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.
1 “Obama's Nobel Remarks,” New York Times, December 10, 2009; www.nytimes.com/2009/12/11/world/europe/11prexy.text.html.
2 While the military employs a wide range of unmanned aerial vehicles, this paper will focus exclusively on Unmanned Combat Aerial Vehicles, which we refer to as drones. Drones are different from robots, which denote completely autonomous machines, whereas “unmanned” systems are remotely controlled by human operators either prior to and/or during their flight. There are currently three kinds of drones: fully autonomous (preprogrammed before flight), semiautonomous (requiring ground input during critical portions of flight, including weapons employment), and fully ground-controlled.
3 Singer, “P. W., Wired for War: The Robotics Revolution and Conflict in the 21st Century (New York: Penguin Press, 2009), p. 194.
4 Lazarski, Anthony, “Legal Implications of the Uninhabited Combat Aerial Vehicle,” Air & Space Power Journal (March 27, 2001).
5 For example, see the North Dakota Law Review special issue in 2009 on “Complying and Flying: Legal and Technical Issues Relating to the Operation of Unmanned Aerial Systems”: North Dakota Law Review 85, no. 3 (2009).
6 Kenneth Anderson, U.S. Congress, House of Representatives, Committee on Oversight and Government Reform, “Rise of the Drones: Unmanned Systems and the Future of War,” Hearing before the Subcommittee on National Security and Foreign Affairs, 111th Cong., 1st sess., March 23, 2010.
7 O'Driscoll, Cian, “Learning the Language of Just War Theory: The Value of Engagement,” Journal of Military Ethics 6, no. 2 (2007), pp. 107–16, at 113.
8 See, e.g., Kolff, Diederik W., “Missile Strike Carried Out With Yemini Cooperation—Using UCAVs to Kill Alleged Terrorists: A Professional Approach to the Normative Bases of Military Ethics,” Journal of Military Ethics 2, no. 3 (2003), pp. 240–44; Arkin, Ronald C., “The Case for Ethical Autonomy in Unmanned Systems,” Journal of Military Ethics 9, no. 4 (2010), pp. 332–41; and Strawser, Bradley Jay, “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles,” Journal of Military Ethics 9, no. 4 (2010), pp. 342–68; for an exception, see Sharkey, Noel, “Saying No! to Lethal Autonomous Targeting,” Journal of Military Ethics 9, no. 4 (2010), pp. 369–83. The author, however, does not address the ethical challenges drones pose to just war principles.
9 Drew, Christopher, “Drones Are the U.S. Weapons of Choice in Fighting Qaeda,” New York Times, March 17, 2009; www.nytimes.com/2009/03/17/business/17uav.html.
10 Kolff, “Missile Strike,” p. 240.
11 Drew, “Drones Are the U.S. Weapons of Choice.”
12 New American Foundation, “The Year of the Drone”; counterterrorism.newamerica.net/drones; accessed March 29, 2011. Information about drone attacks in Pakistan is often contradictory and widely divergent. The New America Foundation research “draws only on accounts from reliable media organizations with deep reporting capabilities in Pakistan, including the New York Times, Washington Post, and Wall Street Journal, accounts by major news services and networks—the Associated Press, Reuters, Agence France-Presse, CNN, and the BBC—and reports in the leading English-language newspapers in Pakistan—the Daily Times, Dawn, the Express Tribune, and the News—as well as those from Geo TV, the largest independent Pakistani television network”.
13 Major General Timothy McHale, U.S. Army, “Memorandum for Commander, U.S. Forces-Afghanistan, Subject: Executive Summary for AR 15-6 Investigation, 21 February 2010 CIVAS incident in Uruzgan Province,” U.S. Forces Report, May 29, 2010.
14 Shane, Scott and Schmitt, Eric, “CIA Deaths Prompt Surge in U.S. Drone Strikes,” New York Times, January 22, 2010; www.nytimes.com/2010/01/23/world/asia/23drone.html.
15 Anderson, “Rise of the Drones.”
16 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th ed. (New York: Basic Books, 2006), p. xiii.
17 For a summary of recent arguments in the tradition, see Rigstad, Mark, “Jus ad Bellum After 9/11: A State of the Art Report,” ITP Beacon 3 (2007), pp. 1–30, at 3–4.
18 Crawford, Neta, “Just War Theory and the U.S. Counterterror War,” Perspectives on Politics 1, no. 1 (2003), pp. 5–25; Bellamy, Alex J., “Is the War on Terror Just?” International Relations 19, no. 3 (2005), pp. 275–96; Daniel R. Brunstetter and Dana Zartner, “Just War against Barbarians: Revisiting the Valladolid Debates between Sepúlveda and Las Casas,” Political Studies, no. doi: 10.1111/j.1467-9248.2010.00857.x; and Nardin, Terry, “Humanitarian Imperialism: Response to ‘Ending Tyranny in Iraq,’” Ethics & International Affairs 19, no. 2 (Summer 2005).
19 O'Driscoll, Cian, The Renegotiation of the Just War Tradition and the Right to War in the Twenty-First Century (New York: Palgrave Macmillan, 2008), p. 163.
20 Bellamy, “Is the War on Terror Just?” p. 286.
21 Mayer, Jane, “The Predator War: What Are the Risks of the C.I.A.'s Covert Drone Program?” New Yorker, October 26, 2009; www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer.
22 Walzer, Just and Unjust War, pp. xv–xvi.
23 Anderson, “Rise of the Drones.”
24 Walzer, Michael, Arguing About War (New Haven, Conn.: Yale University Press, 2004), pp. 155, 88.
25 Totten, Mark, First Strike (New Haven, Conn.: Yale University Press, 2010), pp. 186, 172, 183.
26 Walzer, Arguing About War, p. 88.
27 Jenks, Chris, “Law From Above: Unmanned Aerial Systems, Use of Force, and the Law of Armed Conflict,” North Dakota Law Review 85, no. 3 (2009), pp. 649–71, at 671; compare pp. 656–62.
28 Mary O'Connell, U.S. Congress, House of Representatives, Committee on Oversight and Government Reform, “Rise of the Drones II: Examining the Legality of Unmanned Targeting,” Hearing before the Subcommittee on National Security and Foreign Affairs, 111th Cong., 2nd sess., April 28, 2010.
29 Walzer, Michael, “On Fighting Terrorism Justly,” International Relations 21, no. 4 (2007), pp. 480–84, at 480.
30 Ibid., p. 484.
31 Ibid., p. 482.
32 CNN Wire Staff, “Pakistanis Protest U.S. Drone Action,” April 24, 2011; www.cnn.com/2011/WORLD/asiapcf/04/24/pakistan.drone.protest/index.html?iref=allsearch; accessed April 26, 2011.
33 “Effective Counterinsurgency: The Future of the U.S. Pakistan Military Partnership,” Hearing of the House Armed Services Committee, April 23, 2009.
34 Ackerman, Spencer, “Under McChrystal Drone Strikes in Afghanistan Quietly Rise as Civilian Casualties Drop,” Washington Independent, January 14, 2010; washingtonindependent.com/73915/under-mcchrystal-drone-strikes-in-afghanistan-quietly-rise-as-civilian-casualties-drop.
35 New America Foundation; counterterrorism.newamerica.net/drones; accessed March 30, 2011.
36 Saban Center for Middle East Policy, “Iraq Index: Tracking Variables of Reconstruction & Security in Post-Saddam Iraq,” Brookings Institute, December 30, 2010; www.brookings.edu/iraqindex.
37 Singer, Wired for War, p. 349.
38 Drew, “Drones Are the U.S. Weapons of Choice.”
39 Associated Press, “Predator Pilots Suffer War Stress,” August 8, 2008; www.military.com/news/article/predator-pilots-suffering-war-stress.html?col=1186032310810&wh=news.
40 Walzer, Just and Unjust Wars, p. 156.
41 Walzer, Michael, “Kosovo,” Dissent (Summer 1999), pp. 5–7.
42 Bellamy, “Is the War on Terror Just?” p. 289. For more information on the question of the degree of risk soldiers should be required to undertake in order to protect civilians, particularly in the context of drones, see Strawser's arguments in “Moral Predators,” pp. 343–46.
43 This logic may not always be the case; for instance, during the hunt to kill Baitullah Mehsud, a Taliban leader in Pakistan, it allegedly took sixteen missile strikes over a fourteen-month period during 2008–09 that killed between 207 and 321 additional people; see Mayer, “The Predator War.”
44 Bellamy, “Is the War on Terror Just?” p. 289.
45 Adam R. Pearlman, “Legality of Lethality: Paradigm and Targeted Killings in Counterterrorism Operations,” Social Science Research Network, March 23, 2010; ssrn.com/abstract=1583985.
46 Gross, Michael, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (Cambridge: Cambridge University Press, 2010).
47 “UN Rights Expert Voices Concern over Use of Unmanned Drones by United States,” UN News Centre, October 28, 2009; www.un.org/apps/news/story.asp?NewsID=32764&Cr=alston&Cr1.
48 Risen, James and Johnston, David, “Threats and Responses: Hunt for Al Qaeda; Bush Has Widened Authority of C.I.A. to Kill Terrorists,” New York Times, December 15, 2002; www.nytimes.com/2002/12/15/world/threats-responses-hunt-for-al-qaeda-bush-has-widened-authority-cia-kill.html.
49 Zenko, Micah, Between Threats and War: U.S. Discrete Military Operations in the Post–Cold War World (Stanford: Stanford University Press, 2010), p. 159, n. 6.
50 McHale, “Memorandum.”
51 General Stanley McChrystal, U.S. Army, “Memorandum for Record, Subject: AR 15-6 Investigation, 21 February 2010 U.S. Air-to-Ground Engagement in the Vicinity of Sahidi Hassas, Uruzgan Province, Afghanistan,” U.S. Forces Report, May 29, 2010.
52 Sharkey, “Saying No!” p. 376.
53 Mary L. Dudziak, “To Whom Is a Drone Loyal?” Balkinization blog, September 27, 2009; balkin.blogspot.com/2009/09/to-whom-is-drone-loyal.html.
54 James Pattison, “Just War Theory and the Privatization of Military Force,” Ethics & International Affairs 22, no. 2 (Summer 2008), pp. 143–62, at 151–52.
55 Mayer, “The Predator War.”
56 Walzer, Just and Unjust Wars, p. 288.
57 Anderson, “Rise of the Drones.”
58 Lang, Anthony F. Jr., “The Politics of Punishing Terrorists,” Ethics & International Affairs 24, no. 1 (Spring 2010), pp. 3–10.
59 Singer, Wired for War, p. 172; and “Boeing Wins DARPA Vulture II Program,” September 16, 2010; boeing.mediaroom.com/index.php?s=43&item=1425.
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