Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare
American University - Washington College of Law
September 23, 2011
A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).
A strong version of this claim says: The perverse effect of increasing the efficiency of jus in bello through targeted killing (reducing civilian harm and increasing military effectiveness) is to reduce the efficiency of jus ad bellum (making the resort to force too easy). Improvements in jus in bello conduct ironically makes it too easy, too unconstrained (by lack of personal risk to one’s forces because of drones and lowered civilian harm because of improved targeting) to resort to force. This paper evaluates this claim, and more broadly the idea that jus in bello proportionality and jus ad bellum resort to force can each have a form of efficiency. It rejects the claim as incoherent, because the existence of sides in conflict results in incommensurable meanings of winning and losing in jus ad bellum, without which there cannot be an “optimal” level of the resort to force.
The conceptual claim depends upon highly fact specific assumptions about the practice of targeted killing and drone warfare today. The essay walks through a number of these assumptions in an informal way, drawing upon the author’s discussions with governmental and non-governmental actors, particularly on the question of civilian casualties, and ways in which some of the anxieties over targeted killing and drone technologies might not reflect current practices. These assumptions are ones that the reader might or might not accept, given that they are not corroborated and reflect interviews, informal, and off the record discussions that are far from conclusive. Even if the reader does not share the premises in fact, the essay invites accepting them for purposes of evaluating the ethical argument. The essay intertwines an abstract argument about efficiency in the ethics of war, and a practical part that discusses premises crucial to that abstract argument. (This is working paper v3 of 3. It runs approximately 12,000 words; it is lightly footnoted, rather than law review footnoted, intended for an academic philosophy forum.)
(Note: This working paper has been superseded by a final published paper of the same title, which heavily revises this working draft. The finalized, accepted paper version can also be found at ssrn and should be regarded as the final version of the paper. Because the working paper has been extensively downloaded and cited, however, it is being left up here on ssrn. For the final accepted paper version, please see http://ssrn.com/abstract=2343955.)
Number of Pages in PDF File: 23
Keywords: Targeted killing, drones, unmanned aerial vehicles, UAVs, efficiency, jus in bello, jus ad bellum, laws of war, Afghanistan, Pakistan, war, armed conflict, just war
JEL Classification: D61, K33
Date posted: April 18, 2011 ; Last revised: September 6, 2014