Conference Participants and Abstracts

Daniel Brunstetter and John Emery (UC Irvine)

The Just Use of Limited Preventive Force: Drones, Last Resort and Restricting Escalation

Both scholars and policy-makers are deeply concerned how the use of drones for targeted killings by the United States has expanded. What began as acts of isolated targeted killings in 2002 (the first reported drone strike), has turned into a preventive drone war on a global scale, and established a dangerous precedent for other nations to follow. While the scholarly debate has been framed in terms of the law enforcement-jus ad bellum binary, we think viewing drone strikes through these frameworks fails to get at the heart of the issue – the oft-cited but underexplored notion of the legitimacy of preventive force. We suggest light can be shed on the moral dilemmas by looking at drones as a type of preventive force that lies in the undefined security space between acts of war and acts of law-enforcement, what some scholars have been referring to as jus ad vim. Thus, ethical standards governing their use are more permissive than law enforcement, but more restrictive than war. This claim rests on the notion drone strikes against terrorist targets are typically an act of preventative force short of war, where opaque notions of imminence raise deep concerns about when such a strike is justified (in lieu of attempts to capture suspected terrorists or after such attempts have failed). In this paper, we focus on exploring what last resort means for a drone strike. We offer a moral framework that combines the standards of law enforcement – i.e. indictment (in abstention) of suspected terrorists - with a circumscribed notion of imminence to define the rare circumstances under which the preventive use of lethal drones may be legitimate. This framework speaks to the need to restrict the number of strikes to a minimum of isolated acts of preventive force, instead of pursuing the dangerous policy of a broader (preventive) drone war.

 

Deen Chatterjee (S.J. Quinney Collge of Law, University of Utah)

Just Peace as Preventive Non-Intervention

The traditional debates of war and peace have become a major focus of controversy in response to the changing nature of warfare in the 21st century, putting in sharp focus the issues of traditional paradigms and their limits, the moral hazards of military response, and the future of warfare. All these have vast implications for international law, justice, and human rights. The situation is made especially complicated by today’s scenario of drone warfare in which a powerful nation using advanced military technology may undertake “riskless” warfare to thwart a perceived danger in another country in the name of preventive intervention for self-defense. In this paper I briefly lay out the moral, legal, and policy quandaries of legitimizing preventive intervention as a military option and explain how the new technologies of targeted killing compound these problems.  I propose an alternative to the policy of preventive intervention for securing peace, which I call “preventive non-intervention,” by moving away from the just-war approach and instead prioritizing what I call a just peace method. I argue that just peace as preventive non-intervention is the recipe for an equitable global order of trust, cooperation, and dialogue that is so urgently needed today. It underscores the need for a preventive approach that is non-interventionist and proactive. I claim that instead of regarding my idea of just peace as romantic and utopian, we need to see it as an imperative of a new moral realism in today’s world.

 

Justin Connolly (Human Rights Watch)

A Wedding and Twelve Funerals:  The rights of civilians at the receiving end of a drone attack

On December 12, 2013, a United States aerial drone launched four Hellfire missiles on a convoy of 11 cars and pickup trucks during a counterterrorism operation in rural Yemen. The strike killed at least 12 men and wounded at least 15 others, 6 of them seriously. US and Yemeni officials said the dead were members of the armed group Al-Qaeda in the Arabian Peninsula (AQAP).  Witnesses and relatives of the dead and wounded interviewed by Human Rights Watch in Yemen said the convoy was a wedding procession. They said everyone in the procession was a civilian, including all of the dead and injured, and that the bride received a superficial face wound. As the US joins the Yemeni government against AQAP, at what point do the rights of the civilians caught in the crossfire prevail over the US' right to attack its enemies?

 

 

Daphne Eviatar (Human Rights First)

Is the United States’ Covert Use of Lethal Drones Outside “War Zones” Legal?

Is the United States’ secret use of drones to conduct so-called “targeted killings” outside the active war zone of Afghanistan legal? The question has sparked much controversy. On the one hand, the Obama administration and its defenders claim it is fighting a broad and ever-changing war that requires the ability to use lethal force whenever needed, whether delivered by unmanned aerial vehicles (“drones”) or otherwise, wherever the United States’ enemies may be found.  This follows from the U.S. government’s claim since the September 11, 2001 terrorist attacks that the “war on terror” – now called the “war against the Taliban, al Qaeda and ‘associated forces’ ” – has no geographic limits. Many critics of the U.S. drone program, meanwhile, insist that the use of such weapons to kill suspected terrorists outside a particular geographic war zone does not comply with international law, is politically counterproductive and must be stopped. In my view, although the war may not have easily definable geographic boundaries, a war between a state and an armed group (a “non-international armed conflict” in the parlance of International Humanitarian Law) such as this one must have limits, for political, ethical and legal reasons.  International law provides those limits, and the United States, to be seen as respecting international law – which is importantly politically and strategically -- must publicly acknowledge them. This talk will focus on the requirements of human rights law, which the US still does not recognize as binding on it outside the US. In particular, it will argue there is a need for the US to provide information about civilian casualties after a strike in order to demonstrate its compliance with IHL and/or IHRL, depending on the operation. Without such after-the-fact reporting, it is impossible for U.S. citizens, allies or potential enemies to have faith that the United States is acting within the confines of international law.  To operate without that public trust not only undermines core principles of American democracy, but undermines U.S. counterterrorism efforts as well.

 

C. Christine Fair (Georgetown)

Studying Drones in the Low Quality Information Environment of Pakistan's Tribal Areas

Much of the critique of the US drone program in Pakistan relies upon heroic assumptions about the program, who it targets and with what outcomes, and the degree to which the Pakistani government has been complicit in the program. My talk will problematize recent agenda-driven research on the drone program paying particular attention to the data collection and analytical methods employed by the various authors. I will offer up suggestions as to how organizations can better conduct empirical work in this key issues.

 

David Glazier (Loyola Law School)

The Drone - It's in the Way That You Use It

Professor Glazier, a former U.S. Navy surface warfare office, loves drones and will argue that they do have many positive attributes, including the theoretical ability to better distinguish between legitimate military targets and protected civilian persons and objects than piloted aircraft. But that said, the legality of any specific drone attack depends on a number of factors, including the existence of an actual armed conflict, the validity of the target under both international and U.S. domestic law, and the compliance with law of war rules in carrying out the strike. Although U.S. domestic law authorizes the CIA to engage in covert action, international law only privileges the use of force by actual military personnel and platforms. There is no requirement for any “due process” during an armed conflict other than the application of careful judgment and the taking of feasible precautions by a reasonable commander. No amount of procedural safeguards, or even a judicial finding, on the other hand, can justify deliberate killing outside of an actual armed conflict except in situations where an imminent threat calls for immediate actions in self-defense. But the fact there is time to engage in structured deliberations would seem to prove the lack of immediacy required to justify an attack under a self-defense rubric. Most U.S. drone attacks are thus quite problematic as a matter of law.

 

Benjamin Jones (Yale) and John M. Parrish (LMU)

Drones and Dirty Hands

The period known as the “War on Terror” has prompted a revival of interest in the idea of moral dilemmas and the problem of “dirty hands” in public life.  This is hardly surprising, given that the US response to the 9/11 attacks quickly led policymakers anxious to prevent another attack to revisit just the kinds of morally troubling tactics which the literature about dirty hands had sought to address.  Indeed, perhaps the most pervasive trope of post-9/11 public discourse originated within this discussion: the so-called “ticking time-bomb” scenario, in which a captured terrorist (very probably) possesses actionable intelligence about an imminent attack on civilians and his captors must decide whether to torture the terrorist to obtain the information, first appeared in Michael Walzer’s seminal article “Political Action: The Problem of Dirty Hands.”  Predictably, several other motifs from the dirty-hands literature have migrated into contemporary public discourse as well: in particular, the image of the anguished public leader torn between the solemn duty to protect public safety and the distasteful acts of violence which are the unavoidable means to achieve this noble end.  More troublingly, however, the use of the “dirty hands” framework to characterize U.S. tactics in the war against Al Qaeda has begun to enlist more thoughtful defenders among professional moral philosophers and political theorists.  These thinkers contend that a policy of targeted killing of terrorist actors is (under specified but not uncommon circumstances) an instance of a dirty-handed moral dilemma – morally required yet morally forbidden, the least evil choice available in the circumstances, but one that nevertheless leaves an indelible moral stain on the character of the person who makes the choice.  In this paper we argue that, while dirty hands situations do exist as a persistent problem of political life, it is generally a mistake to classify policies of target killing (such as the current US policy) as examples of dirty hands.  Instead, we maintain, such policies, if justified at all, must ordinarily be justified under the more exacting standards of just war theory and its provisions for justified killing – in particular the requirement that (with limited and defined exceptions) non-combatants be immune from intentional violence.  Understanding this distinction both clarifies the significance of dirty hands as a moral phenomenon and also forestalls a set of predictable and all-too-easy appropriations of the concept to domains it was never intended to address. 

 

Tom Nichols (US Naval War College)

Eve of Destruction: A Retrospective on the “Coming Age of Preventive War.”

Nearly a decade ago, I wrote a book called Eve of Destruction: The Coming Age of Preventive War. In it, I argued that the end of the Cold War meant the collapse as well as any pretense of respect for the Westphalian norms of state sovereignty that governed the international system for over 300 years. This, I claimed, happened for three reasons. (1) The multiplicity of humanitarian disasters in the 1990s and after challenged the Western powers to act without the previous constraint – or excuse – of Cold War tensions; (2) “rogue” or “outlaw” states now pose threats to larger powers in a way they had never been able to do before by gaining access to weapons of mass destruction; (3) terrorist organizations operating with the support of these rogue regimes (or from bases in “failed” states) have demonstrated the ability to inflict major damage on large nations. I further argued that this is not limited to the United States but is in fact an international movement. In this paper, I look back at the book to ask what it got wrong, what it got right, what has changed in the ensuing decade, and what can be done in the next decade.

 

Miroslav Nincic (UC Davis)

The Domestic Politics of Preventive War

As with all actions involving large stakes, decisions to initiate military involvement abroad (and the ultimate course of such action) reflect prevailing domestic political circumstances. Scholarship provides insights on how public support for military intervention responds to its costs (especially in term of US lives) and to perceptions of its effectiveness. We also know that efforts at regime change garner less popular support than attempts to alter external behavior, while protecting US political achievements resonates more than pursuit of new, as yet unrealized, ends. But this is but part of the domestic political context, and we have a much weaker grasp of the impact of interventions on partisan gamesmanship and the nation’s electoral politics.  We also know little about the domestic political context of wars that are specifically framed as preventive.   This paper will have three objectives: (1) to consider the applicability of what we already know to interventions for which a specifically preventive purpose is claimed; (2) to expand this discussion to include partisan and electoral politics, and, (3) to consider scenarios where major US troop presence abroad is replaced with special operations and drone warfare.

 

Avery Plaw and João Reis (University of Massachusetts)

The Unintended Impacts of Preventive Force on the Contemporary Practice of Self-Defense

Preventive use of force by the United States over the last decade, most notably in Iraq and currently by means of armed drones operating far from conventional battlefields, is bound to have huge consequences for the international legal regime and particularly the Ius ad Bellum.  Yet these consequences need not, as many commentators and scholars have worried, be all bad.  Indeed, we argue in this paper that they may have some unintended positive effects on the law of self-defense and particularly on the interpretation of Article 51 of the UN Charter.  This paper begins by briefly reviewing the famously contentious debates over the meaning of self-defense under Article 51 in the era before 2001, and then sketches an interpretation of how US uses of force, and increasingly those of other states like Israel, Turkey and Colombia, are re-shaping those debates and creating the basis for a new compromise permitting limited, episodic exercises of force in response to sustained patterns of attack by non-state actors.  The integration of such a compromise into the customary practice of states has the potential both to resolve inconclusive and sterile debates over the meaning of Article 51 and to permit states the necessary flexibility to confront immediate threats while preventing ill-considered military adventures designed to eliminate future threats before they manifest.

 

John Radsan (William Mitchell College of Law)

How I Learned to Love the Drone

Professor Radsan, a former CIA lawyer, will argue that the fears about killer drones are overplayed. Drone operators are not at risk the way American forces on the ground would be. And drones, better than other weapons, can use advanced technology and multiple sources of intelligence to distinguish between enemies and innocents. The drones operate within the rule of law. The internal checks at the CIA provide a due process of sorts on that agency’s involvement in any lethal actions. These checks provide an adequate substitute for review by regular courts or by a special court along the lines of the Foreign Intelligence Surveillance Act court. Combined with external checks from the media and congressional oversight, the internal checks come from the Office of General Counsel, the Inspector General, and the Accountability Review Boards within the Clandestine Service. These offices provide a foundation for additional checks within the Executive branch through the National Security Council as well as White House review. So, in time, more Americans will join President Obama in loving the drones.

 

Stephan Sonnenberg (Stanford Law)

Why Drones Are Different

In September 2012, the author of this chapter co-authored a report documenting the inefficacy, unpopularity, and presumed illegality of the US drones program as it was carried out in northwest Pakistan. The main findings of the report have since been confirmed by subsequent investigations and official documents released to the public. In this chapter, however, the author reflects on the question that was not addressed in the report, namely whether—and, if so, how—drones are different from other weapons designed to kill people during times of conflict? The question is controversial, in that it pits traditional laws governing war against emerging popular notions of ethics in confusing and sometimes contradictory ways. But it is also an important question to address, both to understand the emotional reaction that the US drone program continues to engender at home and abroad, as well as to develop ethical policies to govern the use and further development of drones technology worldwide.

 

Jennifer Taw (Clarement McKenna)

Preventive Force: Costs and Benefits

If we think about the use of the military for offense, defense, and deterrence, preventive warfare is an offensive action intended to have both a deterrent and defensive effect. It loses the efficient inaction of deterrence, since it requires actual engagement and not just the threat of retaliation; it loses the legitimacy of defense, since it is offensive in the absence of an imminent threat. It presumably has the advantage of removing an anticipated threat entirely, cauterizing it, thus destroying a potentially costly pathway of extended conflict. It was ostensibly this logic that led the United States into Iraq; it was this logic that led Israel to bomb Osirak; it would be this logic that would lead Israel to attack Iran’s nuclear development facilities. The question is, under what conditions will preventive operations be successful enough to balance the costs of military action and international disapprobrium? In other words, preventive attacks should only take place when deterrence is anticipated to fail and when enough is at stake. This paper will examine what threats meet these criteria, what means may be available to eliminate them, and under what conditions these two categories will overlap.

 

Greg Treverton (RAND)

Preventive Force and Preventive War

Both preventive force, like drone strikes on suspected Al Qaeda leaders, and preventive war, such as war in Iraq in 2003, raise critical issues of both policy, practicality and longer-term effect.  Both put enormous pressure on intelligence.  But the scale of the force is likely to be very different, which sharpens the entire range of issues.  In particular, as Iraq indicates and both Iran and North Korea suggest, preventive war to disarm a nation's weapons of mass destruction cannot be very targeted, for the targets are dispersed and the intelligence inadequate.  Taking out WMD probably means taking out the country.