Last week I was at University of Pennsylvania Law School for a panel on the Legal and Ethical Implications of Targeted Killings. The impetus for the panel is the forthcoming publication of a book that I co-edited with Claire Finkelstein and Andrew Altman called Targeted Killings: Law and Morality in an Asymmetrical World. The book is scheduled to be released by Oxford University Press at the beginning of March.
Several of the questions during the panel centered on issues of surrender and capture. Although technically the United States has a “capture or kill” program, the drones are often used for targeted killing operations. True, they are also used for surveillance, which might precede an operation to capture a suspected terrorist, but the drone strikes we are concerned about involve the deliberate killing of suspected terrorists.
One of the comments during the panel discussion was quite elegantly phrased: You can’t surrender to a drone. This is, in fact, a familiar point made in the media and the public discussion about targeted killings. Drones are operated by soldiers (or CIA employees) who sit in front of computer screens located miles away from the actual attack, and the soldiers never see the victims with their naked eyes. The drone operators scrutinize high-resolution video feeds captured by the cameras of the drones that will also launch a missile if the killing is approved. Should this bother us, either from an ethical (e.g. philosophical) standpoint or a legal one?
I do not believe that it should. The idea that a suspected terrorist cannot surrender to a drone suggests, somehow, that the appropriate course of action is to send in troops who could potentially accept the surrender of the targets and capture them rather than kill them. This argument deserves a little more scrutiny.
It is important to distinguish between the duty to accept surrender and the duty to afford the enemy the opportunity to surrender. These are two different normative requirements, under both the laws of war and the morality of warfare. Everyone agrees that a soldier cannot kill an enemy combatant who effectively communicates his desire to surrender to the opposing soldier. In fact, declaring that “no quarter will be given” (i.e. refusing to accept surrenders) is both a violation of international humanitarian law and a war crime generating individual criminal responsibility.
However, that’s entirely different from the duty to offer the enemy the opportunity to surrender. If either the law or morality of warfare required such an opportunity, then it is hard to see how any form of aerial bombardment (whether by drone, manned fighter jet, or bomber) could be lawful under the proposed standard. True, you can’t surrender to a drone, but you also can’t surrender to an F-16 or a stealth bomber or any other form of aircraft that fires weapons from a distance. That doesn’t necessarily suggest that the proposed norm is incorrect, but it does suggest that it is highly revisionary and would require wholesale revision to current practices of modern warfare. Although such a view would not necessarily be fatal to a moral requirement for warfare, I do believe it is fatal to a legal requirement that is necessarily based on customary international law (and requisite state practice).
Another individual at the event asked about the Doctrine of Double Effect and argued that it would be ethically wrong to use a predator drone to attack a truck with a terrorist and an innocent civilian in it. Under the Doctrine of Double Effect, one might argue that it is morally permissible to attack the truck because one’s purpose is to kill the terrorist and the death of the civilian is a mere side effect (though a knowing one). The questioner rejected this application of the DDE, however, because he said that the attack should be carried out by soldiers, thus making the killing of the civilian not truly necessarily.
I take it, however, that his objection was not really about the DDE. It was really more about the demands of the principle of distinction, i.e. distinguishing between combatants and civilians, and suggesting that this mandated one choice of weapon over the other.
Again, without fully answering the question on its own terms, let me simply note that the question isn’t really about drones, but more about air power. And under the view described by the questioner, I take it that any form of air power in lieu of ground combat would be per se immoral because it would produce collateral damage.
What unites both of these subjects is the relevant baseline for the discussion. Many of the asserted objections to targeted killings turn out not to be objections to drones per se but actually to the strategic use of air power generally.
As it happens, though, the recent technological advancements associated with air power (and smart bombs) make these weapons more discriminating than they have ever been in the past. A missile fired by a drone or F-16 today might ironically be more discriminating than an artillery shell fired a decade ago (or a missile fired today by a less technologically advanced country). Furthermore, within the category of air power, a drone operator has more real-time high resolution images of his target than a fighter pilot, who in many cases is dropping a bomb on a set of defined coordinates regardless of who happens to be in the building at that time.