Acceptability of Collateral Damage when Using Armed Drones: A Moral and Ethical Dilemma BY - Dr.S.Krishnan & Ms. Garima Dhaka
Acceptability of Collateral Damage when Using Armed Drones:
A Moral and Ethical Dilemma
By
|
Dr.S.Krishnan
Associate
Professor
Seedling
School of Law and Governance
Jaipur
National University, Jaipur
|
Ms. Garima Dhaka
Assistant Professor
Department of Law,
Vivekananda Global University, Jaipur
|
In 2001, The United States declared a War on Terror and invaded Afghanistan.1 Simultaneously, with wars in Afghanistan and Iraq, the media reported
drone strikes in Pakistan, Afghanistan, Yemen and Somalia
allegedly eliminating terrorists.2 In regions like Pakistan where no war is in progress but where it is no longer possible to speak of peacetime – we shall
call them grey zones between war and
peace – drone strikes against alleged terrorists take place on a regular basis,
causing a great deal of collateral damage, including the death of innocent civilians.
The research question of this article is
whether collateral damage – in the form
of injuring or killing innocent civilians – caused by the use of armed drones,
should be seen as morally permissible. First, this article will analyse the issues surrounding drone strikes
causing collateral damage. Secondly, peacetime
principles related to collateral damage will be discussed. Thirdly, the relevant principles of the “just war
theory” concerning collateral damage will
be analysed, and more specifically a doctrine relevant to the principle of discrimination, namely the doctrine of
double effect. Finally, these principles will
be applied to the ethical problems of collateral damage as they relate to drone strikes in the grey zone between
war and peace.
Drone Strikes Causing
Systematic Collateral Damage
At first sight, drones seem to have many advantages.
They can be used to do the “3 Ds”: dull, dirty and dangerous work.3 The surveillance drone has the
1
Jeremy Sherlick, Greg Bruno,
“u.s. War in Afghanistan” Council on Foreign Relations
2 Cora Currier, “Everything we know so far about drone strikes”
ProPublica (New York, 11 January 2013) <https://www.propublica.org/article/everything-we-know-so-far-about-drone-strikes>.
3 Dean Irvine, “Doing military’s dangerous,
dull and dirty work” cnn (Georgia, 16 February 2012) <http://edition.cnn.com/2012/02/15/business/singapore-airshow-drones/>.
possibility of staying in aloft unseen
for long periods
of time above the target,
to observe it. Human Rights Watch states that high-resolution cameras
can be used to guide missiles from armed drones toward any target desired.4 Nevertheless, in these grey zones between war and
peace,5 many incidents with
armed drones involving
collateral damage take place.
According to Pakistan’s Bureau of
Investigative Journalism, more than 400 drone
strikes have taken place in Pakistan since 2004, with fewer than 4% of those killed having been identified as named members
of al-Qaeda. According
to other sources, the amount of
killed terrorists due to drone strikes in Pakistan between 2004 and 2012 is estimated to be 2% of the total amount
of casualties.6 The
UK-based human rights group Reprieve calculated that it takes the equivalent of about 28 innocent lives to neutralize a single terrorist leader and often multiple
drone strikes.7 In October 2015, a whistle-blower provided the American
journal The Intercept with
secret documents detailing
the inner workings of us drone attacks in Afghanistan, Yemen and Somalia. The
documents revealed that approximately 90 percent of the persons
killed by drones
in these regions
were innocent civilians.8
While the media is an easy source for
statistics, such should be treated with caution. People should pay close attention for organisations that use and manipulate statistics for their own political agenda.
Besides, it is not always
easy to find out the truth,
which makes manipulation possible. In countries like Pakistan, there are no birth
registers and few emergency services
that record deaths;
moreover, bodies are usually buried within 24 hours of death, well before an official research team arrives to investigate properly.9 However, much secrecy
exists surrounding the official United
States number of casualties
4 “Precisely wrong: Gaza civilians killed
by Israeli drone-launched missiles” Human Rights Watch (2009) <http://www.hrw.org/sites/default/files/reports/iopt0609webwcover_0.pdf>.
5 The characteristics of these grey
zones between war and peace are discussed in the fourth part of this article.
6 Jack Serle, “Drone strikes in Pakistan: Civilian
casualties are inevitable, and the u.s. appears willing
to accept them” The Bureau of Investigative Journalism
(London, 16 October 2014)
7 “It takes 28 civilian lives to kill a single terrorist leader
– uk human rights
group” rt (London, 25 November 2014) <https://www.rt.com/news/208527-reaping-lives-drone-strikes/>.
9 Lode Vanoost, “Drones
en terrorisme, zoek de verschillen” De Wereld Morgen (Brussel, 27 Sep- tember
2012) <http://www.dewereldmorgen.be/artikels/2012/09/27/drones-en-terrorisme
disclosed to the public. The American
people may not be aware of the actual number of innocent civilians
killed by drone strikes in American operations to date.10 Finally, the question
should be asked who exactly should be considered innocent civilians, and
who are just targets. By considering every man killed between 15 and 66 years old, who happens to be in the vicinity
of a targeted terrorist, to also be a terrorist, you can drastically decrease the figures
for collateral damage.11
How does one explain these
enormous collateral damage
statistics? In traditional wars, like the two World Wars, enemy
soldiers usually wore uniforms with clear insignia,
which made them easy to identify. In such situations, a soldier wearing a uniform lost his right not to be
attacked. However, as more and more conflicts are being fought in cities where
enemies do not usually wear uniforms,
deliberately embedding themselves amongst civilian populations whereby
they become human shields, distinguishing between those who can and cannot be attacked has become
very difficult.12
This creates very difficult situations for the use
of armed drones because their missiles can be directed to a precise location, but the missiles have
an impact of several square meters.13 Consequently, in these situations, armed drones
systematically cause collateral damage.
Risk reduction has always been an
important component of warfare. With the invention of long-range weapons, such as
artillery, fighter-bombers and the Tomahawk
missile, the risks faced by the soldier on the battlefield have already been greatly reduced. However, drone
warfare takes this an enormous step further,
as military deployment near the battlefield is no longer an operational requirement. Drones can be launched and
operated from safe places – even neighbouring countries – that are hundreds of
kilometres away from their targets. For
instance, the United States has been using an airfield in Saudi Arabia as a base from which to launch unmanned aerial vehicles for conducting
10
Jon Queally, “Senate Agrees: us People Can’t Know Overseas Drone
Death Toll” Common- Dreams (Portland, 29 April 2014) <http://www.commondreams.org/about-us>.
11
Jo Becker, Scott Shane, “Secret
‘Kill List’ Proves a Test of Obama’s Principles and Will” The New York Times (New York City, 29 May 2012) <http://www.nytimes.com/2012/05/29/ world/obamas-leadership-in-war-on-al-qaeda.html?_r=0>.
12
Mark Thompson, “The Taliban’s
Low-Tech Defense Against u.s. Drones” Time
(Wash- ington, 29 April 2009) <http://content.time.com/time/nation/article/0,8599,1894370,00
13
Joakim Kasper, Oestergaard Balle, “About the Predator and Reaper” Aeroweb
(Newtown, 27 June 2016) <http://www.fi-aeroweb.com/Defense/MQ-1-Predator-MQ-9-Reaper.html>.
surveillance and combat missions in
Yemen.14 Moreover, people are no longer sent on the ground
anymore in these dangerous states
to gather intelligence. The physical risks when using armed drones
are thus reduced
to zero, leading
to the transfer
of risk to innocent
civilians.
Unreliable and incomplete intelligence
is often the cause of incidents with high
collateral damage.15 The difficulty of gathering intelligence depends, amongst other things, on the kind of war or conflict that is occurring. Analysing whether a person is a member
of a terrorist organisation can be an enormous challenge for intelligence services,
considering the organisation’s deliberate intermingling between civilians without uniforms. However,
in many cases, a lack
of boots on the ground means that there are simply no operatives physically
present to gather intelligence. Intelligence specialists indicate that it would be better if surveillance
drones were not the only sources of intelligence when it comes to verifying a
target because intelligence gathered by these means remains
subject to a high degree
of uncertainty. Generally, these
specialists pay a lot more attention to Human Intelligence (HUMINT),
which will usually mean that the information collected is
significantly more reliable.16 In Afghanistan, for example, in regions where troops and intelligence agents
are indeed in place, ground commanders
can bring important context
14
Micah Zenko and Emma Welsh, “Mapping
the launch pads for Obama’s secret wars.” Foreign Policy ( Washington, 29 May 2012) <http://foreignpolicy.com/2012/05/29/where-the
15
Spencer Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground” The Guardian (London, 24 November 2014) <http://www.theguardian
See also: “us lacks intelligence to continue waging indiscriminate drone warfare in Yemen” rt (30 January 2015) <http://www.rt.com/usa/227715-us-yemen-intelligence-drones/>.
Matt Schiavenza, “Drones and the Myth of Precision Civilian
casualties are inevitable, and the u.s. appears willing to accept them.” The Atlantic
(Washington, 24 April 2015)
16
Marina Petrova, “The Drone Paradigm: Surgical
Precision or Intelligence Mishaps” Future Foreign Policy (London, 3 June 2015) <http://www.futureforeignpolicy.com/ drone-paradigm-surgical-precision-intelligence-mishaps/>.
See also: Warren Strobel and Mark
Hosenball, “Hostage locations difficult to track – and may be getting harder” Reuters
(London, 24 April 2015) <http://www.reuters.com/ article/us-usa-security-hostages-intelligence-idUSKBN0NF0B320150424>.
“Former High-Level nsa Official: Drone Strikes by Metadata
Alone ‘Undisciplined Slaughter’” Washingtonsblog (11
February 2014) <http://www.washingtonsblog.com/2014/ 02/former-high-level-nsa-official-drone-strikes-metadata-alone-undisciplined-slaughter
.html>.
to pictures gathered from the sky. When
an intelligence analyst has a question, he or she can make a call to a
colleague on the ground for clarification. An intelligence analyst says: “Without a commander on the ground,
that puts that
responsibility on us to be able to take every piece of data and make it make sense
to the supporting commander. That is a harder challenge to do certain targets
in that environment”.17 Bellamy describes a famous example of an operation where collateral damage occurred because of unreliable
intelligence: the bombing of a
wedding in Afghanistan in 2002. Initially, the United States indicated that the gathering in question
was a reunion of Taliban members; however, following scrutiny by the media, the
government was forced to admit that it was actually a wedding party and that the strike was authorized on the basis of
faulty intelligence supplied by Afghans.18 Invariably, many operations depend on unreliable intelligence.19
Another consequence of such dependence
on intelligence coming solely from
surveillance drones is that the intelligence is incomplete: Because analysing
images is a time-consuming activity, there is insufficient time to arrive at a complete intelligence picture. People
present on the ground often need less
time to gain insight to the situation. One example of such incomplete
intelligence is a drone strike that resulted in collateral damage in
Afghanistan in 2010. In this case,
the intelligence indicated that the proposed target was a civilian convoy, but this information was overlooked by the
drone operators, who were at the time under pressure
and overloaded with information.20 A second example of incomplete intelligence is more recent.
A United States
17
Marcus Weisgerber, “A Look Inside a
Secret us Air Force Intelligence Center” Defense One (Washington, 18
November 2014) <http://www.defenseone.com/technology/2014/11/ look-inside-secret-us-air-force-intelligence-center/99347/>.
18
Alex J Bellamy, “Is the war on terror just?” (2005) 19(3) International Relations
275.
See also: Luke Harding, “No us apology
over wedding bombing”
The Guardian (London, 3 July 2002) <http://www.theguardian.com/world/2002/jul/03/afghanistan.lukeharding>.
19
Spencer Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground” The Guardian 24 November 2014) (http://www.theguardian
See also: “us lacks intelligence to continue waging indiscriminate drone warfare in Yemen” rt (30 January 2015) <http://www.rt.com/usa/227715-us-yemen-intelligence-drones/>.
Matt Schiavenza, “Drones and the Myth of
Precision Civilian casualties are inevi- table,
and the u.s. appears willing to accept them.” The Atlantic (Washington, 24 April
2015) <http://www.theatlantic.com/international/archive/2015/04/drones-and-the-myth
20
Jean-Baptiste Jeangène Vilmer,
“Légalité et légitimité des drones armés” (2013) 3 Poli- tique étrangère 119 <http://politique-etrangere.com/wp-content/uploads/2013/10/ article_Jeangène-Vilmer_PE-3-2013.pdf>.
drone killed an American and an Italian
hostage in an attack on an al Qaeda compound in Pakistan in January 2015.
According to U.S.
officials and lawmakers, the intelligence that underpinned the drone strike turned out to have
been tragically incomplete.21 These are only
three out of many cases.22
Peacetime and Collateral Damage
Principles Relating to Collateral Damage during Peacetime
The use of violence during peacetime is
only possible in exceptional circum- stances, to protect oneself or a third party. Three
conditions should be respected during
defence actions: the action must be necessary, proportionate and targeted
against an imminent
threat.23 Suppose that the police have to end a hostage
situation by neutralizing a hostage-taker. In this case,
in order to neutralize the hostage-taker, the police will need to enter a room full of innocent
civilians. When using force during
peacetime, officers must carefully take into account the consequences of their
actions, including any potential risks to civilians. The right to life is too
valuable for that during peacetime. The police
can sometimes use alternatives to stop the criminals, like rubber bullets.
This may reduce the
likelihood of collateral damage occurring. In very rare cases, collateral damage may be acceptable, such
as in a national security context where an airplane that has been hijacked by
terrorists is heading toward a populated area and is shot down.24
See also: WJ Editors, “In New Military,
Data Overload Can Be Deadly” Small Wars Jour-
nal (Maryland, 17 January 2011) <http://smallwarsjournal.com/blog/in-new-military-data
21
Adam Entous, Damian Paletta, Felicia Schwartz, “American,
Italian Hostages Killed
in cia Drone Strike
in January” The Wall Street Journal
(New York City,
23 April 2015)
See also: Spencer
Ackerman, “41 men targeted but 1,147 people killed: us drone strikes – the facts on the ground”
The Guardian (London, 24 November 2014)
<http://www
22
“It takes 28 civilian
lives to kill a single
terrorist leader – uk human rights
group” rt (Lon- don, 25 November
2014) <https://www.rt.com/news/208527-reaping-lives-drone-strikes/>. See also: “Only 84 of 2,379 us drone attacks victims
in Pakistan confirmed
Al-Qaeda militants – report”
rt (London, 18 October
2014) <http://www.rt.com/news/197100-usa
Police
officers are sometimes exposed to a high level of threat.
How much personal risk can and should a police officer
take during peacetime? Police officers, in
contrast to soldiers participating in hostilities, normally retain their right not to be killed. When police
officers exceptionally and voluntarily risk their lives in order to protect
the lives of civilians, this type of risk-taking must rather be considered a “supererogatory” act.
In the aftermath of the terrorist
attacks in France (2015) and Belgium (2016),
many countries introduced a
state of emergency, whereby certain human rights
were curtailed and police were given more power. The question arises whether the police may cause collateral
damage out of necessity when con- fronted with people using very unjust methods, like
terrorists. The proportionality
principle states with regards to using violence: the more important your objective, the more harm you may cause.
However, this is not in agreement with the principle that forbids any killing of innocent civilians intentionally during peacetime. In the Bataclan, the concert hall
targeted during the Paris Attacks of November 2015,
people were killed
by the terrorists quickly and at random. Dynamic responses from police
services were needed: when innocent people are dying, swift intervention is
needed in order to save as many lives
as possible. There is no time to get a clear picture of the situation or to try to negotiate. What matters most at
that moment of intervention is that collateral
damage is kept to a minimum and the agents involved are not ex- posed
to unreasonable levels of risk. The doctrine of double effect is applicable here: You have the intention to kill the terrorists, who are not afraid of killing people, while entering the building with
the side-effect of an unintentional but readily foreseeable killing of innocent
civilians.25 We must emphasize that, during peacetime, this doctrine can only be used in these kinds of exceptional circumstances.
Importance of Alternatives
On the one hand, the lives of civilians
should never be endangered. On the other,
police officers normally should not have to risk their lives either.
Consequently, dangerous situations like hostage situations are best avoided
if it is possible. For example, intelligence gathering in
order to arrest the suspect per- son can prevent hostage situations. A recent idea in the fight against terrorism is the pentito
for terrorists, which offers
terrorists the possibility of receiving a new identity in exchange for crucial information about a terrorist network.26
26
Mark Eeckhaut, “Salah Abdeslam
had de perfecte spijtoptant kunnen
zijn” De Stan- daard (Groot-Bijgaarden, 20 February
2016) <http://www.standaard.be/cnt/dmf20160219
This
could lead to faster dismantling of terrorist organisations. Interesting is a project ongoing in the U.S. where the government is
currently trying to prevent school shootings. The idea is that since school
shooters are predictable, they are also detectable, which means that people should
keep an eye out for potential warning
signs and be vigilant.27 Local good will is crucial when using this method.
Beyond the standard methods employed by the country’s intelligence services,
the government is trying to make citizens aware and to encourage them to watch out for potential threats,
since it knows that the police cannot
detect everything that is suspicious on their own. This approach also
seems to work, at least in part, for
detecting terrorists. Unfortunately, our societies are characterized by a lack of social control. It is not always possible
to monitor everyone’s habits. When the hostage-taking can no longer
be avoided, the alternative
to lethal action is negotiations. These could be helpful once the criminal
action is going on, in order to try to convince the hostage-taker to end the hostage situation.
War and Collateral Damage
Introduction to the Just War Theory
The just war theory has existed for more than 2000 years and has been developed by many thinkers, including
ancient Greek philosophers and Christian theologians.
The theory fits in a category with many other philosophies on warfare. In short, pacifism holds that war
should always be avoided. Militarism holds that war is inherently good and can
even improve cohesion in society. Realists believe that war should be fought for one’s own purpose, when one’s
own interests are at stake. On the contrary, the just war theory prefers peaceful relations
between states, but admits that sometimes the use of force is justified; for instance, to defend against
an aggressor who has no just cause
to invade your country.28 The American philosopher Michael Walzer reactualized this theory
in the seventies with his book Just and Unjust Wars. The main objective of the just war theory is to
offer guidance for dealing with actual wars and conflicts. The theory, which has an
important normative component, speculates about when states are justified in waging
war – jus ad bellum –
and
28
Carl Ceulemans, Over oorlog en ethiek: de traditie van de rechtvaardige oorlog in theorie en praktijk (1th edn, Garant 2011) 24–29.
Prior to the First and Second World
Wars, national sovereignty was very important in international politics. States themselves decided when to wage war and
when not to. The devastating nature of both World Wars made it abundantly clear that the Westphalian system, in which sovereign states enjoyed a quasi-limitless “compétence de guerre”, was no
longer tenable. From that time onward, the right to resort to military
violence was seriously
curtailed. Article 51 of the United Nations Charter stated
that only force used in self-defence against an ongoing attack was permissible. During
this time, the concept of jus ad bellum
was introduced in international law.30
The utility of jus in bello or fighting
limited wars is twofold. It concerns limiting the total amount of suffering,
but also keeping the possibility open for states to normalize their
post-conflict relations. To be avoided
is frustrating a party,
because he thinks the end result seems unjust, or because the military action was unnecessarily cruel and in contradiction with the rules of war.31 As a consequence, one of the main principles of jus in bello is the moral equality of
combatants, which gives all of the different parties in the war the same rights
and duties, regardless the justness
of their cause to go to war.32
In the last couple of years the jus post bellum has been developed.
Here, the theory speculates about the post-war
period and principles applicable to it.33 This article will henceforth discuss
jus in bello and
the issues related
to collateral damage.
The Just War Theory
and Collateral Damage
The Non-absolute Discrimination Principle
Before determining whether the just war
theory permits collateral damage, it would be just as good to consider
whether the use of an armed drone is itself in conflict with the principles of jus in bello and more specifically, the
33
Brian Orend, “Jus post bellum: The perspective of a just-war
theorist.” (2007) 20(3) Leiden Journal of International Law 571.
discrimination principle, which states:
once soldiers put on their uniforms, they can be attacked
at any time by the other party.
Unlike soldiers, innocent
civilians have done nothing wrong to deserve losing their right to not
be at- tacked.34 According to the just war theory, weapons or methods that are mala in se are “bad in themselves”, meaning
that they should
never be used on the battlefield
due to their non-discriminatory and destructive effects; examples of this include genocide, rape and the
use of biological, nuclear and chemical weapons or mines.35 Other examples are cluster
munitions and barrel bombs. None of these effects are applicable to armed
drones. As previously stated, drones can be used as very precise weapons, an armed
drone is thus not necessarily a mala in
se weapon. Even during peacetime
it does not seem impossible that the police
will at some point use armed drones
to neutralise threats.
Suppose you use a drone to save
the life of an innocent person in a situation where the police are unable to
be physically present. The weapon in itself does not change the ethics of the
situation, assuming it reaches its target without resulting in collateral damage.
According to the just war theory,
the fact that the level
of risk is diminished for only one of the parties involved
in a conflict – due to the fact that they are using
drones – does not necessarily mean that this is immoral, as long as the use
of these drones is consistent with the principles of jus in bello and the possibility remains for stable situation
afterwards. However, Walzer states that risk
diminishment and risk transfers
are not compatible. An ethically responsible
person, a soldier being no exception
to this rule, ought not to save his own life if it implies killing
innocent civilians. Soldiers
must ensure that civilians are not affected by the atrocities of war, even if the
soldiers have to take additional risks.36 According to Bellamy, who agrees with Walzer, when non-combatants are only protected as long as the lives of
combatants are not in danger, this is a morally dubious position
because it gives more weight
to the lives of combatants than to non-combatants.37
Suppose a party has
intentionally killed the civilians of their opponent, should the opponent then be
morally permitted to react by also killing their adversary’s civilians? The motivation could be to anticipate
this kind of cruel behaviour in the
future. This is often the reason for reprisals. Walzer states: “The helplessness of the victims rules
them out as objects of military attack, and their non-involvement in criminal activity
rules them out as objects
of
retributive violence.”38 Walzer is convinced that neither
civilians nor prisoners
of war may become the target of a reprisal.
All reprisals against civilians should be morally condemned. It would be better to use alternative measures, for example
negotiations or military
action against enemy soldiers. Gross states: “If civilian immunity
is to have any meaning
whatsoever, then ordinary
civilians cannot be made to pay for the crimes of others,
regardless of the actions of one’s state (or quasi-state)”.39
Gross does not forbid
reprisals completely, as long as the right to life is not violated:
for example, property
can be damaged.40 According to the just war theory,
there is a situation in which it may be permissible to intentionally kill innocent civilians. Walzer states that the deliberate killing of the innocent is murder, however, in some extreme situations, commanders may have to commit murder or order others to do so. “In such situations, these individuals will have killed unjustly, perhaps for the sake of justice
itself; nevertheless, justice
itself requires that their actions
be condemned.”41
Walzer refers
to this kind of situation
as a “supreme emergency”.42
It is an exceptional situation that forces an individual to break a moral rule, as also discussed while
considering the peacetime principles regarding
collateral damage. Jones and Parrish
talk about the presence of moral conflict between two real yet incompatible moral values or obligations, where practically no available action permits the agent to avoid violating
a deeply held moral principle.43 There is another way to justify actions that imply the killing
of innocent civilians, which will be further elaborated in the next part.
War and the Doctrine
of Double Effect
The Doctrine of Double Effect according to Walzer
In the 13th century, Thomas Aquinas introduced the doctrine of double effect
to justify self-defence: by defending yourself, the purpose is to save your own life, so killing
the unjust threat
is an unintentional foreseen side-effect.44 This was a reaction against Augustine’s reasoning, which stated that self-defence
38
Walzer, Just and Unjust Wars (n 24) 213–214.
39
Michael L. Gross, “Killing
civilians intentionally: double effect, reprisal,
and necessity in the Middle East.”
(2005) 120(4), Political Science
Quarterly 569.
44
Jonathan Spelman, "The morality
of killing in self-defense: A Christian perspective”, (1993)
8 Trans. by Thomas Williams
(Indianapolis: Hackett)
2.
was not allowed, because it was just an
act of self-love.45 The doctrine of double effect also found its way
into the just war theory. It is possible that innocent civilians can be implied
in the attack as well, although indirectly. Indirect or unintentional collateral damage
can be unforeseeable, for example
in an accident, but can also
be foreseen. Accidental and unintentional collateral damage can have as its causes, for example,
meteorological changes (e.g., wind speed), technical problems, or human error. Unintentional
but foreseen collateral damage
is, for example, an attack on a factory
where it is known that innocent people
of the neighbourhood are also likely to be killed. Here, Walzer refers to the
doctrine of double effect. According to this doctrine, it is sometimes permissible for a negative effect to occur as a side
effect of trying to do something positive
(hence there is a “double effect”). In this respect, four conditions need to
be fulfilled:
(1)
The act must be
good in itself or at least neutral, which means, for our purposes, that it is a
legitimate act of war; (2) Its direct effects must be morally acceptable, e.g. the destruction of military supplies or
killing of enemy soldiers; (3) The intention of the actor must
be good, meaning that his aim is to achieve the acceptable effect, while
not employing any evil effects as means to this end; (4) The good effect
must be sufficiently good enough in order to compensate for permitting the evil effect to occur.46
Or, otherwise stated, the collateral
damage must be proportionate to the military necessity.
However, Walzer thinks respecting these 4 conditions is still inadequate. He prefers
to use the term “double intention” instead of double effect, reformulating the third condition as follows: “the intention
of the actor must be good, meaning that his aim is to achieve the acceptable effect
without using any evil effects as means to this end, and, being
aware of the evil involved, seeks to minimize it and accept whatever the personal costs
of doing so may be”.47 Not instrumentalising people is not enough, you also
need to limit the killing of non-instrumentalised
people as much as possible, even by taking one’s own risks if necessary.
What
degree of risk – “personal costs” – should
an attacker take in order
to minimize, as much as possible,
the risk of collateral damage? Walzer speaks of a “price
to pay” in order to keep the number of innocent civilian
casualties as
47
Walzer, Just and Unjust Wars (n 29) 155.
low as possible. In such situations,
Walzer argues that citizens need to be given
“due care”. He criticizes for example the 1999 NATO air campaign in
Kosovo be- cause it disproportionately harmed innocent
civilians and their property. He argues that ground troops should have been used in
place of air strikes so as to reduce
the number of civilian deaths, even if this would have meant increased risks
for NATO soldiers.48 However, what should be the limits of this “price to pay”?
According to Walzer,
the willingness to accept additional risk should be limited by considerations of military effectiveness.
It would be “illogical to take additional
risks when this would doom the mission to failure”; this is when the “price to pay” stops.49 But, in such situations, should the mission then continue or be aborted? A lot will depend on military necessity. One solution would be to abort the mission or to try to find
an alternative; however, military operations will often continue despite
collateral damage when military objectives are deemed
high priority.
Morally
relevant to this discussion could
be whether civilians
are intentionally used as human shields. Has action been taken to remove the innocent civilians from the neighbourhood of the
military targets? In Vemork, Norway, during
the Second World War, the heavy water plant had to be destroyed al- though it was surrounded by innocent
civilians who were not evacuated.50 Hamas, a Palestinian Islamic organisation, used
civilians as human shields in 2014
while firing rockets into Israel.51 If the civilians are used
on purpose as a human shield in this
case, Hamas carries the moral responsibility for these killings. In the case of being forced
by its leaders, the innocent
civilians cannot be blamed.
Another option could be that the civilians
have chosen to be there.
In the case of the free choice, the civilians
are morally responsible as well, and this
would tend to plead in favour of authorising more collateral damage, unless they do not know that they are
being used as human shields. However, women and children would probably never
consent to become human shields.
The risk to suppose that human shields will not be attacked is too high
for that. There is also the danger that we do not know the real intentions
of the
50
This destruction was vitally
important to stop the production of heavy water, so as to delay the development of an atomic
bomb by German
scientists.Walzer, Just and Unjust Wars (n 29) 156.
51
Matthew Blake “Hamas admits it did use schools and hospitals in Gaza
Strip as ‘hu- man shields’ to launch rocket
attacks on Israel
– but claims it was ‘mistake’” Mail Online
(12 September 2014) <http://www.dailymail.co.uk/news/article-2753176/Hamas-DID-use
innocent civilians. This could lead to
slippery slopes. An enemy surrounding himself
with innocent civilians is not an action without moral consequences, otherwise they can surround all military
targets with innocent civilians un- punished.
Then it could be asked why personal risks still should
be taken. How- ever,
the notion of voluntary human shields is rather unrealistic and forced human shields should
not be punished for the immoral actions
taken by their
leaders. Consequently, the moral
consequences can never be transferred to the
innocent civilians.
Another morally relevant issue concerns
whose civilians – the enemy’s or yours – will become the subject of the military
actions. Suppose that an aggressor invades your country. You fight back and the
opponent uses your own civilians as a human shield. Suppose
that you push the enemy back to his country
and he uses his own civilians as a human shield. You will try to protect
your own people as much as possible,
but should the same personal
risks be taken
to protect the enemy’s women and
children, whom they have deliberately used as human shields? Human shields should always be
protected, to the extent possible, even with personal
risks, if necessary. Walzer states: “But the structure of rights stands independently
of political allegiance; it establishes obligations that are owed, so to speak, to humanity itself
and to particular human beings
and not merely
to one’s fellow
citizens.”52
A last relevant moral issue concerns unintentional benefits due to unintended
foreseen military action that can occur during a military action. The problem lies not with these unintended foreseen
benefits themselves. “To rule out unintended harms that bring unintended side benefits
would severely limit the scope of
counterinsurgency warfare and conventional aerial bombardment.”53 However, as soon as military operations take place because of these expected
intended advantages, this becomes morally
problematic.
The Third Condition of the Doctrine of Double Effect
according to Walzer, in Greater Detail
Epistemological Problems
Conditions one, two and four of the doctrine
according to Walzer are verifiable: It
concerns facts, even if it is not always easy in war to discover the truth. You can investigate whether
the act and its consequences are legitimate, and whether
the amount of collateral damage is proportionate to the purpose – although
comparing between military
advantages and collateral damage is,
again,
very difficult. It is possible,
in theory, to verify the amount of collateral damage,
although problems occur,
like parties hiding
or destroying evidence,
or even cultural customs, such as burying the bodies very quickly after
their death.
In contrast, what is more difficult to
determine is whether “his aim is to achieve the acceptable effect, while not employing
any evil effects as means to this end”, or in other words, to discover whether
the killing of innocent civilians was intentional, or rather, unintended but foreseen. Intentions are more difficult to ascertain in war than, say, during
a case of self-defence in a peace-
time situation. In a peacetime context, the perpetrator of violence will
normally be interrogated and arrested if necessary, and he will be forced to
tell the truth, which is why he will
mostly not so readily represent an intentional
action as an unintended
foreseeable act. In war, the different parties do not appear automatically before
a court, so they do not automatically have to justify
controversial actions.
Besides, it is often more difficult to
determine whether an action was really militarily necessary, due to multiple
complex factors, in contrast to the more
clear personal motivation of self-defence. Nowadays, more and more conflicts are fought out in cities amongst
civilians, where the right intentions are even more difficult to appreciate, and there is therefore more occasions to manipulate
the truth. The question is whether we should still base ourselves on the unverifiable intentions of an
agent when weighing the justness of collateral
damage, because it does not necessarily concern
self-defensive action, but an action taken out of a more
complex military necessity. Gross remarks that
it is not about “the agent’s subjective intentions or motives but about his plans and the means he uses to achieve
them”54 However, plans can also be
manipulated. Your plan could include the destruction of a military factory in a crowded neighbourhood but your real
intention could be to hit the innocent
civilians to lower morale. Gross answers that you could investigate the
importance of the military objective and weigh this against the utility of the
collateral damage and make suppositions based on these facts. When collateral damage was not necessary to
destroy the military objective, this is a
suspect situation. The killing of innocent civilians would then be deemed intentional.
A last epistemological problem is
whether the agent is aware of the complete
situation, which is complex. Does he know or should he have known that collateral damage
would be caused
if carrying out the attack?
Different Visions
on the Third Condition of the Doctrine of Double Effect
When
the doctrine of double effect
is discussed in the literature, the paradigmatic
cases given to distinguish between intentional acts and unintentional but
foreseen acts are those of the strategic bomber and the terrorist bomber.55 They
eventually both kill innocent civilians, but the terrorist bomber, who
intentionally kills them, is morally
condemned in the framework of the doctrine of
double effect, while the strategic bomber, who unintentionally but foresee- ably kills innocent civilians, is morally spared.
This point of view is not without
its critics. According to the consequentialists, the result of both
actions is the same: whatever the intention may be, innocent
civilians die. The difference between intentional and unintentional but foreseen consequences is often very blurry:
some say it is the same thing: the strategic bomber kills unintentionally but
foreseeably, but if you know with enough certainty that your action may cause collateral damage, then some will state that your unintentional but foreseen action is also intentional. You also “use”
civilians intentionally, or the actions are at least morally
equal. Or, is it right to say that strategic bombers, who are said to be unintentional in causing
collateral damage, are acting justly, while terrorist bombings, which are considered to
intentionally kill innocent civilians, are unjust acts?
To answer this question, we will rely on
the reasoning of Quinn and Mc- Mahan.
In the first instance, Quinn asks whether a moral distinction should be made based
on the character of the connection between
what is intended
and the resulting, foreseen harm:
“If the connection is close
enough, then the doctrine
should treat the harm as if it were strictly intended.”56 Quinn gives the example of the strategic bomber bombing an
automotive factory: he would not target civilians, but the fact is that the factory
is built in a crowded
neighbourhood. He states: “So
the kind of thing the bomber strictly intends immediately and invariably
results in some innocent deaths.”57 However, according to Quinn, the strategic bomber and the terrorist bomber
would be morally condemned and that is not what our moral intuition tells us.
Other moral differences should thus be found.58
55 Warren S. Quinn, “Actions,
intentions, and consequences” (1989) 18(4) Philosophy and Public Affairs 336.Jeff McMahan, “Revising the doctrine of double effect” (1994) 11(2) Journal of Applied
Philosophy 201.
58 Quinn (n 55) 338.
Nor does it matter that only the terrorist bomber wishes for the civilians to die, because for the
terrorist bomber, they need not die, because appearing to be dead is enough
to intimidate his opponent; yet, after the conflict the civilians
may be seen to be alive once again. In contrast, the relevant moral difference
is that the terror bomber needs the civilians to serve his goal. “What matters is that the effect serves the
agent’s end precisely because it is an effect
on civilians.”59 Quinn calls this “direct agency in the production of harm”.60 In case of
the strategic bomber, the civilian’s involvement does not serve his goals. “Perhaps the strategic bomber
cannot honestly say that his effect will be unintentional in any standard
sense, or that he does not mean to kill them because the relation between what he intends and the resulting
foreseen harm is very close, but he does not use them
to attain his purpose”.61 Quinn calls this “indirect agency in the production of harm”.62
Quinn
makes another distinction in “direct agency”.
When the agent “benefits
from the presence of the victims”, then exploiting them, as the terrorist bomber does, is deemed to be a form of
direct opportunistic agency. When the
agent “aims to remove an obstacle or difficulty that the victim presents”, this
is called direct eliminative agency.63 An enemy using human
shields is one example. Direct opportunistic agency is morally
worse than direct
eliminative agency, but the latter is also unethical because:
“Someone who gets in your way presents
a strategic problem, a causal obstacle whose removal will be a service to
your goals.”64
Finally, according to Quinn, a moral
operator should be introduced: moral rights.
Direct agency is only to be morally condemned if independent moral rights
are violated.65 For example, “non-combatants (even those on the
wrong side) are not morally obligated
to serve the right side by accepting
the role of demoralizing
civilian casualties,” so their moral rights are violated. “The victims are made to play a role in the service
of the agent’s goal that is not morally required
of them.”66
The difficulty when including
moral operators while
judging an action is to find a
consensus about what exactly is a rights violation, and what is not.
66 Quinn (n 55) 349.
A second person that has tried to develop
the doctrine of double effect
is Jeff McMahan.
This is his description about what an unjust action
in the framework of the doctrine of
double effect should be: “An act is an instance of potentially harmful
direct agency if it is intended to affect or involve a per- son P in the agent’s
plans and if one of the following
is among the effects that the
act is strictly intended to have: [i] an effect on P that is itself bad for P
or constitutes a harm, [ii] an effect
on P that, while not itself a harm given the
description under which it is strictly intended, is nevertheless such
that the agent believes that there is
an alternative description of it under which it is bad for or constitutes a
harm to P, or [iii] an effect on P that, while not itself a harm
given the description under which it is strictly intended, is nevertheless believed by the agent to be harmful to P
because it is believed to be causally sufficient, in the circumstances, either for a significant harm to P or for a high probability of such
a harm.”67
When applied to the self-defence case,
any harm done toward the unjust threat
is a “potentially harmful direct agency”. Indeed, it satisfies condition i: it concerns an effect on the attacker
that is negative
for the attacker.
The application of criterion iii would also condemn
self-defence: the effect created by the
defender on the attacker is meant to involve the attacker, and although the harm
itself is not intended, it is believed to be causally sufficient for a significant harm to the attacker. Criterion ii is also
fulfilled, as there exists an alternative description to “save myself” under
which it is bad for or constitutes a harm to P, like saying
that “the defender
attacks the attacker”.
McMahan
thinks that the causal connection between one’s action and the resulting
foreseen harm to the victim is morally relevant to the question of whether or not to condemn a moral action.
However, McMahan adds other moral relevancies. McMahan states that the
difference between the two bombers should lie in the fact that in case that there
is a close relation between
the agent’s action and the foreseen resulting
harm, the strategic
bomber has no plans to harm the innocent civilians
in opposition to the terrorist bomber. A difference has to be made between
“intending to involve
a person” and “in- tending
to do something that involves a person”. This is similar to Quinn’s condition of using or involving a person to serve the agent’s goals.
Uniacke in this
context proposes a “test of failure”
to test intentionality: would the mission fail
if the harmful effects were
avoided?68 If the answer is yes, then the harm is unintentional but foreseen.
68 Gross (n 39) 562.
McMahan
counters the critics
that his three criteria morally
condemn self-defence, which
is counterintuitive, by adding moral operators like Quinn did when introducing moral rights, called “nullifiers”.
These are supplementary conditions to
morally judge an action or not. Harmful direct agency is impermissible unless
nullified by various moral considerations or moral operators such as moral guilt, moral duty, and the
consent of the person who is being harmed.69
In the case of self-defence, the moral guilt of the attacker does indeed nullify
the wrongness of the harmful
direct agent that is the defender in this case. In the case of the strategic bomber and
the terrorist bomber however, there
are no nullifiers, and so it satisfies the criterion of harmful direct agency: “the persons
who are harmed
have no duty to serve as victims,
have not consented to be victims, and are not
liable to be treated as victims by virtue of
being guilty or dangerous.”70 This risks morally condemning both cases. However, McMahan sees the
difference with “in the agent’s plans”. In the rest of the article, we assume that the civilians have
moral rights not to be killed and that they are innocent.
The Third
Condition of the Doctrine of Double Effect
and
the Use of Armed Drones
Because we see no relevant moral
difference between the two concerning causing
collateral damage, the use of armed drones can be compared to the strategic bomber case, but with a more systematic character. When collateral damage
is caused with a high probability, and systematically, then there is definitely a close relation between
the agent’s actions
and the resulting
foreseen harm. However, that
criterion alone is not enough to morally condemn the action.
The first question
to be answered is whether
the caused collateral damage is part of the agent’s plans. We may assume that the
users of armed drones do not kill innocent
civilians intentionally, although
it is strange that, according to some governments, every male person between 15 and
66 years old in the proximity of a terrorist is also considered a terrorist.
However, means and methods are also
part of the plans and they should also be judged. If these armed drones systematically cause collateral damage, then it becomes a weapon mala in se. When a police officer has to kill
someone in a mass of people during peace- time,
then his weapon has to be precise enough to eliminate the threat. He could try to get closer to the target, or use rubber bullets. When the criminal
70
David R. Mapel, “Revising the doctrine of double effect” (2001) 18(3) Journal of Applied
Philosophy 268.
protects himself with five people around
him, then the police officer cannot shoot, unless the suspect starts killing bystanders
or starts threatening increasing
numbers of people. A car driver who knows that his breaks are broken, and then unintentionally kills a person,
is negligent and will also be punished by
criminal law. His systematic, recidivist behaviour will be punished more severely. These are two examples of lack
of precaution because of improper means or methods. This also counts for armed drones
that are made improper weapons or
weapons mala in se by the enemy
because the terrorists often surround
themselves with innocent
civilians.
The second question
to be answered is whether
moral rights are violated or if nullifiers are present. In the cases of the strategic and the terrorist
bomber, we have just concluded that indeed moral rights are
violated and that no nullifiers are present. There are no morally relevant
differences between these cases and drone strikes
in relation to the innocent
civilians. Consequently, based
on this criterion, the drone strikes
would be also morally condemned.
The third question concerns the second
part of the third condition of Walzer’s
doctrine of double effect: you “should try to minimize the evil and accept whatever the personal costs of doing so may be”. Is this condition satisfied in the
case of the use of armed drones? In war, armed drones can be used to assist ground troops,
so the physical risks taken
are not always necessarily zero.
If the risk of
collateral damage is too high, alternatives can be investigated; for example ground
troops can be used to carry out the operation. In the fourth part of this article,
it will become
clear that this is problematic in the grey zone between war and peace.
It must be remarked that minimizing risks
does not necessarily imply
taking one’s own risks: you could try to negotiate with the enemy, or try to warn the civilians by spreading flyers
from an airplane so that they have the chance to leave the
neighbourhood of the military target. However, even supposing that the civilians
are forewarned, they could still
be forced to stay.
Must all military operations causing any
collateral damage that does not satisfy
these conditions really be morally forbidden? Some parties surely use human shields as protection in a systematic way, it is like they are wearing a
protective vest. These enemies do this because they know that the armed drones are not capable of targeting just
one person in a group of people, because of
the enormous impact of the drones’ missile.
And, if the armed drone is
the only weapon available in the region, then there are no alternative
interventions. The enemy then forces his opponent to effectively commit war crimes or to not react. As a consequence,
the enemy can do what he wants when
violating the discrimination principle, by surrounding himself with civilians.
However, the availability of other appropriate means or methods
does not put us in this
morally problematic situation. The enemy always used human shields, for example during sieges, or
they use factories in a populous neighbourhood for military purposes. Human
shields remind us of Quinn’s direct eliminative and direct opportunistic agency. Human shields
are rather the object of direct eliminative agencies: they are an obstacle, and the agent has no purpose to exploit them. However, Quinn condemned
both agencies, because even the
removal of the obstacles will also “be a service to your goals”. Because of the physical proximity
of ground troops,
alternatives are present.
And even if
there is no better alternative to apply, the fact that alternatives exist
already makes a moral difference.
Other Opinions on Collateral
Damage
Revisionists of the just war theory disagree with
the moral equality of combat- ants, arguing that unjust combatants should get
fewer rights than just combatants once a war has started. What counts to them
is the fact that to lose the right not to be attacked
involves moral responsibility, regardless if you are a soldier or a civilian.71 However, McMahan provides
nuances: in most cases, civilians will not be so responsible
that they should be attacked. Often, less drastic measures
are enough, like economic sanctions.72
Some of these revisionists state that
just combatants should have more rights
than is currently the case, like the right to kill non-combatants
intentionally. “On this view, a combatant fighting
a war of exceptional justness and importance might possess exceptional permissions to inflict
high levels of collateral harm on non-combatants”.73 Compared to peacetime,
just combatants are similar to the
police, in the sense that they have many rights, and the unjust combatants
and terrorists are similar to the criminal, in the sense that they have fewer rights. After all, the police
officer fights for a just cause, namely to guarantee the security of society, while
the criminal tries
to destabilise the public
order. However, a bank robber does not rob a bank according to any honour
code, but he does not lose all his rights either. The guard cannot shoot the
bank robber just like that. The most important difference however is the causing of collateral damage.
As seen in the previous
section, the police officer
73
David Rodin, “Liability of Ordinary Soldiers
for Crimes of Aggression” (2007) 6 The
Washington University Global Studies
Law Review 591.
cannot cause collateral damage, even if
his cause is obviously just, except in exceptional circumstances. In our view,
it is a bridge too far to allow the intentional
killing of innocent civilians in non-exceptional circumstances, however unjust the opponent is. If you kill them
intentionally, then you are no better than a terrorist. When confronted with terrorism,
the proportionality principle applies:
because your central rights are in danger, including the right to life, you can react harder, but this must not conflict
with the discrimination principle.
The Grey Zone between War Peace and Peace and Collateral
Damage
Characteristics of the Violence Used in the Grey Zone between War and Peace
Walzer
states: “However, in the places
in between, such as in states that lose control of parts of their country or are
wracked by civil war in which terrorists can set up camp, the situation has a
different ‘feel’ because … it happens outside the moral and legal conventions of ordinary
warfare”.74 Terrorists take advantage
of situations where states are unable or unwilling to stop them. As a reaction, armed drones are used, often by
other states, like the United States. It is not possible
to speak of peacetime, because
of the amount of violence,
but no conventional war is
going on at present either. At first sight, there seems to be a new “context”
that we shall call the grey zone between war and peace. However, this grey zone has characteristics of both peace and war contexts, so it is a hybrid context.
Different from classic warfare
but similar to law enforcement is the locality
of the use of violence, because
of the targeted character of armed drones. The
purpose of the drone strikes is
not to conquer a country, but to diminish or
eliminate a terrorist
threat with precise
actions against one person or a small
group. The use of violence is often less frequent than during war; one
drone strike takes place and then it can be quiet again for a considerable time.
To overpower or to exhaust
the enemy by means of successive actions,
like in war, is not
the actual objective. Because of this controlled, local and less frequent use of violence,
the danger of unpredictable consequences like those seen in war seems more limited.75 The drone-using state is
capable of doing this for a time: the
drone-attacks are relatively cheap and lives from your own side are not lost. It seems to have become an endless or eternal conflict
between a clearly
just and a clearly unjust
party, namely those who fight terrorism, and the terrorists themselves. Many of these characteristics remind
us of law enforcement.
75
Michael Walzer, “Regime change and just war” (2006) (53)3 Dissent 106.
Indeed, there too, the used violence is
intentional but controlled – it is local and
less frequent, and is mostly focussed on one specific person (or a group of identified persons, or a behaviour) in order to neutralise their threat. There
too, it is clear who is the just party, and who is the unjust
party, in this end- less situation
of law enforcement, namely the law enforcer
and the suspect
or criminal.
However, the intensity of the violence
is extremely heavy, with the use of missiles
carrying an enormous payload, often with many injured, dead, and indeed collateral damage. This reminds us
of warfare, and the local population
often perceives it as such.76 Conventional police forces
do not seem to be equipped to deal with this level of threat. The
violence used is cross-border, which
implies a violation of the sovereignty of the countries who are unable or unwilling to help stop the terrorists.
Because it is through rather invisible drones instead
of airplanes crossing
the borders, this border-crossing is often tolerated
by other countries. The opponent is an unjust threat, but it is a different one
than that seen during ordinary law enforcement action: it is more than “just” a criminal, it involves terrorists.77 Many definitions of terrorism exist. It is important to us that they do it for a public purpose, and the
method used is to kill as many innocent civilians
as possible, in order to create fear.78
Principles Related
to Collateral Damage
in the Grey Zone between War and Peace
The question arises now which principles
should be applied when drone at- tacks
take place, if they can be used after all in this non-war context. Should peacetime or wartime principles be
applied, or something between the two? One approach
could be to apply the same principles in this grey zone as would be applied during
peacetime. However, this would ignore
the character of the threat, which
is now of a terrorist
nature. Because the threat of terrorism focuses
on innocent civilians, we could say that this threat is more serious
than during war,
where soldiers are normally only targeting other soldiers, and not civilians. In that sense, the necessity to stop the
threat is on average more important here than it is during war.79 The allowed amount of collateral damage needs to be
76
Christian Enemark, “Armed drones
and the ethics of war: military virtue
in a post-heroic age” (2013) Routledge, 75.
77
It should be noted that terrorism
is not inherent to the grey zone, it is also possible during peace and wartime.
79
The question is what is considered
a necessity. In war, generally, necessity is what con- tributes to military victory. During peacetime, necessity will
be considered in a more context-dependent way, case by case. On the other hand, during wartime,
necessity needs
evaluated against this necessity, like during peacetime
in exceptional circum-
stances. If the amount
of force a government is allowed to use in the grey zone is too
restricted, terrorist groups may decide to maintain a sufficiently low level of violence in order to prevent the use of heavy
weapons like armed drones from being
used against them because no war is going on but enough violence is used to easily defend against
the weapons and methods accompanied with law enforcement.
Adapted principles seem necessary here, otherwise terrorists would also
systematically use human shields, and then no reaction would be authorized because during peacetime, causing collateral
damage is not allowed, even when not unintentional and unforeseen. However, in
this grey zone, causing collateral damage should also be accompanied by the same conditions as during wartime. The improper weapons and means are,
just like in war, part of the agent’s plans, even if he does not want to cause systematic collateral damage. Besides,
unlike during a more conventional war, where drones assist ground troops who are exposed to a certain physical
risk, armed drones
are used here
without any other physical
presence in the region. When alternatives are not an option at all, when personal risks cannot be taken to minimise collateral damage, then this becomes morally problematic. We can conclude
that the third condition of the doctrine
of double effect
according to Walzer
is not satisfied. One
reaction could be that this extreme situation of a clearly just and unjust party warrants the just party to act without risk exposure, similar
to the police officer who
normally should not be exposed to risks. We would respond that first of all, the main problem here is
that there is no possibility at all to minimise collateral damage, taking
personal risks is only necessary if there are no other alternatives. If there must be the possibility to cause collateral damage, so then a price must be paid. If the armed drone is the only option, because
it is the only weapon
in the region at that moment, it cannot be concluded that
the discrimination principle
should be mitigated, because then you are adapting moral reasoning to a technology. Users of armed drones in these grey
zones have two options: making the
armed drones a just weapon, meaning that they
respect amongst other things the
conditions of the doctrine of double effect while causing collateral damage, or forbidding their use entirely.
Drone Strikes in the Grey Zone: Alternatives to Minimise Collateral Damage
Can unintentional foreseen collateral damage be minimised
when using armed
drones? If intelligence services were present
on the ground, the amount of
sometimes also to be considered case by case: for example,
when soldiers are attacking civilians.
potential collateral damage could be, on average,
reduced. Walzer is clear about this: “Collecting information about the targeted
individuals, their schedules, their whereabouts, their families and their neighbours, is critically important, and if
it
involves risk for agents in the fields,
the risks must be accepted
before the killing
can be justified”.80 Again, taking personal
risks is not always necessary
but will very often be the consequence. For example, gathering HUMINT will involve
personal risks: sending
infiltrators, spies or installing bugs all imply
physical risk exposure. However,
is it reasonable to put boots on the ground in
remote tribal areas in Pakistan? If the price is too high, it might be
better to not carry out these drone strikes and focus on
alternatives or to authorize drone strikes only when it is certain
that no innocent
bystanders are present.
It also might be possible
to try to limit causes
with a less high cost in physical
risk, for example solving
the communication problems
or a better management of the overload
on information. In practice, the higher the physical cost of some- thing, the more it is difficult to change it.
So what other alternatives are possible? Non-lethal
alternatives would be a solution;
here, fewer people would be killed and collateral damage could be partly avoided. In the future,
mini-drones much like a robot insect could sting
the target with poison. Robot insects could sit somewhere close to an enemy and collect
information about their
intentions. It does not seem unrealistic to suppose that,
eventually, drones will be capable
of capturing alleged
terrorists – perhaps through the use of mechanical arms – and
transporting them to places where they can be arrested and
guaranteed a fair trial. However, these technologies are still under development. The
alternative of spreading flyers to warn the innocent civilians is not
realistic: first, a drone cannot spread flyers and two, it is a drone’s purpose to stay quiet and surprise the enemy.
Today, we could ask whether
enough communication has taken place with states that harbour terrorists. Do these
governments willingly permit safe havens
to exist or is it something out of their control? Do these governments willingly permit drone strikes or are they viewed as a violation of national sovereignty?
In any case, cooperation with these governments would be ideal, since then
national police or armed forces could be used to intervene as opposed
to sending drones.
Moreover, to what extent can a political
solution be found to respond to the threat
80
Michael Walzer, “Targeted Killing and Drone Warfare” 11 Dissent Magazine (New
York, Jan- uary 2013) <https://www.dissentmagazine.org/online_articles/targeted-killing-and-drone
of terrorism itself? This may be
the only way of reaching
a stable and peaceful outcome.81 In any case, the collateral damage associated with
drone strikes leads to the recruitment of future terrorists. It leads to a vicious circle. When people see
their family and friends die around them, this creates resentment.
Conclusions
The use of armed drones is not in itself necessarily
problematic. In theory, drones have
the capacity to neutralize their targets very precisely. However, recent drone strikes taking place in the
so-called grey zone between war and peace, as is witnessed in countries like Pakistan
and Yemen, have caused a great deal
of collateral damage. Terrorists make the armed drones out to be mala in se
weapons, i.e. weapons that
systematically cause collateral damage, because they surround
themselves with human shields just as though they were wearing
protective vests. The enemy knows that their enemy has no alternatives present, other than killing with that
drone, and they then take advantage of that situation.
The question is whether this reactive,
systematically caused, collateral dam- age
can be morally justified. Although some philosophers morally allow the intentional killing of innocent civilians as a function
of the justness of the cause for which they went to war, we think that collateral damage
must be reduced
as much as possible. The doctrine of double effect states that is it
possible to cause unintentional but foreseen collateral damage. This damage
must not be in the agent’s
plans. When the connection between
your action and the foreseen resulting harm is clear, consequently, because of the systemic
character of the collateral damage, the inappropriate weapons and methods
used become part
of the agent’s plans. In war, ground troops can normally be considered an alternative
to eliminate the threat, and they might intervene physically and will expend maximal effort to protect civilians
while taking risks themselves if needed to minimise collateral damage,
but in this grey zone between war and peace, where drones are the only means available
in the region, where the intelligence gathered is often incomplete and unreliable, you cannot take any alternative
to minimise the collateral damage. If the drones’ users are not capable of
stopping the violations of the conditions of the doctrine of double effect, they must find alternatives instead of drone strikes to stop the terrorist threat.