Daniel R. Brunstetter

The Implications of Drones on the Just War Tradition

Increasingly, the United States has come to rely on the use of drones to counter the threat posed by terrorists. Drones have arguably enjoyed significant successes in denying terrorists safe haven while limiting civilian casualties and protecting U.S. soldiers, but their use has raised ethical concerns. The aim of this article is to explore some of the ethical issues raised by the use of drones using the just war tradition as a foundation. We argue that drones offer the capacity to extend the threshold of last resort for large-scale wars by allowing a leader to act more proportionately on just cause. However, they may be seen as a level of force short of war to which the principle of last resort does not apply; and their increased usage may ultimately raise jus in bello concerns. While drones are technically capable of improving adherence to jus in bello principles of discrimination and proportionality, concerns regarding transparency and the potentially indiscriminate nature of drone strikes, especially those conduced by the Central Intelligence Agency (CIA), as opposed to the military, may undermine the probability of success in combating terrorism.

From Jus ad Bellum to Jus ad Vim: Recalibrating Our Understanding of the Moral Use of Force

In the preface of the 2006 edition of Just and Unjust Wars , Michael Walzer makes an important distinction between, on the one hand, “measures short of war,” such as imposing no-fly zones, pinpoint air/missile strikes, and CIA operations, and on the other, “actual warfare,” typified by a ground invasion or a large-scale bombing campaign. Even if the former are, technically speaking, acts of war according to international law, he proffers that “it is common sense to recognize that they are very different from war.” While they all involve “the use of force,” Walzer distinguishes between the level of force used: the former, being more limited in scope, lack the “unpredictable and often catastrophic consequences” of a “full-scale attack.” Walzer calls the ethical framework governing these measures jus ad vim (the just use of force), and he applies it to state-sponsored uses of force against both state and nonstate actors outside a states territory that fall short of the quantum and duration associated with traditional warfare. Compared to acts of war, jus ad vim actions present diminished risk to ones own troops, have a destructive outcome that is more predictable and smaller in scale, severely curtail the risk of civilian casualties, and entail a lower economic and military burden. These factors make jus ad vim actions nominally easier for statesmen to justify compared to conventional warfare, though this does not necessarily mean these actions are morally legitimate or that they do not have potentially nefarious consequences.

Rethinking the Criterion for Assessing Cia-targeted Killings: Drones, Proportionality and Jus Ad Vim

According to US government statements, drones succeed in killing terrorists while minimizing the risk to noncombatants, thus suggesting that they satisfy the jus in bello proportionality criterion. Scholars, however, are divided on whether drones are truly proportionate. What does it really mean to say drones are, or are not, proportionate? How are we to judge the proportionality of the CIAs drone program? We expose the fallacy of drone proponents who claim they are proportionate by repudiating what we call proportionality relativism – the use of impertinent comparisons to argue that drones are proportionate because they cause less collateral damage than other uses of force. We then analyze the existing data on drone strikes to expose problematic differences in how the US military and the CIA understand proportionality balancing. Finally, we employ what Walzer calls the category of jus ad vim – the just use of force short of war – to assess the ethics of drones. Jus ad vim demands a stricter relationship between the use of force short of war and the jus in bello principles of proportionality and discrimination, as well as human rights concerns of civilians not usually considered in the proportionality calculus, that severely restricts the scope of proportionality balancing. Assessing the CIAs use of drones in Pakistan according to this standard casts a dark shadow on claims that CIA drones are proportional.

Clashing over drones: the legal and normative gap between the United States and the human rights community

The use of lethal drones by the United States (US) marks a paradox insofar as the US government claims that these strikes respect human rights, while the human rights community – including Human Rights Watch and Amnesty International – raise serious concerns that challenge this claim. Would reconciling these seemingly mutually exclusive human rights narratives regarding drone use lead to the formation of a more robust regime that would provide greater respect for human rights than in the current state of legal and moral ambiguity? In order to explore this question, we examine the evolution of these conflicting discourses through three key frames of legitimation – strategic, legal and normative. We argue that the US government has moved from a strategic-legal framework characterised by a focus on strategic objectives and a permissive view of international humanitarian law to a legal-normative discourse that, by incorporating the principles of just war theory, has restrained the strategic scope of the drone programme while reinforcing the legitimacy of international humanitarian law as the paradigm of choice. Comparatively, we assert that the human rights community has pursued a human rights-centric approach that rejects the more permissive standards of an international humanitarian law-centric legal paradigm, while pushing a normative agenda that seeks to enhance respect for human rights under both international humanitarian law and international human rights law. This includes rejecting the US interpretation of just war principles and appealing to a broader understanding of the right to life norm. Taking these ‘right to life’ considerations seriously raises concerns about whether drones can ever satisfy human rights. In the conclusion, we explore how combining certain elements of these narratives may contribute to an emerging norm on drone use.

Sepúlveda, Las Casas, and the Other: Exploring the Tension between Moral Universalism and Alterity

Modern politics is at times a balancing act between universal claims about the human (equal rights, dignity, and respect) and political actions which may seem to violate these claims (torture, just wars, repudiation of certain cultural practices, tacit discrimination). An exploration of some of the philosophical roots of the modern understanding of the person, when it was the subject of debate, provides a perspective at the origin of Modernity from which to evaluate the tenuous relationship between moral universalism and alterity at the heart of this tension. The debates at Valladolid in 1550–51 between Las Casas and Sepulveda, arguing their conceptions of the human, can shed light on how and why arguments for inequality creep back into the modern discourse on alterity. The lessons from Valladolid, therefore, might help to limit or clarify recourse to such arguments.

Jus ad Vim : A Rejoinder to Helen Frowe

Helen Frowe’s critique of jus ad vim suggests that such a framework is redundant when just war principles are understood “correctly.” My own view remains that jus ad vim is essential to understanding the ethics of force today. I think our difference in opinion about the rules that should guide the use of force is rooted in two fundamentally divergent worldviews. While I will respond to many of Frowe’s points below, let me begin with praise for her engagement, which has pushed me to think more deeply about the original argument, in particular whether it could be justified to escalate from vim to bellum and about pinpointing what jus ad vim contributes to our moral reasoning about the use of force. Frowe argues from the revisionist just war position, accepting that this is the correct interpretation of just war principles. Revisionists reject the view that the state of war grants special privileges to those doing the fighting. Revisionism turns instead to a moral concept of liability and reformulates the ethics of violence in war in terms of individual responsibilities and rights. It is worth noting that Frowe’s critique is not simply aimed at jus ad vim; it is much bigger than that. Rather, she implies that any just war logic other than the revisionist viewpoint is flawed (page ). The assumptions underpinning this claim are highly contested in the literature, to say the least. As others have argued, this view misses something important about the realities of war and is simply too impractical to be applicable to the entire continuum of violence in the international realm. Unlike Frowe, I do not see the revisionist view of just war as an ethical model that applies across the spectrum. My own view is grounded in an empirical observation about how violence is adjudicated in international society. I take as my starting point Walzer’s analysis of just war, which Frowe rejects. Ethical debate about state use of force has long distinguished between the conditions of peace

Shades of Green: Engaged Pacifism, the Just War Tradition, and the German Greens1

The German Green Party’s evolution from an absolute pacifist party to what we call engaged pacifism during the period from 1992 to 2005 deserves the attention of just war scholars because such an evolution shows how and why pacifists can come to accept – and limit – the use of force. Because the German Greens’ values are embedded in pacifist principles linked to Germany’s strategic culture – a presumption against war, fear of state power politics and escalation, and a deep sensitivity to war’s destructiveness – their foreign policy outlook is defined by an alternative logic encompassing different strategies and goals compared to the just war tradition. The Kosovo crisis and the War on Terror demonstrate how the Greens’ engaged pacifism offers a form of critical solidarity with the just war tradition by serving as a check on certain interpretations of the jus ad bellum criteria.

Drones as Aerial Occupation

Airman First Class Brandon Bryant zoomed the MQ-1B Predator drone’s camera in on three “suspected insurgents” along the Afghanistan–Pakistan border. The message he received through his headset was clear—”confirmed weapons.” Yet, for all he could tell from the video feed, the weapons “were shepherd’s staffs.” Bryant switched to infrared imaging and launched one hellfire missile at the three men. A bright flash of light erupted on impact. Bryant recalls:

A tale of two cities: the just war tradition and cultural heritage in times of war

ABSTRACT This article explores the plight of cultural heritage within the just war tradition. It traces the fate of two cities seen through the eyes of just war thinkers across time: Corinth and Tenochtitlan. This provides a useful heuristic tool to explore some of the tensions related to cultural heritage in times of war: the necessity tension (the dilemmas that military planners and soldiers face when deciding whether to destroy or preserve cultural heritage sites to advance toward victory) and the civilizational paradox (who defines which sites are intrinsically valuable), but also the magnanimity principle – the positive effects that could ensue in choosing not to pursue the full range of acts the laws of war permit in times of necessity. The story developed here is largely chronological in nature, spanning ancient Rome to the eighteenth century, and is largely a jus in bello story. However, it follows two distinct streams of just war thought represented by the plight of Corinth and Tenochtitlan that converge with the idea of cultural heritage as we understand it today, articulated explicitly by Vattel in the eighteenth century. It concludes with lessons this genealogy can teach us about the perennial moral dilemmas.

Drones and the Future of Armed Conflict: Ethical, Legal and Strategic Implications

At the time of this writing, data from the New America Foundation report that the United States has reportedly conducted 11 drone strikes in Pakistan and 23 in Yemen in 2015. Of these strikes, only 2 of them killed civilians. The data indicate 150 militants have been killed, along with only 3 civilians or unknowns (http://securitydata.newamerica.net). Add to this the controversy stemming from recent conventional airstrikes—in Yemen, when a wedding party was hit, and in Afghanistan, when a Doctors Without Borders hospital was destroyed—and one might be persuaded that drones are a rather good military option. This evidence offers support to the claims of drone proponents, who consistently argue that drones are the best game in town because they provide a discriminate and proportionate response (to employ the just war theory language used by the U.S. government) to threats from terrorist groups. And if one compares these numbers to the strikes and casualty figures at the height of the drone campaign in Pakistan in 2009–10, when there was a drone strike every three days, and civilian/unknown casualties reportedly in the hundreds, then even the staunchest of drone critics might be inclined to admit that the United States is making progress when it comes to its targeting practices. Even assuming, however, that all this is true—the government does not publicly disclose its rules or engagement or data on strikes—reading Drones and the Future of Armed Conflict casts a deeply critical light on the myth that drones are what the U.S government claims them to be. The book is a must-read for those who want to delve deeper than the moral and legal gloss that characterizes the speeches in support of drones by governmental officials, while avoiding the hyperbole that often accompanies the writings of the staunchest critics of the U.S. drone programs.