To what extent is NATO´s involvement in the War On Terror justifiable by Just War Theory?

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UNIVERSITY OF AMSTERDAM

To what extent is NATO´s involvement in the War on Terror justifiable by Just

War Theory?

Master Thesis Political Science The European Union in a Global Order

By: Nadja Zillken 6/27/2014

Supervisor: Dr. Stephanie Simon Reviewer: Dr. Katja Biedenkopf

This research is addressing the questionable compatibility between the War on Terror with its pre-emptive killings and Just War Theory (JWT). JWT reflects fundamental principles of international law. NATO´s engagement with the War on Terror and pre-emption remains ongoing yet underrepresented in official treaties. First, the justness of the War on Terror (jus ad bellum) is going to be assessed. The pre-emptive means used (jus in bello) for terrorists and suspected terrorists alike are evaluated regarding their justification. Furthermore, the question on how to leave the war behind (jus post bellum) is going to be analyzed by the case study of Afghanistan. The research concludes that neither jus ad bellum nor jus in bello can be found in the War on Terror and pre-emptive targeted killings. Anders Forgh Rasmussen remains hopeful for a lasting peace in Afghanistan, yet NATO´s involvement will be reduced further after 2014. NATO remains contributing guidance and training to Afghan forces to maintain peace. Yet the sufficiency of NATO´s support for post-conflict Afghanistan remains questioned.

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Introduction

After the end of the Cold War, NATO had faced a major identity crisis. With the fall of the Soviet Union there was no particularly clear cause for NATO left and no enemy to fight against. Transatlantic cooperation seemed doomed by the curse of stagnation. But “since the Cold War came to an end in 1989–91, the allies have retained the traditional purposes of the alliance and have taken on additional roles” (Yost, 2010). The commitment to maintain security and safety of the alliance remained the same but needed to be re-evaluated in strategy given the post-Cold War circumstances. “The threat of terrorism coupled with weapons of mass destruction, what NATO Secretary-General Lord Robertson described as the “greatest security of the new century,” and the corresponding global campaign to defeat this threat have brought about a radical redefinition of NATO´s primary role” (Bailey, 2004). “Against all odds, NATO has risen to contemporary challenges, leaving its Cold War agenda well behind” (Aznar, 2006). NATO´s purpose remains to ensure conditions for long-lasting peace and stability in the West, and nowadays also elsewhere. Rather than fighting another superpower, NATO faces the fight on terrorism amongst other modern security challenges. With the invocation of Article 5, NATO has taken its position in combatting terrorism.

With the new enemy of the faceless terrorist, NATO has attempted to restructure itself. However, “the United States conducted the campaign [against terrorism] with little reference to offers of assistance from the allies and without making much institutional use of the NATO framework” (Sloan, 2008). Therefore, despite of NATO´s apparent commitment to aid the US in its war against Al Qaeda and its associates, NATO and consequently the European part of the Alliance might struggle to keep up the pace with the US. Unilateral actions resulting out of the capabilities gap amongst the various members of the Alliance combined with the controversies surrounding the War on Terror itself and the pre-emptive means used to fight it hinder a smooth cooperation within NATO and the expected successes.

The War on Terror is a special war, as it is not (always) fought against an actual state. Instead, terrorist networks that hide amongst the civilian population plan possibly apocalyptic attacks on civilians all around the world. NATO followed and backed the US´ pre-emptive approach on combatting terrorism, meaning to act and strike before the potentially devastating terrorist threats materialize. Due to the disputes regarding the legality

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and desirability of such warfare strategies, international cooperation is weakened, despite of pre-emptive elements being found on all sides of the Alliance (compare de Goede, 2008).

It is also disputed which theoretical basis poses sufficient standards against which actual behavior can be compared to its moral and legal status. This research has chosen Just War Theory (JWT) as it poses a sufficient and comprehensive theoretical model according to which NATO´s involvement in the War on Terror in general and its pre-emptive targeted killings can be evaluated. JWT aims at restricting violence within an armed conflict. It does have an extensive theory with Christian, but also with Judean and Islamic thought too. Therefore, despite of its connections to liberal norms of democracy and freedom especially in the jus post bellum question, JWT remains fairly compatible with different cultural and intellectual thoughts over the world. In general, “it has been the concern of the majority of just war theorists that the lack of rules to war or any asymmetrical morality between belligerents should be denounced, and that the rules of war should apply to all equally” (IEP, Just War Theory). This is one of the compelling arguments for JWT that had the U.N. Charter, but also the Geneva and Hague conventions amongst other international institutions and treaties, orientate itself via the Just War Tradition. Its premises and arguments are reflected in international law and international institutions.

Two major problems remain in the discussion regarding the compatibility of JWT and the War on Terror. First, as terrorists do not occupy a particular territory, the hosting state´s rights to sovereignty are infringed upon in military attacks aimed at the suspected terrorists. It has been argued by the authorities involved in the War on Terror that the hosting state at times has made itself liable to have those rights fringed upon due to its direct and active support of Al Qaeda and its associates. Yet, the infringement of territorial rights is considered legal merely due to the hosting state´s actions prior to the attack or the actual war. Therefore, depending on the hosting state´s political opinion and behavior, raging a war might be in accord or an infringement under the context of JWT. As the infringement of one´s sovereignty poses the clearest example of when a war might be waged justly out of self-defense, addressing the jus ad bellum question, the War on Terror needs to be evaluated under the history of the hosting state´s outright support of accused terrorists and the consistent and absolute refusal to aid the persecution of the accused before the law to justify the infringement of the hosting state´s sovereignty. .

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acknowledges different standards of liability regarding (lethal) violence between combatants and civilians. Yet, with the somewhat disputed status of unlawful combatants, suspected terrorists are killed with the ease of killing an enemy soldier, but are denied the rights of normal combatants. Therefore, they seem to pose a category of their own. If the war is merely fought due to the inability to persecute Al Qaeda under the law enforcement model, suspected terrorists, especially suspected leaders, might only be killed as a last resort. Furthermore, the pre-emptive targeted killings are a proof for the War on Terror to require merely suspicion and not the actual status of a combatant to use lethal force. Such a conceptualization of supposed terrorists seems to undermine the profound distinction between combatants and non-combatants, upon which JWT´s dealing with the jus in bello question is founded.

After outlining the background of JWT and its relation to pre-emption in the first chapter, NATO´s involvements in pre-emption up until today shall be named and assessed. As the problems outlined in chapter 1 are theoretical ones, NATO´s actual conduct since 9/11 will be evaluated regarding its stance on the War on Terror and pre-emptive lethal force. Whilst NATO is actively involved in targeted killings, a clearly pre-emptive war strategy, it does not yet quite acknowledge its involvement or share any opinion it might have on the matter.

In the following sections, JWT is going to be applied as a means to answer three questions. First, is the War on Terror a just war (jus ad bellum)? Second, can pre-emptive targeted killings be used legitimately against supposed terrorists (jus in bello)? And third, how can NATO end a conflict aimed at combatting terrorism justly (jus post bellum)? The case study of Afghanistan seems promising, as other cases such as Pakistan, Yemen, etc. might proof an easier dismissal of JWT regarding the jus ad bellum question. Also, pre-emptive targeted killings have been used as a form of warfare in Afghanistan and the planned withdrawal in 2014 in the context of re-emerging instability in Iraq offer an extensive and necessary discussion on post jus bellum measurements.

Despite the US´s growing unilateral involvement in the War on Terror, NATO remains with the responsibility to serve the international community according to its own and U.N. standards which had been formulated along the lines of JWT. As stated in the Strategic Concept of 2010: “NATO member states form a unique community of values, committed to the principles of individual liberty, democracy, human rights and the rule of law. The Alliance is firmly committed to the purposes and principles of the Charter of the United Nations […]”

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(Strategic Concept, 2010). Is NATO therefore living up to its own standards in its involvement in the War on Terror and particularly pre-emptive targeted killings?

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Theoretical Framework

Just War Theory: Origins and purpose

The Just War Theory or Tradition has been derived from the Natural Law Tradition. It was Thomas Aquinas who articulated first what could be considered the origin of the War Convention1. “Just war theory in different guises has been advocated by Catholics and Protestants alike for centuries, and forays into similar or comparable forms of thought in Jewish and Islamic contexts have also emerged” (Provost-Smith, 2013). As every human being has a right to life, there are inevitable obligations for humans to preserve that right. “In this case, the right to life generates for others a negative obligation to not take life and a positive obligation to protect life” (Shanahan, 2005). Therefore, there can be illegitimate and legitimate violence. Whilst trying to kill somebody is a case of illegitimate violence, killing someone in self-defense to save one´s own life is not.

“The just war tradition is best understood as a sustained and disciplined intellectual attempt to relate the morally legitimate use of proportionate and discriminate military force to morally worthy political ends”(Weigel, 2002). Just War Theory aims at regulating and thus limiting violence in line with the assumptions of the Natural Law Tradition. Wars may be fought out of the necessity to defend oneself against threats which otherwise could not be averted without major losses or, under the right circumstances with the right authority, to protect other lives.

This research has chosen to evaluate the changes in warfare brought by the War on Terror in relation to Just War Theory, as it is important to critically analyze those involved in war. “The precepts of the just war tradition were codified in treaties such as the Hague Convention and two particular documents that followed WWII: the charter for the Nuremberg war crimes trials and the United Nations charter” (Shanahan, 2005). In fact, “all theories of international law agree on one thing: Pacta Sunt Servanda. Treaties must be observed. [..] This is the voice of the Just War Ethic in the era of the UN Charter” (Sweeney, 2003). Therefore, JWT is a widely accepted theory on which major international institutions and understandings of conflicts are founded upon. It provides a long believed comprehensive

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approach on regulating why and how wars are fought, usually referred to as jus ad bellum and jus in bello principles. Furthermore, JWT also includes rules on post conflict situations. Yet, this jus post bellum aspect of JWT has been given greater attention only recently. The first two categories remain the most heavily discussed and controversial parts.

As in the Article 51 of the U.N Charter, JWT posits a just war only in a situation of self-defense. “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations” (U.N Charter, 1945). The same is valid for NATO. “The Alliance is purely defensive in purpose: none of its weapons will ever be used except in self-defense…” (NATO, 1991). Still, NATO and the U.N have extended their understanding of self-defense to a unus pro omnibus, omnes pro uno2 attitude manifested through e.g. Article 5 of the North Atlantic Treaty. Its invocation after 9/11 marked the beginning of the war on terrorism, declaring the attacks on the World Trade Center and Pentagon to be a military attack on the alliance. Still what remains a common principle in all, international institutions, (inter)national law and Just War Theory, is self-defense.

As has been stated by the United States government for legitimizing various actions concerning the War on Terror: “the United States is entitled to use lethal force against such groups [terrorists] as an exercise of the right of self-defense” (Martin, 2012). The Authorization for Use of Military Force against Terrorists, signed by George W. Bush only one week after the 9/11 attacks show clearly how the US thought of itself and NATO to act in self-defense from the very beginning. In fact, the supposed threat posed by terrorist groups seems in fact destructible only by brute force in the National Security Strategy of 2001. “The hard core of the terrorists cannot be deterred or reformed; they must be tracked down, killed, or captured” (NSS, 2001). It sounds therefore as if the necessary step to neutralize the terrorist threat is the use of violence. Such justifications given for the War on Terror are formulated in the line of reasoning found in JWT. The question of self-defense, but also the actors involved and their respective authority to engage in war remains controversial, yet can be evaluated and discussed in the realm of JWT.

Since the just war tradition is as extensive as it is popular, this research cannot pay full dues to the complexity of assumptions and arguments of JWT. Questions remain that are not even mentioned here. Yet, as there exists a conflict between NATO members and several

2_{One for all and all for one}

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groupings in several countries, this research concentrates on how the War on Terror manifests itself in a world supposedly reflecting JWT in its international law.

Pre-emption at the limits of Just War Theory

“The failure to resolve issues connected with the problems at the margins of just war theory, such as the use of drone technology, has a reverse inferential effect on the more standard cases of killing in war” (Finkelstein, 2012).

“The United States has emphasized that the international system is characterized by far more uncertainty since the end of the Cold War and that potential threats are numerous and varied” (Rafferty, 2004). Thus, according to the US, pre-emption seems to be the adequate measure of self-defense, just as deterrence was believed to be the suitable remedy against the Soviet Union. Yet, many European partners see pre-emptive measurements as a contra productive factor in a multilateral world in which international organizations ought to assist in coming to an agreement (Rafferty, 2004). Targeted killings pose the most controversial pre-emptive war strategy and have been so far used in American unilateral missions, but also by NATO and those in the “coalition of the willing” (Bush, 2002).

As organizations such as NATO account for the common defense after an attack has happened, pre-emption seems to be counterintuitive sometimes to such defensive purposes. The degree and range of which forms of pre-emption are to be used depends on the perception of existing threats at a particular point in time. Such a perception is to a certain degree subjective and therefore gives a higher possibility to enforce pre-emptive strikes in a unilateral manner, as not all partners of the alliance might agree on the supposed threat. The notion of striking first, before a threat actually materializes, appears to contradict the accepted tenets of just war theory” (Shanahan, 2005). The diplomatic Iraq Crisis has shown that even after an actual attack, as 9/11 had been considered to be by NATO, pre-emptive responses are still condemned heavily in certain circles. The problem with fighting earlier rather than later is that this form of preventive war, in which pre-emptive measures are used, has been rejected by “virtually every variation of just war theory [which have] traditionally condemned such doctrines, labelling nations that engage in preventive wars as aggressors themselves” (Shanahan, 2005).

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Still, the role of the hosting state´s government is an essential question in whether pre-emptive measures are justified under the rules of JWT. Cases such as Pakistan, in which the government´s stance up to this day is difficult to pin down, are plagued by leaking documents and memos revealing supposed connections to the Taliban and US intelligence. “Secret US documents reveal that senior Pakistani government officials have for years known of and endorsed CIA drone strikes, an American newspaper reports” (BBC, 2013).

Drone strikes or targeted killings are the most controversial pre-emptive measure taken in the War on Terror. Furthermore, it seems that the US´s title for terrorists as unlawful combatants in fact does imply the combatant status, whilst not acknowledging full rights soldiers in traditional wars hold, such as the right to surrender, rights regarding captivity and eventual release, etc. “The U.S. government has also implicitly argued that since war has changed so dramatically, we need to expect and accept different ethical, legal, and military standards, such as preemptive strikes and military tribunals where suspected terrorists may not even know the evidence against them” (Crawford, 2003). In other words, anyone under suspicion of supporting of being connected to terrorists can be dealt with pre-emptively, without the suspect knowing and potentially with lethal force.

This research will assess to what extent the War on Terror can be accommodated within the standards of the international community. NATO poses a great example to assess the dynamics and realities of Western usage of pre-emptive measures, such as targeted killings, and how the various actors involved perceive and deal with the alteration of warfare from deterrence to pre-emption (Rafferty, 2010). If the only realistic way to defend against a threat is to be offensive, can NATO still state that it is solely used as a means of self-defense (necessary to fulfill the jus ad bellum requirement)? In this regard, the role played by the hosting state and the peculiarity of unlawful combatants, those who enjoy the liability to be killed whilst being denied the rights of common soldiers, are essential circumstantial factors

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Methodology

This research takes primary and secondary sources as the base of analysis. Official statements and documents by NATO, the United States and various European actors will be taken into consideration. The secondary sources include newspaper articles and academic journals. The vision of JWT is going to be used to assess NATO´s relation with pre-emption, therefore, the storyline of the just war tradition is going to be used as an instrument for the discursive analysis on NATO´s involvement with pre-emption in the War on Terror. Actual occurrences are going to be used as a contrast or/and extension to official documents such as NATO´s Strategic Concept of 2010 to deepen the analysis of pre-emption and the War on Terror in general.

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NATO`s involvement in the War on Terror

The War on Terror and its preemption

After 9/11 NATO declared its involvement in the fight on terrorism first via the invocation of Article 5. In accord with the all for one and one for all logic of the Western cooperation against the expanding Soviet Union, NATO founded its ability on granting security to its members through the deterring principle of collective defense. Joint actions were promised to be taken in case of any member of the Alliance being attacked. The Washington Treaty in which Article 5 had been expressed states the following:” The Parties agree that an armed attack against one … [member] shall be considered an attack against them all … [NATO] will assist the Party or Parties so attacked … including the use of armed force, to restore and maintain the security of the North Atlantic area” (NATO, What is Article 5).

As NATO itself had labelled the attacks on the World Trade Center and Pentagon to be of a military nature, therefore establishing a state of belligerence, NATO took a stance on the War on Terror. By admitting that the attack on the World Trade Centre constituted an armed attack on the US and therefore the alliance as a whole, NATO´s behavior assumed that the actor attacking, namely Al Qaeda, had posed a more dangerous and aggressive threat than the USSR. The US matched this interpretation with the launching of the War on Terror and the invasion of Afghanistan, through seeking and singing the Authorization for Use of Military Force against Terrorists within a week after 9/11. As argued by members of the Naval Postgraduate School in California: “NATO´s future changed dramatically with the terrorist attacks on the United States. Whether NATO can adapt to combat this new threat from terrorism is a critical issue for its relevance in the 21st century” (Bailey, 2004). Certainly, NATO´s first invocation of Article 5 ever brought a renewed sense of emergency to act to NATO, and the international community in general.

With regard to its stance on targeted killings, NATO remains relatively ambiguous. Despite its direct involvement in drone strikes, NATO refrains from talking excessively about pre-emptive targeted killings. The overall European reluctance to fill the military capabilities gap between American and European actors has been accompanied with a renewed tendency for unilateral actions by the US. Therefore, despite of NATO´s enlightenment regarding its

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new vision, it is far from agreed upon which forms of pre-emption are acceptable in the post 9/11 world. As a result, neither within NATO, nor between the US and the EU, is there a serious discussion about the potential, or even necessary, limiting of pre-emptive targeted killings.

In fact, the Strategic Concept of NATO signed in 2010 in Lisbon does not mention pre-emption at all. Instead, it mentions prevention to a fair extent, and that “the best way to manage conflicts is to prevent them from happening” (NATO, 2010). Yet, does the prevention of a conflict not currently entail pre-emptive measurements in the War on Terror? Whilst NATO does deploy US drones under its banner, it refrains from explaining the conditions under which a preventive strategy includes pre-emptive means.

Pre-emption is often seen as an alternative to negotiation (compare Boot, 2003). In order for pre-emptive action to be preferable to diplomatic approaches, there are two conditions to be fulfilled. First, there needs to be a certain degree of uncertainty regarding the threat. For example, Iran´s nuclear projects and the secrecy surrounding those have sparked fears regarding a potential future nuclear attack. Yet, it is not certain whether Iran actually wants to produce nuclear arms and if yes, whether they might not be acquired for deterrence and therefore defense only. Here, the second condition of a potentially disastrous or apocalyptic like threat, such as a nuclear attack, creates a situation for pre-emption to become interesting. Instead of waiting for the potential annihilation of one´s country, some argue, one needs to act before the, still potential, threat could materialize. In other words, should the international community intervene in another country or state given the potential development of a future disastrous threat?

The response by President Bush through the One Percent Doctrine certainly caused a rather forced but immediate division between those who see the need to act and those who want to discuss strategy first. “If there's a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It's not about our analysis ... It's about our response“(Suskind, 2007).

Especially when the risks of another terrorist attack or/and the involvement of weapons of mass destruction are high, officials bearing the responsibility for their people are tempted to act before precious time is wasted talking. Yet, when looking at the acceptance of the Non-Proliferation Treaty of 1970, it is an exaggeration to state that "all the non-proliferation success has been due to regime change" (Müller, 2003). With a lacking

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regulation on pre-emptive force, such diplomatic efforts might be more easily dismissed in the future in favor of military actions.

With the emergence of Unmanned Aerial Vehicles and the technology behind them, the world was given a new kind of weaponry with similar potential as nuclear arms. Despite of the moral, legal and practical concerns of pre-emptive force, it remains an actual practice in wars fought around the world and therefore might not realistically disappear from the international community for a long time. Or, in the worst case scenario as The Guardian reports, drones might even become the new preferential medium to execute nuclear strikes (compare Fielding, 2012). Certainly, UAV´s revolutionize possibilities for espionage and pre-emptive strikes. This new technology will remain in the center of attention, with ever new ways to use to be discovered.

In fact, on both sides of the Atlantic pre-emption is a widely known strategy. Certainly, the US is leading in drone technology, the War on Terror and other preemptive measurements such as airport security. “A key element in the war on terror is a politics of preemption, as set out, for example, in the 2002 US National Security Strategy” (De Goede, 2008). But, the European Union´s Terrorist Finance Tracking Programme and other precautionary measurements regarding global warming, show clear signs of a pre-emptive nature too. It seems that both sides of the Atlantic are indeed willing to use the option to sometimes think and act pre-emptively, as uncertainty and pressing threats cause them to prioritize who ought to be protected. Yet, as the elimination of a threat therefore occurs before actual harm has been done by that threat, the presumption of innocence stands in juxtaposition to the notion to act on a perceived, not a necessarily truthful, threat.

In relation to JWT it has to be acknowledged therefore, that pre-emption undermines the very foundation of the Just War Tradition, namely the principle of distinction. It is not the combatant status that makes one liable to be killed, but the potentiality of threat posed judged by an enemy fighter. Therefore, pre-emptive strikes, especially when lethal, blur the reasonable threshold of how scared one has to be to use pre-emption legitimately and to set aside fundamental assumptions of the rule of law, such as the idea that one is innocent until proven guilty.

In fact, some critics of pre-emptive lethal strikes, such as targeted killings by UAV´s, in fact declare pre-emption to be illegal in any way. As all people fall subject to the Universal

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Declaration of Human Rights, Article 11 could be interpreted to give a definitive answer to pre-emptive killings.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

As mentioned in the conceptual framework, Just War Theory dictates exceptional treatment in a state of belligerence. Yet, as targeted killings occur under varying degrees of uncertainty, targeting only assumed terrorists, the executing authorities might not know whether they are actually targeting a civilian, a combatant (e.g. member of hosting government forces in case the hosting state is an ally of terrorists groups) or an unlawful combatant. Furthermore, what happens to the legality of pre-emptive lethal force, when it is aimed against someone who has not yet become an official combatant nor an unlawful combatant? Where does pre-emption fit when killing someone who was willing to engage in terrorist activities but has not yet done so? Additionally, do these circumstantial factors even matter when the executing authorities of pre-emptive strikes will never find out who their target actually is?

Two sides of the Atlantic. US vs. EU stances

In Europe, the only country willing to respond with lethal force to potential risks is the UK, so far. The diplomatic crisis after the Iraq War further emphasized the division within those participating and those opposing the Coalition of the Willing. Yet, even in the European Security Strategy, emption is not mentioned. The conflict of European opinions on pre-emptive targeted killings is therefore reflected neither in the ESS nor NATO´s latest Security Concept. Again, prevention is used as a less controversial description of the European

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Security Strategy just as in NATO´s new strategy. “Conflict prevention and threat prevention cannot start too early” (ESS, 2003). Yet, it is not explicitly stated where preventive purposes use pre-emptive means.

Yet, the seeming absence of official stances taken on pre-emptive killings via UAV´s, does not explain why NATO then in return continues to be involved in actions it fails to acknowledge fully in its strategy. “The NATO Allies agree that terrorists should not be allowed to base, train, plan, stage and execute terrorist actions and that such a threat may justify acting against these terrorists and those who harbor them. Such operations will be of a joint nature“(Bailey, 2004). The degree of a possible joint nature though, is being questioned not only by Europe´s reluctance to take a stance, but by its evasion of investing into actual military capabilities. The vast majority of European members have continually been reluctant to live up to the monetary commitment of spending 2% of the national GDP on defense expenditures (see Table 3).

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The silence of the European voice might be explained partially by the lack of European military might. Even within NATO`s Strategic Concept, the lack of European motivation in

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Derived from: http://www.nato.int/nato_static/assets/pdf/pdf_topics/20140224_140224-PR2014-028-Defence-exp.pdf

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acquiring expensive capabilities to, if not match at least support, the US is touched upon. “NATO recognizes the importance of a stronger and more capable European defense” (NATO, 2010).

In fact, the US has been and remains fairly critical towards the proportion of European contribution to NATO. Not 2 years after the 9/11 attack, the US Ambassador dealing with NATO, Nicolas Burns, summarized the dangers of the capabilities gap between the US and EU with:” Without these capabilities, most European nations will not, in the future, be able to meaningfully contribute to modern military operations, making hollow any plans for a serious European-American security partnership” (Burns, 2003).

But the problems do not merely stop there. With the new technology of drones, but also the general speed of technological evolution, lacking capabilities in obtaining similar operating systems further divides transatlantic cooperation. Programs such as Secret Internet Protocol Router Network (SIPRNET), used preferably by the US in numerous military operations, are neither compatible with European counter parts, nor do they leave room for the possibility of international information sharing by design. Therefore, with less ability to assist in military operations, Europe seems to diminish in relevance for military cooperation on a global scale. Today, NATO does not even obtain the information on the subjects of targeted killings and can therefore not agree on which standards it deems suitable for pre-emptive (lethal) force. Yet, one must not take for granted the helplessness of Europe. “It is difficult to make comparisons between US and European military capabilities […] [as] scenarios differ, and the employment of capabilities is scenario-dependent” (Yost, 2000-2001).

The general absence of an open attempt to define the legitimate circumstances of pre-emptive force, is a mere reflection of the troubling puzzle on how to defy an enemy, whose main purpose is to destroy the stability of everyday life. Without a clear idea on what victory means, one can impossibly evaluate the legitimate means to get there. For now it seems that the US´ focus remains on preventing further harm in the homeland, rather than assessing the root problems of why terrorism exists. “We must take the battle to the enemy, disrupt his plans and confront the worst threats before they emerge. In the world we have entered, the only path to safety is the path of action” (NSS, 2002). In other words, whilst not even the US knows what to do, damage control is used as an attempt to getting a grip on terrorist threats. This strategy is translated in NATO´s involvement in the War on Terror and pre-emptive killings, whilst its legal and moral issues remain a taboo.

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Indeed it seems as if NATO, initially guaranteeing safety, now is actively involved in breaching the sovereignty of hosting states, in whose territory terrorists are suspected to be. Rather than acting solely in self-defense, the supposed terrorist threat has widened the scopes of defensive action. “Most strikingly, the North Atlantic Council, echoing the sentiment of the Reykjavik Communiqué, stated […] [that] defense against terrorism must be mutlifaceted and comprehensive and that it was better to deter and prevent terrorist attacks than to deal with their consequences” (Bailey, 2004). Yet, the discussion regarding the immediacy of a potential threat and the proportionality of responses is left out. Certainly it is better to prevent a threat from materializing. But what is the range of morally and legally acceptable actions against threats that are neither imminent nor reach the potential devastation of an actual war?

Due to the lack of explicitness within the NATO Treaties, this research is going to move forward to the case study Afghanistan, to outline and evaluate the practical involvement of NATO forces and formal and informal utterances of politicians involved in the War on Terror in order to get a more realistic grip on NATO´s stance in pre-emption.

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The Jus ad Bellum Question

Case Study: Afghanistan

This section of the research is going to investigate actual involvements of NATO regarding the War on Terror and pre-emptive killings in Afghanistan. The insights gained are going to be used in order to compare reality to its theoretical and legal embedment within the international community.

“The United States currently has about 66,000 troops deployed in Afghanistan. NATO and other coalition nations have about 37,000 troops” (Samuel Hall Consulting, 2013). Not just in number of soldiers, but also in monetary and technological investment the US is leading within NATO and in the world. Even though NATO has prepared distinctive missions between the actual war in Afghanistan, Operation Active Endeavour, and the post-war transition, Operation Resolute Support, the US remains the most powerful voice in NATO.

At the same time, “at least five soldiers from the Afghan army have been killed in a Nato air strike in eastern Afghanistan” (Wyatt, 2014). Other headlines paint similar scenarios. “Afghan authorities slam NATO after drone strike kills 16 civilians” (RT, 2013). Pre-emptive lethal force is a daily repeated truth in Afghanistan. Yet, the international community and executing authorities such as NATO remain in silent disagreement whilst maintaining the action. With the president of Afghanistan “Hamid Karzai consider[ing] attacking women and children against all accepted international norms” (Al Jazeera, 2014, 1), the Afghan leader argues in line with the civilian/combatant distinction.

Yet, Afghanistan remains an exceptional case study for the War on Terror as the Taliban regime poses an example of a government which had openly expressed its involvement with and support of Al Qaeda. One of the most difficult problems, the role of the hosting state, can be examined in greater depth in the line of Just War Theory. Could it be argued that the state of belligerence between the US government and Al Qaeda is legitimate, as its influence could be traced back to a certain territory ruled by the Taliban: Afghanistan?

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“The Taliban was formed in the early 1990s by a Pashtun faction of mujahideen, Islamic fighters who resisted the Soviet occupation of Afghanistan (1979–89) with the covert backing of the U.S. Central Intelligence Agency” (Laub, 2014). Yet, already in 1999 sanctions were declared against the Taliban government for its support of Al Qaeda. Therefore, the former Afghan government had had a history of receiving critique not only regarding its human rights violations of e.g. the treatment of women, but also for their associations which radicalized terrorists.

Amongst the Afghan population, the Taliban were received in numerous ways. “Afghan support for the Taliban and allied groups stems in part from grievances directed at public institutions” (Laub, 2014). “Afghanistan’s weak governance was a major component of … “the perfect storm”: the Taliban and al Qaeda had sanctuary in Pakistan, local governance was not taking hold … and the planning and implementation of critical infrastructure projects were lagging.(Gorkowski, 2009). It is therefore the disappointments in a corrupt political body and the clearly structured law of the Taliban that makes them more appealing to especially rural areas in Afghanistan. The failure of governance by secular bodies gave and continues to give reasons for the support the Taliban among the Afghan population.

At the same time, the Washington Post reports about how the “Afghan President Hamid Karzai accused the United States of launching a drone strike that killed a 2-year-old child Thursday and vowed not to sign a long-term security agreement if similar attacks continue” (Craig, 2013). Karzai is therefore struggling to end the killings of civilians and suspected terrorists in his country, which could increase grievances amongst the population towards the already corrupt government. In this context, the frightened Afghan population again turns to the Taliban, who might have lost their positions in the government, but who remain an important actor within Afghanistan, as an alternative. “The Taliban has bowed to public pressure by claiming to abjure attacks on civilians, though it continues to assassinate government officials and other pro-government individuals, writes Kate Clark of the Afghanistan Analysts Network” (Laub, 2014). If the actual elected government cannot stop the killings of innocents, the Taliban might experience a revival in support, as they proclaim to be the ones fighting to protect Afghan civilians. This is in fact a problem when anticipating

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the withdrawal of international troops from Afghanistan. Iraq serves as an example for the potentials of post-conflict devastation (Cordesman and Khazai, 2012).

The Taliban remain an important actor within Afghanistan for numerous reasons. Given the partially government-like functions and the lack of widely perceived suitable alternatives, it seems that over a decade of war has not paved the way for a maintainable secure situation in Afghanistan. Instead, it might be argued that it is exactly those unregulated pre-emptive targeted killings that increase perceived and actual grievances by the vast population of Afghanistan. “[...]The use of targeted killings may be harmful to the attacking country’s interest, as it emphasizes the disparity in power between the parties and reinforces popular support for the terrorists, who are seen as a David fighting Goliath” (Blum, 2010).

Afghanistan: Just or/and Legal?

An important factor in assessing the compatibility of the War on Terror and JWT is the role played by the state which hosts the terrorist groupings. In order to answer the question on whether there was a just cause for a war, the role of the hosting state must be examined. Should the hosting state government actually supply support to either persecute or fight terrorist groupings, then the continuation of the war despite the hosting state´s cooperation constitutes the use of violence as a preferred strategy to cooperating, not a last resort. There remain controversies regarding whether terrorist organizations are an actor with the right to engage in war and the violation of the hosting state´s sovereignty. The case study of Afghanistan remains a special case though, as the recipients of the invasion had not only been Al Qaeda but also the Taliban government. First, the reasoning of the invading authorities is going to be reconstructed in the lines of JWT. Then, remaining problems for the justification of the War in Afghanistan are going to be addressed on theoretical and practical levels.

Just War Theory is entirely built upon the assumption that violence must be constrained. “Most agree that, under certain circumstances, war is justifiable, whereas criminal violence is never justifiable” (Shanahan, 2005). As a result, the distinction between war and criminal violence is emphasised by restricting the right to engage into war to states. Any act of terrorism therefore, remains an act of criminal violence which ought to be treated under the

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law enforcement model rather than under an assumed state of belligerence. Is the War on Terror therefore in general incompatible with Just War Theory?

Brett Kessler, instructor at the US Military Academy at West Point and Major in the US Army argues:” Because there is no equivalent to a police force in the international area, and because of the particular of illegitimate violence that international terrorism is … we can justify the use of organised armed forces as the particular response to international terrorism” (Shanahan, 2005). In other words, there remain no other means to fight terrorism if the hosting state refuses or is incapable to enforce international law in its territory.

Afghanistan poses a special example for the War on Terror as the hosting state´s government of the 2001 Afghanistan was openly engaged with Al Qaeda. In other countries, such as Yemen or Pakistan, the hosting state remain (officially) further detached from the terrorists in their territory. “By targeting members of the Al Qaeda organization and the Taliban government of Afghanistan (which enabled Al Qaeda´s training, planning, and coordination for the 9/11 attacks), America fought a [self-proclaimed] war of self-defense against the aggressor” (Shanahan, 2005, emphasis added). In this scenario the aggressor was not merely a non-governmental network, Al Qaeda, but also the Taliban government ruling over the Afghan territory. Arguably, this gave Afghanistan the “legitimate authority” (Shanahan, 2005) to go to war, but also to be engaged with in war. Again, as it remains controversial whether terrorist groups have the legitimate authority to possess the right to go and engage in war, this argumentation is fundamental for the attempt to legitimize the War in Afghanistan. It has been argued by the US that due to the Taliban´s occupation of the Afghan government before the invasion, their position as the leaders of their imposed regime gave them not merely the right to engage in war, but consequently also the right to be waged a war against. In other words, the US argued that due to the Taliban establishing their own government in Afghanistan combined with the continued support of Al Qaeda, the terrorist violence shifted from the law enforcement model to the war model.

Contrarily, it can be argued that “usually a violation of territorial sovereignty will be considered just cause for going to war, casus belli, even if the consequences of that violation for human lives and dignity might be relatively insignificant”(Shanahan, 2005). In JWT this is true for all cases in which the sovereignty of a state is breached. Therefore, according to this logic the government of Afghanistan had a right to engage in war with the US, as the Americans entered its territory. Due to the fact that the Taliban actually held government in Afghanistan from September 1996 until December 2001, they remained with the right to

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sovereign integrity4. Afghanistan poses an exception to other cases of the War on Terror, as the Afghan government at the time was waged war against too. As the US had declared a war in self-defence not only against Al Qaeda but against the Taliban government as well, the violation of Afghanistan´s sovereignty, in this line of reasoning, was merely an inevitable by-product of the war.

The widespread perception regarding the justice of the West´s presence has proven to be dimmer. Yet, the US`s explanation on why to invade Afghanistan is still structured along the lines of the Just War Discussion. As Al Qaeda has attacked the US homeland, the US acted in self-defence, the only reason permitted to engage in war in JWT. The Taliban government openly harboured those planning and executing attacks on the US soil, therefore making themselves liable to be declared war against.

As President Obama has argued: “[A]fter the Taliban refused to turn over Osama bin Laden – we sent our troops into Afghanistan” (Griffin, 2010). In the eyes of the US it seemed undoubtedly clear that their right to self-defence would protect them from prosecution. Also, the invocation of Article 5 supported the US´s interpretation of a military power attacking the Alliance. Al Qaeda might not have occupied and ruled a particular territory, but they did have supporters who did and the means to act in a dangerous fashion. The lines between civilian, military and governmental characteristics of terrorist groups were more blurred in the Afghan scenario than in any other country.

The Taliban government offered the Bush administration before the beginning of the Afghanistan War, that upon the presentation of evidence connecting Osama bin Laden to the 9/11 attacks, bin Laden should have been trialled in Afghanistan. The Taliban treated bin Laden therefore as a usual criminal, whose innocence remained assumed until proven otherwise. Wakil Ahmad Muttawaki, the last foreign minister of the Taliban government spoke out for the willingness to cooperate by his government. “"Even before the [9/11] attacks, our Islamic Emirate had tried through various proposals to resolve the Osama issue. One such proposal was to set up a three-nation court, or something under the supervision of the Organization of the Islamic Conference [OIC]," Muttawakil said” (Mashal, 2011). Instead, it was the US who refused to talk or acknowledge the Taliban government in the first place. At the U.N. Security Council for example, Afghanistan´s seat had been occupied with a representative of the political opposition to the Taliban. Considering the tense relations

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between Taliban and the Bush administration, the US alleged a vast involvement between the Taliban government and Al Qaeda resources.

Disputes remain which of the numerous interpretations of JWT is suitably fit for the case study of Afghanistan, but it is possible to argue for a theoretical case in which a hosting state harbouring and supporting terrorist organisations can be legitimately attacked. As the law enforcement and the war model are the two options for dealing with violence, the absence of the ability to enforce the law leaves war as the only alternative. Yet, in Afghanistan the Taliban offered to trial those alleged to break the law within their territory, if evidence was presented. Was there therefore a real chance to address Al Qaeda´s unjust violence without a war? The answers are as numerous as they are disputed, depending on subjective mistrust.

What cannot be disputed though is the fact that the UN Charter functions as the main source and authority in international law. “As codified in the UN Charter, disputes are to be brought to the UN Security Council, which alone may authorize the use of force. Without this authorization, any military activity against another country is illegal” (Griffin, 2010). Therefore, despite the potential compatibility between the Just War Tradition and the invasion of Afghanistan, the U.S. coalition has failed to uphold its own rules and seek the required authorization to go to war. NATO´s engagement in the War in Afghanistan is in direct violation of the UN Charter itself. The proclaimed self-defense is in theory a legitimate reason to engage in military attacks, if the hosting state was to refuse to trial those responsible for illegitimate violence. In reality though, the Taliban government in Afghanistan remained open to cooperate in the prosecution of Osama bin Laden.

The US argued that the need to prevent a second attack circumvented the necessity to consult the UN Security Council. In the U.N. Charter it is noted under Article 51 that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security” (U.N. Charter, 1945). It is agreed upon that “the need for self-defense must be, in the generally accepted phrase, “instant, overwhelming, leaving no choice of means, and no moment for deliberation”” (Griffin, 2010). But in fact the UN resolution 1373, addressing the problems regarding terrorism, does not mention the use of military force. The US coalition started a war out of supposed self-defense and maintained military conflict even after the U.N. has issued resolutions on which necessary measures need to be taken to maintain international peace and security.

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The perceived threats vary in degree among the different members of the UN and NATO. The Resolution 1373 condemns the 9/11 attacks and calls for the freezing of assets and any active or passive support. It also calls countries to “find ways of intensifying and accelerating the exchange of operational information” (U.N., 2001). Yet, it is exactly the acceleration of the capabilities gap between the US and Europe through the War on Terror and its new technology that has made communication (and cooperation) amongst the members of the Alliance more difficult.

Therefore, while one can imagine a theoretically possible situation to use military force against organized non-state actors backed by their hosting state, the Taliban´s openness to assess where the law had been breached contradicts the idea that the war was initiated as a last resort option. Furthermore, as the case of Taliban Afghanistan remains an exception to the norm of usually less radical and even more co-operative hosting states, the breaching of the sovereignty of Yemen, Pakistan, Somalia, etc. cannot be even arguably explained by the supposed radicalization of their governments. Therefore, if not even Afghanistan poses a case of a just war, the War on Terror could not be fought justly elsewhere either. Furthermore, without the backing of the hosting state, terrorist organizations remain clearly non-governmental entities, lacking the right to go to war and be waged a war against. Legally speaking the US has not been given the legitimate authority to fight Afghanistan by the UN either. NATO has followed the US´s lead, but did not present an attempt to solve the existing problems of the Afghan war. Further arguments could be brought to proof further illegalities in the War of Afghanistan, but this research will rest with simply proving that the War in Afghanistan is, even if under different conditions hypothetically compatible with JWT, illegal once.

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The Jus in Bello Question

Just pre-emption in combatting terrorism?

Despite of the theoretical assessment, in practice there is a war fought for more than a decade now. NATO´s invocation of Article 5, the general reaction of the international community on 9/11 and anti-terror efforts worldwide show a widely shared belief in the necessity to fight terrorists, such as Al Qaeda. The War in Afghanistan is illegal and unjust under the particular circumstances, despite of it being the closest to a radicalized hosting state government (at the time). This research is going to continue with the discussion whether pre-emptive lethal force, in the form of targeted killings via UAV´s could be used legitimately within a war. With regards to Just War Theory that means from now on the jus in bello, justice within war, and not the jus ad bellum, justice for war, category will now become the focus for the assessment.

JWT offers moral guidelines similar to several arrangements of international law, such as International Humanitarian Law, regarding the behavior during an armed conflict. Assuming that the War on Terror is an actual war, it can be argued that the enemy, namely Al Qaeda and its associates, have made themselves “morally liable to be killed by virtue of [their] moral responsibility for wrongful harm” ( McMahan, 2009). In war it is permissible to kill soldiers of the opposing camp. It is important to distinguish between combatants and civilians, which is a more difficult undertaking when the enemy is a terrorist group not attempting to distinguish itself from the civilian population. Yet, attacks against enemy soldiers, even if they are sleeping or do not pose any immediate threat, are justifiable targets of even lethal violence.

JWT exactly aims at establishing the differences in rules between combatants and civilians. “The just war tradition recognizes the moral reality of war and wartime behavior and offers a possible analysis, the most commonly accepted analysis, of the application of moral principles toward the use of armed force and the specific conduct of members of the armed forces” (Shanahan, 2005). If the justification for killing in war then is status dependent, declaring Al Qaeda as the enemy does not require its members to be involved into any action that poses an immediate threat to be legitimate recipients of lethal violence after the declaration of belligerence.

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This line of reasoning is in accord with the Bush Doctrine, which introduced pre-emption to the War on Terror. “To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense” (NSS, 2001). Instead of waiting for Al Qaeda to prepare further harm, the US and consequently NATO are eager to act before. Yet, pre-emptive killings are not only in juxtaposition to the presumption of innocence, which for civilians remains in place even in times of war. They also take away to potential to correct one´s false judgment via killing targets upon suspicion. Other means of pre-emption, such as asset freezing, can still have devastating consequences for the targets, yet leaves the potential to reverse measurements taken upon a hunch. Whilst NATO´s Strategic Concept of 2010 does not refer to pre-emption, NATO has been criticized for its involvement in the pre-emptive war strategy5 of targeted killings. “"At 3:30 a.m. this morning, due to a NATO airstrike in Charkh district, Logar province, five service members of the Afghan national army were martyred and eight others were wounded," Defense Ministry spokesman Zahir Azimi said on his Twitter account” (Al Jazeera, 2014).

NATO´s invocation of Article 5 in response to the 9/11 attacks has established the acknowledgment of the existence of an armed attack on the Alliance. Yet, it remains relatively silent regarding the pre-emptive peculiarity of the War on Terror, despite of its active engagement. Whilst JWT offers a comprehensive theoretical model to assess the various stages of war, the introduction of pre-emption and respective pre-emptive war strategies have created new puzzles to be solved regarding the compatibility of pre-emption and the jus in bello aspect of JWT.

The prototype terrorist: Osama Bin Laden

Killing someone before an actual crime has been committed is impossible to combine with the presumption of innocence. Yet, in a state of war the presumption of innocence remains merely existent for non-combatants that do not pose any immediate threat to combatants. Killing a known and confirmed terrorist or member of Al Qaeda before that person can engage in (further) harm could be argued to be just, due to his status of a combatant. Therefore, even strikes on Al Qaeda training camps, where the recruits might not have yet exercised any

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unjust violence, could arguably be a legitimate military target. But generalized hypothetical discussions of the use of military force against terrorists remains a difficult undertaking due to the contextual relevances of targeted killings. Therefore, the case of the killing of Osama bin Laden, being so central to the War on Terror, poses an example which is going to be taken for assessing force against (suspected) terrorists.

Some argue that, “Bin Laden was not only "a war criminal", as the [former archbishop of Canterbury6 Justin Welby Wright] noted, but arguably also an active combatant” (Chaplin, 2011). Being an official member and even leader of Al Qaeda, many argued, made it perfectly reasonable to kill him under any circumstances (if he had been a civilian it would have been thus unjust to use lethal force). Yet, to be considered and active combatant, one either needs to be identified as a combatant or engage actively in the war. Osama bin Laden, as well as any alleged terrorists have been denied such a title. They are supposedly unlawful combatants, being fought against in a war that is merely a particular response to international terrorism, as long as there is no other way of tackling it. Yet, the War in Afghanistan had been (officially) launched upon the supposed refusal by the Taliban to deliver Osama bin Laden to the USA. As Brett Kessler had argued, due to the lack of an international police force, armed conflict remains the only alternative to limit terrorist threats. Yet, bin Laden could have been arrested rather than killed, restoring the option to deal with the alleged planner of the 9/11 attacks under the law enforcement model.

. Furthermore, if all terrorists are combatants, the use of drones should not be described as pre-emptive strikes. A known terrorist, who has already been involved in unjust violence and holds the combatant status, is a legitimate target by definition. JWT aims at regulating violence within war and to keep it between combatants, not to entirely prohibit it. As it is often portrayed to the public, drones are used to kill terrorists before they can commit any or any more unjust violence7. Then, drones would merely be a revolution in how comfortably one can kill the enemy, but not a pre-emptive phenomenon.

Still, neither the Just War Tradition nor international law permits the killings of combatants and especially their leaders if there is a chance for surrender or capture. The Trials of Nürnberg after World War II, but also modern institutions such as the International Criminal Court in the Hague are proof for the international community´s attempts to uphold

6_{The Church of England, but also Christianity in general, have an extensive history with regards to Just War}

Theory. Compare http://www.bbc.co.uk/religion/religions/christianity/christianethics/war.shtml

7

Compare Fox News on a drone strike killing 55 alleged terrorists

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the rule of law, even when or/and after war crimes have been committed. In other words, whilst in a traditional war combatants of each party are generally allowed to kill each other, in case there is no attempt to surrender, military leaders ought to be prosecuted for their war crimes if possible. The differences between normal combatants and their leaders rests upon the chain of command within the military, freeing normal combatants from certain responsibilities, if they acted merely upon the command of their superiors without using disproportionate violence to execute the orders.

If Al Qaeda can be seen as such a military entity, Osama bin Laden should have been arrested instead of being killed, in order to persecute him in front of a(n international) trial. In the words of bin Laden “"By what measure of kindness are your killed considered innocents while ours are considered worthless? By what school [of thought] is your blood considered blood while our blood is water?” (bin Laden, 2004). Yet, neither bin Laden nor Al Qaeda are entities similar to traditional warfare or military. In fact, the illegitimate violence bin Laden had been alleged of committing created the “necessity required the capture of this indicted and active international criminal” (Robertson, 2011). Yet, it did not require him to be killed (and consequently martyred), as the particular response to international terrorism with military force ought to occur merely under conditions, in which the persecution of alleged terrorists remains unfeasible or impossible.

“According to US intelligence and statements bin Laden made himself, he did not intend to be taken alive. Any apparent surrender would have been treated with suspicion” (Lutzenberg, 2014). As a result, the immediate assassination of Osama bin Laden, instead of taking him captive, was explained partially due to his unlikeliness to surrender. Controversies remain though, to what extent the subject´s inclination to surrender is important for legitimizing the killing of a military leader (or combatant), when there could have been a trial (compare Koepf, 2014). If bin Laden had been shot merely in the leg, as his wife Amal8, he would have faced trial and conviction. Supposedly the US engaged in the War of Afghanistan because there had not been an opportunity to persecute Osama bin Laden for his crimes. The particular way to respond to terrorism, as argued by West Point scholars, conditions that law enforcement remains impossible to legitimize the particular response to international terrorism. Furthermore, he was the supposed reason presented to the Taliban, but also to the

8

http://www.dailymail.co.uk/news/article-2118949/Osama-bin-Ladens-wife-Amal-29-lost-use-leg-health-deteriorates-says-brother-Zakaria-al-Sadah.html

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rest of the world, to start the war in Afghanistan. How could the continuation of the War of Afghanistan be explained, if the reason for its beginning had been killed?

Targeted killings, Pre-emptive killings.

In actual practice, pre-emptive targeted killings are used on persons suspected or alleged of terrorist activities, whose identities are often not confirmed. “The War on Terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge” (Bush at West Point, 2002). Yet, the outspoken refusal of a defensive strategy stands in direct opposition to the nature of NATO, proving once again that pre-emptive military means exceed NATO´s legitimate purpose. As has been mentioned earlier NATO supposedly is and remains defensive in nature.

In 2012 President Barack Obama stated at the Daily Conversation that “Drones have not caused a huge number of civilian casualties. For the most part they have been very precise precision strikes against the members of Al Qaeda and their affiliates” (TDC, 2012). At least by 2014 has he changed his mind, when he agreed to the New Yorker that “he “wrestle[s]" with civilian casualties. But, he said, he has "a solemn duty and responsibility to keep the American people safe”” (Sledge, 2014).

The clear evidence for a large amount of civilian casualties9 make Obama´s argued precise precision strikes look insensible. Drones in fact have made it possible to aim precisely at a target within a little margin of error. Yet, how precise can a targeted killing be, if it is not clear who is targeted? In other words, one can precisely kill any stranger one suspects. The essence of pre-emption is to act, and in reality often to kill, before the status of a target has been confirmed10. Therefore, pre-emption does not work in line with the profound distinction between civilians and non-civilians, as suspicion and not status is the requirement for an attack.

9_{The Toll Of 5 Years Of Drone Strikes: 2,400 Dead (Sledge, 2014).}

10_{Compare Wikileaks on how CIA Drones Kill Large Groups Without Knowing Who They Are}

https://wikileaks.org/syria-files/docs/598066_cia-drones-kill-large-groups-without-knowing-who-they-are-.html

To what extent is NATO´s involvement in the War On Terror justifiable by Just War Theory?