Archive for the ‘War and Law’ Category

many thanks to reader Amiya Fernando for the infographic provided below. I should add that while this blog accepts submissions from our readers, these submissions do not necessarily reflect the opinions of the members of this blog. Nevertheless, in the spirit of free and open debate and exchange of ideas and views, we are happy to share this with our readers.

<img src="American War Crimes
Source: TopCriminalJusticeDegrees.org” alt=”Infographic of war crimes” />


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A fascinating study of an admittedly macabre and politically and morally very problematic issue in the history of warfare can be found in The Economist (available here).

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First of all, apologies to our readers for having neglected this blog for quite some time. It is not as if there are no issues worth discussing, it is just that my colleagues and I have been very busy with our other responsibilities.

Now on to the issue at hand …

The issue of robotics and the ethics of war is something this blog has maintained a watching interest in. Some of our previous posts, including articles we have found from other sources include:

“From NYT: The moral case for drones” (15 July 2012)
“More on drone strikes” (22 June 2012)
“More on drones, UAVs, UCAVs …” (7 April 2012)
“A Nuclear-powered drone” (3 April 2012)
“The future of humans in warfare” (12 July 2011)

Now, via the BBC (and available in full here), is another story for our readers’ consideration.

The point the article makes is that the increasing ubiquity of drones (both armed and unarmed), and the increasing reliance on drone strikes against enemy combatants (whether terrorist leaders, militiamen, or even old-school soldiers of a state), makes the imperative of thinking on legality and ethical issues all the more important. Peter Singer, author of Wired for War, argues: robotics technologies are a game-changer, meaning “it affects everything from the tactics that people use on the ground, to the doctrine, how we organise our forces, to bigger questions of politics, law, ethics, when and where we go to war.” Indeed, Singer points out that at least 76 countries already deploy military robotics.

But the ethics and legality of drone strikes is the central issue that has yet to be resolved. Opinions are divided. The 1997 Nobel Peace Prize winner, Jody Williams, maintains that drones ought to be understood as “killer robots … weapons that are lethal, weapons that on their own can kill, and there would be no human being involved in the decision-making process.” In her words, “the mere thought that human beings would set about creating machines that they can set loose to kill other human beings, I find repulsive.”

On the other hand, Georgia Institute of Technology Professor Ronald Arkin argues that as long as these machines are controlled by an “ethical governor”, not “a human being physically pulling the trigger but … programmed to comply with the international laws of war and rules of engagement”, he does not see the difference with human soldiers prosecuting the act of killing. Human killers (even in war) have in the past, and will continue in the future, committed atrocities. Rather, robotics technologies can be used to “address the issues of reducing non-combatant casualties in the battle-space”.

All weighty issues, both perspectives having been thought through with some care. Not an issue that will go away any time soon, and the sooner we can begin to think this issue of robotics clearly and carefully, the sooner we can begin to resolve this problem.

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A fascinating, and sometimes troubling, debate that appeared in the New York Times (available here) on the use of targeted killings and assassinations, precision drone strikes against combatant commanders.

Alan Dershowitz, Felix Frankfurter professor of law at Harvard Law School, addresses the issue of proportionality:

If a combatant is appropriately subject to military attack, as the military leader of Hamas certainly was, then targeted assassination may be the preferred legal and moral course. It is certainly better than a broad military attack that might endanger large numbers of noncombatants. Targeted assassinations are intended to limit collateral damage by focusing specifically on the combatant. Every reasonable effort should be made to avoid collateral damage. Sometimes it is impossible to eliminate completely all risk to noncombatants. In such cases, the military value of the target must be weighed against the likelihood and degree of collateral damage. The rule of proportionality should be the guiding principle.

Assassination will often be the least bad alternative in an inevitable choice of evils. It is sometimes argued that targeted assassination should never be permitted because it is a form of “extrajudicial killing.” This view is absurd: all military deaths are extrajudicial (as is killing in self-defense and shooting a fleeing felon). If a judicial element is to be added to targeted assassinations, it could take the form of a warrant requirement. Under such a requirement, the military or the executive would be obligated to seek a judicial warrant setting out the basis for why the target is an appropriate one, and why the risk of collateral damage is warranted. When time permits, such a warrant could be sought prior to the military action, but when immediate action is required by exigent circumstances, the warrant could be obtained after the fact. This is far from a perfect solution, but it introduces a more neutral decision maker into the balancing process.

The alternatives to targeted killing are either to allow terrorists free rein in targeting civilians or to engage in undertargeted military actions that are likely to cause more casualties. Targeted assassination will often be the least bad alternative in an inevitable choice of evils.

Next, George Bisharat, professor of law at the University of California Hastings College of the Law, addresses the issue of lawfulness versus wise policy:

Targeted killings may be lawful in extremely limited circumstances in which the targeted individual is actively engaged in combat in a theater of war or is not in a theater of war but directly involved in an imminent attack and cannot be apprehended — and the means of carrying out the killing must be proportional to the anticipated harm, and must not inflict undue injuries and deaths on innocent civilians. Targeted killings to retaliate for past deeds, or to deter others, are illegal under international law.

Four decades of Israeli assassinations of Palestinian leaders have produced only more determined opposition to Israeli policies.

Whether targeted killings are wise policy is a different question. If practiced only when legally justified, targeted killings should be rare; and if the basis for the judgment leading to a killing were publicly revealed, the policy might excite little controversy. This, however, is seldom the case. The procedures, standards and reliability of data that are used to mark an individual for death are virtually never transparent. Instead, the decisions are typically made in a manner highly insulated from public view, and on the basis of information that defies verification.

Governments that practice such killings, therefore, are in a position to assert their justifications largely without challenge — which may convince credulous domestic audiences, but are utterly unconvincing to others, particularly in communities where killings occur. That is one reason northern Pakistan has become such a cauldron of anti-American sentiment. That is also why four decades of Israeli assassinations of Palestinian leaders have produced only more determined opposition to Israeli policies.

Anyone seduced by the siren song of targeted killings, particularly by drones, should ponder the reality that drone technology is cheap and proliferating. Hezbollah has already launched drones into Israeli airspace. Would we accept the legality and wisdom of targeted killings were the policy turned against us?

Third, Micah Zenko, fellow in the Center for Preventive Action at the Council on Foreign Relations, addresses the issue of transparency and accountability:

Targeted killings are justified against significant and imminent threats of violent attack against a state’s territory.

They would require the aggressor state to provide an articulation of which international laws apply, so it can be held accountable for its actions. In addition, when targeted killings occur in a state outside of an aggressor’s territory, it should articulate whether it was done with the consent of the state, or was a violation of sovereignty.

Nations must be transparent about their adherence to international law and defend attacks’ proportionality.

Furthermore, targeted killings necessitate transparency regarding what procedural safeguards are in place to assure the principles of proportionality and distinction are being met when using lethal force.

Finally, an aggressor state should provide a public account of what processes are in place to investigate accidental civilian casualties, hold willful perpetrators of those actions accountable, and provide compensation to the families of unintended victims.

Targeted killings are exceedingly rare in the world, and routinely conducted by only a handful of states, like the United States, Israel and Turkey. Of them, only the United States has provided some justification for its actions. The Obama administration says that it uses lethal force only against “high-level” or “senior” members of Al Qaeda, who, in President Obama’s words, “would pose an imminent threat the United States of America.”

It also claims that its targeted killings comply with all applicable international law, without articulating which bodies of laws apply, but only claiming that they “are complimentary.” It also will not admit whether it receives the consent of states where the attacks take place, describe any procedural safeguards that would cover such actions as “signature strikes,” or acknowledge the existence of post-attack assessments or corrective actions.

Though the United States has conducted more than 400 targeted killings in nonbattlefield settings in the past 10 years, it has refused to provide even the minimal amount of information to determine whether they could be justified.

Fourth, Jessica Snapper, a security analyst working in Israel, sees israel’s targeting killing of the Hamas commander as a carefully calibrated attack:

The assassination of the Hamas military chief Ahmed Jabari will no doubt provoke international criticism of the targeted anti-terror campaign by the Israel Defense Forces. It should be noted that Israel’s action was a mild response in light of the 9,000 Palestinian rockets that have targeted Israeli civilians since 2005. A targeted response is even more pressing given that Hamas has Fajr-5 and other long-range missiles that are capable of striking Tel Aviv. Gaza is densely populated and Hamas is known for using its own civilians as human shields, but Israel’s carefully calibrated attack against Jabari resulted in only one other casualty — another Hamas official.

The only unethical action you can take in warfare is the failure to act in the best interest of your people.

With that said, assassinations are generally an issue of national policy and international affairs, as they usually involve attacks on the territory of another sovereign state or entity. Using force in this arena is not only risky, but also always controversial, no matter what country engages in such an operation. Ultimately, security agencies are obligated to defend their citizens, and sometimes the use of targeted killing is necessary.

At the same time, such maneuvers must be executed meticulously so as to not cause an unwanted escalation. Many a critic has referred to assassinations as “unethical,” but the only unethical action you can take in warfare is the failure to act in the best interest of your people.

Finally, George Jonas, a columnist for The National Post in Canada, argues that precision saves lives in the long run:

I spent my childhood under friendly fire. The Allies bombed the city where I lived with my parents in Nazi-dominated Europe. We were Jewish. The American pilots were our friends, but after they passed there were smoldering holes in the ground and dead horses on the cobblestones.

“Why don’t they bomb Hitler?” I asked my father.

“They don’t know where he lives.”

Some think killing a nameless enemy is an act of war but targeted assassination is murder. They’re mistaken.

I didn’t realize at the time that I was calling for targeted killing – assassination. It just made sense to me that if you have a quarrel with someone you bomb him, not your friend. If you do, he may not be your friend for long.

But my father was right, too, because in the 1940s Allied pilots didn’t know where Hitler lived close enough to hit him, so it made sense to carpet-bomb every city marked on the map he occupied.

Some think killing a nameless enemy is an act of war but targeted assassination is murder. They’re mistaken, but if they were right, it would still be the act of assassination that would make it murder, not the act of targeting. An untargeted assassination would simply be mass murder. The confusion arises from thinking that “indiscriminate” means “unintentional,” but the two aren’t synonymous. Not intending to kill is a defense against a charge of murder; not caring whom to kill only makes a murderer a moron, a monster, a terrorist – or an antediluvian low-tech combatant.

Peace is the only defensible aim, but when a deal becomes impossible; when a kind word no longer turns away wrath, when the choice is reduced to resisting evil or not resisting it – and, of course, when the technology is available – opting for targeted over untargeted warfare may require rockets but no rocket science.

Where would you, dear reader, stand on this issue?

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Here is a very interesting report, courtesy of the BBC (available here). It basically argues that the number of wars has been in decline for some time, and the report suggests thereafter that it might be possible to imagine a future where wars no longer exist. Of course, the report accepts that conflict and violence will still be with us for some time to come.

Some time ago, the eminent scholar Stephen Walt posted this blog. As Walt points out, more than 30,000 Americans each year die from gun-related violence in the United States. OK, it is not international politics, but the point that Walt makes remains, I suggest, a very valid one.

So, to go back to the BBC article, when Steven Pinker suggests that while “[t]here are some parts to the brain that impel us to carry out violence, such as the thirst for revenge, feelings of tribalism, or the quest for dominance. But packed into the same skull there are motives that inhibit us from violence, like empathy and reason that allow us to see violence as a problem to be solved instead of a contest to be won”, the fact that within one country alone 30,000 people die each year through gun-related domestic violence forgive me if I am not overly enthused by Pinker’s argument. What is the point??? People still die through violence, whether through international politics-legitimated violence (called war) or otherwise. Even Pinker admits that violence in the form of terrorism still exists.

Well, guess what: war is violence perpetrated for political reasons, violence perpetrated by the state. Presumably being a state legitimises that violence. Terrorism is violence perpetrated for political purposes, except that in the modern context it is perpetrated by non-state actors. So, presumably the non-state status of such actors as al Qaeda (take your pick of ANY terrorist group!) delegitimises that violence?

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The article, reproduced below, can also be accessed here.

Scott Shane
FOR streamlined, unmanned aircraft, drones carry a lot of baggage these days, along with their Hellfire missiles. Some people find the very notion of killer robots deeply disturbing. Their lethal operations inside sovereign countries that are not at war with the United States raise contentious legal questions. They have become a radicalizing force in some Muslim countries. And proliferation will inevitably put them in the hands of odious regimes.

But most critics of the Obama administration’s aggressive use of drones for targeted killing have focused on evidence that they are unintentionally killing innocent civilians. From the desolate tribal regions of Pakistan have come heartbreaking tales of families wiped out by mistake and of children as collateral damage in the campaign against Al Qaeda. And there are serious questions about whether American officials have understated civilian deaths.

So it may be a surprise to find that some moral philosophers, political scientists and weapons specialists believe armed, unmanned aircraft offer marked moral advantages over almost any other tool of warfare.

“I had ethical doubts and concerns when I started looking into this,” said Bradley J. Strawser, a former Air Force officer and an assistant professor of philosophy at the Naval Postgraduate School. But after a concentrated study of remotely piloted vehicles, he said, he concluded that using them to go after terrorists not only was ethically permissible but also might be ethically obligatory, because of their advantages in identifying targets and striking with precision.

“You have to start by asking, as for any military action, is the cause just?” Mr. Strawser said. But for extremists who are indeed plotting violence against innocents, he said, “all the evidence we have so far suggests that drones do better at both identifying the terrorist and avoiding collateral damage than anything else we have.”

Since drone operators can view a target for hours or days in advance of a strike, they can identify terrorists more accurately than ground troops or conventional pilots. They are able to time a strike when innocents are not nearby and can even divert a missile after firing if, say, a child wanders into range.

Clearly, those advantages have not always been used competently or humanely; like any other weapon, armed drones can be used recklessly or on the basis of flawed intelligence. If an operator targets the wrong house, innocents will die.

Moreover, any analysis of actual results from the Central Intelligence Agency’s strikes in Pakistan, which has become the world’s unwilling test ground for the new weapon, is hampered by secrecy and wildly varying casualty reports. But one rough comparison has found that even if the highest estimates of collateral deaths are accurate, the drones kill fewer civilians than other modes of warfare.

AVERY PLAW, a political scientist at the University of Massachusetts, put the C.I.A. drone record in Pakistan up against the ratio of combatant deaths to civilian deaths in other settings. Mr. Plaw considered four studies of drone deaths in Pakistan that estimated the proportion of civilian victims at 4 percent, 6 percent, 17 percent and 20 percent respectively.

But even the high-end count of 20 percent was considerably lower than the rate in other settings, he found. When the Pakistani Army went after militants in the tribal area on the ground, civilians were 46 percent of those killed. In Israel’s targeted killings of militants from Hamas and other groups, using a range of weapons from bombs to missile strikes, the collateral death rate was 41 percent, according to an Israeli human rights group.

In conventional military conflicts over the last two decades, he found that estimates of civilian deaths ranged from about 33 percent to more than 80 percent of all deaths.

Mr. Plaw acknowledged the limitations of such comparisons, which mix different kinds of warfare. But he concluded, “A fair-minded evaluation of the best data we have available suggests that the drone program compares favorably with similar operations and contemporary armed conflict more generally.”

By the count of the Bureau of Investigative Journalism in London, which has done perhaps the most detailed and skeptical study of the strikes, the C.I.A. operators are improving their performance. The bureau has documented a notable drop in the civilian proportion of drone casualties, to 16 percent of those killed in 2011 from 28 percent in 2008. This year, by the bureau’s count, just three of the 152 people killed in drone strikes through July 7 were civilians.

The drone’s promise of precision killing and perfect safety for operators is so seductive, in fact, that some scholars have raised a different moral question: Do drones threaten to lower the threshold for lethal violence?

“In the just-war tradition, there’s the notion that you only wage war as a last resort,” said Daniel R. Brunstetter, a political scientist at the University of California at Irvine who fears that drones are becoming “a default strategy to be used almost anywhere.”

With hundreds of terrorist suspects killed under President Obama and just one taken into custody overseas, some question whether drones have become not a more precise alternative to bombing but a convenient substitute for capture. If so, drones may actually be encouraging unnecessary killing.

Few imagined such debates in 2000, when American security officials first began to think about arming the Predator surveillance drone, with which they had spotted Osama bin Laden at his Afghanistan base, said Henry A. Crumpton, then deputy chief of the C.I.A.’s counterterrorism center, who tells the story in his recent memoir, “The Art of Intelligence.”

“We never said, ‘Let’s build a more humane weapon,’ ” Mr. Crumpton said. “We said, ‘Let’s be as precise as possible, because that’s our mission — to kill Bin Laden and the people right around him.’ ”

Since then, Mr. Crumpton said, the drone war has prompted an intense focus on civilian casualties, which in a YouTube world have become harder to hide. He argues that technological change is producing a growing intolerance for the routine slaughter of earlier wars.

“Look at the firebombing of Dresden, and compare what we’re doing today,” Mr. Crumpton said. “The public’s expectations have been raised dramatically around the world, and that’s good news.”

Scott Shane is a national security reporter for The New York Times.

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In a previous post, I blogged about the issue of drone strikes. How I personally feel about this ‘tactic’ is already clear.

Now, courtesy of The Guardian, comes an interesting read (accessible here) about the legality of such drone strikes. The claim made by the UN rapporteur about the possibility of drone strikes being classified as war crimes takes me by surprise, but I am no international law expert.

In the final analysis, I am still unconvinced about the strategic value of such tactics.

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