Drone Attacks and Just War Theory

Drone Attacks and Just War Theory

by William O'Hara

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The philosopher Cicero once wrote: Silent enum leges inter arma -- or laws are inoperative in war. Despite the temptation in the age of technology to utilize new combative innovations to their full and most exact advantage, we must not fall prey to the falsehood presented by our Roman ancestor. With a new capability for waging war comes the requirement of determining in what capacity that capability should be utilized within the confines of a modern limited war. It is with this in mind that the United States tactic of targeted killing utilizing unmanned aerial vehicles (termed drones) must be evaluated. While the Obama administration insists that they have been following all laws of war in the execution of their strikes, not all of the international community agrees.

Utilizing the most fundamental principles of the law of war -- Just War Theory (JWT) -- this paper aims to frame the discussion surrounding targeted killing. Much of the international law applicable to drone attacks are derived from JWT, but current interpretations of that law are often quite diverse, from the hawkish to the overtly pacifistic. Some insist that the standing law indicates that drone strikes should be nearly unlimited; others argue that the practice should be conducted on a significantly limited basis. This paper will utilize thought from contemporary JWT scholars and the underlying purpose of limited war in an attempt to find a common ground in statutory interpretation.

While JWT offers guidance on both when to use force and how to use force, this paper will focus on the latter, commonly recognized as the jus in bello principles of distinction and proportionality used to conduct a limited war. Part I of the paper will provide a synopsis of JWT jus in bello development and principles, and how it has been adopted into both customary international law and international treaties. Part II of this paper will first apply JWT derived standing law to a standard example of drone targeted killings. Subsequently, JWT principle and law will be applied to two different case studies in which the utilization of drones threatens to breach the boundaries of JWT, while providing guidance as to where hard lines on the jus in bello application of drones should be drawn. The case studies serve one purpose -- to create a fertile environment for different interpretations of jus in bello principles (codified into law) to be discussed. These interpretations, as mentioned earlier, are often disparate; in such cases, the original purposes of JWT, and contemporary scholarship on the subject will hopefully help highlight the proper opinion.

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Lieutenant William O'Hara is a graduate of the United States Naval Academy, and is a juris doctor candidate at the George Washington University Law School, where he is the vice-president of the Military Law Association. The views expressed in this paper are the authors and do not represent the views of the United States Navy or the United States Department of Defense.

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Is the Latin phrase "Inter arma enim silent leges"?

"While JWT offers guidance on both when to use force and how to use force, this paper will focus on the latter, commonly recognized as the jus in bello principles of distinction and proportionality used to conduct a limited war."

It is kind of hard to discuss "how" without first looking at "when".

"He produced a largely jus ad bellum-centric codification of canon law in the mid-twelfth century that established three principles of a just war: (1) sovereign authority, (2) just cause, and (3) right intention."

The point becomes moot when there is no sovereign state, or "when" one state is sovereign over another.

The US is able to use its sovereign authority, but it uses that authority against a non-sovereign state, Pakistan.

To me, a sovereign state is one that protects its people from an outside force and it is apparent by the drone attacks that Pakistan cannot protect its people with its military, which is really where "(2) just cause, and (3) right intention" comes into play.

Is there then just cause and a right intention in Pakistan's arming insurgents, and not being able to protect their own country, even from a just and right USA, with a uniformed forced?

Are we, even with a just and right intention, losing sovereignty between states and creating the structure of a guerella force with our drone attacks?

We do well to remember, that the application rule of law without justice is Tyranny; and that "justice" is defined from the perspective of the recipient.

There is a difference between acting within the law and acting appropriately. Discretion is often the most influencial application of power, and that is being lost by those that argue that no indiscretion is too great if it is allowed within the law.

This is why long ago in England, when the citizens could no longer find justice under the law the Courts of Equity were created. Based not in the law, but rather in the equitable principles of Good Faith and Fair Dealing.

So, we too must go beyond cold analysis of the black letter of the law, and ask if we act also with equity. If not, what is the point? We've become no better than those who challenge us, and validate their very complaints in the process.

(Ok, I had to reach back to Professor Holmes and 1st year Contracts for that little rant!)

Matt - the use of force question is extremely important, and it's one that I'm considering writing about. Practical matters make it a topic for a separate paper, but I think you're right. To me the most interesting aspect is sovereignty. I wonder what we would do if Canada started sending drones across the border, even if the purpose was monitoring border security and had no offensive capability. I think we'd be extremely sensitive to the prospect.

Zen - anyone who uses "transmogrify" is alright in my book.

(A) Are you implying that there simply shouldn't be any legal discourse on the boundaries of new technology because it could be used against us?

(B) I'm certain that you are correct in your description of the problem, but I don't think that your argument applies to this paper. In fact, I'd like to think that I did the opposite. Instead of having my own ideologically-based pet-theory to promote, I attempted to use an independent criteria to evaluating others' pet-theories. The criteria I used is not some new, fringe, neo-retro-industrial theory of internationalism, but rather the theory that most credit as being the fundamental building block that the modern law of war rests on. In effect, I tried to use that to cut through the riff-raff (and yes, I suppose I did just inadvertently call some of the ICRC opinions riff-raff) and get to the interpretation that makes the most sense.

Hi Bill,

Thank you for taking my very irritable comments seriously :)

I concede, that the conclusions you drew on the use of drones in your article are not unreasonable or out of the mainstream. There's room to differ on the circumstances of case studies, so no harm, no foul on those or your motivations in writing the article.

My problems here are twofold:

A) With with your premise. Other scholars could take your argument and draw vastly more restrictive interpretations from it - like that all US drone operators are engaging in war crimes. You yourself alluded to that. Why hand out intellectual knives to those who are less able and are also ill-motivated?

B) That professors of IL have, in the last 30 or so years, transmogrified their profession from one of providing technical expertise to sovereign governments to trying to posture themselves collectively as a transnational IL ulema, asserting novel theories as "customary" and "binding" law through repetition in the media ( because neither the public nor journalists know anything about IL) and lobbying bureaucrats.

"B" is a systemic, under the radar, problem but it is what accounts for at least 50 % of what most ppl on SWJ/SWC mean when they complain about "lawfare". We have hundreds of American law profs running around trying to prove their cleverness to their peers by constructing complex and fairly tortured legal arguments to impede traditional and completely legal uses of military force.

"Just war" or "hey, it's just war"

My concern is that we are trending to the latter, and it will build perceptions of injustice in the American approach to enforcing the rule of law if we persist with current trends. Its a branch of "familiarity breeding contempt." We've been doing it so long, it must be ok, right?

We can rationalize, and debate all we want, but in the end, justice is in the eye of the recipient of the rule of law, not the applicant.

This is the proverbial "slippery slope" your Con Law professor likes to use so much. We need to be careful that we don't become too beguiled by our own arguments.

First, I think most scholars would agree that the principles of distinction and proportionality, based on state practice, have become customary international law. In fact, The Commanders Handbook on the Law of Naval Operations (NWP 1-14M/MCWP 5-12.1) states, "[T]he law of armed conflict is based on four general principles: military necessity, unnecessary suffering, distinction, and proportionality. These principles must be considered collectively as they impact on and interrelate with each other. No one principle of the law of war can be considered in isolation." All commanders are instructed to evaluate these principles before electing to destroy a target, and based on our doctrine, I think the US treats these principles as binding international law.

Your article raises several important issues in regard to how these principles are applied in the context of drone attacks. I just want to add that I dont think these issues are limited to the type of platform highlighted in your article. Regardless of the type of platform or weapon employed--whether a drone, manned aircraft, or even a SOF team executing a DA mission--a commander will always have to struggle with the issues raised by your article.

Finally, the title of your article is "Drone Attacks and the Just War Theory," but you quickly dismiss the notion of jus ad bellum, which, in my opinion, is the area of international humanitarian law that demands more public discourse in reference to the employment of drones. Placing aside whether Pakistan has granted permission for the use of drones in their territory, does a drone attack in a sovereign country violate the tenets of jus ad bellum? What about the use of drones in an essentially lawless "country" like Somalia? I realize that these issues were outside the scope of your article, but, to me, the legal thicket for jus ad bellum is much thornier than the jus in bello issues.

Zen, thanks for the comment.

1. JWT does not equal international law. We agree. However, it's quite clear that the codified elements of current IL that I evaluated (distinction and proportionality) are rooted in JWT tradition. I don't think that it's at all unreasonable to use JWT as a tool to evaluate current interpretations of the previously mentioned IL elements.

2. You may very well have a good point about the way policy (often bubblewrapped) is implemented (or perhaps pushed) by lawyers. This paper is meant as nothing more than academic commentary.

3. The ICRC is not binding, but it is influential. I do not claim anything else. I specifically note that the US and other powers have not ratified it. I'm unclear where ideology comes into play.

4. "...it's a huge, substantive, change of enormous legal and operational consequences - mostly to the great disadvantage of state militaries and to the advantage of insurgents and terrorists."

The vast majority of conclusions in this paper support the usage of drones, with the qualified exception of the last case, which is only due to the extreme escalation of civilian casualties.

"Utilizing the most fundamental principles of the law of war - Just War Theory (JWT) - this paper aims to frame the discussion surrounding targeted killing."

Apparently sovereign powers exercise less of their sovereignty than do itinerant law students and officials of NGOs. The law professoriate is really something else these days.

First off, the premise is faulty. JWT does not = International Law and the Laws of War.

Excerpting JWT from the contemporary context and practice of IL/LoW and then extrapolating from it in isolation is not a minor, technical, shift of premise; it's a huge, substantive, change of enormous legal and operational consequences - mostly to the great disadvantage of state militaries and to the advantage of insurgents and terrorists.

Secondly, setting aside the merits as a policy proposal, letting law prof types push cherrypicked pet theories to policy implementation by administrative fiat by proselytizing through the JAG-DoJ-DoS lawyer's network, is an usurpation of sovereign power by unaccountable elites.

Nor is the ICRC the unilateral arbiter empowered to override the requirement for sovereign consent to international covenants by selectively declaring certain provisions to be "customary" at the whim of ICRC personnel. It seems like legal educations these days are coming with a very heavy dose of fashionable ideology.

Changes of this magnitude must be contracted by sovereign states or if adopted by nations as their policy, be adopted through normal legislative action or existing statutory authority by political representatives.

The opponents in the GWoT are not fighting on the behalf of any government. In addition even the religion they espouse to be fighting for have rejected them. To counter their extreme acts, extraordinary actions should be condoned.