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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Yeesh, am I the only one thinking this is suggested framework would serve to justify genocide? Any group of civilians even suspected of harbouring terrorists would be fair game for non-discriminatory strikes.
It’s a small point, but Etzioni isn’t a law professor. He has a “university professorship” at GW, which at least sometimes would mean that he could teach in any department, but I don’t think he normally teaches law, and his background is in Sociology and he has no special expertise or claim to it in law. (He’s not listed as faculty in the law school at GW, so I expect he rarely, if ever, teaches there.)
Thanks Matt.
Isn’t he also a Zionist Jew friendly to Israel’s
right-wing? The dual loyalist thingee always gets ya.
What difference does it make to U.S policy whether killing civilians is legal or moral? civilians have already been killed without anyone involved giving a shit about its legality or morality and I imagine they will continue to be killed by U.S predator drones even if it is declared illegal or immoral. This is not so much a case for the legality of blowing up Pakistani weddings but a post facto justification for such U.S atrocities. It has no bearing on the future actions of the military, it simply acts to soothe the consciences of the less bloodthirsty chickenhawks.
Great item.
Very interesting to note the leap that Etzioni makes here… the most dangerous/persuasive arguments start from a wrinkle or a nuance that can be widened/exploited. The giveaway is that everyone seems to know what results they want to support in advance of their “intellectual” inquiry. Oh, it turns out that what the US did and is doing is cool? What a coinkidink.
I was very glad to see you note, “of course it’s not the systems themselves that are at issue.” Now if only it weren’t in a post titled “The Flimsy Case for Drone Wars”.
Right, except I do think you need to make a case for using drones as a weapon of war (as opposed to using them for surveillance and such). I just think he’s done it poorly without addressing most of the real issues. Like whether it’s ethical to put the lives of our soldiers over the lives of civilians on the ground, which is part of the logic behind lethal unmanned systems. And like whether we are actually saving or costing Pakistani civilian lives in this process.
I’m confused by the argument as well.
Terrorists, guerrillas, insurgents, and other non-state actors who are waging war are combatants, pure and simple. And combatants can be targeted for killing rather than arrested. There’s no doubt about that under existing law.
The gray area in Geneva et al is what to do with enemy combatants who are captured in an asymmetric war. Are the entitled to precisely the same protection as uniformed, privileged belligerents? Can they be held for indefinite detention — or for the “duration of hostilities” in a war without end?
This might be intriguing for lawyers to bandy about. But just according to any sense of equal morals, why the fuck should someone care?
Hmm… yes… this guy is not wearing the regulated uniform of his country’s army. This means we can do whatever-the-hell-we-please!
The idea of “war crimes” is in and of itself paradoxical, as war is one of the greatest crimes of all.
[...] Charli Carpenter, a professor of national security ethics, calls his case “flimsy” and finds the whole notion of “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” problematic. And, while she agrees with Etzioni that the Geneva Conventions should be revised to “create a multilateral consensus around what current law means in an era of asymmetric war,” she would not go nearly so far as Etzioni, who would strip them of all their rights 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’s always been more interesting in a theoretical context than in an actual one- simply because “communitarianism” as a belief system is almost impossible to cite in practice- you basically have to cherry pick examples.
Reading Dr. Etzioni over the years, he strikes me as the kind of liberal who doesn’t like fascism, but sorrowfully concedes that someone has to make the trains run on time. Likewise, he does not approve the wanton slaughter of civilians, but – with a heavy heart – explains that collective punishment of Arabs is justified because, don’t you know, they only understand force.
[...] The Flimsy Case for Drone Wars : Lawyers, Guns & Money [...]
[...] The Flimsy Case for Drone Wars : Lawyers, Guns & Money [...]
“This is not so much a case for the legality of blowing up Pakistani weddings but a post facto justification for such U.S atrocities. It has no bearing on the future actions of the military, it simply acts to soothe the consciences of the less bloodthirsty chickenhawks.”
That sums it up nicely. And I wonder if this blog would be taking such arguments seriously if the president ramping up the drone war was named Bush.
“Like whether it’s ethical to put the lives of our soldiers over the lives of civilians on the ground, which is part of the logic behind lethal unmanned systems. And like whether we are actually saving or costing Pakistani civilian lives in this process.”
Another perfect Liberal Ethics in the Age of Obama quote, if you’ll pardon my saying so. Obviously any atrocity could be justified using such reasoning.
This has me thinking back to the origins of the Geneva Conventions. What were the French resistance considered? They were civilians who unlawfully combatted the Germans just as the Taleban/Mujahidine(sp?) do today. Although I think they were probably better at it since they could actually shoot straight. http://atwar.blogs.nytimes.com/2010/04/02/the-weakness-of-taliban-marksmanship/
[...] The legal argument is ‘flimsy’ at best. More likely, U.S. intellectuals are working overtime to provide legal fodder for the largest targeted killing campaign in the world today. That means that no one takes the legal arguments too serious – least of all, the people making them. [...]