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The Slow Death of the ‘Non-Combatant’

How targeting processes for drone strikes challenges how we traditionally distinguish non-combatants in war

| December 11, 2012
The Slow Death of the ‘Non-Combatant’

Reuters

One of the bedrocks of the contemporary law of armed conflict, embedded in the 1949 Geneva Conventions, is the moral and legal notion of “distinction”: that acts of war must be directed only at combatants, and must avoid the targeting of civilians (or non-combatants). The past two decades, however, have seen a serious challenge to this traditional way of determining the liability of an individual (or group of individuals) to attack. First, within moral philosophy, prominent scholars have argued that some non-combatants can be liable to intentional attack if they are responsible for sufficiently grave unjust threats against others (see, for example, Jeff McMahan’s Killing in War and Michael Gross’s Moral Dilemmas of Modern War). Second, technological advances – particularly the use of remote-controlled UAVs – have enabled states to kill particular non-combatants (so-called high-value targets) who are part of the political leadership, or broader support network, rather than unidentified members of the class of enemy combatants.

While a great deal of the discussion about UAVs (or drones) focuses on their consequences (see, for example, the 2012 report from the non-governmental organization Center for Civilians in Conflict), or tries to assess their effectiveness, my interest is in the ethical and legal dilemmas associated with their use, and with the broader practice of targeted killing. Drones have become a “weapon of choice” for states such as the U.S. and Israel, since they offer states the possibility of achieving their objectives without the loss of their own soldiers’ lives or widespread attacks on an enemy’s society. In other words, they are the ultimate “lesser evil.” However, their use in the service of counterterrorism must be subject to clear operational guidelines, and to legal and ethical principles. The current processes for defining legitimate targets for drone strikes are morally and legally controversial for three main reasons.

First, targets are defined away from the scrutiny of democratic institutions or processes. In the case of the U.S., responsibility for approving targets rests in the hands of the president, who makes such decisions by consulting CIA-derived “kill lists.” However, the use of lethal force by the executive branch, without judicial or legislative oversight, calls into question fundamental protections of a liberal-democratic society.  

Second, targeting decisions rely on potentially flawed intelligence. As international lawyer and former Israeli Defense Force adviser Amos Guiora has argued (see “Determining a Legitimate Target”), the use of lethal force against non-combatants can only be justified if two conditions are met: first, that the individual in question intends to carry out or facilitate a serious act of terrorism; and second, that the individual has made significant steps directly contributing to this planned attack. In other words, it is illegitimate to assume that once the first criterion has been met (and a legitimate target has been identified), that his/her subsequent actions cease to be relevant. The individual in question must be actively and presently involved in planning a large-scale attack. And it is here that intelligence-gathering is often found wanting.

Third, the criteria for selecting targets, at least in the U.S., draw on questionable methods of defining combatants and civilians. This is particularly true with respect to the more recent U.S. strategy of killing individuals whose identities are not known (in places such as Pakistan and Yemen). Here, the logic of the law of armed conflict is turned on its head: “Fighting-age males” are presumed to be combatants unless there is specific evidence to the contrary. This approach runs against the spirit of the Additional Protocol to the Geneva Conventions, which allows, in certain circumstances, the killing of civilians who “take a direct part in hostilities.” By taking such a permissive approach to the definition of a legitimate target, the U.S. is contributing to the erosion of the category of “civilian” (those who, by law, are immune from attack).

These three limitations suggest the need for caution and prudence in the rush to embrace this new weapon of choice. They also raise a whole host of legal issues for domestic and international courts. For example, judges in the U.K. recently sat to consider whether there should be judicial review of the legality of British intelligence co-operation with the CIA on the definition of potential targets for drone strikes. The case was brought by a Pakistani man whose father was killed by a U.S. drone strike in northern Pakistan, in which at least 40 people were killed (and many others wounded). The lawyer representing the dead man’s son has argued that U.K. intelligence officers, by sharing information with the CIA, have effectively been “encouraging or assisting murder.” Meanwhile, the lawyers representing the U.K. government have contended that the case does not belong in domestic courts, since it raises issues relating to sovereign foreign states.

In reality, however, this new and controversial practice of targeted killing through drone strikes must be subject to three kinds of limits: those imposed by domestic law, those imposed by international law, and those imposed by morality. It is true that terrorism poses a particular and unique threat, especially as it pits a non-state actor against a sovereign state. It also may seem unfair that, while terrorists make a point of targeting innocent civilians (indeed, it is at the core of their strategy), western states should be constrained by a legal regime that demands a distinction between civilians and combatants. This alleged “unfairness,” however, is a reflection of values that define who we are. To override those values is to lose the bigger battle, and to turn our world of imperfectly regulated armed conflict into an even more perilous world of unregulated killing.

  • Robert Holub

    “To override those values is to lose the bigger battle” – you state. But what makes you think that such battle has not been lost already? With people who have no sense of honor you cannot fight them assuming they do.

  • http://www.johnbolducarthur.ca/ John Bolduc Arthur

    I see a number of problems with the reasoning here, i.e:

    “targeting decisions rely on potentially flawed intelligence”

    All intelligence – like all science and all jurisprudence – is indeed ‘potentially flawed’, depending on the data gathered and the talent and training of personnel at work. So? The fact that juries rely on “potentially flawed” evidence, gathered under “potentially flawed” discovery, is hardly just caused to condemn the system of trial by jury. That a scientific or intelligence conclusion is “just a theory” is no reason to discount the validity of, for example, executive branch reasoning in food & drug regulation, and there is no reason to believe that intelligence comprises an conspicuously less competent executive-branch profession in reasoning to a balance of probabilities. However…

    “the criteria for selecting targets, at least in the U.S.”

    In the United States there is indeed ample precedent to suggest the CIA is indeed conspicuously incompetent and unprofessional. The problem here is a classic US-normativity, whereby Ms. Welsh like so many presumes the CIA to be representative of western/Allied intelligence as a category, and therefore the sole necessary object of consideration for future trends in armed conflict in general. As an offhand caveat, “at least in the US” is hardly substantive enough to justify approaching the topic of CIA ethics as an abstract or representative concept in the political science of Allied targeting doctrine, or of the broader international system (when it is properly a question for scholars of American History tracing its causes back to the peculiar cultural particularism of ‘cowboy’ values and archetypes)

    “’Fighting-age males’ are presumed to be combatants unless there is specific evidence to the contrary.”

    As for this, having personally participated in American intelligence analysis supporting Predator-strikes, I can testify that this statement is flat-out false. 

    “This alleged ‘unfairness,’ however, is a reflection of values that define who we are. To override those values is to lose the bigger battle, and to turn our world of imperfectly regulated armed conflict into an even more perilous world of unregulated killing.”

    If “unfairness” is indeed a quote, it is worth attributing it to the officer who made the precise complaint. In general, I don’t think unfairness is at all the premise of the complaint (which I share) against applying criminal justice norms to counter-terrorism combat in failed/fragile states: war is inherently unfair; soldiers and spies alike are well acquainted with that reality. Rather, the premise is that such demands are unrealistic and unsustainable.

    If by refusing to compromise our values, even temporarily, we risk defeat by the enemies of those values and of liberal democratic states, then we are at least equally irresponsible to those values as those who (like the CIA’s torturers) compromise or surrender liberal democratic values unnecessarily. The author’s assumption that temporary compromise is “to lose the bigger battle” is to see war is a problem of conflicting material outcomes, not moral ones. There is NO moral high ground in war: the only justice to be found is in the leading of the peace that is won.

    This concluding statement turns the topic into a problem of identity politics – but the law of armed conflict is not a reflection “of who we are”, is it a strategic tool and a means for survival, by maximizing the opportunity to find mutual goodwill in a postwar peace. Parties to the conventions at Geneva would not have sought to regulate war if they did not find it *expedient* to do so.  And since “our world of imperfectly regulated” war (in which we prefer euphemisms to the more honest three letter word), also risks regularising and normalizing war by “regulating” it, there is no evidence presented here why a layman should prefer a world featuring Kafkaesque bureaucracies of violence led by jurists as any less nightmarish than a world one of executive knights-errant, weighing intelligence and tough choices amid the chaos.