, for instance, to the deployment of any underhand tactics or weapons that may provoke an indefinite series of vengeance acts, or the kinds of action that have proved to be detrimental to the political or moral interests to both sides in the past. Regardless of the conventions that have historically formed, it has been the concern of the majority of just war theorists that the lack of rules to war or any asymmetrical morality between belligerents should be denounced, and that the rules of war should apply to all equally. That is, just war theory should be universal, binding on all and capable in turn of appraising the actions of all parties over and above any historically formed conventions. […]
2. The Jus Ad Bellum9 Convention The principles of the justice of war are commonly held to be: having just cause, being a last resort, being declared by a proper authority, possessing right intention, having a reasonable chance of success, and the end being proportional to the means used. […] Whilst this provides just war theory with the advantage of flexibility, the lack of a strict ethical framework means that the principles themselves are open to broad interpretations. Examining each in turn draws attention to the relevant problems.
Possessing just cause is the first and arguably the most important condition of jus ad bellum. Most theorists hold that initiating acts of aggression is unjust and gives a group a just cause to defend itself. But
8 Alexander Mosely is the political philosophy editor for the Internet Encyclopedia of Philosophy. He is an educator with a PhD in philosophy. 9 Jus Ad Bellum is Latin for “Right to War.” This phrase and its companion, Jus in Bellum, were first used after WWI. Philosophical discussion of the ethics of war dates at least as far back as 79 C.E.
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unless “aggression” is defined, this proscription is rather open-ended. For example, just cause resulting from an act of aggression can ostensibly be a response to a physical injury (for example, a violation of territory), an insult (an aggression against national honor), a trade embargo (an aggression against economic activity), or even to a neighbor’s prosperity (a violation of social justice). The onus is then on the just war theorist to provide a consistent and sound account of what is meant by just cause. Whilst not going into the reasons why the other explanations do not offer a useful condition of just cause, the consensus is that an initiation of physical force is wrong and may justly be resisted. Self-defense against physical aggression, therefore, is putatively the only sufficient reason for just cause. Nonetheless, the principle of self-defense can be extrapolated to anticipate probable acts of aggression, as well as in assisting others against an oppressive government or from another external threat (interventionism). Therefore, it is commonly held that aggressive war is only permissible if its purpose is to retaliate against a wrong already committed (for example, to pursue and punish an aggressor), or to pre-empt an anticipated attack. In recent years, the argument for preemption has gained supporters in the West: surely, the argument goes, it is right on consequentialist10 grounds to strike the first blow if a future war is to be avoided? By acting decisively against a probable aggressor, a powerful message is sent that a nation will defend itself with armed force; thus preemption may provide a deterrent and a more peaceful world. However, critics complain that preemptive strikes are based on conjectured rather than impending aggression and in effect denounce the moral principle that an agent is presumed innocent – posturing and the building up of armaments do not in themselves constitute aggression, just a man carrying a weapon is not a man using a weapon. […]
War should always be a last resort. This connects intimately with presenting a just cause – all other forms of solution must have been attempted prior to the declaration of war. It has often been recognized that war unleashes forces and powers that soon get beyond the grips of the leaders and generals to control – there is too much “fog” in war, as Clausewitz noted, but that fog is also a moral haze in which truth and trust are early casualties. The resulting damage that war wreaks tends to be very high for most economies and so theorists have advised that war should not be lightly accepted: once unleashed, war is not like a sport that can be quickly stopped at the blow of a whistle […] and its repercussions last for generations. Holding “hawks”11 at bay though is a complicated task – the apparent ease by which war may resolve disputes, especially in the eyes of those whose military might is apparently great and victory a certainty, does present war as a low cost option relative to continuing political problems and economic or moral hardship. Yet the just war theorist wishes to underline the need to attempt all other solutions but also to tie the justice of the war to the other principles of jus ad bellum too.
The notion of proper authority seems to be resolved for most of the theorists, who claim it obviously resides in the sovereign power of the state. But the concept of sovereignty raises a plethora of issues to consider here. If a government is just, i.e., most theorists would accept that the government is accountable and does not rule arbitrarily, then giving the officers of the state the right to declare war is reasonable, so the more removed from a proper and just form a government is, the more reasonable it is that its claim to justifiable political sovereignty disintegrates. A historical example can elucidate the problem: when Nazi Germany invaded France in 1940 it set up the Vichy puppet regime. What allegiance did the people of France under its rule owe to its precepts and rules? A Hobbesian12 rendition of almost absolute allegiance
10 “Consequentialism is the view that morality is all about producing the right kinds of overall consequences.” (“Consequentialism” Internet Encyclopedia of Philosophy). “Consequentialists […] may claim that if military victory is sought then all methods should be employed to ensure it is gained at a minimum of expense and time” “Just War Theory” Internet Encyclopedia of Philosophy). 11 During the Vietnam War, people who were in favor of the war were called hawks, and people opposed to the war were called doves. To this day, a hawkish policy is one that favors military intimidation to resolve conflict, while a dovish policy supports nonmilitary solutions. 12 Referring to philosopher Thomas Hobbes or his ideas.
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to the state entails that resistance is wrong (so long as the state is not tyrannical and imposes war when it should be the guardian of peace); whereas a Lockean13 or instrumentalist conception of the state entails that a poorly accountable, inept, or corrupt regime possesses no sovereignty, and the right of declaring war (to defend themselves against the government or from a foreign power) is wholly justifiable. The notion of proper authority therefore requires thinking about what is meant by sovereignty, what is meant by the state, and what is the proper relationship between a people and its government.
The possession of right intention is ostensibly less problematic. The general thrust of the concept being that a nation waging a just war should be doing so for the cause of justice and not for reasons of selfinterest or aggrandizement. Putatively, a just war cannot be considered to be just if reasons of national interest are paramount or overwhelm the pretext of fighting aggression. However, “right intention” masks many philosophical problems. According to Kant, possessing good intent constitutes the only condition of moral activity, regardless of the consequences envisioned or caused, and regardless, or even in spite, of any self interest in the action the agent may have. The extreme intrinsicism of Kant14 can be criticized on various grounds, the most pertinent here being the value of self-interest itself. At what point does right intention separate itself from self-interest – is the moral worthiness of intent only gained by acting in favor of one’s neighbor, and if so, what does that imply for moral action – that one should woo one’s neighbor’s spouse to make him/her feel good? Acting with proper intent requires us to think about what is proper and it is not certain that not acting in self-interest is necessarily the proper thing to do. On the one hand, if the only method to secure a general peace (something usually held to be good in itself) is to annex a belligerent neighbor’s territory, political aggrandizement becomes intimately connected with the proper intention of maintaining the peace for all or the majority. On the other hand, a nation may possess just cause to defend an oppressed group, and may rightly argue that the proper intention is to secure their freedom, yet such a war may justly be deemed too expensive or too difficult to wage; i.e., it is not ultimately in their self-interest to fight the just war. On that account, the realist may counter that national interest is paramount: only if waging war on behalf of freedom is also complemented by the securing of economic or other military interests should a nation commit its troops. The issue of intention raises the concern of practicalities as well as consequences, both of which should be considered before declaring war.
The next principle is that of reasonable success. This is another necessary condition for waging just war, but again is insufficient by itself. Given just cause and right intention, the just war theory asserts that there must be a reasonable probability of success. The principle of reasonable success is consequentialist in that the costs and benefits of a campaign must be calculated. However, the concept of weighing benefits poses moral as well as practical problems as evinced in the following questions. Should one not go to the aid of a people or declare war if there is no conceivable chance of success? Is it right to comply with aggression because the costs of not complying are too prohibitive? Would it be right to crush a weak enemy because it would be marginally costless? Is it not sometimes morally necessary to stand up to a bullying larger force, as the Finns did when Russia invaded in 1940, for the sake of national self-esteem or simple interests of defending land? Historically, many nations have overcome the probability of defeat: the fight may seem hopeless, but a charismatic leader or rousing speech can sometimes be enough to stir a people into fighting with all their will. Winston Churchill offered the British nation some of the finest of war’s rhetoric when it was threatened with defeat and invasion by Nazi Germany in 1940. For example: “Let us therefore brace ourselves to do our duty, and so bear ourselves that, if the British Commonwealth and its Empire lasts for a thousand years, men will still say, ‘This was their finest hour.’ [and] “What is our aim?….Victory, victory at all costs, victory in spite of all terror; victory, however long and hard the road may be; for without victory, there is no survival.” (Speeches to Parliament, 1940). However, the thrust of the reasonable success principle emphasizes that human life and economic resources should not be wasted
13 Referring to philosopher John Locke or his ideas. 14 Philosopher Immanuel Kant.
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in what would obviously be an uneven match. For a nation threatened by invasion, other forms of retaliation or defense may be available, such as civil disobedience, or even forming alliances with other small nations to equalize the odds.
The final guide of jus ad bellum is that the desired end should be proportional to the means used. This principle overlaps into the moral guidelines of how a war should be fought, namely the principles of jus In bello. With regards to just cause, a policy of war requires a goal, and that goal must be proportional to the other principles of just cause. Whilst this commonly entails the minimizing of war’s destruction, it can also invoke general balance of power considerations. For example, if nation A invades a land belonging to the people of nation B, then B has just cause to take the land back. According to the principle of proportionality, B’s counter-attack must not invoke a disproportionate response: it should aim to retrieve its land and not exact further retribution or invade the aggressor’s lands, or in graphic terms it should not retaliate with overwhelming force or nuclear weaponry to resolve a small border dispute. That goal may be tempered with attaining assurances that no further invasion will take place, but for B to invade and annex regions of A is nominally a disproportionate response, unless (controversially) that is the only method for securing guarantees of no future reprisals. For B to invade and annex A, and then to continue to invade neutral neighboring nations on the grounds that their territory would provide a useful defense against other threats and a putative imbalance of power is even more unsustainable.
On the whole the principles offered by jus ad bellum are useful guidelines for reviewing the morality of going to war that are not tied to the intrinsicist’s15 absolutism or consequentialist’s open-endedness. Philosophically however they invoke a plethora of problems by either their independent vagueness or by mutually inconsistent results – a properly declared war may involve improper intention or disproportionate ambitions. But war is a complicated issue and the principles are nonetheless a useful starting point for ethical examination and they remain a guide for both statesmen and women and for those who judge political proceedings.
3. The Principles of Jus In Bello16 The rules of just conduct within war fall under the two broad principles of discrimination and proportionality. The principle of discrimination concerns who are legitimate targets in war, whilst the principle of proportionality concerns how much force is morally appropriate. A third principle can be added to the traditional two, namely the principle of responsibility, which demands an examination of where responsibility lies in war.
One strong implication of the justice of warfare being a separate topic of analysis to the justice of war is that the theory thus permits the judging of acts within war to be dissociated from it cause. This allows the theorist to claim that a nation fighting an unjust cause may still fight justly, or a nation fighting a just cause may be said to fight unjustly. It is a useful division but one that does not necessarily sever all ties between the two great principles of warfare: the justice of a cause remains a powerful moral guide by which warfare is to be judged, for what does it matter, it can be asked, if a nation wages a war of aggression but does so cleanly?
In waging war it is considered unfair and unjust to attack indiscriminately since non-combatants or innocents are deemed to stand outside the field of war proper. Immunity from war can be reasoned from
15“Intrinsicists (who claim that there are certain acts that are good or bad in themselves) may also decree that no morality can exist in the state of war: they may claim that it can only exist in a peaceful situation in which, for instance, recourse exists to conflict resolving institutions. Alternatively, intrinsicists may claim that possessing a just cause (the argument from righteousness) is a sufficient condition for pursuing whatever means are necessary to gain a victory or to punish an enemy.” (“Just War Theory” Internet Encyclopedia of Philosophy). 16 Jus in Bello is Latin for “The law in waging war.”
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the fact that their existence and activity is not part of the essence of war, which is the killing of combatants. Since killing itself is highly problematic, the just war theorist has to proffer a reason why combatants become legitimate targets in the first place, and whether their status alters if they are fighting a just or unjust war. Firstly, a theorist may hold that being trained and/or armed constitutes a sufficient threat to combatants on the other side and thereby the donning of uniform alters the person’s moral status to legitimate target; whether this extends to peaceful as well as war duties is not certain though. […]
Such an argument would imply that it is right to attack unarmed soldiers or soldiers who have surrendered or who are enjoying the normality of civilian life, which just war theorists and historical conventions have traditionally rejected on the claim that when a soldier lays down his weapons or removes his uniform, he or she returns to civilian life and hence the status of the non-combatant even if that return is temporary. Conversely, in joining an army the individual is said to renounce his or her rights not to be targeted in war – the bearing of arms takes a person into an alternative moral realm in which killing is the expectation and possible norm: it is world removed from civilian structures and historically has evolved rites of passage and exit that underline the alteration in status for cadets and veterans; all analogies to the fair play of sports fail at this juncture, for war involves killing and what the British Army call “unlimited liability.” On entering the army, the civilian loses the right not to be targeted, yet does it follow that all who bear uniform are legitimate targets, or are some more so than others – those who are presently fighting compared to those bearing arms but who are involved in supplies or administration, for instance? […]
Walzer, in his Just and Unjust Wars (1977) claims that the lack of identification does not give a government the right to kill indiscriminately—the onus is on the government to identify the combatants, and so, the implication goes, if there is any uncertainty involved then an attack must not be made. Others have argued that the nature of modern warfare dissolves the possibility of discrimination: civilians are just as necessary causal conditions for the war machine as are combatants, therefore, they claim, there is no moral distinction in targeting an armed combatant and a civilian involved in arming or feeding the combatant. The distinction is, however, not closed by the nature of modern economies, since a combatant still remains a very different entity from a non-combatant, if not for the simple reason that the former is presently armed (and hence has renounced rights or is prepared to die, or is a threat), whilst the civilian is not. On the other hand, it can be argued that being a civilian does not necessarily mean that one is not a threat and hence not a legitimate target. If Mr. Smith is the only individual in the nation to possess the correct combination that will detonate a device that could kill thousands, then he becomes not only causally efficacious in the firing of a weapon of war, but also morally responsible; reasonably he also becomes a legitimate military target. His job effectively militarizes his status even though he does not bear arms.
The underlying issues that ethical analysis must deal with involve the logical nature of an individual’s complicity and the aiding and abetting the war machine, with greater weight being imposed on those logically closer than those logically further from the war machine in their work. At a deeper level, one can consider the role that civilians play in supporting an unjust war: to what extent are they morally culpable, and if they are culpable in giving moral, financial, or economic support to some extent, does that mean they may become legitimate targets? This invokes the issue of collective versus individual responsibility that is in itself a complex topic but one that the principle of discrimination tries to circumvent by presenting guidelines for soldiers that keep their activity within the realms of war and its effects rather than murder. It would be wrong, on the principle of discrimination, to group the enemy into one targetable mass of people – some cannot be responsible for a war or its procedures, notably children. Yet, on the other hand, if a civilian bankrolls a war or initiates aggression as a politician, surely he or she bears some moral responsibility for the ensuing deaths: some may argue that the war’s justification rests upon such shoulders but not the manner in which it is fought, while others may prefer to saddle the leader or initiator with the entire responsibility for how a war is fought on the argument that each combatant is responsible
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for those below him or her in rank – so the political or civilian leaders are analogously responsible for all operating in the military field.
The second principle of just conduct is that any offensive action should remain strictly proportional to the objective desired. This principle overlaps with the proportionality principle of just cause, but it is distinct enough to consider it in its own light. Proportionality for jus in bello requires tempering the extent and violence of warfare to minimize destruction and casualties. It is broadly utilitarian in that it seeks to minimize overall suffering, but it can also be understood from other moral perspectives, for instance, from harboring good will to all (Kantian ethics), or acting virtuously (Aristotelian ethics). Whilst the consideration of discrimination focuses on who is a legitimate target of war, the principle of proportionality deals with what kind of force is morally permissible. In fighting a just war in which only military targets are attacked, it is still possible to breach morality by employing disproportionate force against an enemy. Whilst the earlier theoreticians, such as Thomas Aquinas, invoked the Christian concepts of charity and mercy, modern theorists may invoke either consequentialist or intrinsicist prescriptions, both of which remain problematic as the foregoing discussions have noted. However, it does not seem morally reasonable to completely gun down a barely armed albeit belligerent tribe. At the battle of Omdurman in 1898 in the Sudan, six machine gunners killed thousands of dervishes—the gunners may have been in the right to defend themselves, but the principle of proportionality implies that a battle end before it becomes a massacre. Similarly, following the battle of Culloden in 1746 in Scotland, Cumberland ordered “No Quarter”, which was not only a breach of the principle of discrimination, for his troops were permitted to kill the wounded as well as supporting civilians, but also a breach of the principle of proportionality, since the battle had been won, and the Jacobite cause effectively defeated on the battle field.
What if a war and all of its suffering could be avoided by highly selective killing? Could just war theory endorse assassination for instance? Assassination programs have often been secretly accepted and employed by states throughout the centuries and appeal, if challenged, is often to a “higher” value such as self-defense, killing a target guilty of war crimes and atrocities, or removing a threat to peace and stability. The CIA manual on assassination (1954, cf. Belfield), sought to distinguish between murder and assassination, the latter being justifiable according to the higher purposes sought. This is analogous to just war theorists seeking to put mass killing on a higher moral ground than pure massacre and slaughter and is fraught with the same problems raised in this article and in the just war literature. On grounds of discrimination, assassination would be justifiable if the target were legitimate and not, say, the wife or children of a legitimate target. On grounds of proportionality, the policy would also be acceptable, for if one man or woman (a legitimate target by virtue of his or her aggression) should die to avoid further bloodshed or to secure a quicker victory, then surely assassination is covered by the just war theory? The founder of the Hashshashin society (c.11-13thC), Hasan ibn el Sabah preferred to target or threaten warmongers rather than drag innocents and noncombatants into bloody and protracted warfare: his threats were often successful for he brought the reality of death home to the leaders who otherwise would enjoy what lyricist Roger Waters calls “the bravery of being out of range.” In recent years, the US and UK proclaimed that the war in the Gulf was not with the Iraqi people but with its leader and his regime; the US government even issued a bounty on the heads of key agents in the Ba’ath party; indeed, Saddam Hussein’s sons, Uday and Qusay with a bounty of £15m, were killed in a selective hunt-and-destroy mission rather than being captured and brought to trial for the crimes asserted of them. Assassination would apparently clear the two hurdles of discrimination and proportionality, yet the intrinsicist wing of just war theorists would reasonably claim that underhand and covert operations, including assassination, should not form a part of war on grounds that they act to undermine the respect due one’s enemy (not matter how cruel he or she is) as well as the moral integrity of the assassin; the consequentialists would also counter that such policies also encourage the enemy to retaliate in similar manner, and one of the sustaining conclusions of just war theory is that escalation or retaliatory measures (tit for tat policies) should be avoided for their destabilizing nature. Once initiated, assassination tends to become the norm of
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political affairs – indeed, civil politics would thus crumble into fearful and barbaric plots and conspiracies (as did Rome in its last centuries) in a race to gain power and mastery over others rather than to forge justifiable sovereignty.
The principles of proportionality and discrimination aim to temper war’s violence and range; while they may ostensibly imply the acceptance of some forms of warfare, their malleability also implies that we continuously look afresh upon seemingly acceptable acts. Accordingly, they are complemented by other considerations that are not always explicitly taken up in the traditional exposition of jus in bello, this is especially true in the case of the issue of responsibility. […]
Responsibility for acts of war relate back to the tenets of jus ad bellum as well as jus in bello, for the justification of going to war involves responsibility as well as the acts ordered and committed in war. In reviewing the stories from military ethics readers, the acts of bravery that attract our attention involve soldiers standing up to do the “right thing” against either the prevailing momentum of the platoon or the orders from higher up; the realist rejects such acts as infrequent or unnecessary performances that do not alter the main characteristic of war and its innate brutality, yet such acts also remind the critic as well as the soldier of the importance of returning to the civilian mode with good conscience. […]
“Force and Coercion”
By John Dewey17
The empirical perplexities which attend the question of the relationship of force and law are many and genuine. The war18 brings home to us the question not only of the relation of force to international law, but the place of force in the economy of human life and progress. To what extent is organization of force in the multitude of ways required for the successful conduct of modern war a fair test of the work of a social organization? From another angle, the reform of our criminal law and our penal methods compels us to consider the significance of force. Are the Tolstoians19 right in holding that the state itself sets the great example of violence and furnishes the proof of the evils which result from violence? Or, from the other side, is not the essence of all law coercion? […]
In taking up the writings of the theorists it is not easy to persuade oneself that they are marked by much consistency. With a few notable exceptions, the doctrine that the state rests upon or is common will seems to turn out but a piece of phraseology to justify the uses actually made of force. Practices of coercion and constraint which would be intolerable if frankly labelled “Force” seem to become laudable when baptized with the name of Will, although they otherwise remain the same. Or, if this statement is extreme, there seems to ·be little doubt that the actual capacity of the state to bring force to bear is what has most impressed theorists, and that what they are after is some theoretical principle which will justify the exercise of force; so that in a great many cases such terms as common will, supreme will, supreme moral or juridical personality, are eulogistic phrases resorted to in behalf of such justification. The one thing that clearly stands out is that the use of force is felt to require explanation and sanction. To make force itself the ultimate principle is felt to be all one with proclaiming anarchy and issuing an invitation to men to
17 John Dewey (1859-1952), a philosopher, was a social reformer and educator who changed fundamental approaches to teaching and learning. 18 Bear in mind that this essay was published in 1916, when WWI was raging in Europe, and the U.S. was trying to stay uninvolved. The U.S. finally declared war against Germany in 1917. 19 Tolstoians, influenced by the philosophical and religious views of Russian novelist Leo Tolstoy (1828–1910), do not support or participate in the government which they consider immoral, violent and corrupt. Tolstoy rejected the state (as it only exists on the basis of physical force).
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settle all their difficulties by recourse to fighting it out to see which is the stronger. And yet what every political student is profoundly convinced of, is, I suppose, that at bottom every political struggle is a struggle for control, for power.
Although I have raised large questions, it is not my ambition to answer them. I have but outlined a large stage upon which to move about some quite minor figures. In the first place, something can be done, I think, by clarifying certain of the ideas which enter into the discussion. We may I think profitably discriminate the three conceptions of power or energy, coercive force, and violence. Power or energy is either a neutral or an eulogistic20 term. It denotes effective means of operation; ability or capacity to execute, to realize ends. Granted an end which is worthwhile, and power or energy becomes an eulogistic term. It means nothing but the sum of conditions available for bringing the desirable end into existence. Any political or legal theory which will have nothing to do with power on the ground that all power is force and all force brutal and non-moral is obviously condemned to a purely sentimental, dreamy morals. It is force by which we excavate subways and build bridges and travel and manufacture; it is force which is utilized in spoken argument or published book. Not to depend upon and utilize force is simply to be without a foothold in the real world.
Energy becomes violence when it defeats or frustrates purpose instead or executing or realizing it. When the dynamite charge blows up human beings instead of rocks, when its outcome is waste instead of production, destruction instead of construction, we call it not energy or power but violence. Coercive force occupies, we may fairly say, a middle place between power as energy and power as violence. To turn to the right as an incident of locomotion is a case of power: of means deployed in behalf of an end. To run amuck in the street is a case of violence. To use energy to make a man observe the rule of the road is a case of coercive force. Immediately, or with respect to his activities, it is a case of violence; indirectly, when it is exercised to assure the means which are needed for the successful realization of ends, it is a case of constructive use of power. Constraint or coercion, in other words, is an incident of a situation under certain conditions namely, where the means for the realization of an end are not naturally at hand, so that energy has to be spent in order to make some power into a means for the end in hand.
If we formulate the result, we have something of this kind. Law is a statement of the conditions of the organization of energies which, when unorganized, conflict and result in violence—that is, destruction or waste. We cannot substitute reason for force, but force becomes rational when it is an organized factor in an activity instead of operating in an isolated way or on its own hook. For the sake of brevity, I shall refer to the organization of force hereafter as efficiency, but I beg to remind you that the use of the term always implies an actual or potential conflict and resulting waste in the absence of some scheme for distributing the energies involved.
These generalities are, it will be objected, innocuous and meaningless. So they are in the abstract. Let us take the question of the justification of force in a [labor] strike21. I do not claim, of course, that what has been said tells us whether the use of force is justified or not. But I hold that it suggests the way of finding out in a given case whether it is justifiable or not. It is, in substance, a question of efficiency (including economy) of means in the accomplishing of ends. If the social ends at stake can be more effectively subserved by the existing legal and economic machinery, resort to physical action of a more direct kind has no standing. If, however, they represent an ineffective organization of means for the ends in question, then recourse to extra-legal means may be indicated; provided it really serves the ends in question—a
20 Eulogistic: laudatory, complimentary. 21 Labor disputes during this time frame were frequent and often violent. Laborers, who worked 50-60 hours a week in dangerous conditions, were organizing for better hours, wages, and safety; while local, state, and federal law enforcement acted on behalf of the business owners when there was a strike or lockout. (Source: Oxford Research Encyclopedias, web.)
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very large qualification be it noted. A recourse to direct force is a supplementation of existent deficient resources in effective energy under some circumstances.
Such a doctrine is doubtless unwelcome. It is easily interpreted so as to give encouragement to resorting to violence and threats of violence in industrial struggles. But there is a very large “if” involved—the “if” of greater relative economy and efficiency. And when so regarded, it at once occurs to mind that experience in the past has shown that it is not usually efficient for parties to be judges in their own cause: that an impartial umpire is an energy saver. It occurs to mind, also, that the existing legal machinery, whatever its defects, represents a contrivance which has been built up at great cost, and that the tendency to ignore its operation upon special provocation would so reduce the efficiency of the machinery in other situations that the local gain would easily be more than offset by widespread losses in energy available for other ends. In the third place, experience shows that there is general presumption on the side of indirect and refined agencies as against coarse and strikingly obvious methods of utilizing power. The fine mechanism which runs a watch is more efficient than the grosser one which heaves a brick. Thus the bias against any doctrine which seems under any circumstances to sanction resort to personal and primitive methods of using force against the more impersonal juridical contrivances of society turns out to be prima facie22 justified on the principle of efficiency in use of means.
Over and above this bare presumption, it must be admitted that our organized contrivances are still so ineffective that it is a delicate matter to tell how far a standing menace to resort to crude methods may be a necessary stimulus to the better working of the more refined methods. There is a general presumption in politics against doing anything till it is clearly necessary; and indication of potential force operates as a sign of necessity. In other words social reorganization is usually a response to a threatened conflict— witness the present “preparedness” agitation.
This conclusion that violence means recourse to means which are relatively wasteful may be strengthened by considering penal measures. Upon the whole, the opinion seems to be current that in such matters force is hallowed by the mere fact that it is the State which employs it, or by the fact that it is exercised in the interests of “justice” —retribution in the abstract, or what is politely called “vindicating the law.” When the justification of force is sought in some kind of abstract consideration of this sort, no questions are to be raised about the efficiency of the force used, for it is not conceived as a specific means to a specific end. It is the sacrosanct character thus attributed to the State’s use of force which gives pungency to the Tolstoian charge that the State is the arch-criminal, the person who has recourse to violence on the largest scale. I see no way out except to say that all depends upon the efficient adaptation of means to ends. The serious charge against the State is not that it uses force—nothing was ever accomplished without using force—but that it does not use it wisely or effectively. Our penal measures are still largely upon the level which would convince a man by knocking him down instead of by instructing him. My treatment is of course very summary. But I hope that it suggests my main point. No ends are accomplished without the use of force. It is consequently no presumption against a measure, political, international, jural, economic, that it involves a use of force. Squeamishness about force is the mark not of idealistic but of moonstruck morals. But antecedent and abstract principles cannot be assigned to justify the use of force. The criterion of value lies in the relative efficiency and economy of the expenditure of force as a means to an end. With advance of knowledge, refined, subtle and indirect use of force is always displacing coarse, obvious and direct methods of applying it. This is the explanation to the ordinary feeling against the use of force. What is thought of as brutal, violent, immoral, is a use of physical agencies which are gross, sensational and evident on their own account, in cases where it is possible to employ with greater economy and less waste means which are comparatively imperceptible and refined.
22 Prima facie: (Latin) The evidence is sufficient to prove a case unless it is disproved.
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It follows from what has been said that the so called problem of “moralizing” force is in reality a problem of intellectualizing its use: a problem of employing so to say neural instead of gross muscular force as a means to accomplish ends. An immoral use of force is a stupid use. I sometimes hear apologies23 for war which proceed by pointing out how largely all social life is a disguised contest of hostile powers. Our economic life, so it is said, is but a struggle for bread where the endurance and even the lives of laborers are pitted against the resources of employers. Only lack of imagination fails to see the economic war, the industrial battlefield with its ammunition trains and human carnage. Let the point be admitted. What still remains true is that the decisive question is the level of efficiency and economy upon which the deploying of forces goes on. Our present economic methods may be so wasteful, so destructive, as compared with others which are humanly possible, as to be barbarous. Yet competitive commercial methods may represent an advance in the utilization of human and natural resources over methods of war. In so far as they involve greater indirection and complexity of means, the presumption is that they are an advance. Take, however, on the other extreme the gospel of non-resistance. […T]he non-resistance doctrine can mean only that given certain conditions, passive resistance is a more effective means of resistance than overt resistance would be. Sarcasm may be more effective than a blow in subduing an adversary; a look more effective than sarcasm. Only upon such a principle of expediency can the doctrine of non-resistance be urged, without committing ourselves to the notion that all exercise of energy is inherently wrong—a sort of oriental absolutism which makes the world intrinsically evil. I can but think that if pacifists in war and in penal matters would change their tune from the intrinsic immorality of the use of coercive force to the comparative inefficiency and stupidity of existing methods of using force, their good intentions would be more fruitful. […]
The propositions of this paper may then be summed up as follows: First, since the attainment of ends requires the use of means, law is essentially a formulation of the use of force. Secondly, the only question which can be raised about the justification of force is that of comparative efficiency and economy in its use. Thirdly, what is justly objected to as violence or undue coercion is a reliance upon wasteful and destructful means of accomplishing results. Fourthly, there is always a possibility that what passes as a legitimate use of force may be so wasteful as to be really a use of violence; and [on the other hand] that measures condemned as recourse to mere violence may, under the given circumstances, represent an intelligent utilization of energy. In no case, can antecedent […] principles be appealed to as more than presumptive: the point at issue is concrete utilization of means for ends.
Drone Warfare and Just War Theory
By Harry van der Linden24
INTRODUCTION Unmanned aerial vehicles (UAVs), better known as drones, have been used by the United States in conventional war situations in Afghanistan, Iraq, and Libya. Their most controversial purpose has been their use, especially by the Obama administration, in the targeted killing of suspected terrorists in nonbattlefield settings, notably in the Federally Administered Tribal Areas (FATA) in Pakistan and Yemen. Targeted killing of civilian “militants” can also take place through cruise missile strikes, manned aircrafts, and “boots on the ground” (as is illustrated by the killing of Osama bin Laden), but targeted killing by drones has several distinct advantages for the United States. Unlike targeted killing executed by counterinsurgency troops, drone targeted killing poses few risks to the lives of US soldiers because the
23 In this context, “apologies” means a defense or justification of a cause or doctrine, not that someone is sorry. 24 Harry van der Linden is a Professor of Philosophy at Butler University.
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teams that launch and recover drones are typically hundreds of miles away from the search and strike area, while the teams that fly the plane (consisting of a pilot and a sensor operator controlling the cameras), together with their supporting teams of data analysts, etc., are thousands of miles away in the United States, watching or searching for their target until the optimal moment has arrived to unleash the missiles. Moreover, drones are considerably cheaper strike platforms than manned aircrafts and can stay in the air much longer (over twenty hours). And, like cruise missiles, drones do not turn the target area into a battlefield where humans face one another as enemies, but they are superior to cruise missiles in terms of a much shorter strike time so that the killing can be executed on the basis of a last- moment assessment of the intended target. Accordingly, it not surprising that most US targeted killings have been executed by remote-controlled aircraft. …
JUST WAR THEORY Just war theory consists of a historically evolved set of normative principles for determining when resort to military force is just (jus ad bellum principles) and how war can be justly executed (jus in bello principles). The most important jus ad bellum principle is that war must have a just cause, i.e., a goal of a kind and weight that seems to make resort to military force appropriate. Further, war must be declared by a legitimate or right authority, and must be pursued with right intention or the just cause as its primary motive. The three final jus ad bellum principles are that war must be a last-resort measure (diplomacy and other nonviolent measures should generally be pursued first); that it must have a reasonable chance of success in realizing its intended goal; and that it must be proportional in the sense that the anticipated goods of militarily pursuing the just cause must be commensurate with the expected harms. The most essential jus in bello principle is the principle of discrimination, or noncombatant immunity, which requires that combatants distinguish between civilians and enemy combatants, and only directly attack the latter. Unintended civilian deaths are permitted, but due care must be taken to minimize their number, and the value of the military target must make it worth the civilian cost of life. There is also a separate jus in bello principle of micro-proportionality, stipulating that military force should be used economically in that the anticipated harms of a military action should not be excessive in proportion to its military value. […]
The just war principles are quite broad and general, and contemporary just war theorists offer slightly different sets of principles, interpret the individual principles in dissimilar ways, and give different weight to the various principles. Thus just war theorists end up defending views that range from being rather bellicose and generally supportive of US interventionist policies, to views that are in practice close to pacifism and oppose most, if not all, recent US wars. Still, just war theory provides a widely shared moral framework for addressing new moral concerns raised by the ever-changing nature of warfare. This seems particularly important when the United Nations (UN) Charter and International Humanitarian Law (IHL) (which embody many just war principles) may not cover new military developments and threats, such as targeted killing by drones in response to the dangers posed by “global terrorism.” Thus the moral analysis offered by just war theory may lead to a desire to revise the UN Charter and IHL, or may lead one to argue against misguided efforts in that direction.
DRONE WARFARE AND JUS AD BELLUM In a speech at the National Defense University on May 23, 2013, President Barack Obama defended the targeted killings under his administration as morally and legally justified acts of war, as a part of a war of self-defense against al-Qaeda and its “associated forces” authorized by Congress in response to 9/11 in the 2001 Authorization for Use of Military Force (AUMF). No doubt, in light of the scope and nature of the targeted killings executed under his authority, Obama rightly viewed them as acts of war rather than, say, as last-resort acts of law enforcement. But were they justified acts of war? Did they have a just cause? More specifically, the question is whether the “militants” targeted by the Obama administration’s drone killings constituted a clear threat against the United States of a magnitude and type such that war
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acts against them were warranted. Jeff McMahan argues that the targeted killing of terrorists as an act of self-defensive war is morally quite similar to the killing of aggressor combatants who are asleep.
Aggressor25 combatants (who are in uniform), unlike civilian aggressors (“terrorists”), have a legal right to kill on the battlefield. But like civilian aggressors, they do not have a moral right to kill, and they intend to be instrumental in killing persons who have done nothing to warrant this fate. We may therefore kill both types of aggressors in order to prevent wrongful harm from being inflicted. This analysis provides moral support for targeted killing as an act of war only in terms of the type of threat that is posed. What is also required for “just cause” is that the threat has a magnitude large enough so that war becomes a reasonable option. After all, a limited threat does not justify the initiation of war with all its inevitable, and often unexpected, harms. (The proportionality principle further assesses in particular cases whether the threat outweighs the harms involved in eliminating the threat; the just cause principle only requires the existence of a threat that meets the threshold of a serious threat.)
Moreover, it is only when the threat to a political community is very substantive that we may adopt the morally deeply-disconcerting war standard of killing on the basis of hostile status (as happens in drone strikes) in addition to the commonly accepted standard of killing in strict self-defense. Similarly, the threat must be great to warrant the adoption of a less strict standard in war than in law enforcement for avoiding the unintentional killing of non-hostile civilians. Typically, terrorists lack the weaponry, the organization, and the number of participants for meeting the threat threshold of just cause […].
Credible just war thinking must see war as not only in need of justification at the point of its initiation, but should also assess its continuation and its various stages on the basis of jus ad bellum principles (i.e., we should temporalize the principles). The Bush administration initiated a conflict in Pakistan (beyond the conflict in Afghanistan) with the targeted killing of civilian “militants” in the FATA. Obama hugely stepped up these killings immediately after his inauguration in 2009: about 85 percent of around 380 strikes in Pakistan were performed under Obama’s orders. Did this new campaign have a just cause? […]
The Obama administration has never really tried to make the case that its drone killings in Pakistan were justified in terms of self-defense, since it executed these killings largely in secrecy. The only data we have about the number of strikes and people killed have been tabulated by civilian groups, based on reports by local individuals, government officials, and journalists in a region with rather limited access. This lack of transparency violates the requirements of the principle of legitimate authority. Congress failed in its responsibility as legitimate authority when it authorized the president, in the AUMF26, to use US armed forces against any state, organization, or person linked to 9/11. Obama exploited this extremely openended authorization in his approval of greatly expanding US targeted killing in Pakistan, sidestepping the fact that the CIA is not part of the “armed forces.” It should also be noted that the AUMF only authorized the president to take action against people connected to 9/11, not those suspected of other terrorist actions. The principle of legitimate authority demands full transparency (rather than limited reporting to some members of Congress) because it is only on the basis of debate and access to all facts that a body representing the people can declare war, as a communal enterprise, in the name of the people. The same can be said of new stages of development in a continuing war. Remarkably, it was not until early 2012 that Obama for the first time publicly discussed his drone program, and Congress has still not demanded a tally of the number of civilian and militant casualties in US targeted killings.
25 In this context, “aggressor” refers to the people who initiated the violence, and not to those who are fighting against them. 26 AUMF: Authorization for Use of Military Force. Different from a declaration of war because it states military aims and parameters.
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Secrecy has also enabled the Obama administration to violate the principle of right intention in its targeted killing campaign in Pakistan. Even though the killings were justified as self-defense, they must have served other goals. Notably, in drone strikes on Pakistan during the Obama administration, fewer than 10 percent of the identified targets were directed against al-Qaeda, and less than 2 percent of all “militants” killed were named leaders of al-Qaeda or other targeted organizations. […] I will later suggest that the United States morally erred in pursuing these goals; what matters now is to note that the goals show a lack of “right intention” behind the Obama administration’s drone killings.
The various violations of the first three jus ad bellum principles by the targeted killings in Pakistan point to several moral dangers of drone warfare. It is easy to use drones for preventing threats or harms that remain under the threshold of just cause, since drone warfare poses few risks for those who execute it, at least in asymmetric conflicts. And what greatly adds to this danger is that active public support is not needed to execute drone warfare, and that this type of war, accordingly, can easily be undertaken largely in secret without proper authorization and public debate, even in an “open” society.
Moreover, drone warfare makes it easy to pursue goals that are different from the stated goal of security that generally appeals to the public. Thus drone warfare seems to be thus far the best enabler of war as “alienated war,” that is, war as a collective activity that no longer requires public sacrifice and moral commitment. The volunteer army, the use of private military contractors, the technology of precision bombs, and, now, drone warfare, are all steps toward normalizing war for US citizens: war no longer feels like war, it no longer disrupts everyday life, and, so, war becomes acceptable. […]
Other costs of the drone strikes were that Pakistan’s sovereignty has been violated and that the strikes have led to growing resentment among the Pakistani people against the United States. Moreover, the strikes created fertile recruiting grounds in the FATA for new civilian aggressors and set a bad precedent for future targeted killing campaigns by other countries. It seems that all these costs could reasonably have been foreseen when the drone campaign in Pakistan was expanded in 2009, and so it should have been clear to the Obama administration that the campaign, with its uncertain and limited threat prevention impact, would violate the proportionality principle. And, surely, the more these costs have become impossible to ignore in subsequent years, the stronger the case has become in terms of proportionality considerations that the campaign has to stop.
The Obama administration, however, claimed that its drone strikes did not violate Pakistan’s sovereignty because that government permitted the strikes. […] But the real issue at stake is sovereignty in a broader sense, the sovereignty of the people of Pakistan, and here the picture is much clearer: the majority of the Pakistani people have consistently opposed drone strikes, even if the strikes were presented (in polls) as necessary to reduce militant violence against Pakistani citizens. The obvious lesson is that most Pakistanis thought (and still think) that oppositional violence in their country is their battle to fight, and for good reason. US intervention has served as a destabilizing force and even might have fueled the flames of the violent opposition, exploiting anger at the “untouchability” of US military force and its arrogance of engaging in widespread killing in “secret.” Likewise, the United States had no right to extend its war in Afghanistan to Pakistan in order to address its failure to prevent al-Qaeda and many Afghanistan Taliban fighters from making the FATA their new staging ground after the war was “won” in Afghanistan.
The Obama administration’s drone killings violate the last resort principle. Alternatives, whether in the form of negotiations or law-enforcement measures, do not seem to have been considered. In fact, a remarkable feature of the Obama administration’s counterterrorism strategy is that no prisoners are taken, and thus the problem so central to the Bush administration of how to treat captured suspected terrorists is largely avoided. It is certainly ironic that in the same year Obama reached out to the Islamic world and received the Nobel Peace Prize, he also greatly stepped up the drone strikes in the FATA. The brief hope for a more multilateral and cooperative American foreign policy was betrayed in secret by a continuation
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of the usual militarized foreign policy, clouding the prospect of finding enduring solutions for terrorism. Thus the principle of reasonable chance of success was also violated, because military force in accordance with this principle must lead to long-term threat reduction. The drone strikes in the FATA might have reduced some threats posed by al-Qaeda for the United States, but at the cost of worsening the economic and political conditions in the area and so inducing new threats in the long run, especially for the Pakistani people.
Generally, militarized foreign policy errs in thinking that war is the answer; it fails to recognize that military force, at best, can bring people to the point of renewing cooperative efforts and finding nonviolent, enduring solutions for what gave rise to violent conflict in the first place.
These violations of the final three jus ad bellum principles further underline how drone warfare enables “alienated” war. Since targeted killing by drones does not place US soldiers in the areas under attack, it seems that sovereignty is not violated and that no war has been waged against the Pakistani people. Drone strikes, in other words, appear to eliminate only “terrorists” from afar, and drones, touted as very precise weapons, can carefully excise this evil. With this mode of thought, the very fact that drones have been harming the Pakistani people has remained largely outside the US national discourse, and there were no US soldiers on the ground to report otherwise and bring stories home of great human suffering. Our news about drones at war is not the news of a country at war; at most, drone strikes are reported in the sidelines with the number of estimated terrorists killed and the occasional mention of civilians who also may have died. “Alienated” war is war for which people do not take full responsibility, and combat drones facilitate this denial of responsibility.
DRONE WARFARE AND JUS IN BELLO Granted that the Obama drone campaign in the FATA was unjust in jus ad bellum terms, it follows that all US drone killings during this campaign were wrongful killings, and that the just course of action would have been to request Pakistan to arrest all those civilian militants against whom US courts would have a legal case. No doubt, this would have been a tall order and success might have been limited, even if the Pakistani government would have accepted US assistance. But justice comes with a price, and the moral costs of drone killings as the alternative were much greater. Still, it remains important to address the wrongful drone killings in jus in bello terms, both in order to rebut the Obama administration’s view that the drone strikes were justly executed and to point out jus in bello moral dangers of drone warfare in general. Limited data and the scope of this chapter make it impossible to assess individual drone attacks, but the aggregate data allow for jus in bello assessment of the Pakistani drone campaign over the years.
The United States has frequently executed several missile strikes in short succession on the same target in the FATA with the result that responders to the first strike, such as rescue workers and family members, were killed. This policy violates the principle of discrimination or noncombatant immunity because it reflects lack of due care in seeking to minimize civilian casualties; worse even, it suggests the intentional killing of civilians, a war crime. Besides requiring due care, the principle of discrimination also demands that the civilian costs of individual strikes are not excessive in light of the military value of the strikes. The percentage of civilians killed was approximately 22 percent in 2009, 11 percent in 2010, 14 percent in 2011, 7 percent in 2012, and as low as 0 percent in 2013. Is this range of killing civilians proportionate? How do you decide this question? A recent defender of the drone strikes suggests that “we can compare the number of civilians that targets are killing and the number of civilians killed in the targeting to see which number is bigger.” Noting that al-Qaeda (and its affiliates) had been responsible for over 4,400 civilian deaths throughout the years and that at most 700 civilians had been killed in Pakistan (through 2011), this supporter of drone strikes concludes that the civilian deaths in Pakistan were clearly not excessive. I have already pointed out the flaw in this reasoning: the total number of civilians killed by al-Qaeda is as such not an adequate reflection of the threat level posed by this group in 2009, when Obama stepped up the drone warfare in Pakistan.
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Certainly, there is no evidence to support the notion that the drone campaign against al-Qaeda has saved the lives of even remotely as many US civilians as the number of Pakistani civilians killed during this campaign. Proportionality seems to demand that the estimated number of saved lives should be much higher. Another argument to the effect that the civilian-killing percentage of the drone warfare in Pakistan was acceptable is that alternative military strategies, such as putting boots on the ground, would have led to greater numbers of civilians killed. Generally, it might be true that non-drone counterterrorism operations may result in more civilian deaths—soldiers, for example, may be more discriminate than drones (they know who shoots at them), but more civilians might be caught in crossfire in a ground battle. But one cannot conclude that since one operational strategy brings fewer civilian deaths than another that, therefore, this strategy has an acceptable rate of civilian deaths. After all, the other strategy might be grossly disproportionate. At best, the comparative proportionality advantage of drone warfare helps to explain why drone warfare is a preferred US option. It also might be a factor in the United States opting for drone warfare in regions where it would not use traditional conventional military force.
Officials of the Obama administration have regularly emphasized that combat drones are very accurate weapons and so lead to very minimal civilian deaths. Former defense secretary Leon Panetta, for example, claimed in 2011 that drones “are probably the most precise weapons in the history of warfare.” However, the very fact that drone technology has accurate capabilities in terms of identifying its target and then striking the target with a limited blast area does not mean that due care is taken to avoid civilian casualties. The fact that the number of civilian casualties decreased greatly the more drone warfare in Pakistan was protested and subjected to public scrutiny suggests that the capability of technological accuracy in the early years of the Obama drone campaign in Pakistan went hand in hand with a lack of “moral accuracy.”
Relatedly, precision in finding and hitting the target does not imply that there is precision in the selection of the target. The Obama administration’s process of naming the militants it puts on its killing lists is shrouded in secrecy and might not be very reliable. Flawed intelligence may lead to misidentification of civilians as hostile militants. It also should be noted that there is no general agreement on the criteria for determining the hostile status of civilians in the first place. The bomb maker of al-Qaeda is a threat, but what about the propaganda maker, the paid armed chauffeur, or a seemingly inactive member? The little we know about the identities of “militants” killed by the Obama administration suggests that it adheres to a rather broad understanding of what counts as being militant. Signature strikes, with their vague killing standard of “fitting the profile of hostile militants,” add greatly to the problem that many people killed might have been misidentified or mischaracterized. Accordingly, the Obama administration’s claim of limited unintended civilian deaths, even if taken at face value, is misleading in that drone strikes may have killed many people conceived of as militants who were actually civilians. Even the data gathered by various civilian groups might over-report the number of genuine militants, since often the only evidence for claiming that the casualties were militants is the reporting by “anonymous Pakistani officials,” presumably army officials with an interest in having broad standards of militancy and pleasing the US military.
