The Flimsy Case for Drone Wars

Amitai Etzioni, a law professor at George Washington University, has followed up the State Department’s justification for drone attacks in Pakistan with an argument of his own, published in the new issue of Joint Force Quarterly.

Here is the first paragraph, sentence by sentence with commentary:

The substantial increase in the employment of unmanned aircraft systems in Afghanistan, Pakistan and other arenas has intensified debate about the moral and legal nature of the targeting killing of people who are said to be civilians.

Oh good. Because when I first saw the title – “Unmanned Aircraft Systems: The Moral and Legal Case” I almost thought Etzioni believed he needed to make the case for unmanned systems per se. But of course it’s not the systems themselves that are at issue. The issue is in using them – or any technology – for 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. A better title for this particular piece might be “Targeted Killings of Civilian Terror Suspects: The Moral and Legal Case.”

The US and its allies can make a strong case that 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.

OK, fair enough. But note this is a PR argument, not a legal or a moral argument per se.

In the long run, we should work toward a new Geneva Convention, one that will define the status of so-called unlawful combatants.

Fair enough also. I myself have been in favor of an Additional Protocol that would create a multilateral consensus around what current law means in an era of asymmetric war. But note that this implies there is actually no legal case to be made for this behavior using existing law.

These people should be viewed as having forfeited most of their rights as civilians by acting in gross violation of the rights of others and of the rules of war.

Whoa, stop the presses. Quite a jump from arguing that the US should point out that these individuals are abusing humanitarian law for their own purposes, and suggesting that the law be updated, to suggesting that they lose all their rights “as civilians.” What I think Etzioni means is that they should lose their immunity from attack 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.

This poor execution (pardon the pun) detracts from the two important points he makes: a) the US needs to make a clear moral case for these tactics if we are going to use them and b) the ethical/legal dilemmas raised by targeted killings suggest the need for a new multilateral consensus about what the laws of war mean – a new Additional Protocol to the Geneva Conventions, perhaps.

But ultimately, I think this article really does nothing to help us think through what a genuine moral / legal case for targeted killings would be, whether there actually is one, or what those new rules would need to look like in order to remain consistent with the larger body of humanitarian law. Mostly, it looks like apologism for existing US policy and a roadmap for rhetorical strategies policymakers might use to dupe the public into thinking it’s within the bounds of the law whether or not it actually is.

Danger Room has a bit more on this particular article. Etzioni has also been on NPR with his views; I’ve not had a chance yet to find out if he expounds more on them there than in the written piece.

I’ll be writing more on this by and by, but I’m curious what readers think about the moral/legal dilemmas associated with targeted killings, by drones or even by manned aircraft. The blog at National Defense University Press has solicited reactions from the general public, so consider leaving a comment there as well.

[cross-posted at Duck of Minerva and Current Intelligence]

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