Targeted Killing and Black Boxes

Written By Mitt Regan and Michael Robillard

            Various aspects of the US targeted killing program have attracted considerable attention and some criticism in philosophy and international law. One important aspect of the program that deserves more attention is how targeted killing reflects how the growing number of conflicts involving non-state actors are eroding conventions regarding the use of violence.  Those conventions are based on the paradigm of conflict between states waged by uniformed armed forces on segregated battlefields.  In such conflicts, an individual’s status as a member of the armed forces makes him/her liable to lethal force without examining his/her specific conduct.  Non-state actors, however, do not wear uniforms and seek to be indistinguishable from civilians.  What, then, should be the basis for their liability?

While the traditional paradigm is based on status, it contains implicit assumptions about liable conduct.  These are that: (1) an individual in uniform poses a threat and (2) he voluntarily wears a uniform knowing this.  Voluntarily posing a threat is thus the implicit moral basis for liability on the traditional view of jus in bello. International law stipulates that this condition is met for someone in uniform.  Conflicts with non-state actors, however, require that we make this determination for each individual.  The debate over targeting killing vividly highlights that there is no consensus on what behaviour satisfies this condition aside from overt hostility.  In other words, we lack an accepted convention for determining liability to lethal force absent explicit demonstrations of hostile intent.

Seen in this light, the controversy over the US targeted killing program reflects a debate over what this convention should be. Most US strikes are not based on the existence of a temporally imminent threat that requires an immediate response.  Instead, the US position is that, with respect to groups with which the US is in an armed conflict, an individual may be targeted if analysis of his behaviour indicates that he is a “part of” such a group, regardless of the function he performs in it.  This reflects an attempt to identify non-state actors who are the equivalent of soldiers in uniform.

The challenge, however, is that such actors typically do not engage in behaviour that is as explicit as a solider wearing a uniform.  Their affiliation with the group therefore must be based on interpretation of patterns of behaviour that ostensibly indicate their commitment to the group and its aims.  The International Committee of the Red Cross (ICRC) also attempts to define non-state actors who effectively serve as uniformed forces.  It adopts a more restrictive approach, however, in maintaining that those who serve in combat, but not support, functions fall within this category.

Both the US and the ICRC thus attempt in different ways to rely on status as the basis for liability to lethal force.  Unlike in conflicts between state armed forces, however, such determinations must rest on individualized assessments of conduct.  The need to analyse ambiguous behaviour, the absence of a consensus on the criteria for determining which behaviour is incriminating, and the reluctance of states to provide detail about the behaviour they regard as meeting the criteria they use, raise concern that some people may be targeted who do not voluntarily pose a known threat.

If we believe that such voluntary behaviour is what makes one liable to defensive harm, it must be the case that persons liable to such harm had the reasonable chance to cease being a threat but chose not to. In past epochs, we could assume that if we encountered someone on a battlefield, wearing a given uniform, and holding a weapon, both parties knew that this set of behaviours constituted a threat. It would not be a mystery to such a person why we regarded him as a permissible target. Similarly, he would be aware that he could avoid being a target by dropping his weapon and raising his hands.

With respect to targeting non-state actors, there is currently no such behavioural equivalent to one choosing to wear a uniform or raising one’s hands in surrender. While there might be good all-things-considered reasons for why we ought to employ the use of targeted killing despite these ambiguities, there still seems to be something morally problematic about targeting persons based upon criteria that are largely a mystery and at most proto-conventional.  Decision-making about taking life, in other words, appears to take place inside a proverbial black box.

These concerns loom especially large when we consider that innocent civilians are particularly at risk from disagreement over the standards that justify the use of force and the absence of transparency about which behaviour satisfies them. Civilians no longer go about their daily lives in settings apart from the battlefield, but in environments in which all individuals are regarded as potential hostile threats.  Conduct that unwittingly conforms to culpable pattern of life behaviour thus may have devastating consequences for innocent persons.

The Israeli Supreme Court has attempted to avoid these risks by ruling that non-state actors may not be treated as members of an armed force targetable on the basis of status.  Instead, all such individuals are civilians who are entitled to protection from harm unless, and only while, they directly participate in hostilities.  This requires that targeting be based on behaviour that is unambiguously hostile, which minimizes the need for interpretation.  This approach provides the clearest notice of what conduct can justify the use of lethal force.  It does not seem completely satisfactory, however, because it elides the fact that some terrorist groups do resemble armed forces that pose ongoing threats beyond the particular individuals that carry out specific attacks.

The controversy over drone strikes thus starkly illustrates  difficulties that arise when liability to force must be based on individualized threat assessments.  States are reluctant to publicize behavioural criteria for fear that terrorists may evade targeting by modifying their behaviour – yet the absence of publicity can undermine the moral basis for targeting.   Seen through this lens, drone strikes raise fundamental issues about the nature of modern conflict.

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2 Responses to Targeted Killing and Black Boxes

  • Andrews says:

    There is another question you are not considering here concerning drones that arguably comes before the “who to target?” question, viz. the question of what counts as an area where the use of drone for military operations is legal / morally appropriate. This question comes before in the sense that that it restricts appropriate answers to the latter (i.e. different areas contain different types of individuals, along with the context relative to which it becomes possible to interpret those individuals’ liability to lethal force). Unsurprisingly, different contexts will justify applying different standards for liability to lethal force.

  • kayos63 says:

    I find the fact you are using the Israelis as an example of people who target based on unambiguously hostile behavior ludicrous. And a host of scientist assasinated by Mossad for carrying out or being tangentially related to nuclear research would beg to differ with you.

    Everything to do with no state actors is an ethical mess with no real answers except whatever the american government wants goes. With no declaration of war, how do you define a conflict with a non-state actor? When does it end? What are its geographic confines? The ANC was a terror organization with no uniform fighting the South African government and Mandela was on a US terror list even after he became president of South Africa. This stuff is murky and sticky and more often than not, only history tells us who the unethical one was because, in our zeal for a simpler worldview where we are the heroes, we do not see that being a state does not make you in any way more ethical than a non-state actor and no matter what ethical framework a state comes up with it will inevitably be arbitrary as there are no solid answers.

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