“Efficiency” in the Law and Ethics of Targeted Killing?

I’m attending a terrific University of Pennsylvania conference on targeted killing — an interdisciplinary conference with philosophers, lawyers, and national security professionals.  Congratulations to Penn’s Professor Claire Finkelstein for a great meeting.

(There are a number of military and former military officers here, but it would be great if the CIA would see its way to sending lawyers to join in meetings like this so that at least some part of its legal views are represented, however cautiously or hypothetically, on crucial normative questions like targeted killing in which public legitimacy matters.)

I’ve posted up the working draft of my paper for the conference to SSRN.  “Efficiency” Jus in Bello and “Efficiency” Jus ad Bellum in the Practice of Targeted Killing through Drone Warfare. I’ve put the abstract below the fold.

A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).

A strong version of this claim says: The perverse effect of increasing the “efficiency” of jus in bello through targeted killing (reducing civilian harm and increasing military effectiveness) is to reduce the “efficiency” of jus ad bellum (making the resort to force “too easy”). Improvements in “jus in bello” conduct ironically makes it too easy, too unconstrained (by lack of personal risk to one’s forces because of drones and lowered civilian harm because of improved targerting) to resort to force. This paper evaluates this claim, and more broadly the idea that jus in bello proportionality and jus ad bellum resort to force can each have a form of “efficiency.” It rejects the claim as incoherent, because the existence of “sides” in conflict results in incommensurable meanings of winning and losing in jus ad bellum, without which there cannot be an “optimal” level of the resort to force.

The conceptual claim depends upon highly fact specific assumptions about the practice of targeted killing and drone warfare today. The essay walks through a number of these assumptions in an informal way, drawing upon the author’s discussions with governmental and non-governmental actors, particularly on the question of civilian casualties, and ways in which some of the anxieties over targeted killing and drone technologies might not reflect current practices. These assumptions are ones that the reader might or might not accept, given that they are not corroborated and reflect interviews, informal, and off the record discussions that are far from conclusive. Even if the reader does not share the premises in fact, the essay invites accepting them for purposes of evaluating the ethical argument. The essay intertwines an abstract argument about “efficiency” in the ethics of war, and a practical part that discusses premises crucial to that abstract argument.

(The essay (10,000 words) was presented at a University of Pennsylvania interdisciplinary (philosophy, law, and national security experts) workshop on targeted killing and will be revised for publication in the conference volume, into which limited citations will be inserted.)