Terrorism and Human Rights (40): Targeted Killings, Pros and Cons

The use of so-called drone airplanes to target and kill suspected terrorists is in the news again. Some in the U.S. have voiced what in my view are justified yet somewhat myopic concerns about the supposed authority of the U.S. President to target American citizens on foreign or domestic soil. This is one of many cases in which the value of due process clashes with the need to respond to imminent threats. As usual, the executive has a tendency to focus on the latter.

The concerns that have been voiced recently are myopic in the sense that most drone attacks take place abroad and most victims are foreigners. Let’s therefore limit our discussion to the justifiability of targeting foreigners abroad. (These drone attacks, by the way, are just one form of targeted killing – the British SAS and the Israeli Mossad use or have used human operators to stalk and shoot terrorists at home or abroad).

So, we’re talking about governments carrying out the killings, and the targets are suspected foreign terrorists, insurgents or combatants hiding on foreign soil. Governments try to justify such killings by arguing that they and the targets are engaged in armed conflict: a war if not necessarily a declared one. If indeed we are dealing with a war then the targets do not even have to pose an imminent threat when they are killed. A history of violence and a risk of future violence are sufficient reasons to target and kill them. In a war, it’s deemed acceptable to kill unthreatening and even unarmed enemy forces, as long as these forces are hostile and potentially dangerous elements in an ongoing conflict. Targeted killing is therefore seen as equivalent to the normal and traditionally unlimited wartime right to kill enemy soldiers.

That is also why the possibility of apprehension is not considered a sufficient reason to abstain from targeted killing, although in practice most killings are of people who are difficult to apprehend.

So that’s the governmental story about targeted killing. How should we assess this story? There are some good sides to it, and some bad:

Pros

  • If indeed we’re dealing with a war, then concerns about extra-judicial killings, about the absence of imminent threats and the failure to apprehend when possible do not seem justified. That’s a bog “if” of course. One has the feeling that the “war on terror” has been called a war not because it is one but because it yields the right to kill. And one can even question the traditional right to unlimited killing of soldiers during wartime, as Jeff McMahan has done.
  • Drone attacks evidently minimize the risks of casualties on the attacker’s side, even possibly down to zero. Drones may also provide cover for soldiers in the field during regular operations.
  • Although these things are difficult to measure given the secrecy of the whole affair, it does seem obvious that drone attacks, when compared to standard military attacks, should in principle involve fewer civilian casualties. (An attempt to measure this is presented here. A less rosy view on the matter is here and here).
  • Drone attacks may produce leadership vacuums and lead to disorganization in the terrorist organization. Organizational decapitation may hurt terrorist groups more than regular attacks.

Cons

  • Drone attacks – especially if they become widespread – mean that the attacking side no longer has skin in the game. As a result, these attacks may remove an important restraint on war. Wars or military adventures may become more common as they become less costly in human terms on the attacker’s side.
  • Positing the equivalence with normal wartime killing implies that the drone operators, who are commonly situated far from the battlefield and close to residential areas in the home country, are legitimate targets for retaliation. Ironically, drone attacks may therefore encourage terrorist attacks.
  • As already stated, a lot hinges on the use of words. Killing people who aren’t an immediate military threat may be tantamount to extra-judicial execution. And merely labeling those people “combatants” and the operation a “war” isn’t enough to acquire the right to normal wartime killing. It may often be more precise to label terrorist attacks as normal crimes rather than acts of “war”, in which case normal judicial proceedings are more appropriate, which means apprehension and trial, and killing only when apprehension is impossible and a threat is imminent.
  • The choice to kill when apprehension is possible means forgoing the possibility to put the target on trial and demonstrate to the world how a civilized country deals with threats. It gives the opposite message that violence is the appropriate form of defense and retaliation.
  • Intelligence that could be gathered by capturing and questioning the targets is lost when they are killed.
  • The lack of transparency opens the door to abuse, as does the view that an imminent threat is not required.
  • Drone attacks often violate the sovereignty of other countries, setting a dangerous precedent.
  • Targeted killing may be fatal to the democratic peace theory (see here for more details).

Some of these points carry more weight than others, and some perhaps none at all. Other points could be added. It’s up to the reader to make up his or her own mind, but my view is the following: compared to the general unpleasantness of war, targeted killing isn’t particularly shocking and can even be seen as a step forward. That is, as long as it is really limited to an actual, uncontested war involving real combatants who pose an imminent threat, and a threat that can’t be averted by apprehension and trial.

What is perhaps more shocking than the attacks themselves is the fact that the whole “war” rhetoric has become so vague that anything can be called a war. Is there a crime with which we’re not “at war”? When ordinary criminals – and I consider most terrorists to be ordinary criminals, ordinary except for their particular motivation – can be targeted like enemy soldiers, what is left of criminal justice? Extra-judicial execution then becomes the only form of crime prevention.

More on targeted killing here.

Human Rights Promotion (8): Human Rights in the U.S.A.

The United States is far from the worst violator of human rights, but neither is it the Shining City on the Hill that many take it to be. See what you make if this:

  • America, where people get into a frenzy about personal freedom when someone wants to limit the maximum size of soda cups, and yet consistently accept world record incarceration rates.
  • America, where felons can more quickly recover their right to bear arms than their right to vote.
  • America, where white people with a criminal record are more likely to get a callback after a job interview than black people without a criminal record.
  • America, where the depiction of naked people making love is less a matter of free speech than the depiction of people killing each other.
  • America, where the right to life of the unborn is more important than the right to life of the living.
  • America, where the courts express themselves on issues such as the appropriate hotness of coffee but remain strangely silent about the extra-judicial execution or torture of U.S. citizens.
  • America, the “land of opportunity”, has less social mobility than many of the so-called “socialist” countries of Europe.
  • America, where the Supreme Court has decided that anyone can be strip-searched upon arrest for any offence whatsoever – this is the same Supreme Court that doesn’t allow its proceedings to be televized.
  • Etc.

And then remember that a large majority of countries is even worse than this. Have a nice day.

Human Rights Promotion (7): The Human Rights of Adolf Hitler

Suppose Hitler didn’t kill himself and was captured alive by the Russians in Berlin, or by Israeli commandos in South America. What would we be morally allowed to do to him if we had managed to capture him? Does a person like him have human rights that we have to respect? Of course. Whatever dehumanizing name you wish to call him, he was a human being like the rest of us, and we have to deal with that fact. Every human being has rights and those rights are not conditional upon good behavior. No one has less or more rights than the next person. It’s not because someone has committed horrible crimes that we are allowed to take away his or her rights.

Hitler’s rights include a right to life. This right is quasi-absolute and can only be limited if that’s the only way to save other lives. So for instance, we are allowed to shoot him on the spot if he resists arrest and threatens to kill us or others (such as hostages). But suppose Hitler is captured alive and is no longer a threat to the lives of others. Shooting him is then not allowed because that would be an extrajudicial execution.

Are we allowed to execute him after a proper trial? Maybe a living Hitler who’s kept in prison would still be able to encourage his followers to continue their murderous rampage and maybe that’s a sound argument for executing rather than imprisoning him. But I think that’s a far-fetched scenario. Only in the unlikely case that there is a real risk of an imprisoned Hitler ordering murder and that executing him is the only means to remove a threat to the lives of others, would his execution be allowed. This is equivalent to the case in which Hitler is holding hostages. However, even in this case, going after Hitler’s followers would be more effective.

So capital punishment is not an option. Remember also that other justifications of capital punishment aren’t available: we are not allowed to deter future criminals by killing present criminals, not even if it works, since that would be an instrumentalization of a human being. Going down that road ultimately leads to the devaluation of all human life. Life imprisonment without parole then? Not an option either because even Hitler can be rehabilitated. The problem with rehabilitation is that you never know who can do it until they do it. You can’t say in advance that some people are beyond rehabilitation.

Some form of criminal punishment is obviously warranted since Hitler acted with intent, knew the consequences of his actions, caused the consequences of his actions, wasn’t forced to act, was aware of alternative courses of action, violated existing law and was found guilty of such violations after a fair trial (ex hypothesi). Given the unavailability of capital punishment and life without parole, some fixed term prison sentence seems to be the only remaining option. And I know that’s a huge anticlimax for most of us.

But what do we want to achieve with that sentence? Retribution? Even if retribution is a justified end of punishment – which it isn’t since we should in general try to be better than criminals – a fixed term sentence is hardly retribution for Hitler: on any account, this is less than what he deserves. And more than this is ruled out (see above). Not only aren’t we morally allowed to execute him, but even executing him doesn’t seem enough. If anything, he deserves to be executed millions of times over, which we obviously can’t do even if we were morally allowed to do it.

Perhaps we want to achieve incapacitation. That’s reasonable enough in this case. You can hardly allow Hitler to walk the streets. But again, this is truly anti-climactic. It leaves us with our anger and sadness. But I guess there’s no way to leave our anger and sadness behind in this case. The morale of this story is that the same is true in many other, less extreme cases as well. We tend to be too ambitious when punishing criminals.

Human Rights and International Law (17): License to Kill? The Morality and Legality of Targeted Killings of Terrorists

The Bush administration took the position that killing members of Al Qaeda, a terrorist group that has attacked the United States and stated that its goal is to attack again, is no different than shooting enemy soldiers on the battlefield. The Obama administration, which has continued to fire missiles from Predator drones on suspected Qaeda members in Pakistan, has taken the same view. (source)

Now it seems that the CIA went a step further and developed plans to dispatch small teams overseas to kill senior Qaeda terrorists (Predator strikes can be unreliable and tend to produce “collateral damage”). The plans remained vague and were never carried out, and Leon E. Panetta, the new C.I.A. director, canceled the program last month. Apparently, because it was too difficult to organize and probably also because no one has a clue where the terrorists really are.

In 1976, after the disclosure of C.I.A. assassination plots against Patrice Lumumba of the Congo, Fidel Castro in Cuba and other foreign politicians, President Gerald R. Ford issued an executive order banning assassinations. This ban, however, does not apply to the killing of enemies in a war (obviously, because that would make war impossible). Hence the utility of branding the fight against terrorists a “War on terror”. Convincing the world that you are “at war” with the terrorists, turns them into “simple soldiers” who can be killed at will, like all soldiers in a war (except when it comes to the Geneva conventions, they’re soldiers no more…).

My personal views on targeted killing are here. According to me, whether there’s a war going on or not, targeted killings are morally justified only in certain very specific circumstances. When there is an imminent threat and no other means to stop an attack from happening, targeted killings are justified, whether or not we are “officially” at war. That would not only be morally justified, but also a legal act of self-defense under national and international law (see here for instance). The sovereignty of the country where the killing occurs shouldn’t be an obstacle.

Counterterrorism, in civil democratic regimes, must be rooted in the rule of law, morality in armed conflict, and an analysis of policy effectiveness. Targeted killings are indeed legal, under certain conditions. The decision to use targeted killing of terrorists is based on an expansive articulation of the concept of pre-emptive self defense. … According to Article 51 of the U.N. Charter, a nation state can respond to an armed attack. Targeted killing, however, is somewhat different because the state acts before the attack occurs. In addition to self-defense principles, the four critical principles of international law – alternatives, military necessity, proportionality, and collateral damage – are critical to the decision-maker’s analysis. … Implementing [these] four international law principles … requires the commander to ascertain that the “hit” is essential to national security and therefore proportional to the risk the individual presents. Furthermore, the commander must determine that any alternatives, such as capturing and detaining the individual, are not operationally possible. The commander must also seek to minimize the collateral damage – harm to innocent civilians – that is all but inevitable in such attacks. Amos N. Guiora (source)

And of course the threat must be imminent.

What is not acceptable is targeted killing without any imminent threat, or in circumstances which allow for other types of “disablement”. And neither is targeted killing as a kind of popular and photogenic “poetic justice”, because that is justice without due process. And when we have the chance to apply due process, why not show the world that we don’t just destroy criminals, even less suspected criminals or potential criminals? Extrajudicial executions aren’t OK simply because the targets are more blameworthy than opposition figures in Latin-American dictatorships. It’s not because everyone hates Osama bin Laden that we can simply kill him at will.