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Drone Wars and International Law

etzioni-unmanned-aircraft-systemsThe renowned sociologist Amitai Etzioni takes to the pages of Joint Force Quarterly to make “The Moral and Legal Case for Unmanned Aircraft Systems [PDF].” The format makes excerpting difficult but the essence of the argument is that “the main source of the problem is those who abuse their civilian status to attack truly innocent civilians and to prevent our military and other security forces from discharging their duties.”

Charli Carpenter, a professor of national security ethics, calls his case “flimsy” and finds the whole notion of “targeted killings of civilians, whatever we might suspect those civilians of doing, and particularly inside the sovereign borders of countries with whom we’re not at war” problematic.   And, while she agrees with Etzioni that the Geneva Conventions should be revised to “create a multilateral consensus around what current law means in an era of asymmetric war,” she would not go nearly so far as Etzioni, who would strip them of all their rights as civilians.

As far as I understand it, there is no legal justification for this — that is, no “legal case” to be made here. If they are civilians, they lose their immunity only as long as they are directly participating in hostilities. If they might actually be considered combatants, then Etzioni’s distinction between “innocent” and “abusive” civilians doesn’t make much sense. And even if it did, he suggests no means to distinguish between the two categories for the purpose of making sure you avoid “innocent civilian” casualties — arguably one of the key moral dilemmas that would need to be addressed in order to “make the case.”

Etzioni makes a few other unconvincing statements in supporting his argument: he overestimates, in my view, the differences between today’s wars and previous wars; his claim that we must kill terrorists before they attack us hinges on the notion that terrorists cannot be deterred or rehabilitated (they can); and he seems to be arguing that the UN Charter regime is irrelevant, when he suggests that no government who wishes to target a terrorist on foreign soil should wait for the consent of the foreign government. Maybe his goal is to push us back into a world where conventional war is the norm — go ahead and undermine the territorial integrity norm, and that’s what you’ll have.

While I’m less eager than Carpenter to arrest and rehabilitate terrorists — hunting them down and killing them will do just nicely, thanks — I’m confused by the argument as well.

Terrorists, guerrillas, insurgents, and other non-state actors who are waging war are combatants, pure and simple. And combatants can be targeted for killing rather than arrested. There’s no doubt about that under existing law.

Carpenter’s right, of course, that state sovereignty throws a wrench into the works.  So perhaps it would be useful to create a consensus on what to do about that.  Then again, the combination of the uselessness of the UN Security Council and Article 51 of the UN Charter (“the inherent right of individual or collective self-defense if an armed attack occurs”) would seem to confer a right of pursuit.  And, frankly, no militarily powerful country would observe rules that precluded response, anyway.

The primary gray area in international is what to do with enemy combatants who are captured in an asymmetric war.   Are the entitled to precisely the same protection as uniformed, privileged belligerents?  Can they be held for indefinite detention — or for the “duration of hostilities” in a war without end?  That’s something that needs to be settled as a matter of practicality.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Social comments and analytics for this post…

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  2. john personna says:

    I’m OK with killing people reasonably regarded as combatants. I’m not OK with killing houses thought to contain at least some such combatants. The meaning of “minimum civilian casualties” was always thin. It masquerades as a number, but it is really about a commitment. If we are moral, we will work toward making “minimum” small.

    The really odd thing in the last few months has been the uproar over the Israeli hit team. Such a crew, at higher risk, presumably pulled triggers on “combatants” and no one else. Perhaps this happened on the same day a US drone blew up a house full.

    Perhaps it’s a strange world when hit/murder teams are more moral than an air strike, but there it is.

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  3. James Joyner says:

    I’m OK with killing people reasonably regarded as combatants. I’m not OK with killing houses thought to contain at least some such combatants.

    As a general rule, I prefer commandos and direct fire to drones and indirect fire. But there’s a legitimate case for writing off known associates of scumbags as collateral damage under the right circumstances.

    The really odd thing in the last few months has been the uproar over the Israeli hit team. Such a crew, at higher risk, presumably pulled triggers on “combatants” and no one else.

    I haven’t followed it that closely but thought the objection was to their carrying British passports. That’s simply scandalous.

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  4. john personna says:

    I haven’t followed it that closely but thought the objection was to their carrying British passports. That’s simply scandalous.

    Compared to the death of a child?

    Seriously. What do you expect of hit men? Using a forged passport will cause innocent Britains some extra delays in customs … but that’s about it.

    Now, the British were correct to pretend it was a scandal, and make all the correct moves of diplomatic kabuki.

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  5. steve says:

    I live near Gettysburg. We have visited several times. Jennie Wade is thought to be the only townsperson killed in that battle. One civilian death. We moved on to the concept of total war, which some attribute to Sherman, and civilian deaths became acceptable. In WWII, civilian deaths became acceptable and necessary.

    Drone warfare is just another step, and it is irreversible, along this path. It meets a legitimate need, how to counter those who hide across international boundaries, with what are now acceptable costs, civilian deaths. The question about legality is moot. We will find cause t make it legal as need it to be legal. The better question would be if its benefits outweigh its costs. When is it a viable option?

    Steve

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  6. 11B40 says:

    Greetings:

    I find myself becoming more and more impatient with all this philosophical focus on “drone attacks”. I wish someone would put a period on the discussion so that we can move on to the much more important issue of how many angels can actually dance on the head of a pin.

    As my favorite Platoon Sergeant, our infantry company’s “moral ethicist”, used to say, “As many as you can, as often as you can,
    anywhere and any way you can.

    Or, as I now find myself saying too often, “What part of war don’t you understand?”

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  7. Michael Reynolds says:

    Neither side in the Civil War made a habit of hiding among civilians. And a word on behalf of General Sherman: he made economic war on civilians, he did not target them. He did have a tendency to burn down their factories and plantations.

    As for terrorists, one might expect that if you were known to be a likely target either of drones or hit squads you’d make a point of staying away from your family and innocent friends. We should be as careful as we can be. But the guilt for innocent deaths is shared by the men who deliberately put their families and supporters at risk. Can you imagine a Lee or a Meade filling their headquarters with civilians so as to ensure their own safety?

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  8. Dave Schuler says:

    There are a number of larger questions related to this issue. One has to do with the responsibility of governments WRT their territory and another is the status in law of ungoverned territories.

    How can countries claim sovereignty over territories over which they exercise no sovereignty and that are being used as platforms from which to stage attacks on neighboring countries?

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  9. XBradTC says:

    …his claim that we must kill terrorists before they attack us hinges on the notion that terrorists cannot be deterred or rehabilitated (they can)

    Our forces have no legal or moral obligation to attempt to capture any combatant in lieu of killing them, unless that combatant is actively making an attempt to surrender. The burden is on the terrorist. Whether this is good policy or not is open to debate, but as a matter of the rule of war, ’tis not.

    As to the sovereignty issue, either we are operating with the explicit or tacit approval of those states, or, as mentioned above, the nominal sovereign is not willing or able to exercise sovereignty, and thus abdicates their right to object (see Somalia for an example).

    Violating the borders of a state, and conducting military/naval operations therein wasn’t always considered an act of war. Prior to WWII, international law recognized punitive expeditions as military operations that were not acts of war. Generally, naval forces (such as the Marines) were seen as conduction punitive operations, as opposed to Army forces, which were seen as conduction war. That’s one reason why the Marines were the force of choice for the Banana Wars in the inter-war era.

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  10. Will says:

    Sending a commando hit team into hostile territory to kick down doors and kill or capture a specific bad guy is extremely dangerous, not just for the commandos but for those who have to transport them. I realize that there are limits to what can be justified in the name of safety, but seriously, is anyone here willing to put their son/brother/nephew into that level of danger for the sake of a philosophical principle?

    Drones are awesome, and they’re terrifying for precisely the same reason, that being that they’re completely unstoppable. The certain knowledge that if you associate with someone who is planning to make war with the U.S., you’re likely to be incinerated in your sleep… is a powerful deterrent indeed.

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  11. Davod says:

    “Prior to WWII, international law recognized punitive expeditions as military operations that were not acts of war.”

    References? Those at the receiving end of the Punitive expeditions might think otherwise.

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  12. Franklin says:

    Drones do make it a bit easier to accidentally turn weddings into funerals, which tends to decrease the amount of cooperation we get from the host country.

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  13. tom p says:

    OK, call me stupid, but am I the only one who sees the absolute stupidity of these distinctions?

    If they are civilians, they lose their immunity only as long as they are directly participating in hostilities. If they might actually be considered combatants, then Etzioni’s distinction between “innocent” and “abusive” civilians doesn’t make much sense.

    WTF!??????????????????!!!!!

    Terrorists, guerrillas, insurgents, and other non-state actors who are waging war are combatants, pure and simple. And combatants can be targeted for killing rather than arrested. There’s no doubt about that under existing law.

    As Colonel “whats his name” said in Black hawk down”, “Are they shooting at you? Than shoot back!”

    The primary gray area in international is what to do with enemy combatants who are captured in an asymmetric war. Are the entitled to precisely the same protection as uniformed, privileged belligerents? Can they be held for indefinite detention — or for the “duration of hostilities” in a war without end? That’s something that needs to be settled as a matter of practicality.

    Actually James, I would say, “The primary gray area in international is what to do with NON-enemy combatants who are captured in an asymmetric war. Are they entitled to precisely the same protection as uniformed, privileged belligerents? Can they be held for indefinite detention — or for the “duration of hostilities” in a war without end? That’s something that needs to be settled as a matter of practicality.”

    Or maybe we can just kill them as well?

    Seperating the 2 is a matter of success or failure (according to Petraues and McChrystal)

    And if we cannot seperate the non-ECs from the ECs… (you know, the old “Kill them all, let God sort them out.”)

    Maybe we just need to get out?

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  14. mannning says:

    My understanding is that the Taliban and AQ both have the habit of (forcibly or not)loading their meeting houses with civilians precisely because they know that if they are hit, killing the civilians causes wild uproars in the West, and anguish and hatred against the US in their homeland.

    At the heart of the matter appears to be: a) the actionable intelligence that is developed to target some house or another at a special time: that is, filled with the wicked. One hopes that the intel is very accurate. And, b) that the related civilian casualties that most often result are “allowable” by some calculus or other, perhaps guilt by association, or simply the side product of this special kind of warfare, and be damned with the consequences.

    It is indeed a moral dilemma for Americans, but it is not a dilemma at all for the Taliban or AQ bombers that kill indiscriminately.

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  15. steve says:

    ” and be damned with the consequences.”

    We bear the consequences. If we kill 2 terrorists but create 10 more, we are losing. It is an honor/shame culture. Deterrence? They have been at this for 30 years. Do we really think an occasional drone attack will deter them? How times have we killed the AQ #3 guy?

    Steve

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  16. Davod says:

    Legal or not, Drones are the administration’s best option if you take into account domestic politics. No possibility of US personnel being killed or captured.

    I read in an earlier blog post that the administration was rejecting operations requests to capture some rat bags, deferring to the Drones.

    The say “amateurs talk tactics, professionals talk logistics” but, intelligence helps. Using Drones to kill off the leadership at every opportunity will, at the very least, extend the war.

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  17. Michael Reynolds says:

    The advantage of drones is that Al Qaeda can’t capture one and behead it for the benefit of YouTube. It’s an unanswerable weapon. It’s a hand-of-God weapon that allows us to strike without fear of immediate counterattack.

    It also has a shred of deniability about it. If an American soldier gets caught deep inside Pakistan we have an incident.

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  18. Dave Schuler says:

    It’s an unanswerable weapon.

    What concerns me, Michael, is that it is answerable—with other drones. As this technology matures it will get cheaper and further empower nutjobs of all ideological and/or religious stripes.

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