The Ethics of Drone
Warfare
No
aspect of modern warfare is as controversial as the use of armed drones. Everything about drone technology is
contested: its novelty, legality, morality, utility, and future
development. Even the choice of
what to call such systems is value-laden.
--Professor
Sir David Omand GCB
_________________________
Technology does not remove the possibility of virtue, but it does
increase the possibilities
for vice. This is only to
be expected, for in warfare, as in all other human activities,
there’s a very small area of potentially appropriate acts—only one
small bull’-eye area
in the moral target. But
the possibilities for wrong acts—for missing the bull’s-eye
are limitless. Every
technological advance gives us one more small space for possible
virtuous acts, but endless possibilities for vice.
--Darrell Cole[2]
1.
Statistics
a.
“The first U.S. drone strike is believed to have
occurred in 2002 when a Hellfire missile launched by a Predator drone killed
four suspected al-Qaeda members in Yemen.”[3]
b.
From 2005 to 2013 use of armed drones increased
by 1,200%[4]
c.
More drone strikes by Obama administration in
2009 than the Bush administration during the entire time[5]
d.
By early 2012 Pentagon had 7,500 drones: representing
approximately one-third of all U.S. military aircraft[6]
f.
Pentagon is asking Congress for $904 million in
2016 to buy 29 Reapers:
more than double the number sought in 2015[8]
2.
Potential benefits of drone technology
a.
Cost
i. Have
an aircraft of any size
ii. Don’t
need to design craft around humans (no need for life support systems, i.e.,
pressurized cabins)
b.
Improved duration of flight times à from hours to weeks
c.
Ability to risk dangerous conditions (i.e.,
extreme weather)
d.
Claimed to reduce collateral damage and civilian
casualty
3.
Ethical issues to consider:
“As for drones, while further advancement
in relevant technologies is inevitable, it must also be recognized that
technology in general is advancing at a pace that outstrips the political,
legal and ethical frameworks upon which coexistence and cooperation with global
partners is built.”[9]
a.
Who is in charge, what is their training, and to
whom are they accountable?
i. “Another issue in
drone use is the fact that strikes are carried out by joint operations. The
heavy involvement of the CIA and CIA contractors in the decisions to strike may
alone account for the high-unintended death rate. CIA operatives are not
trained in the law of armed conflict. They are not bound by the Uniform Code of Military Justice to
respect the laws and customs of war. This fact became abundantly clear during
the revelation of U.S. use of interrogation methods involving torture and
cruel, inhuman and degrading treatment. Given the impact of that unlawful
conduct it is difficult to fathom why the Obama Administration is using the CIA
to carry out drone attacks. Under the law of armed conflict, only lawful
combatants have the right to use force during an armed conflict. Lawful
combatants are the members of a state‘s regular armed forces. The CIA is not
part of the U.S. armed forces. They do not wear uniforms. They are not subject
to the military chain of command. They are not trained in the law of war,
including in the fundamental targeting principles of distinction, necessity,
proportionality, and humanity. Rather, the CIA has
a list of intended targets. They judge success by the number of persons on the
list they kill.”[10]
b.
Determining the legitimacy of a target
i. U.S.
Dept. of Defense: Joint Integrated Prioritized Target List (2009): 400 names of
individuals described as “known terrorists”
ii. Is
the definition of “terrorist” too broad?
iii. “The
inclusion of Taliban financiers on the so-called ‘kill list’ is a case in
point. Although terrorist
financiers may be classified as terrorists, there is debate as to whether they
can be deemed a legitimate target for a kill list under IHL [International
Humanitarian Law]. According to
ICRC [International Committee of the Red Cross] guidance, IHL stipulates that
the decisive criterion as to whether an individual is a member of an organized
armed group, terrorist or otherwise, is to prove a continuous combat
function. Furthermore, any
individual falling outside this category would be classified as a
civilian. In other words, unless a
Taliban financier can be proved to be a combatant on a continual basis, it
would be unlawful to target under IHL.”[11]
c.
“Rescuer attacks” also known as “follow-up
strikes”
“One example is the killing of senior al-Qaeda leader Abu Yahya Al-Libi
on June 4, 2012. Following an
initial drone strike which killed five people and injured four others, a group
of 12 people, including local residents, came to the assistance of the victims. Al-Libi was reported to have been
overseeing the rescue efforts and was killed in the second strike, along with
between 9 and 15 other people, including six local tribesmen. In other words, six civilians were
killed working in a humanitarian capacity alongside a group of al-Qaeda
operatives under a senior al-Qaeda official.”[12]
d.
Geographical sovereignty
i. Does the “host state” consent to drone
strikes?
ii. Pakistan
denies consent publicly
e.
Proportionality: Anticipated collateral damage
and civilian casualty
i. “U.S.
estimates of extremely low or no civilian casualties appear to be based on a
narrowed definition of ‘civilian,’ and the presumption that, unless proven
otherwise, individuals killed in strikes are militants. In May 2012, The New York Times reported that according to unnamed Obama
administration officials, the United States ‘… in effect counts all
military-age males in a strike zone as combatants… unless there is explicit
intelligence posthumously proving them innocent.’”[13]
ii. “Recent
UN reporting suggests that drone strikes have resulted in considerably more
civilian deaths than U. S. officials have publicly acknowledged. According to UN Special Rapporteur Ben
Emmerson, at least 400 civilians have been killed in Pakistan alone.”[14]
f.
Does the target present a direct and imminent
threat?
i. “However,
some analysts believe that, today, al-Qaeda constitutes more of an ideological
influence than a direct threat.”[15]
ii. “Traditionally,
there has been substantial consensus among states and international law experts
that an imminent threat is one that is concrete and immediate, rather than
speculative or remote. But according to a leaked 2011
Justice Department White Paper— the
most detailed legal justification that is publicly
available—the United States is now taking a
radically different approach to defining imminence. According
to the White Paper, the requirement that force only be used to prevent an “imminent” threat
“does not require the United States to have clear evidence
that a specific attack on U.S. persons and interests
will take place in the immediate future.” This
seems—and is—at odds with the traditional
view. The White Paper goes on to assert that “certain
members of al-Qa’ida are continually plotting attacks .
. . [and] would engage in such attacks regularly [if they] were able to do so,
[and] the U.S. government may not be aware of all al-Qa’ida
plots as they are developing and thus cannot be confident
that none is about to occur.” As a
result, the White Paper concludes that any person deemed to be an operational
leader of al-Qaeda or its “associated forces” inherently
presents an imminent threat at all times—and as
a result, the United States can lawfully target such persons at all times, even
in the absence of specific knowledge relating to planned
future attacks.
“At risk of belaboring the
obvious, this understanding of imminence turns the traditional international
law interpretation of the concept on its head. Instead of reading the imminence
requirement to mean that states must have concrete knowledge (or at least
reasonable suspicion) of an actual impending attack in the near future, the
United States appears to construe lack of knowledge of a future attack as the
justification for using force; that is, since the United States “may
not be aware of all Al Qa’ida plots . . . and thus cannot
be confident that none is about to occur,” force is presumed always to be justified
against the kinds of people considered likely to “engage
in . . . attacks . . . if [they] were able to do so.” From a
rule-of-law perspective, this is a radical assault on a once-stable concept. If
“imminent threat” can mean “lack
of evidence of the absence of imminent threat,” it is
impossible to know, with any clarity, the circumstances under which the United
States will in fact decide that the use of military force is lawful.”[16]
g.
Issues of “necessity” and “proportionality”
i. “Are
all drone strikes “necessary”?
Could nonlethal means of combating terror- ism—such
as efforts to disrupt terrorist financing and communications—be sufficient
to prevent future attacks? Might particular terror suspects be captured rather
than killed? Do drone strikes inspire more terrorists than they kill? Also,
to what degree does U.S. drone policy distinguish between terrorist threats of
varying gravity? If drone strikes against a dozen targets prevented another
attack on the scale of, few would dispute their appropriateness or legality—but we
might judge differently a drone strike against someone unlikely to cause
serious harm to the United States. Unfortunately, if U.S. decision-makers
generally lack specific knowledge about the nature and timing
of future attacks—which the White Paper acknowledges—judgments
of necessity and proportionality literally become impossible. How can one
decide if lethal force is necessary to prevent a possible future attack about
which one knows nothing? How can proportionality be deter- mined? Here again,
the U.S. legal theory underlying targeted killing makes it impossible to apply
key principles in a meaningful way. Both necessity and proportionality come to
be evaluated in the context of purely hypothetical worst-case scenarios (in
theory, any terror suspect might be about to unleash another catastrophic
attack on the scale of). As a result, these “limitations” on the
use of force establish no limits at all.”[17]
h.
Potential negative effects on local populations
i. “Covert
drone strikes take a particular toll, striking unannounced and without any
public understanding of who is, and importantly, who is not a target. For victims, there is no one to
recognize, apologize for, or explain their sorrow; for communities living under
the constant watch of surveillance drones, there is no one to hold accountable
for their fear.[18]
i.
Accuracy
i. Personality
targeting vs. signature targeting
1.
Personality targeting: an individual whose
identity is specifically known is targeted
2.
Signature targeting: unknown individuals often
in groups are targeted. These
match a pre-identified “signature” of behavior that the U.S. links to militant
activity or association.
a.
Signature strikes are more controversial
b.
Make up significant proportion of covert drone
strikes—the majority in Afghanistan
c.
“Indeed, according to one unnamed U.S. official,
the United States has killed twice as many ‘wanted terrorists’ in signature
strikes than in personality strikes.
U.S. officials have also reported that most of the people on the CIA’s
kill list have been killed in signature strikes.”[19]
d.
Could create the potential for increased
collateral damage
e.
Criteria for determining suspicious behavioral
patterns (signatures)
i. Challenge
for intelligence—“when human intelligence is lacking and decisions need to be
made based on aerial intelligence alone.”[20]
ii. Pre-planned
attacks vs. Dynamic targeting
1.
Pre-planned attacks: conducted at a scheduled
time and after elaborate processes of collateral damage estimation are taken
into account
2.
Dynamic targeting: decisions made in a short
window of time without the time for collateral damage controls. The risk of collateral damage increases
j.
Assessing short, mid, and longer term impacts of
drone strikes
i. Short
term success: killing enemy commander
ii. Mid
and long term
1.
Glorify enemies as martyrs
2.
Create more propaganda for jihadists
k.
Distinguish between counterterrorism and
counterinsurgency
i. Two
different policies that employ different strategies
ii. Drone
strikes may run undermine counterinsurgency
“In May 2012, a study based on
interviews with government officials, tribal elders, and others in Yemen
carried out by the Center for Civilians in Conflict concluded that: ‘… and
unintended consequence of the attacks has been a marked radicalization of the
local population.’”[21]
l.
Secrecy of drone warfare program in the U.S.
i. “The
U.S. government runs two drone programs.
The military’s version, which is publicly acknowledged, operates in the
recognized war zones of Afghanistan and Iraq, and targets enemies of U.S.
troops stationed there. As such,
it is an extension of conventional warfare. The C.I.A.’s program is aimed at terror suspects around the
world, including in countries where U.S. troops are not based. It was initiated by the Bush
Administration and, according to Juan Zarate, a counterterrorism adviser in the
Bush White House, Obama has left in place virtually all the key personnel. The program is classified as covet, and
the intelligence agency declines to provide any information to the public about
where it operates, how it selects targets, who is in charge, or how many people
have been killed.”[22]
ii. “We
do know, however, that as a matter of international law the United States
believes itself to be in an armed conflict with ‘al-Qaeda and its associated
forces.’ We know the United States
therefore considers ‘al-Qaeda operatives’ to be targetable as ‘combatants,’ but
we do not know precisely how it identifies or defines al-Qaeda operatives,
agents, or members, or how it defines the term ‘combatants’ and applies it in
the murky context of transnational terrorism. We also do not know precisely how the United States
understands the term ‘civilian’ in the context of terrorism or the concept of
‘direct participation in hostilities.’
Finally, we do not know how the United States defines or identifies
‘associates’ or ‘co-belligerents’ of al-Qaeda.”[23]
m.
Future technology
i. Nano
drones (example—“hummingbird drone” capable of flying at 11 miles per hour and
perching on a window sill)
ii. Autonomous
drones—identify and eliminate human target without direct human intervention
[1]
Quoted in Shima D. Keene, Lethal and
Legal? The Ethics of Drone Strikes (Carlisle, Penn.: U.S. Army War College
Press, 2015), 1. Available online:
http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=1304.
[3]
Rosa Brooks, “Drones and the International Rule of Law” Ethics and International Affairs 28 (2014), 89. Available online: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2296&context=facpub&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fsearch%3Fclient%3Dsafari%26rls%3Den%26q%3Drosa%2Bbrooks%2Bdrones%2Band%2Bthe%2Binternational%2Brule%2Bof%2Blaw%26ie%3DUTF-8%26oe%3DUTF-8#search=%22rosa%20brooks%20drones%20international%20rule%20law%22
[10]
Mary Ellen O’Connell, “Unlawful Killing with Combat Drones: A Case Study of
Pakistan, 2004—2009” Notre Dame Law
School Legal Studies Research Paper No. 09-43 (July 2010), 5-6. Available online: https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/OConnellDrones.pdf.
[22]
Jane Mayer, “The Predator War” New Yorker
(October 26, 2009). Available
online: http://www.newyorker.com/magazine/2009/10/26/the-predator-war. Mary Ellen O’Connell adds this
important caveat: “The two programs may not be as clearly separated as Mayer
suggests, however. Many facts
about the use of drones are classified, so it is difficult to get a full and
accurate picture. Some evidence
suggests a more complicated situation.
In an interview with a former commander of the drone operation at Nellis
Air Force Base in Nevada, it was clear that all drone operations are ‘joint’
operations—none is carried out by the Air Force alone.” “Unlawful Killing with
Combat Drones: A Case Study of Pakistan, 2004—2009” Notre Dame Law School Legal Studies Research Paper No. 09-43 (July
2010), 5-6. Available online: https://www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/OConnellDrones.pdf.
