By Joseph Camilleri
29 May 2013
Will the ethics of war become collateral damage as America’s use of drone technology takes off? writes Joseph Camilleri.
In an important speech delivered last week president Barack Obama has defended the use of drones by invoking the just war doctrine.
This much awaited justification rests on two fallacies: that the United States is formally at war; and that it can be just to kill someone for a crime in the absence of a fair trial.
Why did the US president feel compelled to offer this lengthy but belated explanation of America’s drone policy? Put simply, because the use of drones is now increasingly contentious as it becomes the favoured response of the US military and intelligence establishment to the terrorist threat – from Afghanistan to Pakistan, Yemen, Somalia and beyond.
A number of terrorists have no doubt been killed, but so have many others, including civilians. One estimate puts the death toll since 2004 at between 1,963 and 3,293. Republican Senator Lindsey Graham estimates the number to be 4,700.
The great attraction of the drone is that the killing appears risk free. The need to deploy US troops on distant and dangerous terrain is greatly reduced while those who direct the drone are safely ensconced thousands of miles away at CIA headquarters in Langley, Virginia.
The CIA has been flying unarmed drones over Afghanistan since 2000. Drones were actually used during the air war against the Taliban in late 2001, but it was not until February 2002 that the CIA first used a drone for a pure CIA ‘kill operation’.
Since then covert unmanned target killing has become common place.
The defence of drone strikes offered by Obama boils down to three key propositions:
- terrorism is a serious and ongoing threat, therefore the US remains ‘at war’;
- when detention and prosecution of terrorists is not possible, target killing becomes legitimate;
- assassination by drones is the lesser of two evils, reducing the likely number of military and civilian casualties;
This line of argument is deeply flawed. Countries and communities are subject to all kinds of threat, including serious loss of life and property – whether it is at the hands of deranged individuals or criminal groups of various kinds. The narcotics trade and human trafficking are just two examples.
But a country is not at war with such groups except in a symbolic or metaphorical sense. In these instances countries are not strictly speaking engaged in war. They are not taking military action against the military threat posed by another state – action which is clearly subject to the laws of armed conflict.
Obama’s predecessor, George W Bush, launched the ‘war on terror’ precisely because it offered the United States a way of dealing with suspected terrorists outside the confines of the rule of law.
As a consequence, enhanced interrogation techniques (generally classified as torture), ‘extraordinary rendition’ and indefinite detention at Guantanamo became integral to the ‘war on terror’.
Now in the fifth year of his presidency, Obama is still trying to distance himself from the Guantanamo fiasco, only to find himself ensnared in another can of worms – covert targeted assassinations also conducted in the name of the ‘war on terror’.
But is targeted killing ‘war’ and, if so, is it in accord with the laws of war?
What is clear is that targeted killing does not engage the enemy in battle, since drone attacks occur in times and places where there is no armed conflict.
How, then, can we be confident that those designated for death pose an imminent, dangerous and violent threat? Who is authorised to make these decisions? And, what if the designation proves to be mistaken – something which is known to have happened more than once? Who then bears responsibility? And what are the processes by which those responsible for those mistakes can be brought to account?
It is difficult to see how surreptitious and riskless killing can be in any way regarded as war in a conventional sense, and how it can be subjected to the most basic rules of armed conflict, including hors de combat immunity and the possibility of individual surrender.
But this is just the beginning of the dilemma.
Who are these suspected terrorists? They do not represent an enemy state. They have no fixed address, and often have no clear organisational links.
While some may be thought to have prominent leadership roles in Al Qaeda, the majority do not. Some may be members of state-sponsored networks, but most are likely to be members of autonomous shadowy cells and extremist groups.
How can such a disparate and elusive group be engaged in anything approaching what we normally regard as ‘war’?
All of which has another far-reaching implication. By virtue of their mobility and effective statelessness, these suspects can move rapidly from one country to another. What happens when a particular country is opposed to the use of American drones over its territory? Will the US accept that judgment? Or will it pursue its targeting regardless, in defiance of that state’s sovereignty?
The US president cannot but be aware of these pitfalls. This is why he has attempted to limit the hostile fallout by stipulating that: there must be near-certainty that no civilian casualties will result. He has also called for a review leading to additional oversight of drone attacks.
But key questions remain unanswered: Who is authorised to make these decisions? Will the decision process be transparent? Who is to bear responsibility in the event of mistaken decisions? In what sense, if any, will US actions be subject to the international rule of law?
Beyond this, the United States needs to consider the political and strategic fallout of drone attacks. The use of the drone has already created enormous ill will towards the United States in both Pakistan and Afghanistan.
This is hardly surprising when a drone supposedly targeting a terrorist ends up killing members of a wedding party.
And if the United States wishes to argue that targeted killings are a legitimate instrument against enemies of the American state, what is to prevent, Russia, China, Iran, Syria or any number of other countries from using precisely the same argument in years to come.
Does president Obama intend a drone arms race to become part of his legacy?
Professor Joseph A Camilleri OAM is Professor Emeritus at La Trobe University. View his full profile here.