Drones: 4 Questions to Consider

“Do we want to live in a world where the U.S.’s justification for killing is so infinitely malleable?”

Rosa Brooks, Professor of Law at Georgetown University

Drones (also known as remotely piloted aircrafts) are the warfare of the 21st century. They make it possible for an American soldier, sitting comfortably at the Haddock Air Field Base in New York, to targeted individual in Afghanistan, 7,000 miles away. This capacity to engage in warfare without putting boots on the ground has generated significant debate, a debate which recently took place at the United States Senate.

On June 23rd 2013, the United States Senate Judiciary Committee held a hearing to which legal, public policy, and military officials were asked to testify regarding the potential constitutional and counterterrorism implications of using drones in targeted killings. As we continue to contemplate the use of drones, there are four main questions that should be considered.

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Are Drones Inherently Bad?

Drones are a tool of warfare, just as missiles, guns, swords, and cannons are tools of warfare. It is a mechanism of force, a means of eliminating an adversarial target. What does differentiate the use of drones from other tools of war is that they are operated remotely, causing some to believe that they are inherently bad. In reality, however, the use of drones requires the highest level of scrutiny; there are certain criteria that need to be met before a drone attack can be launched. Moreover, after the attack has been launched, it can be aborted until the very last second. Yes, capture mission might be ideal; however, when taking into consideration the high opportunity costs of such missions, from military standpoint, the use of drones is a better option.

From a legal standpoint, drones do not create any new rule of law issues in the traditional battlefield. They are well within the scope of international law. Ilyam Somin, Professor of Law at George Mason University stated, “[the] means doesn’t matter so long you have the target right.” In saying this, he calls attention to the protocol that bridges the gap between suspect and launching of an attack. Once the appropriate steps have been taken to determine that an individual is a legitimate threat and therefore a legitimate target, the means of attack becomes irrelevant, except in terms of opportunity costs.

Who Can Become the Target of a Drone Killing?

Traditionally, drone attacks have been authorized under the Authorization for the Use of Military Force (AUMF) joint-resolution passed by the United States Congress in 2001. The AUMF gives the President the authority to use all ‘necessary and appropriate’ force against those individuals who ‘planned, authorized, committed, or aided’ the September 11th attacks. This question recently took on another dimension, when it was asked if Americans can be targeted by US drones, and if this answer is different depending on whether the American is on US soil or on foreign soil.

Senator Cruz set out four criteria to keep in the consideration of a drone strike: is the individual a terrorist target?, where is their geographic location?, are they active in a foreign hostile force?, and is there an imminent threat?

The question here is not really about citizenship but more about the capacity of the individual to be apprehended and captured. If the individual is a terrorist target, his active in a foreign hostile force, and is an imminent threat, then yes, they could be drone attack. However, a drone attack should be the last resort, not the de facto action. If the individual can be apprehended and captured, without the use of drones, this is ideal. By this logic, an American citizen on American soil would not be subject to a drone strike, as the United States has the police and law enforcement capacity to apprehend, detain, and try the person in question. It is by this same logic that al-Qaeda affiliates in the mountains of Pakistan – who are difficult to reach via a deployment mission and where the government does not have the capacity/willingness to apprehend and detain these individuals – are subject to drone attacks. Thus, the nationality of an individual is not the primary determinate in the decision use of drones, but rather one’s criminality and the capacity for him or her to be apprehended determines the employment of drones.

When Can Drones be Employed?

The ambiguity in the decision to employ the use of drones is threefold: ambiguity in the legal framework governing the use of drones, ambiguity of the terminology, and ambiguity the determination of war. Each of these make it difficult to develop a clear understanding as to when drones can be employed as a mechanism for targeted killings.

As stated above, the AUFM provides the legal framework uses to justify the employment of drones. However, it is limited in scope to those individuals who carried out the 9/11 attacks. At this point, almost 12 years after the 9/11 attack and with Bin Laden having been killed, can it really be argued that the perpetrators of 9/11 are still the targets? The targets have largely remained Al-Qaeda affiliates, but to say that they were actively involved in the 9//11 attacks might be an unwarranted exaggeration. If this framework is to be the justification for the targeted killings in the future, it needs to be amended to reflect the present day situation: the war on terror not a targeting of 9/11 perpetrators.

The AUFM uses the term ‘imminent threat’ to describe those who can become targets. This term, however, is largely subjective. Historically, the term imminent threat has come to mean that if one does not act, the target will carry out an attack against. This is also known as -1 stage, with 0 being the launch of the attack, and -1 being the moment just before the attack is launched. It is this principle that governed the Bush Doctrine of Preemption. This raises the following questions: can someone over 7,000 kilometers away, hiding in the mountains be considered an imminent threat? What are the criteria to determine an individual is an imminent threat and thus a legitimate target? Without definition this term can be used very loosely to justify the any target killing; thus, the development of accountability measure becomes tremendously important (see below).

There is also difficulty in determining the state of war, and thus the legality of an attack. Within the context of war, the concept of imminent threat becomes void and the targeting of adversarial combatants is supported by international law. In peacetime, however, there is a system of processes that determines the use of force. A police officer in the United States, for example, has a set of criteria that he or she must meet before he or she can employ the use of force against a suspect. The problem with ‘war on terror’ and the targeted killing of Al Qaeda leaders is that it is not a formal war as the United States never formally declared war on Afghanistan. This makes the definition of war ambiguous and the determination of targeted killing within the traditional legal framework all the more difficulty. Once again, this calls attention to the need to develop transparency and accountability mechanisms for this process of determination.

What Mechanisms are Necessary to Ensure Transparency and Accountability?

Presently, the decision as to who can be the target of an attack is made by a very small group of people under a framework that is ambiguous at best. This is a slippery slope. Without transparency and accountability mechanisms, how can it be determined that only legitimate threats are targeted and how can those who make mistakes be held accountable for their actions?

At the hearing, it was suggested that a court system be developed with the function of vetting potential targets to ensure that they are legitimate threats and can be rightful targeted under a predetermined framework. This would allow for a level of transparency in the process, expand the number of people involved in the decision-making process, and legitimize the process of targeted killing as a whole.  Such a court, however, would need to be front-ended. That is to say, the court should have the capacity to give the okay for a potential target to be targeted, but the ‘go’ order should remain in the ranks of the military. Due to the checks within the military and the degree of certitude needed for an operation to be given the ‘go’ order, when the stars align and the attack can be launched against a target, waiting for court approval could result in a loss of the target.

Furthermore, in dealing with targeted killings, there needs to be accountability mechanisms. Although the number of civilian casualties from the use of drones has significantly decreased in recent years, these cannot be completely eliminated. In the case of civilian casualties resulting from the use of drone, there needs to be a system of accountability, a capacity of holding individuals responsible for the harm of civilians. Moreover, there should be a process to make amends to harmful action against civilian population, a recognition of their suffering and an effort to mitigate future suffering. Civilians are not the targets of war, by rather the innocent bystanders. When their protection status under international law is violated, be it intentional or accidental, there need to recognition and accountability for these casualties. With accountability mechanisms and without making amends to civilians harmed in conflict, we risk the inflation of anti-American attitudes. Rather than work against a country as whole, we should seek to work against criminals and with the governments of a given country whenever possible. And if accidental harm is caused to civilians, be it in Yemen, Somalia, Pakistan, or elsewhere, amends should be promptly made.

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International Corruption Eruption

 The phrase ‘corruption eruption’ was coined in 1995 by Moises Naim, a Senior Associated in the International Economics program at the Carnegie Endowment for International Peace. The phrase is in reference to the eruption of outcry against corruption in the post-Cold War period and subsequently asks the question: “why have societies, which have traditionally tolerated corruption at the highest levels in government and the private sector, suddenly lost their patience and their citizens willing to take to the street to topple high officials accused of wrong doings?” (Naim, 1995).

The fall of the Soviet Union and the communist bloc gave way to the rampant spread of democracy. This spread of democracy in turn exposed the corruption inherent in many government systems, both in established democracies such as the United States, Italy, and France, and in newly developed democracies. Exposing corruption resulted in public outcry and consequently the beginning of the ‘war on corruption’.

The war on corruption was characterized by an effort to combat corrupt at all levels. Countries enacted anti-corruption legislation to fight governmental corruption, corporations adopted strict codes of conduct to combat corruption in the private sector, and non-governmental organizations such as Transparency International were created to expose corruption and to hold both governments and private corporations accountable. The hallmark of this struggle against corruption is the creation of the United Nations Convention Against Corruption of 2003 (hereafter “the Convention”). As of December 24, 2012, the Convention has 140 signatories and 165 state parties.

The Convention demonstrates the concern of the international community in reference to the seriousness of the problems corruption poses to the stability and security of the state, the creation of democratic institutions, establishment of ethnic norms and justice, fostering sustainable development, and the creation of rule of law (Preamble). It’s purpose, as defined by article 1, is to promote/strengthen measure to prevent/combat corruption more efficiently/effective; promote/facilitate/support international cooperation and technical assistance in the prevention of and fight against corruption; and promote integrity. accountability, and proper management of both public affairs and public property. Moreover, it calls on the state to develop/implement/maintain effective coordinated anti-corruption policies that reflect the principles of rule of law, proper management of public affairs, public property integrity, transparency, and accountability (article 5).

How is Corruption Harmful to Civilians?

According to Naim, the word ‘corruption’ has become the “universal diagnosis for a nation’s ills” (Naim, 2005). This has the lead to perspective that if one can curtail the culture of greed in a given society, all other problems will be easy to solve. The problem, however, corruption is not necessarily correlated with economic prosperity. In countries such as Hungary, Italy, and Poland, a certain degree of prosperity has been able to coexist with systems of corruption. Furthermore, China, India, and Thailand provide examples of countries deemed to been highly corrupt while simultaneously experiencing high levels of economic growth.

Additionally, the fixation on corruption as the ‘ends-all’ problem drives the public debate away from other critical problems affecting a given state. Media outlets are more likely to publish on topic regarding corruption or scandalous activity, perceiving this to be more newsworthy. In doing so, they neglect to draw attention to other critical problems such as education, healthcare, infrastructure, or the economy. Although these problems may be aggravated by corruption, they were not created by corruption alone. They are the result of underdeveloped institutions that have been exploited by corruptive practices. Thus, the tendency to assume that the abolition of corruption will bring about prosperity is a very limited perspective.

Finally, the focus on corruption as the source of a state’s problems creates unrealistic expectations as to what is required to improve the standard of living within that state. There is a belief that by simply removing a corrupt leader, prosperity will follow. However, there is no direct correlation between theses two factors; the situation is more complex, involving a multitude of factors. If the expectations is that lustration will result in improved standards of living, this sets the stage for societal discontent and possible social unrest.

What is the Relationship between Corruption and Rebellion?

In keeping with the theme of ‘corruption eruption’ (ie. societal response to state corruption), there seems to be a correlation between rebellion/situations of social unrest and levels of corruption. Analysis of this correlations is draw from Transparency International’s Corruption Perceptions Index (hereafter ‘the Index’).

Libya provide the best example of this. Between 2008 and 2011, Libya’s ranking on the Index continually dropped. The same can be said for Mali between 2008 and 2011. The table below demonstrates this trend. Rankings are on a 10 point scale, 10 representing no corruption and 1 representing complete corruption.

 

LIBYA

Year

Score

Ranking

2008

2.6

126/180

2009

2.5

130/180

2010

2.2

146/178

2011

2

168/180

 

MALI

Year

Score

Ranking

2008

3.1

96/180

2009

2.8

111/180

2010

2.7

116/178

2011

2.8

118/182


As these two countries moved towards revolution/opened violent conflict, it appears as though they also became more corrupt. The problem remains, however, that there is no real way of qualifying corruption, given its covert nature. Thus, although there appears to be a relationship between increase corruption and the eruption of violence conflict, it is difficult to easily quantify this this relationship. Nevertheless, the relationship between corruption and rebellion warrants additional research. If more direct and specifies correlation can be established (ie. that kind corruption and by who tend to lead to rebellion), than it may be possible for this to act as an indicator for the likelihood rebellion.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Is There Room for Forgiveness in Criminal Justice?

On March 28th 2010, 19-year old Connor McBride shot Ann Margaret Grosmaire, his fiancé and girlfriend of three years in the midst of a heated argument between the two. Ann died in the hospital four days later. Rather than flee or try to cover up his actions, Connor walked into the Tallahassee Police Department in Tallahassee, Florida and turned himself in. Previously, Connor had never been in trouble, he was youth leader in his community, and had become a part of Grosmaire family. In any other case, Connor would have likely been convicted of first-degree murder, a conviction that, in the state of Florida, carries a minimum life sentence or the death penalty. But in this case, Connor only got 20 years imprisonment plus 10 years of parole. The reason: forgiveness.

Ann’s parents, Andy and Kate Grosmaire, were practicing Catholics, with forgiveness at the very essence of their practice. This moral grounding drove their actions in the coming days, weeks, and months after Ann’s death. Rather than retaliate or seek retribution, the Grosmaires searched forgiveness. What they wanted was closure, to understand how and why their daughter died. Moreover, they did not want Connor to spend his life imprisoned.  So, they decided to take part in a restorative-justice diversion program: victim-offender dialogue.

Victim-offender dialogue allow for the airing of the truth. Both parties confront one another and state the facts, as they understand them. This process creates a space in which reconciliation can begin and is thought to reduce recidivism rates. This practice was typically used for drug cases or more minor offense, and had never previously been attempted for a murder case. The Grosmaires, however, were insistent, and the prosecutor eventually agreed to participate, though did not promise to rescind the first-degree murder charges.

The dialogue took place on June 22nd 2011, with the Grosmaires, the Prosecutor, a mediator, and Connor. Connor told the story of how he shot Ann, step-by-step, and after he was finished, the Grosmaires were given the chance to ask questions. At the end of the session, the mediator asked the Grosmaires to recommend a sentence for Connor. Kate asked for no less than 5 years imprisonment and no more than 15; Andy asked for between 10 and 15 years imprisonment. The ultimate decision however, lay with the prosecutor. Having been impacted by the process, he eventually rescinded his original charges and gave Connor the option of 25 years imprisonment or 20 years in prison with 10 years of parole.

The case calls into the question the very premise of the criminal justice system. Criminal justice is, by nature, retributive – it is punishment for wrongdoings. The question is, what is the purpose of criminal prosecution. Arguments are made for its capacity to deter criminal activity and bring closure to the victims and their families; however, in this case, restorative justice was more beneficial to the victim’s family than the traditional system would have been. What is gained through punishment by imprisonment or, in the United States, the death penalty? Are there criminal cases when forgiveness should play a role and restorative justice should prevail?

In answering this question, it is important to remember the particulars of this case. Ann’s murder was not an accident, but it was not meticulously planned either. Given the circumstances of her death, it is unlikely that Connor would have ever killed again. This was a crime of passion, in the heat of the moment, and that opens the door for restorative justice.

This is not to discount the role of the criminal justice system. It is a tremendously important piece in the maintenance of law and order in a given society. But it is to say that the system is incomplete, lacking the reconciliation factor that allows one to move beyond the crime; allowing criminals to be better reintegrated into society, allowing victims to make their peace. It shouldn’t be one or the other – retributive or restorative justice. There should be space for the two systems to work together. There should be space for forgiveness.

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Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. You can email her at jah340@georgetown.edu, follow her on twitter @joleneh340, our read her blog at neophytepeacebuild.wordpress.com