Why policy relevance is a moral necessity: Just war theory, impact, and UAVs

This is a presentation I gave at the Britsh International Studies Association conference in Birmingham in June 2013, a full copy of the paper is available on my academia site at: www.http://eui.academia.edu/ewanemellor.

Introduction

This paper considers the policies regarding the use of drones and considers them in light of the criteria of the just war tradition.  It argues that just war theorists must engage with policy and policy-makers to ensure that policies regarding the use of force are held up to the standards of just war theory.

The Policies of Drone Use

To begin with it is necessary to disaggregate the types of drone strikes that are carried out, as they have different implications and raise different questions.

The first, and perhaps best known, types of strike are the personality strikes.  These are strikes on a specific individual who is being targeted due to evidence linking them directly to militant activity.  Whilst these are often portrayed as strikes on senior leaders or individuals involved in important terrorist operations, the evidence suggests that the majority of those targeted are low level members with little role in ongoing operations.  Whilst these low level members may be legitimate targets under the laws of armed conflict, they would not be under international human rights law.  Even under the laws of armed conflict questions arise regarding the proportionality of such strikes.

The second type of attack is the signature strike.  These strikes target unknown and unidentified individuals based on a pattern of activity that is believed to be associated with membership of a militant organisation.    The US has never acknowledged these types of strikes and has never detailed the criteria for assessing whether behaviour is suspicious enough to warrant targeting and killing; however, the joke within the US State Department that if the CIA saw three men exercising in a field they would consider it a terrorist training camp suggests that there were concerns within the administration that the criteria were not discriminating enough.

The third type of attack is the double-tap strike.  In these attacks a drone will attack a target on the basis of either personality or signature criteria and will then remain in the area and a second strike (and potentially more follow-up strikes) will be carried out against those who come to the aid of the victims of the first strike.  As a result, locals will often wait a substantial period of time before going to the site a drone strike, delaying aid from reaching any injured survivors.  These types of strikes make no effort to distinguish between combatants and non-combatants and seem to be designed specifically to ensure that those originally targeted will be killed, either in the follow up strike or through lack of medical care.  These strikes have also never been officially acknowledged by the US so it is impossible to ascertain how and under what body of law these strikes are justified or what the decision making procedure is for authorising such a strike.

Another important feature of the policy of drone use is the way in which ‘militants’ are defined, both in targeting and in post-strike analysis.  According to the available reports the US assumes that all ‘combat-age males’ are militants and are therefore legitimate targets unless there is conclusive proof subsequently, that is, post-mortem, that they were not.  It is easy to see why the US would adopt such a policy, not only due to the difficulties of determining who is and is not a combatant or militant given that they do not distinguish themselves from the civilian population, but also based on the assumption that people in the same location as terrorists are “probably up to no good”, and because it flatters the civilian casualty figures.  However it is also a deeply problematic assumption and it is at the heart of the targeting paradigm for the use of drones, for all of the types of strike discussed above.

Just War Theory and the Policies of Drone Use

These policies can be judged according to both the jus ad bellum and jus in bello criteria of the just war tradition.  Among the jus ad bellum criteria to be considered are the key questions of just cause, legitimate authority, and right intention.  Among the jus in bello principles that need to be considered are those of discrimination, proportionality, and double effect.

In order to assess drone strikes according to the jus ad bellum criteria it is necessary to break them down by the country in which they occur in order to determine whether the criteria are met in each case.  For example, the US Authorisation for the Use of Military Force grants the administration wide powers to use force against groups associated with al Qaeda, however, without a Security Council Resolution authorising the use of force in Somalia and Yemen, it is not clear that the US and its allies have the legitimate authority to extend the drone campaign to these countries.  Similarly, whilst the US had a just cause for the use of force against al Qaeda following the attacks of September 11^th 2001, whether this justifies the use of force against groups that did not even exist at the time, operating in different countries, and with only a loose affiliation to al Qaeda, is a position that needs to be argued by the US and not simply assumed.  The question of right intention is much more difficult to assess, however in the just war tradition it is often associated with the idea that war should be fought to achieve a just and lasting peace.  An ongoing war with no apparent geographic or temporal limits and with no concrete political objectives by which success can be measured does not meet this requirement, either.

Discrimination is the principle of discriminating between combatants and non-combatants when attacking and ensuring that attacks are only directed against combatants or other military targets.  Proportionality requires that the use of force is proportionate to the threat and does not cause unnecessary collateral damage.  Double-effect is the principle whereby an attack on a legitimate military target that will cause foreseen but unintended civilian casualties can be justified so long as the attacker ensures that this damage is kept to a minimum and that the expected military advantage to be gained from the attack is proportionate to the anticipated civilian casualties.

From these principles it can immediately be seen that the double-tap strikes are completely unacceptable.  The follow up strike violates the principle of discrimination as those who go to aid the wounded of the initial strike are not necessarily combatants and no attempt is made to positively identify them as combatants.  Even those injured in the first attack, assuming they were legitimate targets, will have been rendered hors de combat and are therefore immune from subsequent attack.  To deny or prevent medical care reaching those who are injured is abhorrent, even more so is to deliberately attack those providing the aid.  These types of attack violate the fundamental principles of the Red Cross and seem to be very close to violating the long standing prohibition on not granting quarter in battle.  Double-tap strikes almost certainly constitute war crimes and are absolutely incompatible with just war criteria.

The other two types of strike, personality strikes and signature strikes, are more difficult to assess as they can at least potentially be legitimate.  However, as noted earlier, at least one important judgement can be made on the basis of the available information; namely that assuming all ‘combat-age males’ are combatants and are legitimate targets is an unacceptable policy.  Whilst the laws of armed conflict specifically allow targeting based on an individual’s status, as opposed to their identity, their status cannot be reduced to their demography.  Furthermore, the assumption that they are legitimate targets makes the principles of proportionality and double-effect completely meaningless; it is impossible to comply with these criteria if the principle of distinction is ignored as accurate judgements cannot be made.  As such, it can be seen that the current policies regarding the use of drones cannot meet the requirements and principles of the just war tradition.

Just War Theory and Social Criticism

This section of the paper considers more generally the need for just war theorists to engage with policy debate about the use of force, as well as to engage with the more fundamental moral and philosophical principles of the just war tradition.  It draws on John Kelsay’s conception of just war thinking as being a social practice, as well as on Michael Walzer’s understanding of the role of the social critic in society.  It argues that the just war tradition is a form of “practical discourse” which is concerned with questions of “how we should act.”

Kelsay argues that:

[T]he criteria of jus ad bellum and jus in bello provide a framework for structured participation in a public conversation about the use of military force . . . citizens who choose to speak in just war terms express commitments . . . [i]n the process of giving and asking for reasons for going to war, those who argue in just war terms seek to influence policy by persuading others that their analysis provides a way to express and fulfil the desire that military actions be both wise and just.

He also argues that “good just war thinking involves continuous and complete deliberation, in the sense that one attends to all the standard criteria at war’s inception, at its end, and throughout the course of the conflict.”  This is important as it highlights the need for just war scholars to engage with the ongoing operations in war and the specific policies that are involved.  The question of whether a particular war is just or unjust, and the question of whether a particular weapon (like drones) can be used in accordance with the jus in bello criteria, only cover a part of the overall justice of the war.  Without an engagement with the reality of war, in terms of the policies used in waging it, it is impossible to engage with the “moral reality of war,” in terms of being able to discuss it and judge it in moral terms.

Kelsay’s description of just war thinking as a social practice is similar to Walzer’s more general description of social criticism.  The just war theorist, as a social critic, must be involved with his or her own society and its practices.  In the same way that the social critic’s distance from his or her society is measured in inches and not miles, the just war theorist must be close to and must understand the language through which war is constituted, interpreted and reinterpreted.  It is only by understanding the values and language that their own society purports to live by that the social critic can hold up a mirror to that society to demonstrate its hypocrisy and to show the gap that exists between its practice and its values.  The tradition itself provides a set of values and principles and, as argued by Cian O’Driscoll, constitutes a “language of engagement” to spur participation in public and political debate.  This language is part of “our common heritage, the product of many centuries of arguing about war.”  These principles and this language provide the terms through which people understand and come to interpret war, not in a deterministic way but by providing the categories necessary for moral understanding and moral argument about the legitimate and illegitimate uses of force.  By spurring and providing the basis for political engagement the just war tradition ensures that the acts that occur within war are considered according to just war criteria and allows policy-makers to be held to account on this basis.

Engagement and political debate are morally necessary as the alternative is disengagement and moral quietude, which is a sacrifice of the obligations of citizenship.  This engagement must bring just war theorists into contact with the policy makers and will require work that is accessible and relevant to policy makers, however this does not mean a sacrifice of critical distance or an abdication of truth in the face of power.  By engaging in detail with the policies being pursued and their concordance or otherwise with the principles of the just war tradition the policy-makers will be forced to account for their decisions and justify them in just war language.  In contrast to the view, suggested by Kenneth Anderson, that “the public cannot be made part of the debate” and that “[w]e are necessarily committed into the hands of our political leadership”, it is incumbent upon just war theorists to ensure that the public are informed and are capable of holding their political leaders to account.  To accept the idea that the political leadership are stewards and that accountability will not benefit the public, on whose behalf action is undertaken, but will only benefit al Qaeda, is a grotesque act of intellectual irresponsibility.  As Walzer has argued, it is precisely because it is “our country” that we are “especially obligated to criticise its policies.”