October 09, 2011

Political and legal challenges when other countries copy US precendent drone strikes in Pakistan and Yemen

NY Times - Chinese companies startled some Americans by unveiling 25 different models of remotely controlled aircraft and showing video animation of a missile-armed drone taking out an armored vehicle and attacking a United States aircraft carrier. The United States’ near monopoly on armed drones was coming to an end, with far-reaching consequences for American security, international law and the future of warfare.

What the short-run hazard experts foresee is not an attack on the United States, which faces no enemies with significant combat drone capabilities, but the political and legal challenges posed when another country follows the American example. The Bush administration, and even more aggressively the Obama administration, embraced an extraordinary principle: that the United States can send this robotic weapon over borders to kill perceived enemies, even American citizens, who are viewed as a threat.

“Is this the world we want to live in?” asks Micah Zenko, a fellow at the Council on Foreign Relations. “Because we’re creating it.”

In Pakistan, according to American officials, strikes from Predators and Reapers operated by the C.I.A. have killed more than 2,000 militants; the number of civilian casualties is hotly debated. In Yemen last month, an American citizen was, for the first time, the intended target of a drone strike, as Anwar al-Awlaki, the Qaeda propagandist and plotter, was killed along with a second American, Samir Khan.

If China, for instance, sends killer drones into Kazakhstan to hunt minority Uighur Muslims it accuses of plotting terrorism, what will the United States say? What if India uses remotely controlled craft to hit terrorism suspects in Kashmir, or Russia sends drones after militants in the Caucasus? American officials who protest will likely find their own example thrown back at them.

A 43 page paper from the New York University Journal of Law and Liberty by Stephen Knoepfler lays out a moral and legal basis for assassination (using drones or otherwise) based on Just War Theory. The USA could adopt a new executive order properly couched in the [ethical] parameters” of just war theory. Drones and other assassination would only be used in defense of rights. Defense of rights is the only justifiable reason for fighting a war or for assassination.





Dead or Alive: The Future of U.S. Assassination Policy Under a
Just War Tradition (43 pages, by Stephen Knoepfler)


In Part I of this paper, I will present a brief look at the United States’ ban on and use of assassination, from the Church Committee through the beginning of the Obama Administration. Because neither of the executive orders banning assassination defines what assassination actually is, in Part II, I will proceed through the necessary task of defining “assassination.” In defining assassination as the targeted killing of a prominent person, I seek to define it as broadly as possible so as to include all of the instances it is understood to encompass in the common everyday use of the word. The focus of the definition is who is intentionally killed, not why, where, how, or by whom.

In Part III, I give a brief introduction to just war theory, which seeks to describe what ends and means of fighting war make war morally permissible. Central to fighting a just war is the distinction between combatants and noncombatants—that is, who is a morally permissible target in war, and who is not. Moreover, just war theory
sets moral limits on the manner in which even permissible targets are killed, based on the risk to impermissible targets. My thesis, then, is that U.S. policy toward assassination under the Obama Administration and beyond should not exceed the moral limitations established by just war theory.

I will then seek to explain if and when assassination is permissible under just war theory in Part IV. Here, I will make a distinction between assassinations performed as part of war and those performed in times of peace. I will argue that peacetime assassinations are morally equivalent to extra-judicial executions, and our own commitment to justice requires the recognition of the presumption of innocence and a commitment to the trial process. I will also distinguish the moral significance of the motivations surrounding an assassination and posit that even in war, the only justifiable purpose is prevention, and certainly not retribution. Then I will explore which types of individuals—military leaders, heads of state and politicians, terrorist leaders, financiers of terrorism—are permissible targets of assassination, based on the distinction between combatants and noncombatants. Last, I will place further moral constraints on assassination as limited by just war theory’s proportionality rule.

Having explained how assassinations must be performed in order to satisfy the moral requirements of just war theory, I will have established the same moral limitations that ought to constrain U.S. policy on assassination. In Part V, I will conclude by offering suggestions on how the Obama Administration might move forward with an assassination policy in light of the outright prohibition established by E.O. (executive order) 12,333.

Assassination Defined

Assassination can be defined as the targeted killing of a prominent person. There should be no debate about “killing”—an assassination brings about the death of someone. The use of the word “killing,” instead of “murder” is to remove unnecessary moral and legal connotations from the word. By “prominent person,” I mean that someone who is a leader of some sort or is particularly famous and important. This includes political leaders presidents, prime ministers, heads of state, politicians, cabinet officials, judges, diplomats or those nominated, elected to, or campaigning for those positions—but also military leaders, religious figures, rich and influential public figures, “big-time crime bosses,” and leadership within political or social movements, such as revolutionary or terrorist organizations. Indeed, given their influence, many of these people could be considered “political leaders” but that need not be the case. Under this definition, a foot soldier for al Qaeda cannot logically be assassinated, nor can a private citizen killed by a terrorist—for neither of these individuals is sufficiently prominent—but a “top al Qaeda operative” could.

By “targeted” I mean several things. First, it presumes intentionality—an intention to kill; “targeted” implies that the person at whom the killing is directed has been intentionally chosen to be killed. This means that there can be no unintentional assassinations. There are no negligent or reckless assassinations. Second, “targeted” means that the individual killed is the specific object of the lethal attack. Thus, the death of a prominent person through collateral damage not directed at killing him or her specifically (but intended to kill generally, such as, directed at “the enemy”) would not be an assassination. This relates to the third point, which has to do with the person’s prominence: for an assassination to occur, it must be directed at the person’s title, position, prominence, or influence, not at his or her personhood. A few examples will clarify this. If Barack Obama were to have an affair with another man’s wife, and that man killed President Obama, it would likely be a murder, but wouldn’t necessarily be an assassination because it would be directed at Barack Obama as a man, and not vis a vis his role as the President. Likewise, if the U.S. military were to engage in a firefight with members of al Qaeda as part of a military operation, and Osama bin Laden were to take part in the engagement and die, he would not necessarily have been assassinated because, even though he was intentionally killed by a member of the military in his role as a member of al Qaeda, he wasn’t (at least in this hypothetical) killed based on his position as al Qaeda leadership. Although one might argue that necessitating that the individual be killed because of his or her title, position, prominence, or influence incorporates a motive for the killing into the act, this is not the case. A person could be targeted vis a vis his or her position for a variety of motives, including financial, political, or religious, but what is significant is not why he or she is targeted, but who is targeted, and in what capacity. Indeed, it is this element that distinguishes assassination from other types of intentional killing.

Introduction to Just War Theory

Just war theory begins with the realistic assumption that wars occur. Understanding that wars occur, and that they are “hell,” “[t]he point of just war theory is to regulate warfare, to limit its occasions, and to regulate its conduct and legitimate scope.” Thus, just war theory seeks to prevent wars from occurring, and when they do occur, seeks to prevent them from becoming “total wars” in which all resources are mobilized for a state’s war effort. Although it has had a profound influence on many laws, especially international customary law regarding the laws of war, multilateral
treaties, and the U.N. Charter, strictly speaking, just war theory is not a legal framework; it is instead a moral framework for analyzing when wars and the ways in which they are fought are morally permissible.

Just war theory distinguishes between two principles: jus ad bellum and jus in bello. Jus ad bellum (“justice of war”) is the principle that establishes when a country or an organization is morally justified in going to war. Thus, jus ad bellum refers to the cause or ends for which a war is fought. Conversely, jus in bello (“justice in war”) refers to the rules of war, that is, how a war must be fought to be morally justified. In analyzing a war, these two senses must be kept separate. As Michael Walzer points out, these “two sorts of judgment are logically independent. It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance with the rules.” For a war to be truly just, it must be fought for a just cause through just means. However, “no war . . . can be just on both sides,” and both sides may be unjust. This is because although non-aggressor states are justified in defending themselves “so that rights may be maintained and future aggressors deterred,” in order for war to occur, at least one side must be the aggressor, which is never a just cause of war. Indeed, the defense of rights is the only justifiable reason for fighting a war.

Policy

Although this is not a policy paper, I would be remiss not to point out the President’s options: the President or Congress could amend or repeal Executive Order 12,333. However, given the negative connotation that assassination bears in the international community, repealing the assassination ban would likely damage the United States’ reputation as a moral standard-bearer. Some have suggested that because E.O. 12,333 only bears on employees and agents of the United States, the President would be authorized to “conceal a complete or partial repeal” of the ban from the public, which would help to preserve the United States’ reputation. Regardless of what policy is chosen, some clarification of law or policy is in order. Indeed, as we have seen, there is no universally understood definition of “assassination.” I have provided what I believe is the common, everyday use of the word by comparing “assassination-like” situations to determine what factors are necessary elements of an assassination. But this common, everyday use of the
word could be superseded by a statutory definition, scribed either by the President or by Congress. To amend slightly what another scholar has said: “Both clarity and respect for the rule of law demand that Executive Order 12,333 be repealed and replaced with a new executive order on assassination that is properly couched in
the [ethical] parameters” of just war theory. The United States’ position as a moral “standard bearer in the conduct of war” depends on it.

Background

Just War theory at wikipedia

Alternative theories of war

* Militarism - Militarism is the belief that war is not inherently bad but can be a beneficial aspect of society.
* Realism - The core proposition of realism is a skepticism as to whether moral concepts such as justice can be applied to the conduct of international affairs. Proponents of realism believe that moral concepts should never prescribe, nor circumscribe, a state's behaviour. Instead, a state should place an emphasis on state security and self-interest. One form of realism - descriptive realism - proposes that states cannot act morally, while another form - prescriptive realism - argues that the motivating factor for a state is self-interest. Just wars that violate Just Wars principles effectively constitute a branch of realism.
* Revolution and Civil War - Just War Theory states that a just war must have just authority. To the extent that this is interpreted as a legitimate government, this leaves little room for revolutionary war or civil war, in which an illegitimate entity may declare war for reasons that fit the remaining criteria of Just War Theory. This is less of a problem if the "just authority" is widely interpreted as "the will of the people" or similar. Article 3 of the 1949 Geneva Conventions side-steps this issue by stating that if one of the parties to a civil war is a High Contracting Party (in practice, the state recognised by the international community,) both Parties to the conflict are bound "as a minimum, the following [humanitarian] provisions." Article 4 of the Third Geneva Convention also makes clear that the treatment of prisoners of war is binding on both parties even when captured soldiers have an "allegiance to a government or an authority not recognized by the Detaining Power."
* Nonviolent struggle - The "just war" criterion of "last resort" requires believers to look for alternative means of conflict. The methods of nonviolent action permit the waging of political struggle without resort to violence. Historical evidence and political theory can be examined to determine whether nonviolent struggle can be expected to be effective in future conflicts. If nonviolent action is determined effective, then the requirements for "just war" are not met.
* Absolutism - Absolutism holds that there are various ethical rules that are absolute. Breaking such moral rules is never legitimate and therefore is always unjustifiable.
* Pacifism - Pacifism is the belief that war of any kind is morally unacceptable and/or pragmatically not worth the cost. Pacifists extend humanitarian concern not just to enemy civilians but also to combatants, especially conscripts. Just War critics have included Ben Salmon, who was sentenced to death during World War I (later revised to 25 years hard labor) for desertion and spreading propaganda.
* Right of self-defence - The theory of self-defence based on rational self-interest maintains that the use of retaliatory force is justified against repressive nations that break the zero aggression principle. In addition, if a free country is itself subject to foreign aggression, it is morally imperative for that nation to defend itself and its citizens by whatever means necessary. Thus, any means to achieve a swift and complete victory over the enemy is imperative. This view is prominently held by Objectivists.
* Consequentialism - The moral theory most frequently summarized in the words "the end justifies the means."

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