As described in my previous post, The Intercept — a website dedicated to advancing government transparency and accountability through the publication of previously secret materials — recently released a trove of classified documents that provide unprecedented insight into the United States’ use of aerial drones. In that post I argued that when viewed through the lens of the Christian just war tradition (to say nothing of pacifism, which is the other most prevalent strand of Christian thought about war), there are strong reasons to doubt the justice of the drone program, particularly on account of its indiscriminate character. This post seeks to complement the former by considering a further aspect of the drone program, namely, the contexts in which drones are being used.
Among the documents published by The Intercept are a set of slides detailing drone use in Operation Haymaker, a five-month campaign in Afghanistan, and another two sets that studied intelligence support for drone strikes in the Horn of Africa (primarily Yemen and Somalia). While the mechanics of the drone program are largely similar in these two theatres, the theatres themselves constitute two morally different contexts that not only raise questions about the use of drone strikes in places such as the Horn of Africa but that also pose fundamental challenges for Christian just war thought in the age of drone warfare.
When considering these two contexts, the most salient difference is that in Afghanistan drones are being deployed in what might reasonably be described as the context of a declared war, whereas in the second they are not.
In fact, it is by no means unambiguous that the United States’ engagement in Afghanistan constitutes a war given that the US Congress has never officially declared war on Afghanistan. Rather, military operations have been carried out under the auspices of the Authorization of the Use of Military Force (AUMF) of 2001. Nevertheless, given that Congress has not officially declared a war since World War II—instead empowering military interventions in Vietnam, Iraq, and elsewhere through similar authorizations—it seems we have entered a new legal paradigm in which such authorizations have replaced more formal declarations of war. 1 And in the case of Afghanistan, the AUMF plausibly serves as a functional equivalent to the declaration of war. That is because the AUMF empowered the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and the Bush Administration clearly and publicly identified the Taliban, Afghanistan’s ruling party at the time, as bearing responsibility for such attacks.
Compared even to the ambiguous setting of Afghanistan, Yemen and Somalia constitute a more problematic context for the use of military force. In these nations, the US is similarly carrying out drone strikes under the AUMF. And yet, in contrast to the case of Afghanistan, the US has not clearly situated itself in a state of war with either Yemen or Somalia, as evidenced by the recognition, included in the military study released by The Intercept, that operating outside of a “defined theatre of active armed conflict” limits the military’s footprint and the activities it can undertake.” In short, in these nations the US has employed a substantial amount of military force—killing at least 713 persons, according to more conservative estimates, and perhaps as many as 1,825, including up to 313 civilians —outside the context of a declared war.
This leads to a crucial question: Does the declaration of a war make a moral difference? Judging by a great deal of literature on just war theory, one might conclude that it does not. After all, the declaration of war is rarely given more than a cursory treatment in most texts on the subject. Nevertheless, I would judge this to be a crucial oversight and contend that a declaration of war must be understood as a prerequisite for the just legislation of war.
Even if it rarely garners devoted attention, the need to declare war should be understood as logically presupposed in the jus ad bellum criteria that elaborate the standards for going to war justly. 2 For instance, among the typical ad bellum criteria are that one must have a just cause as well as a right intention and that one must use force only as a last resort. The criteria of just cause and right intention require that war is undertaken only in the quest of legitimate goals, most of all to right some flagrant injustice in order to restore international peace. And yet, the identification of injuries suffered and terms for peace function appropriately only when they are publicly stated in ways that allow the potential adversary to take the steps necessary to satisfy those terms, and it is only in this way that the criterion of last resort can reasonably be satisfied.3 In the final analysis, then, these criteria require the public specification of an offense suffered, elaboration of the terms necessary to restore peace, and naming of when non-belligerent means have been exhausted. Taken together, they functionally require something very much like a declaration of war.
Of course, even if this procedure is followed it does not mean that the use of aerial drones will be just. Not only might the ad bellum case not pass muster as a just cause for war but, moreover, the use of such weapons may violate the jus in bello criteria that govern the legislation of war (as I argued in the preceding post).
Nevertheless, the ad bellum procedure makes a moral difference as it identifies the wrong suffered and what must be done to rectify it, seeking to use all possible means to avoid war. It is only when these are satisfied that war can be undertaken justly. But if that is the case, then the lack of such a declaration in regard to Yemen and Somalia means that the use of drone warfare in those countries cannot be justified as acts of war.
This recognition presses upon us a number of significant moral questions. If the US’s use of drone warfare in such nations cannot be justified as acts of war, can they be justified on some other grounds? If so, what would those be? Do national borders mark meaningful moral limits on the power of the US? What if those borders are maintained by states that might be considered failed or failing, as in the cases of Yemen and Somalia? If one regards the use of aerial drones in these nations as just, then when or where would such strikes count as unjust?
Fundamental to the Christian just war tradition is a recognition of the need to set limits on the use of deadly force. And yet in the drone papers we see such force, propelled by the minimal risk afforded by drones technology, inexorably bleeding beyond the context of war or recognized law enforcement. As Phillip Alston, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, has noted, drones are particularly worrisome because the fact that they make it easy to kill without risking military forces tempts “policy makers and commanders … to interpret the legal limitations on who can be killed, and under what circumstances, too expansively.”
A crucial challenge for Christian ethics, then, is whether we might help to delineate meaningful limits on the use of this technology that is creating a brave—and terrifying—new world. While I do not consider myself an adherent of just war theory, I nonetheless believe that insisting at the very least that the use of military force first requires a clear declaration of legitimate intentions, such as those that constitute declarations of war, is an important place to begin.
- Among the possible reasons for such a shift are that a formal declaration of war has generally entailed a number of other provisions, including the termination of diplomatic and commercial relations. See https://www.fas.org/sgp/crs/natsec/RL31133.pdf ↩
- At times, of course, the need to declare war has been explicitly identified as a necessary component of jus ad bellum, such as in Cicero, De Officiis, I.11. ↩
- For a more detailed argument about the necessity of a declaration of war to satisfy the criterion of last resort, see Eric Grynaviski, “The Bloodstained Spear: Public Reason and Declarations of War,” International Theory, vol. 5, no. 2, pp. 238-272. ↩