Efficiency In Bello and Ad Bellum: Making the Use of Force Too Easy?

Abstract

This article criticizes a widely asserted claim that drones make the resort to force and violence — war — “too easy.” Attractive on the surface to many, this article says that “too easy” is not a coherent notion as applied in war. The “too easy” argument comes in two forms, a moral argument and a maximization of social welfare argument. The maximization of social welfare version (on which the article focuses) frames “too easy” as a matter of creating an “inefficient” level of disincentive to use of force on account of insufficient risks to one’s own forces in so doing — appealing deliberately to the apparatus of welfare-maximization and cost-benefit analysis.

The general form of “too easy” argument is one that applies, however, with respect to any form of the reduction of risk on the battlefield — including in principle not just reduction of risk to one's own forces through remote weapon platforms such as drones, but also reduction of risk to civilians on the battlefield through precision technologies and the reduced risk to civilians arising from not having soldiers seeking to protect themselves in battle. Thus, the general form of the social welfare argument — rarely noted or understood by those making it — is that greater efficiency (i.e., reduction of battlefield harms, whether for your own forces or for civilians) in the conduct of hostilities, the “jus in bello,” might result in greater inefficiency in the disincentives to resort to force, the “jus ad bellum.” Efficiency jus in bello might imply less efficiency jus ad bellum.

That there is an “inefficient” level of incentive to resort to force presumes, however, that there is in principle an “efficient” one. The article argues that this is conceptually incoherent and (mis)applies the law and economics of social welfare maximization to a sphere of activity upon which it has little or no purchase. “Easier” resort to force is not the same as “too easy.”

This article is the final published version of a working paper of the same title, available from ssrn at http://ssrn.com/abstract=1812124. This final published version greatly revises the original working paper and should be seen as replacing it, but because the working paper has been downloaded and cited many times, it will continue to be available on ssrn.

Keywords: targeted killing, drones, drone warfare, counterterrorism, jus in bello, jus ad bellum, efficiency, net social welfare, just war, ethics of war, law of war, law of armed conflict, weapons, war

JEL Classification: K33