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.

Terrorism and Human Rights (39): Targeted Killing and Democratic Peace

Democratic peace theory states that democracies are less likely to engage in war with each other, for a variety of reasons. One of those reasons is the fact that in a democracy, the people vote, and the people are also those who shoulder the cost of war. In a regime in which the people can influence the decision to go to war, such a decision will only be taken very reluctantly. Conversely, a regime that doesn’t need to listen to its people can easily impose the cost of war.

What’s the link with targeted killings of terrorists? Let’s limit the discussion to drone attacks in the context of a war. Killing terrorists in any other context amounts to extrajudicial execution, since those terrorists are criminals rather than combatants and therefore have a right to a trial (unless killing them is the only way to stop an imminent attack). In the context of a war, targeted killings carried out by unmanned drone aircraft are supposed to have certain advantages compared to “normal” military engagement with the enemy. Two of those advantages are that

  • drone attacks are said to be more precise and hence less likely to result in civilian casualties, and that
  • you can avoid putting your own soldiers in harms way.

The supposed precision of drone attacks is contested, since it’s often difficult to judge from thousands of miles away whether the target is real, whether the informants on the ground are reliable and whether there’s no risk to innocent bystanders. There have been reports of civilian casualties resulting from drone attacks, although the true extent of this problem is difficult to measure since there’s no public information on those attacks.

In some cases, troops on the ground may be better able to judge these things. It’s also not commonly accepted that it’s ethical to focus on troop safety over and above the risk of civilian casualties. This focus is, of course, understandable in the case of a democracy engaging in a war. Public opinion is powerful in a democracy and doesn’t like it when troops are put in harms way – that’s one of the origins of the democratic peace theory. (It’s sometimes called the body bag syndrome). Hence, a democracy may be particularly tempted to use drone attacks and targeted killings, since a more traditional war is difficult to sell to a powerful public opinion.

If indeed a democracy is tempted to use targeted killings, then the price to pay may be the loss of democratic peace. Targeted killings remove one of the most powerful causes of democratic peace: the high cost of war. By making war less costly on the party initiating the war, targeted killings make war more likely.

[T]o me the reason to prefer human to robotic war is a cold and brutal one: because it brings war home to the citizenry in the form of the dead and wounded, and the citizenry may then be less likely to support future wars except out of clear necessity. (source)

More on targeted killings here.

What Are Human Rights? (26): The “Human” Part of Human Rights

Why do we need the qualifier “human” when we talk about human rights? Why is the word “rights” not enough? The obvious reason is that we want to broaden the class of protected persons to cover the whole of humanity. Traditionally, rights were accorded only to specific groups of persons, e.g. the nobility, guilds, citizens etc. The essence of human rights is their universality, which means that they are rights that belong to human beings whatever group they are part of and wherever they happen to live. People have certain rights for the simple reason that they are human; there’s no need for any other reason such as group affiliation, nationality, form of government, legal system etc.

Human rights can thus be seen as the end state of a long expansionary evolution during which ever broader groups of people acquired certain rights. However, the inclusiveness of human rights has often been countered by exclusionary movements. If some want to include a maximum number of people under the protection of rights, others have an interest in the continuation of rights violations. The latter have two options: challenge human rights directly (e.g. by claiming that they are western rights, godless rights etc.), or take the more indirect route: maintain the notion of human rights but at the same time exclude some categories of people from humanity.

Many rights violations are explicitly or implicitly justified by reference to an absence of humanity on the part of the targets of those violations. The terror inflicted by Al-Qaida, the televised beheadings of innocent hostages etc. proves that these people are less than human. They are “animals” and can’t therefore claim that their “human” rights are respected when they are executed extra-judicially, eliminated by way of targeted killing, tortured, or arrested indefinitely in Guantanamo. Perhaps people don’t mean it literally when they say that terrorists are animals. Perhaps they do accept that they are human – they look human after all – but at least they are lesser humans, and hence not deserving the same rights as the rest of humanity. Perhaps they are merely barbarians, a separate and inferior class of humans.

The same attitude is evident in certain non-consequentialist justifications of capital punishment: the people who are executed are “the worst of the worst”, “animals” that have proven their inhumanity by way of their crimes. Also the native populations of colonized territories were considered to be non-human or at least lesser humans. There was a time when westerners weren’t sure that these people had a “soul”, a classic if currently somewhat outmoded distinguishing mark of humans. For those who believed they didn’t have a soul, their enslavement and murder was as acceptable as keeping and slaughtering animals. It took a Papal Bull to attempt to reign in the more extreme colonizers, without much success by the way.

This raises the fundamental question: what is “human”, what does it mean to be human, what is humanity? Respect for human rights depends on the type of answer we can agree on. Ideally, we would like to have a broad definition that makes it difficult if not impossible to exclude large portions of homo sapiens from the category of humanity and to violate their rights as a result of this exclusion. Claiming that someone is human because of his or her “good behavior”, e.g. non-terrorist and non-murderous behavior, is not the right way forward. “Good behavior” is a moralistic notion that can be defined in lots of different ways. Hence we potentially exclude the large majority if not the totality of people from humanity if we go along that road.

On the other hand, a non-moralistic definition, for instance a naturalistic or biological one, isn’t necessarily better. Given the way in which we treat animals, it’s probably best to avoid a definition of humanity as a distinct animal species (in Plato’s phrase, the “featherless biped“). An animal species, however distinct from other species, still consists of animals that are in some sense like other animals belonging to other species. We don’t have moral rules that tell us to treat cats differently from dogs, so a definition of humanity as a distinct animal species is unlikely to yield moral rules that tell us to treat humans differently from cats or dogs.

However, biology can be a useful element in the definition of humanity since it’s biology that justifies some human rights. Some of the biological vulnerabilities that are distinctive of us featherless bipeds, and perhaps even some of the vulnerabilities we share with some non-human species (e.g. the ability to suffer) can be seen as reasons to respect certain human rights. (Although in the latter case the price to pay would be to grant the same rights to non-human species that have the same vulnerabilities; those human rights would then no longer be strictly “human” rights. But perhaps that’s a price we should be willing to pay).

However, for the reasons given above biology is hardly sufficient for the definition of humanity. I guess we also don’t want to use the concept of “soul” to define humanity, given its association with religion. Ideally, we want to be persuasive to the non-religious violators of human rights as well, and those won’t be swayed by soul talk (perhaps they won’t be swayed at all but at least we can try). “Human nature” is a discredited concept, dignity is excessively vague, and moral agency seems to be less typical of humanity than we once believed.

So what can we use? I’ve argued elsewhere that some values that are typical of and in certain cases exclusive to human beings – or homo sapiens – can be seen as adequate justifications of human rights, since these rights serve the realization of those values (examples of those values are the importance of thinking, of social and cultural life, of religion, of prosperity, peace etc.). Excluding certain specimen of homo sapiens from the category of humanity or “real humanity” is then an attack on values that are shared by all specimens; rights violators then unwillingly attack their own values.

However, one problem remains. People’s rights aren’t necessarily safe, not even if we can settle the question of humanity and define the concept in such a way that it becomes difficult to exclude people from humanity. Humanity itself can be the problem. If human rights can be violated when a person’s humanity is denied, it’s also the case that a person who’s merely human runs the same risk. Hannah Arendt has often cited the plight of stateless persons before and after WWII, people whose nationality had been taken away from them by their racist, fascist or xenophobic governments, and who therefore only had their “humanity” left. In the best of cases, they were refugees in foreign countries where their rights were far from safe given that many countries only protected the rights of their own citizens.

The notion of humanity inherent in human rights is also incompatible with widespread feelings of partiality: most of us care more for our family and friends than for the rest of humanity, and some of us also care more for fellow-citizens. Somehow that’s inevitable: not only is it psychologically impossible to care for all the misery in the world – there’s simply too much of it – but it also seems morally right to care more for those who are closer.

In all those examples, we see that human rights have to come back to partiality. Inherent in human rights is universal inclusiveness, but at the same time we see that human rights can only be adequately protected when they are at the same time rights of very specific subgroups of humans: citizens, soldiers, family etc.

More on dehumanization and universality.

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.

Terrorism and Human Rights (20): Targeted Killing of Terrorists

Are governments, or even private individuals, allowed to kill terrorists when killing them is the only way to prevent a terrorist attack? Intuitively, I would say “yes”, but only if certain conditions are met: the attack must be imminent, and no other solution is possible. In fact, these conditions limit the possibility to cases such as killing a terrorist with explosives clearly visible, and seen – from a distance – to be moving towards a target.

Most cases will be different and will make it possible for the police or bystanders to disable the terrorist in some other way, short of killing him or her, and without putting themselves at risk. I never understood why the British SAS needed a policy to target and kill IRA terrorists when they were not engaged in an imminent terrorist attack and when they could easily be arrested (see here for the story).

Now, one could reply to this with this question: why should we treat terrorists better than soldiers? In a war, soldiers can be killed almost at will. If an army spots enemy soldiers, it can kill them without violating any law of war, even if these enemy soldiers are not engaged in an imminent attack. So why can’t we kill terrorists in the same way? In fact, we should treat soldiers better, since many of them are conscripts who do not target innocent civilians. Terrorists are (normally) volunteers who target innocent civilians. That makes two aggravating circumstances.

In answer to this, we could state that terrorism isn’t a war; it’s a criminal act. Some things are allowed in a war which aren’t allowed in peacetime. And terrorism is horrible and not peaceful at all, but not everything that is horrible or a breach of peace is necessarily a war. If we are allowed to stop the crime of terrorism with targeted killings – even if the crime is not imminent – then why not normal murder as well? For example, we may know that someone is about to commit (a non-terrorist) murder, but the act is not imminent. If you accept the SAS tactic, you also have to accept the preventive killing of normal murderers.

Some go even further, and accept not only targeted killing in cases without an imminent threat, but also killing after the fact. They would accept the killing of Osama bin Laden, even if he wasn’t planning a non-imminent attack. They would justify this killing based on his past actions. (Another example is the targeted killing by Mossad of the people involved in the Munich Olympics killings, made into a movie by Spielberg). I think that’s just as unacceptable as the targeted killing SAS style. It’s punishment without due process.