The Slow Death of the ‘Non-Combatant’
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.
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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.