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Anonymous Killings by New Technologies?

Killing by Drones: The Problematic Practice of U.S. Drone Warfare By Peter Rudolf

The ethical evaluation of armed drones could cess, their development has not yet reached hardly be more controversial. First of all, there this stage. is a fear that their increased availability could lower the threshold for using military force. Nevertheless, as the American philosopher Because drones are a military instrument that and war ethicist Michael Walzer has written can be used easily and without risk – so the with regard to his own country’s practice, argument goes – there are concerns that they combat drones have become a source of mor- enable recourse to military action without the al unease precisely because of how easily they criterion of ultima ratio being fulfilled, i. e. enable .For the U.S., the use of without pursuing or even considering other drones has become the method of choice in options first. On the other hand, there is an the war against Al-Qaeda and its allies. Alt- expectation that drones can facilitate morally hough the Obama government has broken justifiable missions, e. g. for humanitarian with the ideology and rhetoric of the “war on purposes, which otherwise might not take terror”, it certainly does not regard fighting Al- place. For the most part, however, proponents Qaeda as a police and criminal matter. As re- of combat drones base their arguments less gards the legitimacy of its actions in interna- on jus ad bellum than on jus in bello. Because tional law, the Obama administration still of their precision, the use of combat drones is claims the existence of an “armed conflict” said to suit the principle of distinction be- with Al-Qaeda and associated forces (who are tween civilians and combatants better than not defined in any more detail) on one side, other types of operations. According to anoth- and the U.S. on the other. It argues that this er argument used by proponents, they also “armed conflict” is not geographically re- reduce the risk for one’s own soldiers, whose strictable, which is highly contentious under protection is a moral duty when they are sent and is also not an opinion into justifiable combat mission. Indeed, in a shared by allies of the U.S. A number of criteria moral evaluation of the use of armed drones, for the existence of a “non-international what counts first and foremost is whether the armed conflict” can be found in international organized use of force in which they are de- treaty law and customary law. But it is prob- ployed is justified. Although combat drones lematic whether any such degree of duration may become problematic in themselves if they and intensity of exists outside of Af- are developed into “autonomous weapons ghanistan and ’s border region with systems” capable of deploying deadly force (and formerly ), and whether without the direct control and direct involve- “non-state armed groups” can be identified as ment of a human being in the decision pro- a party to the conflict, so that one can speak of

Ethics and Armed Forces | 2014/1 36 Anonymous Killings by New Technologies? an “armed conflict” under International Hu- killings in the grey area of asymmetric con- manitarian Law (IHL). flicts.1 Targeted killings and drone attacks are now frequently cited in the same breath. Tar- In its public justifications under international geted killings are a practice which, in the case law, the administration refers not only to the of the U.S., has only become possible with existence of an “armed conflict” between Al- such intensity because long-range, remote- Qaeda and associated forces on one side and controlled, highly accurate combat drones can the U.S. on the other, but also to a very broad- be used. Yet the problems associated with ly defined right to pre-emptive self-defense. It – defined as the planned killing remains unclear, however, whether both lines on behalf of a state of particular individuals of justification are valid in all cases. It appears who are not in custody – are not dependent on that the administration finds it necessary to a specific technology and not limited to the invoke the right to self-defense in order to U.S. Israel, for example, took a leading role in legitimize operations away from the “hot” this respect (and, by the way, the U.S. used to battlefields. And yet it is claimed that there is publicly criticize Israel for such activities prior no need to conduct an analysis regarding the to 9/11). applicability of the right to self-defense before every targeted attack. Behind this lies an un- It appears that the availability of drones, derstanding of the imminence of a threat which can be deployed without risks to U.S. which is legally and ethically dubious because soldiers and intelligence operatives, has had it is so very broad. A white paper by the United the effect2 of lowering the threshold for their States Department of Justice considering the use and increasing the number of target per- circumstances under which it would be legal sons, that is, to include persons whose killing to kill American citizens in foreign countries cannot be convincingly justified using the cri- contains a number of statements on this teria of necessity and proportionality. People point. It says that the threat posed by Al- are killed in , for example, because the Qaeda and its associated forces demands a technology makes it easy. If the drones did not “broader concept of imminence”, since the exist, Washington would hardly go to the trou- U.S. government may not be aware of all ble of sending teams to arrest or kill these planned attacks and so cannot be confident target persons.3 that none is not about to occur. In this view, therefore, a person who has been continually Killing is politically more opportune and less involved in plotting attacks against the U.S. risky for U.S. security forces than capturing and has not obviously renounced or aban- suspected terrorists. If anyone is going to be doned those activities constitutes an captured or arrested, it is more likely that oth- imminent threat. er countries’ security forces will do it. Handling detainees causes problems for the U.S. – after Within this legitimizing context, combat all, Guantánamo is still supposed to be closed drones have enabled a largely opaque institu- down. Despite official denials, the difficulties tionalized practice of more or less targeted involved in capturing suspected terrorists

Ethics and Armed Forces | 2014/1 37 Anonymous Killings by New Technologies? have created incentives to kill.4 Hence it is number of shocking mistakes have come to questionable to what degree the ostensible light. There are no really reliable figures for the preference for capturing suspected terrorists – number of people killed in drone strikes or for which was reaffirmed by President Obama in the number of “non-combatants” falling vic- May 2013 – actually affects the bureaucratic tim to these attacks. The administration re- decision process. mains silent on this point. The figures that some organizations compile on an ongoing The use of drones has long gone beyond elim- basis differ considerably from each other and inating leading figures of Al-Qaeda and the involve a high level of uncertainty, for meth- . According to calculations by the New odological as well as purely practical reasons. America Foundation, as far as is known and They are based on media reports, mainly in confirmed by two public sources, 55 Al-Qaeda English-language media. Their sources often and Taliban leaders were killed by drone at- remain anonymous, and their reliability is tacks in Pakistan between 2004 and mid-April uncertain. It can be assumed that not all 2013. This means that they are just a small strikes are reported. There is no way to verify fraction of the total number of people killed by the distinctions made in such reports between drone attacks in that period – which the or- civilians and militants, for example. The term ganization estimates at between 2,003 and “militant”, which is used time and again to 3,321. In Yemen, the number of Al-Qaeda lead- make it clear that the victims are not innocent, ers killed since drone attacks began under is never defined and also irrelevant in interna- Obama is 34 out of an estimated total of 427 to tional law.6 A positive trend, so to speak, can 5 679 killings. In other words, the large majority be seen in an apparent substantial drop in the of attacks are targeted at low-ranking mem- number of civilians killed by drone strikes in bers of the Taliban and al-Qaida. the tribal areas of Pakistan. According to cal- culations by the Bureau of Investigative Jour- The administration’s public justifications of its nalism, the proportion of civilians killed fell drone program always give the impression from 14 percent in 2011 to 2.5 percent in 2012.7 that it solely involves the precise killing of leading terrorists and those posing a serious As problematic as American drone warfare is, potential threat. Yet most CIA drone strikes in and however much it shapes opinions on the Pakistan appear to be of the “signature strike” instrument of armed drones, one has to keep type. During such operations, persons or in mind: Although technology has facilitated groups of persons are attacked apparently on the practice of more or less targeted killings, it the basis that they exhibit a particular pattern required and requires the specific legitimiza- of behavior, from which it is concluded that tion resulting from the permanent state of war they present the risk of a threat. in which the U.S. has imagined itself to be since September 11, 2001. Within this context Precisely for attacks of this kind, the official of legitimization, a bureaucratic apparatus of line that “collateral damage” is extremely rare killing has developed, whose decisions are hardly seems credible, particularly since a largely free of political or independent legal

Ethics and Armed Forces | 2014/1 38 Anonymous Killings by New Technologies? oversight. The lists of targets are not inde- 5 Concerning these figures, cf. Bergen, P. “Drone pendently verified either beforehand or after- Wars: The Constitutional and Counterterrorism Implications of Targeted Killings”, testimony ward, the criteria are largely kept secret, and presented before the U.S. Senate Committee decisions are taken by a group of publicly un- on the Judiciary, Subcommittee on the Consti- accountable decision-makers, without so tution, Civil Rights and Human Rights, April 23, much as a subsequent independent review. 2013, 4 ff. The U.S. has developed an institutionalized 6 See International Human Rights and Conflict Resolution Clinic, Stanford Law School / Global policy that rightly causes moral unease. Justice Clinic, NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians 1 For a comprehensive discussion of this point, From US Drone Practices in Pakistan, 2012, cf. Rudolf, P. / Schaller, C., ‘Targeted Killing’ - 30 ff. Zur völkerrechtlichen, ethischen und strategi- schen Problematik gezielten Tötens in der Ter- 7 See Columbia Law School, Human Rights Clin- rorismus- und Aufstandsbekämpfung, Berlin: ic, Counting Deaths, New York, Stiftung Wissenschaft und Politik, 2012; on the October 2012; Woods, C., Serle, J. & Ross, A. K., subject of what is known about the drone war, “Emerging from the shadows: US covert drone cf. Rudolf, P., Präsident Obamas Drohnenkrieg, strikes in 2012”, Bureau of Investigative Jour- Berlin: Stiftung Wissenschaft und Politik, 2013. nalism, January 3, 2013. 2 Obama himself, during an appearance on “The Daily Show” on October 18, 2012, addressed the temptation that drone warfare presents: “There’s a remoteness to it that makes it tempting to think that somehow we can, with- out any mess on our hands, solve vexing secu- rity problems.” Shane, S., “Election Spurred a Move to Codify U.S. Drone Policy”, in: , November 24, 2012. 3 A former official tasked with selecting targets neatly expressed this point: “It’s not at all clear that we’d be sending our people into Yemen to capture the people we’re targeting. But it’s not at all clear that we’d be targeting them if the technology wasn’t so advanced. What’s hap- pening is that we’re using the technology to target people we never would have bothered to capture.” Quoted in: Junod, T., “The Lethal Presidency of ”, in: Esquire, 2012. 4 One of Obama’s leading anti- advi- sors, who did not want to be named, had this to say: “We never talked about this openly, but it was always a back-of-the-mind thing for us.” Klaidman, D., “Kill or Capture: The War on Ter- ror and the Soul of the Obama Presidency”, Boston/New York: Houghton Mifflin Harcourt, 2012, 126.

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Peter Rudolf is a Senior Fellow at Stiftung Wissenschaft und Politik (SWP), the German Institute for International and Security Affairs, which he joined in 1988. After study- ing political science and Catholic theology at the University of Mainz, he received his doctorate degree in political science from the University of Frankfurt am Main in 1989. He worked as an APSA (American Political Science Association) Congressional Fellow in Washington, D.C. and held research posts at Frankfurt Peace Research Institute and the Center for Science and International Affairs, Harvard University. From 2003 to 2006 he was one of the chairpersons of the International Relations Section of the Ger- man Political Science Association. Mr. Ru- dolf has published on U.S. and German foreign policy, transatlantic relations, ethi- cal aspects of international affairs, arms control and other international security issues.

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