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The Morality of Targeted Killings
Accountability and Transparency as the Missing Links
by Hanan Bahar
dr. L.L. Ferracioli
A thesis submitted in partial fulfilment of the requirements for the
Degree of Bachelor of Political Science
University in Amsterdam
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Content
Introduction 3
Part I
Defining Targeted Killings 5
Realism vs. Pacifism vs. Just War Theory 5
Just War Theory Applied to Targeted Killings 7
The Missing Links: Accountability and Transparency
Part II
Cosmopolitan Institutional Framework: Buchanan & Keohane 13 Cosmopolitan Institutional Framework Applied to Targeted Killings 15
Criticism by Lee 15
Incentives for the US 17
Conclusion 19
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Introduction
In 2010 Anwar Al-Awlaki, an American citizen and a Muslim clerk, was added to a list of suspected terrorist that the CIA was authorized to kill. The US claimed that he would be even a much greater threat than Osama bin Laden. His father and the American Civil Liberties Union (ACLU) filed a lawsuit against the US government. They claimed that the government should provide evidence against Al-Awlaki. At the end of 2012, a United States District Court Judge dismissed the suit. The US ordered the assassination of its citizen, nevertheless it claimed that the evidence itself was too dangerous to be made public (the New York Times, 2014).
Al-Awlaki’s speeches would be inspiring and motivating to domestic terrorists. His early summons, however, actually condemned attacks against the US. Nevertheless, after the ‘War on Terror’, al-Awlaki radically changed into a hostile preacher pleading for violence against the US government. In 2011, Anwar Al-Awlaki was killed with a drone authorised by the president himself. Two weeks later, the US launched another drone strike, and another American citizen was killed. This time it was Anwar al-Awlaki’s 16 year-old son, Abdul Rahman al-Awlaki. Why was his name put on the list? It was said to be an act of collateral damage. However one can surely assume he was targeted and killed not for what he has done, but for what he one day may become. He might have wanted to take revenge for the death of his father and hence become a terrorist.
Another case occurred on 12th February in 2010. A deathly night raid took place in a village called Khataba, near Gardez, the capital of the province of Paktia in Afghanistan. This region is known for the armed Taliban and raids happen here very often. During this specific raid four people were killed, of which two of them were women and another was a child. The raid interrupted the celebration of the birth of a child, which was suspected to be for example a meeting of Taliban members. Images exist, though, where US Admiral William McRaven, offers a sheep as a traditional gesture seeking forgiveness for the killing. McRaven was at the time the head Commander of the Joint Special Operations Command (JSOC)1. In May 2011, the same military
group captured and killed Osama bin Laden (Scahill, 2011).
The cases described above show two incidents of targeted killings; by means of drone strike and by a raid. The traditional way of practicing war - states fighting each other – cleared space for a new actor in wars. Enemies don’t have to be a state anymore. Non-state actors are now also perceived as a great threat to the security of states. This transformation has subsequently had an effect on the ethics of war and its frameworks. In particular, targeted killings have been problematic
1 “JSOC, which is headquartered at Pope Air Force Base and Fort Bragg in North Carolina, is an all-star team made up
of the Army’s Delta Force, SEAL Team Six, Army Rangers and the 160th Special Operations Aviation Regiment, also known as the “Night Stalkers.” JSOC performs strike operations, reconnaissance in denied areas and special intelligence missions” (Scahill, 2011). Scahill is one of the makers of the documentary ‘Dirty wars: the world is a battlefield’, which inspired me for this research.
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in the philosophical debate of war. On the one hand, targeted killings are perceived as more effective and led to fewer casualties as it is performed on specific targets. On the other hand, there is a lower threshold to kill a combatant, which means that more people can die with less efforts.
In this paper I will discuss the morality of targeted killings via the just war theory. On basis of the just war theory I conclude that two key components are missing in the context of targeted killings, which are accountability and transparency. These elements are met in the cosmopolitan institutional framework of Buchanan and Keohane. I argue that this framework should be applied to international institutions or a framework alike that produces accountability and transparency, because only then can targeted killings be morally justified. Finally, I will present incentives for why the United States of America in particular should accept a transformation of institutions that incorporates accountability and transparency.
I will begin with providing a definition for targeted killings. Second, an overview of frameworks of war will be provided. One of them is the just war theory, which will be applied to targeted killings. In the second part, the cosmopolitan institutional framework and its critics will be discussed. This framework will also be applied to targeted killings. Further, the incentives for the US to accept institutionalisation of accountability and transparency will be discussed. Finally, I will present the conclusions of this normative research.
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Part I
Defining target killings
Varieties of definitions are given in the literature concerning targeted killings. Different views and methods define this term diversely. For example Gabriella Blum and Philip Heymann define targeted killing as “the deliberate assassination of a known terrorist outside the country’s territory” (2010: 147). According to Eric Patterson & Teresa Casale, politically motivated assassinations should be separated from targeted killings: “the legitimate use of force directed against specific enemy combatants […] in hostile overseas environments” (2005: 639). Distinguishing targeted killings from assassinations is indeed critical as the latter term has negative connotations. The term assassination is evidently held by scholars who are morally and/or legally against targeted killings. Others, such as Chris Downes, refer to targeted killings as “anticipatory self-defence” and use the term targeted killings to describe “attacks on individual terrorists” (2004: 280). While Gross avoids both terms and adopts a new one: “named killing” (Gross, 2006: 324). According to Gross, “the targets are usually terrorists, that is, those who operate at the behest of known terrorist organizations. […] Named killings do not occur in any context other than war. Most often, these are non-conventional wars that do not necessarily signify an armed conflict between two or more nation states but, instead, comprise hostilities between state and sub-state actors” (Gross, 2006: 324) Steven David, who researched Israel’s policy of targeted killings, held the definition of “intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval” (David, 2002: 2).
Taking into account the definitions above, in this thesis it will be narrowed to attacks against terrorists. The term is defined as - deliberately killing an individual who is a member of a terrorist organization or its leader, who is planning or has planned an attack on a large scale that will harm innocents and their human rights. Hence, targeted killings can be perceived as a punishment or as preventive action. These attacks can vary from raids to drone killings. Additionally, acts of terrorism – purposely killing innocent people - can never be justified (Orend, 2013).
Realism vs. Pacifism vs. Just War Theory
In the philosophy of war different views exist. We will be discussing three of them: The realist view, the pacifist view and the just war theorist view2.
2 The legality of targeted killings will not be discussed as the scope of this thesis doesn’t allows this. For the sake of arguments made in this research I will assume that targeted killings can be used as self-defence.
6 Realism
The realist view holds that the state’s interest is the most decisive for leaders and grants them to do whatever deemed necessary to protect it. This includes disregarding moral principles that may burden national interest (Walzer, 2000: 3). Realism supports a profound scepticism about accepting moral concepts for the base of foreign policy. Moral ideas are nothing more than wishful thinking, according to the realist view. Power and national security stimulates states during time of war. Realists believe we live in an anarchic world and hence states should focus on their key interests in security, influencing other states and economic growth. The only moral obligation that leaders have that is supreme to all is serving the national interest (Walzer, 2000: 3). Evidently the realist view possess an ‘everything is fair in love and war’– attitude.
The pacifist view, by contrast, believes that morality can be very fruitful to international affairs. To this view it is crucial to ask the question if the war was just. The answer to this however would always be negative for the pacifist. War is always prohibited and wrong, according to this view. They encourage other solutions to problems than fighting each other. Jenny Teichman defines this paradigm as “anti-war-ism” (1986: 14). This view is rejected in this thesis, as I make the assumption that targeted killings can be an act of self-defence. Hence it may be permitted under certain conditions.
In order to analyse for conditions the just war theorist view is conducive it is understand that this particular view takes a stance in between the realist and pacifist views, which claims that war can sometimes be permissible under certain conditions. The concept of the just war theory has long been a basis for many domestic and international legal frameworks. These concepts are critical for human society to judge whether a calculated killing of another human being – one of the most serious acts a human being can undertake - is justifiable. (Orend, 2013).
Michael Walzer can be seen as the Godfather of the contemporary just war theory. Walzer argues that states have obligations to acknowledge moral concerns, even when they fail to live up to their expectations. States are creations of individual humans, and they want to act morally and justly (Walzer, 2000: 15). Besides, if states focus only on the struggle to survive and gaining power, they can't in the long run sustain the support from their own people which requires a better and stronger sense of community and justice (Walzer, 2000). Further, the necessity that realism pleads for states to engage in war is exaggerated. In reality it's nothing more than a choice. They deliberately wage war. Pacifism on the other hand would be too optimistic and naïve. Living in a world without violence is a utopic imagination that doesn't take account of the real world. Pacifism in this sense lacks realism. We are forced to accept that war sometimes can be morally permissible (Walzer, 2000: Orend, 2013). How else we could have defeated the Nazis?
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In Walzer’s book, ‘just and unjust wars’, he re-examines the medieval just war theory by exploring just ad bellum and limiting jus in bello for creating a modern, secular theory of just war. Also, Jeff McMahan re-examines the just war theory and argues against the deeply held beliefs of this theory. He provides a revisionist understanding of the just war that he believes is more consistent and plausible, as well as better grounded, than the traditional theory (Mcmahan, 2004: 695). Cecile Fabre gives a more cosmopolitan perspective on the just war theory, which states that the focus should be more on individuals than countries (Fabre, 2008). Cheyney Ryan tries to include pacifism in the picture of the just war theory. Eric Pattison “reframes jus ad bellum and jus in bello, taking into consideration rogue states, weapons of mass destruction, and non-state terrorist actors and networks” (2000). Putting these different strands of the just war theory aside. I will use the traditional criteria of the just war theory, however I do agree that this should be adjusted to the rise of non-state actors in war. Nevertheless the scope of this thesis cannot handle this discussion.
The just war theory provides limits of warfare and therefore it can be perfectly used to analyse the morality of targeted killings. The theory is a set of mutually agreed rules of war that has several criteria which will be used to analyse the morality of targeted killings
The theory consists of several elements that analyses the justice of engaging in war, during the war and after the war. The first set of criteria is bundled under the term of jus ad bellum. This examines how justice is it to resort to war. The second set of criteria is called jus in bello. This examines how morally justified the conduct of war is. Lastly, there is an evaluation of war in the name of jus post bellum. We will only apply jus ad bellum and jus in bello to targeted killings, because jus post bellum is not relevant. While jus ad bellum is seen as the responsibility of leaders, jus in bello is the responsibility of military commanders, officers and soldiers (Orend, 2013). Jus post bellum embodies principles concerning consequences of the war. While I focus on the morality of the use of targeted killings and not on its aftermath/repercussions per se.
Just war theory applied to targeted killings
Jus ad bellum consists of just cause; right intention; declaration of war by a proper authority; last resort; probability of success; and proportionality. For the jus in bello the use of force must be proportionate and discriminate. Every principle in jus ad bellum will be discussed in turn and afterwards I will examine main concepts of jus in bello regarding targeted killings and its cases described above. By means of applying the just war theory, I will try to determine the permissibility of targeted killings. As above mentioned the just war theory consists of jus ad bellum, jus in bello and post ad bellum, which the first two will only help us analyse the permissibility of targeted killings. While jus ad bellum is seen as the responsibility of leaders, jus in bello is the responsibility of military commanders, officers and soldiers (Orend, 2013).
8 Jus ad bellum
Just cause/right intention. The main two causes for war are “self-defence from aggression and “other-defence from aggression” (Orend, 2013: 34). Not only in the just war theory but also in international law, these causes are grounded for the permissibility of going into war, unless it is authorised by the United Nation’s Security Council (Orend, 2013). In the article 51 of the United Nations Charter explicitly allows self-defence as legitimate reason to engage in war (Blum & Heymann, 2010: 155). It is seen as an inherent right. However, McMahan argues that the element just cause shouldn’t be restricted to self-defence. Various causes can be just other than self-defence against aggression (McMahan, 2005). Nevertheless, I will be focusing only on self-defence. I will assume that targeted killings can be practiced out of self-defence, so therefore targeted killings can be performed with a just cause. Having just cause by itself isn’t sufficient enough in the just war theory; right intention is also needed for a just war. The right intention is solely when the act is committed for the cause of justice and not for self-interest, which is hard to determine (Orend, 2013).
In the case of al-Awlaki; was killing him an act of self-defence? Did he plan to harm innocent lives on a large scale? I don’t have clear answers to these questions. Recently, “a federal appeals court […] publicly released large portions of a Justice Department memo that deemed it lawful to target Anwar al-Awlaki. […] Intelligence officials had concluded that Mr. Awlaki was an operational terrorist leader who had gone overseas, become part of Al Qaeda or an associated force” (The New York Times, 2014). Yet there are ones who believe that al-Awlaki wasn’t a terrorist operative. He was targeted because of his anti-American sermons that were popular among Muslim youth (the Guardian, 2013). So he was punished for his believes, opinion, values et cetera. Judging on bases of the memo, thus he was indeed involved with terrorist attacks, then this case has certainly a just cause.
In the Khataba case we definitely cannot speak of just cause, because the killing happened to non-combatants. The targets had no connection to terrorism or its organisations. Thus, in the Khataba case, JSOC had no moral or legal reason to enter the house of those civilians and kill them.
Public declaration of war by a proper authority. This principle considers that it is elemental to inform the target, enemy or country that they are now facing war and its consequences (Orend, 2013). This provides the last chance for the enemy to stop the aggression and seek redemption. It is not just the enemy, but also the state’s own people who are warned of the government’s intentions and plans. These citizens have the right, in some public procedures, to consent for engaging in war (Orend, 2013).
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authorities. However in practice this isn't always the case. In the Khataba case, JSOC has full power to hunt down and kill individuals who are labelled as ‘High Value Target’ (Scahill, 2011). They can go as far as they want to, without being accountable for their actions. In the case of al-Awlaki, President Obama did put him on the killing list, which authorised the CIA with JSOC to perform the killing. Nevertheless, Obama was flabbergasted about the death of al-Awlaki’s teenage son. He wasn’t aware of that he was also targeted (Huffingtion Post, 2013). Targeted killings are dealing deal with the lives of actual humans, therefore it is crucial for de decisions to be contemplated by the highest officials – often the head of state. They should bare this responsibility, but in practice that is not always the case.
Last resort. Walzer observes that “it is obvious that measures short of war are preferable to war itself. Furthermore, one always want to see diplomacy tried before the resort to war, so that we are sure that war is the last resort” (Walzer in Orend, 2013: 59). Nevertheless, Walzer points out that “strictly speaking there is no such thing as a last resort” (Orend, 2013: 59). There is always something that can be tried prior to war. Another objection that Walzer has is that diplomatic solutions apply more to international solutions and not per se on the use of force (Orend, 2013). In the matter of prosecution, two debates prevail in the literature. On the one hand, some scholars claim that arresting a leader is more effective than killing. Cronin argues that it “emphasizes the rule of law, profiles leaders as criminals and demonstrates the appropriate application of justice” (Cronin, 2011: 17). Further, “it is much better to arrest and jail a terrorist leader so that his fate will be demonstrated to the public. There is nothing glamorous about languishing in jail” (Cronin, 2011: 17). On the other hand scholars claim that putting the suspect on trial and presumably behind bars is simply not possible. Terrorists are often protected by a state or organisation. The criminal justice system cannot deter them.
In the case of Khataba it was unlikely that prosecution would have been a feasible option. But a diplomatic way of handling the situation, by simple talking to the residents of the house, would have shown that those suspects were not lethal for them or others. In the case of Anwar, the memo also stated that it wasn’t feasible to capture and detain him (the New York Times, 2014).
Probability of success. Hereby it is important to make a reasonable decision whereby the given opportunities and constraints in the world are taken into account. This is difficult, as we don’t know for sure what the war will result in, but this principle obliges a certain prediction on the basis of satisfactory calculations (Orend, 2013). Targeted killing does what it is supposed to; it kills the target. Leaders can be removed from their position. “The advantage of this is straightforward: movements are deprived of their political or spiritual leader who directs operations and perhaps serves as a rallying/recruiting cause” (Carvin, 2012: 531). If the eliminated terrorist was highly valuable skilled then he cannot be replaced easily. Furthermore it can disrupt terrorist organizations,
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which throws them into chaos and maybe blocks them from planning attacks in the future. “To avoid elimination, the terrorists must constantly change locations, keep those locations secret, and keep their heads down, all of which reduces the flow of information in their organization and makes internal communications problematic and dangerous.” (Carvin, 2012: 532). However it can also produce a blowback: the targeted killing may backfire It can have negative consequences for democratic states; being that victims of further attacks may be even be the leader of a democracy. “Public figures cannot be perfectly protected; indeed, a major aspect of most elected politicians’ jobs is to be visible and available, making them more vulnerable to assassination than the leaders of clandestine organizations” (Cronin, 2011: 25). Scholars hold different views; because of the lack of enough information or knowledge, scholars are not able to reach a consensus. These killings are mostly done in secrecy, so the data that is available is insufficient.
In the Khataba case, JSOC managed to kill targets. They accomplished that, but the question is did they reduce terrorism in doing so? The answer is, no. Killing people who are not linked to any terrorist action, cannot reduce terrorism. But asking the same question in the al-Awlaki’s case; it is much harder to answer that question. He was good at spreading extreme animosity towards the US, but by killing him did that animosity reduce? Or was it actually counterproductive? I have no clear answers to this question, but it does show the complexity of the case.
Proportionality. States that are considering starting a war must weigh the expected universal benefits against the expected universal costs. If the outcome is positive to benefits then the action may be taken (Orend, 2013). However complex this may be, it is still one of the principles of jus ad bellum.
The Khataba case obviously wasn’t proportional; there were no benefits to it. Only random non-combatants died. This had no effect on reducing terrorism. In relation to the proportionality of the al-Awlaki case, one can claim that because it was done by means of a drone it was proportional. It is relatively cheaper; the plane is remotely commanded so no soldier’s life is at risk, it is effective in killing and relatively more precise than other artilleries. But was it meaningful? Did it reduce terrorism? That is not clear, yet.
Jus in bello
Discrimination and non-combatant immunity. Armed forces shouldn’t practice indiscriminately; rather, they must try as much as they can to discriminate between combatants and non-combatants. The use of targeted killing does discriminate. It is relatively more discriminating than the traditional use of force, such as bombings. Nevertheless, innocent people can die if false judgements are made regarding who is a combatant and who is not. The Khataba case proves this, whereby non-combatants were targeted. It is obvious that during war or conflict innocents will die. This is
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inevitable, but we do have a certain obligation to try to prevent it as much as we can. The Khataba case shows that preventing innocents from dying via targeted killings can be maximised.
Proportionality. Use of force should be appropriate for the target. Extreme weapons, for example chemical or nuclear weapons, are prohibited from use (Orend, 2013). Targeted killings aren’t amongst them, hence we can acknowledge that in terms of jus in bello, targeted killings are proportionate.
The missing links: Accountability and Transparency
On the basis of the analysis above, one can conclude that targeted killings can be morally permissible. Theoretically it can be just, but when principles were applied to certain cases, it showed that in practice targeted killings cannot be morally permitted3.
With regard to just cause and having the right intention, these cases fail to meet those conditions. The Khataba failed to meet any condition; it was an unjust act of war. Principles in the case of al-Awlaki weren’t always met; a lot of them were actually questionable. However, targeted killings in theory do hold to every element of both components: jus ad bellum and jus in bello. The link that is missing between theory and practice is interconnected with two elements: Accountability and transparency. I argue that these two elements should be incorporated in international institutions for targeted killings to be morally permissible. But what is accountability? A is accountable to B when A is obliged to inform B about A’s (past or future) actions and decisions, to justify them, and to suffer punishment in the case of eventual misconduct.” (Schedler et al, 1999: 17). This means that accountability occurs both prior (ex ante) to the killing and after (ex post) the killing (Buchanan and Keohane, 2011)
Besides accountability, information concerning targeted killings should be more public. Targeted killing should be thus transparent; it should operate in a way that it is easy for others to observe what action are performed. These elements should be done at an international level, because at a domestic level the authority to carry out these killings does not fall in the proper hands. Regarding killings in the cases discussed, the authority fell in the hands of military organisations, which should be prevented. Therefore, in order for targeted killings to be morally just, these elements should be incorporated into international institutions and structures. International institutions should be transformed so that targeted killings can be performed in an accountable and transparent way.
These missing links do exist in the cosmopolitan institutional framework of Allen Buchanan
3 I use here only two cases to make my point. There might be cases that would be morally permissible on the basis of the just war theory, but there are also cases that aren’t. The goal is to restrict the conditions of targeted killings in such a way that it is always morally permissible, except if conditions are not met.
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and Robert O. Keohane (2011). In addition to these elements, they also add sanctions. According to Buchanan and Keohane the term accountability implies both information and sanctions as a form of punishment. “Inclusion of sanctions (including punishments) is crucial, since there will be little incentive to comply with the requirement to answer questions and provide justifications unless those to whom the action is to be justified can sanction those in power (Buchanan & Keohane, 2011: 11). Buchanan and Keohane do admit that it is difficult to institutionalize. Given the diversity and the self-help system of the world it is infeasible to expect voluntary consent on this. “Without sanctions, rules for the regulation of the preventive use of force would almost certainly be ineffective. Unless there are sanctions for violations of the requirement to share information, some states will misrepresent the facts, exaggerating the probability of the harm that they propose to prevent. Unless there are sanctions against those who use excessive force, states are likely to discount the harm their forceful actions will inflict on others.” (Buchanan & Keohane, 2011: 11). Sanction will require states to compensate the ones who are harmed. Further, states will be required to restore country’s infrastructure and empower it to govern itself in an effective way (Buchanan & Keohane, 2011: 11). Thus, offering just a sheep4 isn’t sufficient enough to make things right.
This framework will be discussed in the next section. The next section illustrates how the missing elements of accountability and transparency, in the context of targeted killings, can be enacted. Besides that it also emphasises the argument that international intuitions should be transformed if one wants targeted killings to be morally permissible.
4 Which occurred in the case of Khataba,
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Part II
Missing elements in the current international institutions as above mentioned are accountability and transparency. My main argument is that for targeted killings to be moral permissible a transformation of institutions is required. An institutional framework that includes accountability and transparency is the cosmopolitan institutional framework of Buchanan and Robert Keohane. This is the reason that I will discuss this framework to emphasise the importance of a new change of institutions on the international level.
Cosmopolitan Institutional Framework: Buchanan & Keohane
Allen Buchanan and Robert Keohane have created an institutional framework for justifying preventive use of force. They do this by starting with arguing that it can be morally permissible to use preventive use of force to stop massive violations of basic human rights (Buchanan & Keohane, 2004: 4). The use of force is in their research defined as “the initiation of military action in anticipation of harmful actions that are neither presently occurring nor imminent” (Buchanan & Keohane, 2004: 1).
They set up a framework from a cosmopolitan normative perspective that acknowledges human rights of every individual. They argue that to justify preventive use of force, states have “to enter into a contract with a diverse body of states as a condition for authorization of their actions” (Buchanan & Keohane, 2004: 1). Both proponents of action as opponents would be held accountable for the integrity of their prior allegations and the proportionality of their actions. This improves the quality of decisions on preventive force, because these rules will provide information. These decisions are only made by relatively moral reliable states that largely respects human rights (Buchanan & Keohane, 2004: 1).
The main key for preventive use force to be justified is accountability, according Buchanan and Keohane (2004: 1). Their framework encourages accountability through two mechanisms: ex ante and ex post mechanism. By means of the contract, states have, first, to provide evidence for the preventive use of force to an impartial body, for example the UN Security Council. Second, states will be evaluated by an impartial body after the preventive action has taken place (Buchanan & Keohane, 2004: 1). This body will be responsible for empirically analysing the case to judge whether the action was justified.
The result of this analysis has different consequences for involved actors. If the ex post evaluation declares that the action by an intervening state was not justified, that specific state would be sanctioned on basis of the contract (Buchanan & Keohane, 2004: 2). If the ex post evaluation vindicates the recourse to preventive force, then members of council who rejected the proposal of
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preventive action would be sanctioned (Buchanan & Keohane, 2004: 1). “If preventive action were blocked by a majority vote of the Security Council or a veto by one of the permanent members, those seeking to engage in preventive action could then make their case in a different body—a coalition of democratic states—with its own institutionalized mechanisms for accountability” (Buchanan & Keohane, 2004: 2).
Buchanan and Keohane promote three core principles that underlies for designing institutions to govern preventive force, which are: effectiveness, mutual respect and inclusiveness (Buchanan & Keohane, 2004: 10). First, “the institution should effectively promote the responsible use of force to prevent massive violations of basic human rights of every individual” (Buchanan & Keohane, 2004: 10). One way they achieve this is by including only morally reliable states and states that are encouraged to make responsible decisions. Mutual respect is enacted via protecting human rights of all individuals and not undermining other views without presenting solid reasons and evidence. The third principle that is important for creating institutions is inclusiveness (Buchanan & Keohane, 2004: 10). This should be done as much as feasible, but of course there is a friction between effectiveness, by selecting agents that are moral trustworthy, and inclusiveness that argues for participation of all states (Buchanan & Keohane, 2004: 11). There are states that are morally not reliable, by not including them, the inclusiveness principle is violated.
Above described are the core principles for designing institutions, but for this cosmopolitan institutional framework the main concept is accountability, which entails the base of this framework. Buchanan and Keohane state that also accountability acts both ex ante and ex post, whereby a state, the intervener, consults with other states before taking action (Buchanan & Keohane, 2004: 11). They also should reveal their intentions to international society before using preventive force, so also transparency is very much required. In particular, they must present evidence and information; answer questions and subject themselves to sanctions (Buchanan & Keohane, 2004: 11). Including sanctions into this framework provides the punishment as incentive to give information and answering questions. This prevents the misuse of force. According to Buchanan and Keohane, the use of preventive force must only be done to prevent massive violations of human rights. This should include to the standards for how preventive force is to be applied (Buchanan & Keohane, 2004: 11). For a way to do that, they suggest jus in bello principles – minimalizing harm to innocents, proportionality, avoidance of excessive force (Buchanan & Keohane, 2004: 11). Thus, as above described the key mechanisms for this framework are sharing information, sanctions and comparatively morally reliability for achieving accountability.
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Cosmopolitan Institutional Framework Applied to Targeted Killings
So if an intervener wants to make use of targeted killing force then it should justify their action both prior to the event and after it. Its justification will be analysed by an independent body, which could be the UN Security Council, perhaps with the withdrawal of the veto power, or a diverse group consisting of reliable states. Both members of the body as the intervener will enter a contingent contract, whereby the intervener needs the consent of that independent body and afterwards subject itself to an ex post evaluation of their action. This evaluation also has to be operated by an objective group. If Israel's claim of targeted killing of a certain individual is indeed justified by the body then the ones who opposed it, would be sanctioned for preventing a justified intervention. However, if the body, who is responsible for the evaluation, claims that the intervener's action was not justified or it wasn't practiced in an appropriate way, it would be sanctioned5. These mechanisms produce high level of accountability, which is exactly currently missing regarding to targeted killings.
Positive effects of these mechanisms are that it prevents states to practice targeted killings that are unjustified or to block justified killings by others. Through these mechanisms lives of Commander Daud and its family and the son of al-Awlaki could have been spared. States that want to practice targeted killings will be encouraged to use it only in cases that genuinely is spoken of great aggressive threat to human kind. Further, interveners will be encouraged to practice targeted killings in the least harmful way. Additionally, conditions of just war theory would apply as well. Through these restrictions of just war theory, the overall costs of the permissive rule would be further minimized, which makes it more difficult for targeted killings to be approved6.
Criticism by Lee
Steven Lee provides a moral critique to this cosmopolitan institutional framework of Buchanan and Keohane. Buchanan and Keohane have created this framework for justifying preventive use of force, which is not quite the same as targeted killings. A targeted killing can be preventive, but it can also be used as a punishment for an attack that already has been occurred, for example the death of Osama Bin Laden. Most of the critique of Lee is therefore not relevant. Though I will discuss his most essential moral critique. He claims the following:
“The basic problem with the analogy with individual self-defense is that the justification for defensive action is not the moral or legal responsibility of the attacker for the harm that the attack would impose; rather, it is the attacker’s causal responsibility for that harm. Moral or legal responsibility is culpability; a
5 See part one: ‘The Missing Links: Accountability and Transparency’ for the description of sanctions.
6 Moreover, it should be emphasised that these transformations should not only protect rights of citizens in certain
countries. It counts for people all over the world and there is no distinction made into the worthiness of certain states’ citizens. It assumes that every individual is equal.
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person who is morally or legally responsible for some act can be held responsible for it, perhaps punished, for example. Causal responsibility arises from a person’s being the cause of some state of affairs, usually harm to someone else. In other words, causal responsibility is all actus reus (the act or omission that comprises the physical elements of a crime as required by statute), so to speak, while moral/legal responsibility generally involves mens rea (the state of mind indicating culpability, which is required by statute as an element of a crime) as well” (Lee, 2005: 102).
However, in the case of targeted killings to know the intention of individuals or organisations investigation of their actions are required. To reveal their intentions there must be some evidence that the targets are preparing for a terrorist attack. These preparations are acts of actus reus. By for example setting up meetings with terrorists, by being trained by terrorists, buying components of bombs or actions alike, show not only the intention, but the suspect has already made moves that endangers a certain country and its citizens. Hence, an individual loses its right to not to be killed by preparing for an attack on a large-scale, which makes the suspect a combatant. Therefore it is justified to kill him out of self-defence. So in targeted killings both conditions, actus reus and mens rea, are met. Besides, whether these evidences are sufficient enough to change the position of an individual from non-combatant to combatant, is something that the independent and partial body must decide on with the just war theory in mind.
Steven Lee also makes two practical counterargument against the framework, which is more relevant to this thesis. First, he mentions the “inapplicability of the scheme in just those situations where preventive intervention would be called for” (Lee, 2005: 101). He claims that if massive human rights violations occurs, the exigencies of the situation would not grant the ex ante part of the process (Lee, 2005: 101). This frameworks proposes for more transparency, but by revealing your intentions as an intervener, can have negative effects on the mission - it can admonish the aggressor. This could stimulate a quicker aggression or “allowing a dispersal of its forces, making the intervention ineffectual” (Lee, 2005: 101). Furthermore, if the case will not be evaluated prior to the action, then the intervener will not commit itself to the ex post evaluation (Lee, 2005: 101). Subsequently, the whole system will fall apart.
What is more important killing morally just or killing as soon as possible to be effective? The answer to this question in the line of this thesis is obvious. Combatants should have the chance of surrendering themselves; they have the right to be prosecuted if it is feasible; states have the right to be aware if their citizens will be attacked. Targeted killing should be used as a last resort therefore transparency is quintessential, because without it the killing won’t be just. In targeted killings we are dealing with human lives, whereby we should act as much as possible to prevent non-combatants to die. Therefore is transparency crucial.
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tolerate them, even if mistakes are made during implementation. Moreover, it is beneficial if the policy is subjected to public debate, otherwise controversy will be provoked if mistakes occur, which often does. If publicity of the killing will have negative influence on the effectiveness of the killing; this is a factor that military officials have to be worried about and they should figure out how to deal with it.
Second counterargument that Lee makes is the political problem of accepting the institutional framework by great powers. This is, according to me, the main problem of this framework and also the main problem of my thesis. This specific framework is based on accountability and transparency, which I argued that these are the most important elements currently missing in the international context of targeted killings. Therefore, targeted killings can't be justified, except if the missing elements are institutionalized, which the cosmopolitan international framework does and therefore it is worth arguing for.
However, this doesn't mean that this framework is perfect and fool proof for changing international structures. By pitching this framework, I suggest how transformations of international institutions can justify targeted killings, which emphasizes the need for transformations of international structures. Although, the latter is often impeded by great powers, especially by the United States, as they often refuse to accept changes of international institutions or even acknowledge it. How to seduce US and other great powers into new arrangements? This question will be discussed below.
Incentives for the US
Why do I focus in this section merely on the US? Because currently they use the force of targeted killings the most - together with Israel. Besides, if the US accepts a new arrangement, then other morally reliable states will follow their footsteps. Three incentives are central to this research. First, a shift of the decision making from domestic level to international level would seize domestic agitation towards the US government. The lack of information regarding to the case of al-Awlaki made a way for this case to enter the public debate. Everyone had an opinion about it, often it was negative towards the US Government. To sustain the peace and not receiving a lot of criticism on their foreign policy; it is therefore recommended to shift the decision making to international level. By doing this, the government doesn’t have to deal with a lot of domestic turmoil, because of the responsibility will expand from the US government to the international community. The US government will be less attacked on their policies. As we saw in the case of al-Awlaki; if a policy is not approved by public and political opposition then it will raise strong controversy, especially when mistakes are made during the implementation. If the international community grants the US’s acts of targeted killings, then American citizens would be more supportive of the government’s
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policy, which will increase the political legitimacy of the Leader.
Not only domestically but also citizens in other countries, especially in the intervened countries, will be more supportive of the US’s foreign policy if accountability and transparency will be institutionalized. Especially since the government’s reaction on 9/11 a rise of anti-Americanism has been arisen, particularly in regions as Pakistan, Afghanistan, Iraq and Somalia. A study that focused on causes of targeted killings via the perspective of foreign diplomats, concluded that particularly policy and information factor are quintessential in anti-Americanism (Fitzpatrick, Kendrick & Fullerton, 201: 154). Also drone strikes are feeding anti-Americanism resentment among enemies and its allies. “Those reactions are often based on questions regarding the legality, ethicality, and operational legitimacy of those acts to deter opponents” (Kennedy, 2013: 27). Thus, to seize anti-Americanism; to regain its prestige, it is forced to accept a new institutional framework that is more accountable and transparent regarding targeted killings.
Finally, other great powers are rising in the world. A lot has been suspected from BRIC’s countries. But especially China is economically rising very fast. “China's share of global trade has exploded faster than that of any other rising power in the comparison group. In 30 years, China has expanded its share by a staggering multiple of more than 22” (Foreign Policy, 2014). It also been said that currently China has surpassed the US as world’s largest trading nation (the Guardian, 2014). “As a result [China’s] total trade rose 7.6% over the year to $4.16tn. The US is yet to publish its 2013 trade figures, but with trade totalling $3.5tn in the first 11 months of the year, it is unlikely to beat China” (the Guardian, 2014). Not only economically but also China’s military spending has expanded rapidly, even if it hasn’t increased in the same pace as their economy. Russia, for another example, spent relatively more of its wealth on military than the US in 2013. However, in absolute terms they lack behind, but still one can observe a rise of spending on arms in other states. The risk here arise is that these state will gain same privileges, as the US currently has. Especially if China is rising economically that will gain them also political power in the world. Allowing them to do whatever they please, including using the force of targeted killings. This for sure won’t please the US. Other states gaining the power to apply targeted killings outside their borders, will collide the US’s national interest. To prevent this from happening in the future the US is forced to change now the context of targeted killings and therefore accepting transformation of institutions.
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Conclusion
The goal of this thesis was providing a moral framework for targeted killings, by applying just war theory to killings of targeted terrorists. A discrepancy exist between theory and practice of the morality of targeted killings. It can theoretically meet the conditions of a just war. However, in practice this becomes much harder; this is proved by the cases of Khataba and al-Awlaki. These analyses reveals two important missing elements, which are accountability and transparency. I argue that targeted killing, which I assume as a form of self-defence, can be morally permissible under certain conditions. For achieving this, accountability and transparency should be incorporated in international institutions.
The cosmopolitan institutional framework of Buchanen and Keohane, provides the missing links. In addition, they also add sanctions to this framework. Sanctions serve as an instrument to achieve the other two elements: accountability and transparency. There are limits to this framework as discussed. Nevertheless, this framework emphasizes the need for changing the international context wherein targeted killings takes place. Besides it illustrates how accountability and transparency can be incorporated. The greatest practical problem is that states wont give there consent to submit themselves to this framework. The greatest challenge of all of them is the US. They are the ones who use dominantly this approach of force, together with Israel. But if the US is convinced then other countries, as Israel, would be forced to also accept the required changes of international institutions.
Three incentives were given for the US to accept transformations. First, the decision making will shift to international level; so other states will be held accountable too. Therefore the turmoil, that occurs when mistakes are made, will also shift from the domestic to the international level. Second, in the changing world order, there are other countries rising to the top. Their dominance is increasing in the global word system. These rising power can receive privileges, as license to kill, which the US more or less have. They are currently capable of performing targeted killings, almost without any consequence. These rising powers can adopt this privilege, which will refute national interests of the US. Finally, transforming international institutions whereby accountability and transparency are incorporated will decrease anti-Americanism. The US will have their legitimacy back if they accept the framework. Are these incentives sufficient enough for the US to subject itself to restrictions? Probably not, but that doesn’t change the fact that with the rise of military technology transformation of institutions are strongly required.
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Bibliography
Blum, G. & Heymann, P. (2010) Law and Policy of Targeted Killing. Harvard National Security Journal. 1
Buchanan, A. & Keohane, R. O. (2004) The Preventive Use of Force: A Cosmopolitan Institutional Proposal. Ethics & International Affairs. 18(1). Byman, D. (2006) Do Targeted Killings Work? Foreign Affairs. 85(2): 95-111
Carvin, S (2012) The Trouble with Targeted Killing. Security Studies. 21(3): 529-555
David, S. R. (2002) Fatal Choices: Israel's Policy of Targeted Killing. Mideast Security and Policy Studies. 51
Downes, C. (2004) Targeted Killings in an Age of Terror: The Legality of the Yemen Strike. Journal of Conflict & Security Law. 9(2): 277–294
Fabre, C. (2008) Cosmopolitanism, just war theory and legitimate authority. International Affairs. 84(5): 963–976
Fitzpatrick, K. R; Kendrink, A. & Fulleron, J. (2011) Factors Contributing to Anti-Americanism Among People Abroad: A Retrospective View from the Frontlines of U.S. Public Diplomacy. International Journal of Strategic Communication, 5(3): 154-170
Gross, M, L. (2006) Assassination and Targeted Killing: Law Enforcement, Ecution or Self-Defence? Journal of Applied Philosophy. 23(3)
Kennedy, G (2013) Drones: Legitimacy and Anti-Americanism. Parameters. 42(4)/43(1) Winter-Spring
McMahan, J. (2004) The Ethics of Killing in War. Ethics. 114(4): 693-733
McMahen, J. (2005) Just Cause for War. Ethics & International Affairs. 19(3): 1–21 Orend, B. (2013) The morality of war. Toronto: Broadview Press
Patterson, E. & Casale, T. (2005) Targeting Terror: The Ethical and Practical Implications of Targeted Killing. International Journal of Intelligence and Counter Intelligence, 18(4): 638-652, Ryan, C. C. (1983) Self-Defense, Pacifism, and the Possibility of Killing. Ethics. 93(3): 508-524 Schedler, A. et al (1991) The Self-Restraining State: Power and Accountability in New
Democracies. Boulder, Colo: Lynne Rienner
Statman, D. (2004 Targeted Killing. Theoretical Inquiries in Law. 5:179
Walzer, M. (2000) Just and Unjust Wars: A Moral Argument with Historical Illustrations. New York: Basic Books
21
Scahill, J.(2011) JSOC: The Black Ops Force That Took Down Bin Laden. The Nation. May 2 Available at
http://www.thenation.com/blog/160332/jsoc-black-ops-force-took-down-bin-laden# (24-06-2014)
Foreign Policy (2014) Is China the Fastest-Rising Power in History? May 16 Available at:
http://www.foreignpolicy.com/articles/2014/05/16/china_graphs_fastest_rising_power_in_history (24-06-2014)
the Guardian (2014) Russia spends more of its wealth on arms than US in 2013. April 14 Available at:
http://www.theguardian.com/world/2014/apr/14/russia-spends-more-wealth-arms-us-2013 (24-06-2014)
the Guardian (2014) China surpasses US as world's largest trading nation. January 10 Available at:
http://www.theguardian.com/business/2014/jan/10/china-surpasses-us-world-largest-trading-nation (24-06-2014)
the Guardian (2013) The NYT and Obama officials collaborate to prosecute Awlaki after he's executed. March 11
Available at:
http://www.theguardian.com/commentisfree/2013/mar/11/nyt-obama-awlaki (24-06-2014)
Huffington Post (2013) Obama 'Surprised,' 'Upset' When Anwar Al-Awlaki's Teenage Son Was Killed By U.S. April 24
Available at:
http://www.huffingtonpost.com/2013/04/23/obama-anwar-al-awlaki-son_n_3141688.html (24-06-2014)
the New York Times (2014) Court Releases Large Parts of Memo Approving Killing of American in Yemen. June 23
Available at:
http://www.nytimes.com/2014/06/24/us/justice-department-found-it-lawful-to-target-anwar-al-awlaki.html
