The rise of drone warfare across the planet, spearheaded by the CIA, continues to challenge and transform the basic principles of international humanitarian law (IHL), also known as the laws of war or the law of armed conflict.
Drones are frequently touted as technologies that reduce the risk to civilian lives. This faith has led to unmanned aerial vehicles striking targets in the middle of population centers, especially in regions such as the Federally Administered Tribal Areas of Pakistan. Together with the minimizing of U.S. casualties, the checks and balances that once restrained military action in the pre-UAV age have come undone.
The ability of drone to ‘target’ with pinpoint precision, variously celebrated as a ‘surgical strike’, has led to the widespread belief that they lead to better, more ethical decisions. Not so for Sarah Kreps and John Kaag, whose excellent article is a reminder that technology offers the U.S. military and CIA no prime facie legal or ethical advantage whatsoever.
Central to the Obama administration’s defense of its drone wars are the legal principles of ‘distinction’ and ‘proportionality’. The origins of these concepts is rooted in the Just War tradition, which began in the 19th century. Precision-guided weapons offer something of a ‘panacea’ to international pressure from other states to comply with the principles of proportionality and distinction. Yet they confuse military utility with international norms. Precision is implied as compliance with international law; technology has changed what ethics means.
According to Article 48 of the Protocol Additional to the Geneva Convention (AP I) in 1977, “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
To act in accordance with this principle of distinction, the attacker must differentiate between those who are directly involved in hostilities and those who are not, and must then take precautions to ensure minimal damage to the latter.
This, of course, leads to the problem of interpretation. According to article 4 of the Third Geneva Convention , an individual can be considered a combatant if he is (1) commanded (2) wearing some kind of uniform (3) openly carrying arms (4) conducting their operations in accordance with the laws and customs of war. While these might have been easier to follow in the World Wars, it is far more difficult now, as civilians and combatants frequently mingle. What’s more the civilian might participate intermittently.
A final problem of interpretation comes from what counts as a legitimate ‘military objective’. Article 52 (2) of AP I defines these objectives as ‘limited to those objects which by their very nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. As you can see, this language is very ambiguous; it has has a built-in flexibility for application.
According to this principle, anticipated military gain must exceed the anticipated damage to civilians and their property. Article 51 (5) (b) of AP I proscribes “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.
The 1998 Rome Statute established the International Criminal Court. In Article 8(2)(b)(iv) it clarifies the principle of proportionality and requires an assessment of the following: (A) The anticipated civilian damage or injury. (B) The anticipated military advantage. (C) Whether A was clearly excessive in relation to B. This calculus remains subjective. How is possible to know whether military advantage exceeds civilian damage? (and what if strikes contain unknown blowback?)
In short, neither ‘distinction’ nor ‘proportionality are absolute terms; they remain subjective and infinitely pliable.
Further Discussion of Distinction and Proportionality
Kreps and Kaag go on to describe the moral case of the drone wars, and argue that military officials confuse statements of fact with moral imperatives.
Two aspects of distinction are codified in international law, in Article 48 of the 1977 Additional Protocol. Here is the clause in question, which Kreps and Kaag divide into two criteria:
(1) In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives . . .
(2) and accordingly shall direct their operations only against military objectives.
The first criterion is an obligation to distinguish between targets and objectives along a single dichotomy (civilian / military). The second requirement states that a military, having fulfilled the first requirement, may only attack military assets.
The first criterion clearly requires legal and ethical judgement about the risks posed by a potential combatant, and indeed, whether or not they are even a legitimate target. The second criterion is dependent on the technological competencies of the military.
Defenders of UAVs conflate the second criterion with the first, confusing success in technical execution with progress in legal and ethical decision making. What’s more, the accuracy of modern weapons has been taken to be a logical justification for moral judgements, conflating the fact-value distinction that most philosophers regard as protecting the entire field of ethics.
It is impossible to derive an ‘ought’ from an ‘is’. When one makes such an inference, they have committed a naturalistic fallacy. In the ‘Open Question Argument’, Moore’s argument is as follows:
Premise 1: If X is good, then the question “Is it true that X is good?” is meaningless.
Premise 2: The question “Is it true that X is good?” is not meaningless (i.e. it is an open question).
Conclusion: X is not (analytically equivalent to) good.
- Or in the case of drone warfare,
- Premise 1: If targeted killings are morally good, then the question “Is it true that targeted killings are good” is a meaningless question.
- Premise 2: The question “Is it true that targeted killings are good” is not meaningless (it is an open question.
- Conclusion: Targeted killings are not (analytically equivalent to) morally good.
Two centuries earlier, Hume observed that there is no necessary relationship between descriptive fact and normative value, and expressed surprise that so many philosophers have conflated the way things are in the world (definitional or descriptive reasoning) with ethical or normative reasoning (the way things should be in an ideal state).
In their defense of UAVS, strategists and policymakers collapse the two criteria of distinction by talking only of their usage, their ability to strike a target with an extreme degree of accuracy. But this says nothing about whether or not we ought to use the technology. This remains an ‘open question’.
Put another way, defenders of drones frequently invert the logical order of the claim within the principle of distinction, and place the claim of fact before the claim of value. This gives the impression that systematically reasoned argument is being provided, with the facts of the matter serving as the premises for an ethical conclusion. For Moore and most other ethicists, this move is neither logical nor moral!
Proportionality – The Unintended Consequences
Key to the principle of proportionality is that the attacker must be able to justify why the military benefit of a strike outweighs the potential cost to civilian life. If it doesn’t, such an attack is proscribed by the Geneva Convention.
Yet a military objective can at times be extremely ambiguous – and can have an indefinable quality such as the ‘war on terror’ or a war against evil.
Whereas proportionality is a matter of adjusting means to ends (i.e. calibrating the method of attack with the likelihood of success and benefit), there is an overwhelming tendency in wartime to ADJUST THE ENDS TO MEET THE MEANS.
As drones allow for an ever-increasing battlespace, the ‘ends’ of military objectives have allowed for an unprecedented escalation of violence across the planet.
Under Obama, the ‘war on terror’ has changed to an ‘oversees contingency operation’. The technocratic change to focus on contingency implies surgical strikes that can be made everywhere, against small actors that may cause big causal effects in a wider network. This targeting rationale is similar to new wartime doctrines and concepts, such as Network Centric Warfare (NCW) and Effects Based Operations (EBO) – a ‘science of warfare’. These doctrines can often overstate the value of surgical strikes, can often overstate the ‘proportionality’ of the attack by arguing that there are second, third, and fourth-order ‘ripple effects’.
International Humanitarian Law offers safeguards against the excesses and abuses of war and state violence. And yet, its basic principles of ‘distinction’ and ‘proportionality’ are ambiguous concepts that require a great deal of subjective interpretation.
This difficulty in interpretation is compounded by the conflation of matters of fact with matters of value. Defenders of drone technologies point to their accuracy and ability to discriminate with a high-degree of fidelity, and therefore insist that they are ethical technologies. And yet, the targeting capability of a drone tells us nothing about the morality of that strike; whether a target is really a combatant, or whether there is a military advantage is killing that person.
Drones have adjusted the ‘ends’ of military action and not just the ‘means’. Their technological advantages has been conflated with their moral and ethical advantages.
Before a Hellfire is unleashed, a whole host of pressing questions must be answered. Ethics are, above all, an all-too-human responsibility.