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Tuesday, December 6, 2011

Surrendering to the Drones

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.


Kevin Jon Heller said...


Of course, the fact that the US has a "capture or kill" policy just foregrounds the incoherence of its approach to international law. On the one hand, the US insists that all of its drone strikes are subject to IHL, not IHRL, because the US is involved in a global NIAC with al-Qaeda and its affiliates. On the other hand, only IHRL requires capture instead of killing (if feasible); as you point out, IHL manifestly does not. That inconsistency has always baffled me.

Jens David Ohlin said...


Thanks for commenting so quickly! The US position may be right or wrong, though I don't see the incoherence you are referring to. Feel free to explain more. Is it the idea of a global NIAC that strikes you as incoherent? The other alternative is to consider it just an IAC, which then removes the contradiction, although I suppose you might retort that it removes it at the cost of soundness.

Basically, the underlying issue here is what body of law applies: IHRL, IHL, or both at the same time. That's a big issue that I need to tackle in another post (or article), and that I didn't address in this post. I find the idea that IHL and IHRL could apply at the same time to be a bit perplexing, though perhaps your view is that only IHRL applies.

Kevin Jon Heller said...


I have problem with almost all of the U.S. arguments, but here I'm referring to its elision of the difference between IHL and IHRL with regard to drone strikes. If IHL applies to all such strikes, as the U.S. insists, then the U.S. is under no obligation whatsoever to capture instead of kill. Why, then, does the U.S. continually insist that it kills only as a last resort, where capture is not possible? That is the standard for targeted killing in IHRL, which the U.S. believes is inapplicable to its drone program.

Jens David Ohlin said...


At least some of the US comments can be attributed, I think, to a mere asserted preference for capture, as opposed to an assertion of a bona fide legal obligation to capture. However, if we are to believe the reports in the NY Times, the OLC memo on the Awlaki TK suggested that killing him was only permissible if capturing was not feasible. But the question in that case was the source of the legal obligation. Was it IHRL or was it some U.S. constitutional overlay arising under the Bill of Rights? I would love to see the memo so as to answer that question, as I'm sure you would too.

Kevin Jon Heller said...

From your lips to God's ears...

Mihai Martoiu Ticu said...

So what if the relatives of the killed person doubt the U.S. legal argument? They might believe that the Human Rights Law is applying, not the Humanitarian Law. Or they might believe that their killed relative was not a terrorist. In what court could they challenge the U.S. argument? As we have seen in El-Masri that is not possible in U.S. courts. In Pakistan it is not possible because of the State immunity. And there is no international court for human rights, because in part U.S. rejected the idea. Thus U.S. is at the same time party to a conflict and has the last word on who is right in that conflict, meaning that it is judge in its own case. Why this fundamental flaw in all the arguments is not seen by the international jurists?

Jens David Ohlin said...

Thank you for this comment. It is a good point, though I take it that this problem is endemic to the law of armed conflict generally. By that I mean that the rules of armed conflict, even those that are uncontroversial and agreed to by all parties, are not usually legal norms that can be pursued in a court of law. So, for example, if state A launches an attack against an installation of state B and claims that those inside of it were members of the Army, but State A claims that the victims were all civilians, there is no court of law (except maybe the ICC) that can adjudicate this claim. It is precisely for this reason that the norms of IHL and LOAC need to be comparatively more public, transparent, and self-administering than their counterpart norms in domestic law.

Mihai Martoiu Ticu said...

The following thought experiment and see how ridiculous the U.S. position sounds from outside.
Imagine that a cataclysmic catastrophe destroys much of the Earth. Most of the continents sink beneath the waters and a new continent arises from the ocean. You and a group of people from all over the world survive the catastrophe and colonize the new continent.
For a while, there is no state, there are no laws, no judges and no courts. People divide the land into farms and try to rebuild their lives as best as they can. We could call this the state of nature.
In this state of nature, a conflict arises between you and your neighbor. You notice that the fence between your farms is frequently moved, to your disadvantage, making your territory smaller and your neighbor's larger. Mister S. Mart, hereinafter referred to as Smart, your neighbor, denies that he has anything to do with it, or, indeed, that it even happens. After a while, your stock starts dying out since there is not enough grass and hunger leads to the death of some of your children.
Then a new incident occurs. Mister Smart kills your twelve year old daughter and sells her organs; at least, this is what you are pretty firmly convinced is the case, especially since you have seen it yourself, together with several witnesses.
By chance, it was filmed from different angles. You also have similarly compelling evidence that he has sold her organs. You confront Smart with your argument, but he denies that he has committed a crime.
Confronted with your accusation, he replies using one or more of the following arguments:
1. "You are a little bit short-sighted, your cameras are flawed and all your witnesses are unreliable junkies who cannot discern the difference between a human and a cow."
2. "Yes, indeed, I took her life, and I feel the pain very deeply, I feel compassion and I am empathic with you, but I could not do otherwise". He then adds one of the following:
o "She attacked me with a weapon and I had to defend myself."
o "I have suffered terribly unfortunate brain damage and lose control of myself sometimes."
o "I didn't sell her organs, but used them for seminal scientific research and have discovered a cure for a sickness that will save the lives of billions of children in the future, children who would otherwise die before they were ten. It is the same sickness that your other two children have, and thus I could save them."
3. "The whole story is a mendacity intended only to destroy my magnificent self. You are just jealous of my freedom, my money, and my moral and intellectual superiority."
Given the situation, and as the reasonable person you are, you try to remain tranquil. You propose to Smart that you take the matter to a competent, neutral and detached, third party with as few interests at stake as is possible; namely, to a judge or some kind of a court. This new, first-enacted judge should look at the evidence and decide who is right and what should be done. Her decision should be binding on both of you. If the judge decides that the fence should be moved to the old location, Smart should abide without reservations. The same should happen if the judge finds him guilty of the killing; he should accept the punishment and/or the payment of compensation.
It goes without saying that you pledge to resign yourself to any decision unfavorable to you.
Smart reacts with indignation at the accusation leveled against him and at the waste of his valuable time and says that he is not going to let a judge make the final decision, since he is good and certain that his argument is more than solid.
In short, he demands the freedom to be the sole arbiter in respect of his guilt.
This is precisely what U.S. does, claims to be the sole judge of its actions. It's like mister Smart demanding that you should not commit any terrorist attack against him.

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Wanda said...

If someone is a confirmed terrorist, shouldn't the decision be made to try them before, or couldn't it be done that way?

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