On March 8, 2017, Allen S. Weiner (Senior Lecturer in Law and Director of the Program in International and Comparative Law at Stanford Law School), Neta C. Crawford (Professor of Political Science at Boston University), Jennifer Leaning (François-Xavier Bagnoud Professor of the Practice of Health and Human Rights at the Harvard T.H. Chan School of Public Health and Director of the FXB Center for Health and Human Rights at Harvard University), and Gabriella Blum (Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School) participated in a discussion of the war on terror and whether conflicts with non-state actors can be fought in a just way. The program, which served as the 2017 Distinguished Morton L. Mandel Annual Public Lecture and 2052nd Stated Meeting, was live streamed to groups of Academy members and other participants gathered at George Washington University, Stanford University, and the University of Notre Dame. The following is an edited transcript of the presentations.
Tonight’s program draws upon an Academy project that examines New Dilemmas in Ethics, Technology, and War. Under the leadership of my colleague and co-teacher Scott Sagan of Stanford University, this project explores how the changing character of warfare and the deployment of new military technologies affect the moral and legal behavior of states in war. The project has produced two issues of Dædalus: “Ethics, Technology & War,” published in Fall 2016, and “The Changing Rules of War,” published in Winter 2017. I had the privilege to participate in a series of extraordinary workshops that resulted in the production of these two special issues, under Scott Sagan’s outstanding editorial direction. Our panelists tonight will present different dimensions of what has been dubbed the “war on terror” and will address the overarching questions of whether conflicts with non-state actors can be fought in a just way and, if so, how.
Although there are many approaches to the ethics of war, the laws of war are rooted in the Western tradition that regards war as something that ought to be avoided and quite distinct from peace. If war cannot be avoided, then it must be limited by concerns of justice. Just wars are circumscribed in their causes, aims, duration, and conduct; they should not go on ad infinitum, with no clear end in sight.
Jus ad bellum questions concern legitimate authority, which usually means that only sovereign states can make war, with the aim being the return to peace. Revenge, justice, or religious conversion are no longer proper objectives. The only just cause is self-defense, understood as the response to an armed attack that is actual or imminent in the sense that it has already begun. Further conditions include concerns such as: last resort, other options have been tried; there is a good chance of success, force will be effective, ends can be achieved; that war is necessary, nothing else will work; and the proportionality of ends – even a just war does some harm, so the overall good of the war should outweigh that harm.
If war is justified, its conduct should be limited by the principles of distinction and proportionality, distinguishing between combatants and noncombatants or fighters, and using due care to attempt to limit harm to the latter and avoid gratuitous destruction. Justice after war focuses on individual and state responsibility for acts of aggression.
The just war tradition keeps all these considerations on the table. In sum, this tradition is complex and comprehensive, flexible and influential. It is also less precise than the law. So, if we ask whether a counter terror war can be just, we have to ask whether such a war is necessary and if it can be limited in its cause, aims, duration, and conduct.
I am going to discuss the ethics of counterterror war by way of a particular tactic: namely, the use of targeted killing strikes, whether by cruise missiles, manned aircraft, or drones (most of these strikes to date are conducted by drones). The goal of the strikes is to kill the leaders of military organizations, to reduce their capacity to attack the United States and its allies. Since 2002, the number of drone strikes per year, their locations, and the kinds of people considered legitimate targets have expanded. These strikes are now less about retaliation against al Qaeda for 9/11 than about prevention of potential attacks in the United States and abroad by al Qaeda and other organizations. Drone strikes are said to be discriminate and proportionate. Their advocates claim that the strikes are surgically precise. If all goes well, they get the bad guy and do not harm the innocent. It is possible, in theory, to be attentive to discrimination in target selection and in the conduct of individual drone strikes. Due care for civilian life and minimizing harm to civilians are already key criteria. Since Dresden, Tokyo, and Vietnam, things have improved for civilians.
Drone strikes usually kill fewer civilians than large bombs, but drone strikes do kill and injure civilians, and they may also lead to war. These are the questions at the level of jus in bello and jus ad bellum. The strikes are not consistent with the just war tradition’s admonition to avoid war and other jus ad bellum concerns.
How did I come to these conclusions? On a basic level, the drone strike program rests on familiar, now taken for granted, assumptions about the war on terror and targeted killing in that war. First, that criminal law and law enforcement are inadequate to prevent these attacks. Second, that we live in a perpetual state of imminent threat, which justifies the resort to arms and to war as a means of defense. The sky has fallen, is falling, and will continue to fall. Only war can save us. Third, and Donald Rumsfeld put this most succinctly: “There’s no way to defend everywhere, at every time, against every technique.” He said, “Therefore you simply have to go after them.” The claim is that the inability to protect all assets from the risk of attack places a premium on prevention, often exclusively defined as preemptive military strike. Terrorists are combatants who must be targeted for killing because they pose, in Obama’s words, “a continuing and imminent threat.” People defined as terrorists are a legitimate target who may be killed preemptively.
Targeted killing is supported by additional claims. First, targeted killing is ethical because it is defensive and necessary – we cannot arrest potential terrorists. Second, it is a form of justice, in which militants get their just deserts. Further, drone strikes are discriminate and cause few casualties. As Obama said at West Point in 2014, “In taking direct action, we may uphold the standards that reflect our values. That means taking strikes only when we face a continuing imminent threat and only where there’s near certainty of no civilian casualties.” We have come to believe “near certainty of no civilian casualties” is possible because surveillance technologies enable the CIA to be omnipresent, making it and the United States omniscient, able to know what people are doing, and more importantly what they intend to do or may be capable of doing.
It is also argued that drone strikes are low cost, low risk to American soldiers, and that drone strikes are limited and distinct from other elements of the war on terror. There is little risk of escalation of the conventional uses of force by our allies. These arguments can seem quite compelling, but they have numerous problems. First and most simply, the strikes are not as discriminate as we supposed, although there is some debate about who and how many are killed in the strikes. The strikes are indiscriminate because they hit civilians and cause or contribute to wider wars that harm civilians. Second, just wars are meant to be limited. Counterterror war is essentially unlimited in its justification because the aim is total security from what might happen. Counterterrorism may go on as long as it takes.
In sum, drone strikes don’t help us limit the war on terror by titrating the use of force and calibrating and controlling its consequences. The effect is just the opposite. As Michael Walzer argues in his recent Dædalus article, drone strikes are so easy to conduct that they decrease the threshold of the use of force. Because immediate costs are low, we discount or imagine that we can mitigate or control any future cost and long-term consequences. Further, the distinction between the supposedly isolated precision drone strikes and other uses of force don’t exist at an operational level. Drone strikes usually occur in the context of occupation, aggression, or – as in Yemen and Pakistan – are integrated into conventional actions by U.S. proxies who are armed, trained, and financed by the United States. We thus have the illusion of controllability and precision and the fantasy of providing security.
Third, the evidence does not show that the United States has reduced the risks, namely risks to those who conduct the strikes and risks to Americans and their allies. There is no clear causal connection between the strikes and the actions of militants. The United States says the strikes decrease militant activity in the short run. Militants say they strike in response to drone attacks. As Walzer notes again in his Dædalus essay, the war on terror is increasingly about hearts and minds, but “drones don’t win hearts and minds.” No one can make everyone, everywhere, safe at all times. Thus, we are caught in an endless loop of killing and searching for new threats. Drone use escalates and then war escalates. There is a beginning and a continuation but no end, and no plan for an end, only the assumption that we can somehow achieve victory by killing everyone who might pose a threat.
Drone strikes don’t meet jus ad bellum criteria. Democracy is undermined by a lack of transparency and accountability; self-defense is a just cause, but it is defined too broadly to include potential future threats. Last resort is undermined because the premises of the war on terror have been institutionalized. It is not clear that drone strikes are necessary or the only way to accomplish the ends, or even if they accomplish what they set out to do in a strategic sense. Right intention is not served if war is ongoing and peace is not achievable. We are not able to evaluate the proportionality events because we don’t have data and we are fighting a permanent and perpetual war.
Drones and the global war on terror thus challenge and blur categories. When the threat is understood as imminent, we blur the temporal distinction between current threats, ones that are now manifest, and future threats. We also blur distinctions between the battlefield and non-war zones or zones of peace. Further, drone warfare, which attacks potential future combatants, blurs the roles between combatant and noncombatant, fighter and civilian. Targeted killing everywhere, at any time, blurs the distinction between territorial self-defense and global self-defense, when the self is defined globally. Finally, distinctions about the level of risk we might tolerate are blurred. In other words, the distinction between war and peace is blurred.
The fallacy of drone strike precision is believing that if we can control the time and place of the strikes, we can control the consequences of those strikes and minimize any unintended effects, including the increased radicalization of people who live in areas where the strikes occur. Drone warfare is part of a larger war that is unethical, because it is not limited in the sense that just wars are limited. A hard charge but I believe it is so. Drone strikes can lead to escalation.
It is a privilege to be participating in this panel of distinguished scholars. I would like to establish a certain zone of expertise and my bona fides for being here. In the last thirty years, I have worked in or studied the following countries or regions at war: Somalia, early 1992; Kosovo, 1998 – 1999; Afghanistan, January 2002; Gaza, 2014; Jordan, Lebanon, and Syria, 2014 to the present; Rwanda, 1997; and Angola, 2005. I also have studied refugees in many settings, related to these wars and others, from the perspective of what access and support should be provided for humanitarian aid.
As a human rights investigator, I have been compelled to become conversant with relevant provisions of international humanitarian law, and in that regard, I would like to offer some somber observations. The first, in my view, is that just war theory is eclipsed by the current military, geopolitical, and technological situation. This is a setting where, as Neta was saying, wars are very hard to define in terms of limits. Civilians are entrained; technology makes war fighting relatively easy to initiate; the humanitarian architecture, established since 1945, has collapsed; and the humanitarian international security system – the one that is deployed to deal with the excesses of war and criminality – has also failed. This is a pivotal moment and there is much work to be done.
Second, non-state actors, by intent and constraint, target civilians deliberately. In this context, I am not talking about terrorists. Rebels are fighting for what they perceive to be a reasonable political and just cause. People involved in fighting civil wars, individuals who have been entrained in wars in which the state has failed (terrorists may seep into these wars but they are not the drivers of them and they have not defined the political context), are by intent and constraint out to defeat the other side. The other side includes other armed fighters, perhaps the state, and civilians who are perceived to be allied with the other side. Many of these wars have very ethnic, sectarian, and communal attributions, so the civilians are considered as much the enemy as whatever ragtag army has been developed in those contexts. They attack civilians because they are interested in driving the civilians out. They may or may not be intent on committing atrocities, such as ethnic cleansing, but they are interested in controlling territory and wealth. These non-state combatants and non-state armies don’t have the resources or the technological capacity to hold land once it is populated. They don’t have command of the air; they don’t have communications; they don’t have vast resources; they have to live off the land. So they are constrained to drive people out, and those are often brutal interactions and lead to many cycles of refugees.
Third, jus in bello – international humanitarian law (IHL) – is deeply inadequate in these current wars, which are waged by non-state armed actors. The wars may be solely internal, within the boundaries of a nation-state or a failed state. They may be internationalized internal conflicts, such as in Afghanistan and Iraq, and lately in Syria.
Fourth, IHL was developed in the context of nation-states with formally trained military. There were lines of accountability; wars took place in accessible political contexts. There was a central nervous system: there was a sovereign state on both sides and there was the potential for a more international playing field – for great state intervention, moderation, diplomacy, and discipline prior to, during, and very importantly enabling the end of the war. Those conditions no longer apply.
Fifth, the body of international humanitarian law, here I’m speaking of jus in bello, is not sufficiently robust to protect non-state armed actors, and it is also not robust enough to protect civilians caught up in these wars. There is a large vacuum in IHL when you get below the level of the sovereign nation-state. There are limited protections for civilians from attack, there is no protection given to the fighters when they are captured, and it is very difficult to argue that there should be convoys and humanitarian aid because the law doesn’t say those things are necessary.
Let me mention a concept in public health and medicine that I have been calling the burden of war. In wars, when we look at consequences, they are not just in medicine and public health. There is a longer-term aspect here that concerns the destruction of the environment and ecosystem, obliteration of cities, targeting that actually engulfs museums, libraries, and cultural sites, and all of the aspects that sustain memory and confer meaning for societies. And when we think about refugees, we need to consider the dismay they feel when they consider what am I going back to, what is there, what holds me?
Regardless of what status they have in international refugee law, refugees are in some fundamental way alienated from their home and stateless. This is a devastating thing to do to societies and this is what these wars are creating. In my view, we need much stronger international humanitarian law, and that can only be developed through policy formulation and through sidebar conversations with the International Committee of the Red Cross. We need to look at the gaps in civilian protection in these internalized wars, to say what needs to be done so that civilians are protected and the fighters, when they are captured, are not tortured or killed.
My remarks will focus on the distinction between international armed conflict and non-international armed conflict, or what we think of as asymmetric wars, i.e., wars between states and non-state groups.
Let me disclose in advance that the subject of my remarks is in some ways perhaps the narrowest or the most esoteric of the presentations you will be hearing today, but I think the implications of the way we think about the “war rights” of fighters for non-state groups in asymmetric war, which is the kind of conflict that is the most pervasive in the world today, may have deeper and broader questions for our imagining and understanding of war.
I will try to describe the problem of applying just war theory to wars between states, on the one hand, and non-state groups, on the other. The problem is a relatively easy one to state. The deep challenge is to try to work out a solution.
Let me set the stage. Under traditional just war theory, we separate the justice of the conduct of the war from the justice of the recourse to war, i.e., we distinguish between jus ad bellum and jus in bello. Once the war begins, we treat soldiers as moral equals, without regard to the justice of their cause. Because soldiers face one another on the battlefield as moral equals, a German soldier in World War II possessed the same rights to wage war and was entitled to the same protections as an American soldier in World War II, without regard to the justice of the two states’ underlying cause for fighting. That is a deeply settled principle in traditional just war theory.
One may wonder what kinds of rights am I referring to when I talk about the “war rights” of combatants. Essentially, I am interested in the question of what is known as the combatant’s privilege, which is the right to wage war. In wartime, it is permissible for fighters to kill enemy soldiers, and it is permissible for fighters in wartime to destroy enemy property if it is a legitimate military target. Combatants in a war between states are not subject to criminal accountability for their actions. If they are captured, they may be held as prisoners of war prophylactically and removed from the battlefield, but they cannot be punished for having waged war. A necessary corollary of the combatant’s privilege is the concept that captured combatants benefit from a degree of benevolent protection. In the law of international armed conflict, there is an extraordinarily detailed set of protections to which prisoners of war are entitled. Among the most basic are the principles that POWs have the right to be held in conditions that are comparable to those of the detaining state’s soldiers, and not as criminals; and the right not to be subject to torture, mutilation, or murder. There is a whole series of additional rights and entitlements that go well beyond a minimum standard of humane treatment. In international armed conflict, combatants on both sides may claim this very elaborate set of entitlements, regardless of the justice of their cause.
Now, the situation is quite different in conflict between states, on the one hand, and non-state groups, on the other. As for the law, it seems to be quite clear that war rights are routinely claimed and exercised by the state party to the conflict. States, in non-international armed conflict, claim for their soldiers the combatant’s privilege: the right to kill enemy fighters and destroy enemy property. But international law does not accord equivalent rights to the fighters of the non-state group. A fighter for a non-state group, if captured, could be prosecuted for murder – he can be prosecuted not only if he has engaged in terrorist acts, or for having facilitated a suicide bombing, or for blowing up a market, but for a purely military action like shooting a soldier on the battlefield. And we have seen this in practice. There are cases of detainees at Guantanamo who have been prosecuted for wartime acts because of their legal status as “unprivileged belligerents.” They have been charged with, among other things, the crime of murder for shooting American soldiers in a firefight in the field. Had this been a fight in Normandy, between a German soldier and an American soldier, the German soldier would not have been subject to prosecution for those acts, but a fighter for al Qaeda or another non-state group would be.
In contrast to international law, just war theory does not categorically reject the idea that fighters for non-state groups have no war rights, but it has struggled to come up with a standard for when non-state armed group fighters acquire these rights. For my part, and this is the argument that I make in the essay that I have published in Dædalus, I find the asymmetry of rights in asymmetric conflicts to be deeply problematic. Although medieval just war theory held that the rights of fighters are derived from fighting for a legitimate authority, contemporary just war theory does not treat soldiers as moral equals simply because they fight for a state. That is a proxy for a deeper concept, namely, that war is a collective endeavor, not an individual one. Soldiers fight out of loyalty to their side and act on the basis of what they are told are their side’s causes for going to war. More fundamentally, we might say that the individual fighter is not the relevant unit of moral analysis. But if that is correct, it applies as well to wars between states, on the one hand, and non-state groups, on the other.
So, if you agree with me that belonging to the armed forces of a state is not alone a sufficient moral reason for conferring war rights on fighters, we still must decide what criteria we should use to decide if the principle of moral equivalence of soldiers should apply in any particular asymmetric armed conflict. I argue that we should not base our judgments about who should be permitted to claim war rights on the basis of the moral worthiness of the underlying cause of the fighters. A number of just war theorists link war rights to the justice of the cause, but in my mind that ignores the separation between the justice of recourse to war and the justice of the conduct of war that underlies traditional just war theory. Moreover, I think there are deep problems in trying to allocate war rights on the basis of our judgment about the worthiness of the fighters’ cause. There are epistemological problems in determining how a fighter is to know whether his cause is just, of course, but the deeper problem is that participants in conflict, as a psychological matter, invariably demonize their adversaries. If we find ourselves in a situation in which states accord war rights to non-state fighters only if they conclude that the cause of the non-state group with which they are waging war is just, then war rights will never in practice be conferred on non-state fighters, which I contend is a problem.
My basic view is that we should accord war rights to non-state fighters – that is, we should depart from the presumption that a state is entitled to prosecute people who use force against the state and imprison them – if the fighting is taking place in what I call an “other governed space.” This test is met in cases where the state no longer exercises control over a meaningful portion of its own territory. It is also met where the conflict – as is the case with most of the non-international armed conflicts we see today – takes place outside the territory of the state, i.e., when it is a transnational armed conflict. In those circumstances, the moral argument for the application of the state’s domestic criminal law no longer applies, and fighters in those circumstances should be accorded moral equivalence, just as is the case when states wage international armed conflict against other states.
War used to be a lucrative business. States, or rulers at the time, would fight as a way to aggrandize or preserve their territory – even though there was not necessarily a distinction between the two. Wars were legitimate ways to convert the conquered to a new religion, to proselytize and spread religion.
Wars were also an instrument of justice, a dispute resolution mechanism. They allowed the resolution of a contest over disputed territory or a dynastic succession. They were an enforcement tool. They allowed the collection of an unpaid debt or the restoration of something unlawfully taken. They were a legitimate punitive method that allowed for one ruler to avenge injury. For instance, if a ruler violated a treaty or committed any injury, another ruler could engage in war as punishment, and that punishment allowed for both retribution for past injuries as well as deterrents against future injuries. And this is not just a description of what states actually did, but in fact is the definition of just war theory. To the victors went the spoils and those spoils were no less legitimate than a fine imposed by a judge at the end of a trial. This meant that you could regain any expenses in the conduct of the war, as well as meting punishment for the original injury.
In the twentieth century, international law sought to move us toward a more pacifying stance by limiting the causes of war. Beginning with the Kellogg-Briand Pact in 1928, war became more limited: you could no longer engage in war to expand territory, spread religion, resolve disputes, restore or enforce a debt, or exact punishment. In fact, there is only a very narrow exception for self-defense, and that is subject to the principles of necessity and proportionality.
Now, self-defense is seemingly a very narrow and straightforward paradigm, so what is the problem? The problem is applying that in practice. Victory today is not about something tangible. It is not about territory or religious conversion or the collection of debt. It is about the absence of threat. But what is the absence of threat today, and how do we know when we are safe? How safe can we seek to be and at what cost to others? These are tough questions, even when you put aside the war on terrorism and look at more traditional battlefields.
Consider Iraq and Afghanistan, leaving aside for the moment the question of whether there was just cause for these wars. What are the legitimate goals in the name of self-defense? Destruction of military forces, military capabilities, regime change, democracy, building schools for girls, improving infrastructure, improving agricultural production, child literacy? All of these were in fact offered as metrics of success and necessary components of self-defense at one point or another by different actors, with the assumption that achieving those metrics would tell us whether we should feel safe again. Of course, if schooling for girls is a legitimate goal of war, then you can use force until you achieve this goal.
Now shift back to the war on terrorism. Even when the focus is on the military side, the answers to what constitutes a legitimate goal of self-defense may not be so simple or straightforward.
Immediately after 9/11, President Bush declared, “A war on terror begins with al Qaeda but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated.” The statement was undoubtedly hyperbole and U.S. policy has never aimed to defeat every terrorist group everywhere, and yet the presidential declaration clearly presupposed the view that it would be just to keep fighting until the American risk from international terrorism approached zero. If one was looking for a more detailed statement of goals, one could perhaps find them in President Obama’s statement in 2013, “Our systemic efforts to dismantle terrorist organizations must continue until the United States will degrade and dismantle the operational capacity and supporting networks of terrorist organizations like al Qaeda, to such an extent that they will have been effectively destroyed and will no longer be able to attempt or launch a strategic attack against the United States.” None of these statements suggest that the U.S. strategy is multifaceted and the focus was clear in terms of the narrowest military goals. These narrow terms, however, still allow the United States to claim that its war on al Qaeda is ongoing.
Here, one could argue that the difficulty in defining the goals of the war on terrorism is only further proof that the justification for the war was lacking to begin with, or that war is the wrong paradigm to use here. But this is not only an American challenge, nor is it limited to al Qaeda or associated forces. By now, a number of powerful countries have reported to the Security Council their use of force under Article 51 of the UN Charter, claiming self-defense against ISIS in Syria. None has offered a clear statement about what it hopes to achieve through these strikes and consequently about when and how that self-defense interest will be satisfied. As a matter of international law, it is much easier to say that the United States cannot fight for oil than to say what the United States can fight for.
As we have separated victory from any tangible gain and demanded that it only prevent loss, victory has become elusive and more difficult to judge. International law today, unfortunately, does not give us an answer to what victory can be about. If it is a legitimate goal to seek zero risk from international terrorism, we will surely find ourselves in an indefinite war, and it is an indefinite war in which we transpose risk from ourselves onto others, for instance, through targeted killings. It seems to me that zero risk cannot be a legitimate definition of victory. We need to build a new international consensus that would apply to all fronts, at all times, by all actors.