Newtown, Drones, and Comparative Criminal Law

by Kevin Jon Heller

There’s been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones.  Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible.  Ben Wittes and the Telegraph‘s Brendan O’Neill, by contrast, insist that the two situations are not comparable, because Lanza intended to kill the children at Newtown while – as Wittes puts it — “[c]ivilian deaths in drone strikes are not intentional.”

Wittes and O’Neill obviously have a point.  No one can seriously believe that the U.S. wants to kill children with drones; the most that can be said is that the U.S. is willing to accept the possibility, if not inevitability, of such collateral damage, because it believes drones strikes are militarily necessary in the conflict with al-Qaeda.  That is a distinction with a difference: it is indeed morally worse to kill someone because you want them to die than to kill someone without desiring their death but knowing it will result from your (ostensibly well-intentioned) actions.

That said, I think Wittes and O’Neill’s “intentional”/”unintentional” distinction misleads more than it explains.  To see why, it is useful to turn to comparative criminal law.  Although neither Wittes nor O’Neill focus on the legal aspects of Newtown and the drone program, both implicitly adopt a definition of “intent” that parallels American criminal law — as the subjective desire to bring about a particular consequence.  That definition is what justifies their insistence that Newtown involves intentional killing while the drone program involves unintentional killing.

But the American understanding of intent is not the only one.  Many civil-law systems have a much broader understanding of “intent,” one that considers even non-volitional action to be intentional.  German criminal law, for example, considers acting in the knowledge that a consequence is virtually certain to occur to be intentional, even if the actor does not subjectively desire to bring about that consequence.  (Indeed, that action is intentional even if the actor fervently hopes that the consequence will not occur.)  This is what is known as dolus directus in the second degree.  Moreover, although not without controversy, German criminal law, like a number of civil-law systems, even extends “intentional action” to include acting in the knowledge that it is possible a particular consequence will result, as long as the actor subjectively reconciles himself to that possibility.  This is what is known as dolus eventualis.

Nor is a broader understanding of “intent” limited to the civil law.  O’Neill’s own British criminal law embraces what is known as “oblique intent” — acting without the subjective desire to bring about a particular consequence, but with the knowledge that the consequence is virtually certain to result.  (The same formulation as dolus directus in the second degree.)  A defendant can be convicted of intentional murder in Britain, therefore, even if he in no way wanted the victim to die.

Again, I am not claiming that there is no difference between Newtown and the drone program.  All criminal law systems consider acting with the subjective desire to kill to be more serious than acting in the knowledge that death is virtually certain.  But it is important to recognize that many countries, including our British allies, would consider the children killed in U.S. drone strikes to have been intentionally killed, either because the U.S. knew that the drone program was virtually certain to result in their collateral death or because the U.S. was aware that their deaths were possible but, because of its commitment to the drone program, reconciled itself to that possibility.  (The latter would be manslaughter in Britain, which does not — unlike my home country of Australia — criminalize reckless killing as murder.)

There is, in short, a difference between Newtown and the drone program — but the difference is much smaller than Wittes and O’Neill’s “intentional”/”unintentional” distinction implies.  From a comparative perspective, both can be considered intentional killing; the difference is one of degree, not kind.

This is not a minor point.  Consider the final paragraph of Wittes’ response to Greenwald:

It is, rather, a basic difference our moral reaction to the tragic accident versus the intentional crime. A terrible car crash, even when one side is negligent or drunk, might inspire great moral opprobrium, but it doesn’t inspire the same moral horror as, say, intentionally driving one’s car into a crowd in order to kill people. Even if, like Greenwald, one does not accept that the United States is fighting a legitimate war and that civilian deaths are a tragic but inevitable feature of warfare—that is, even if one rejects the United States’s “perceived justification” utterly—there remains a significant difference between accidentally killing innocents and deliberate targeting them.

Wittes’ analogy to an accidental death is inapposite.  Killing children with drones is not the same as negligently or drunkenly driving into a crowd and killing people.  A better analogy would be to the person who drives his car even though he knows that it is very likely, perhaps even a virtual certainty, that someone will die as a result.  We would not judge that person as harshly as we would the person who gets in his car and deliberately plows it into the nearest crowd.  But we would hardly take it easy on him simply because he acted “unintentionally.”

http://opiniojuris.org/2012/12/30/newtown-drones-and-comparative-criminal-law/

8 Responses

  1. This is a really excellent post, Kevin. One of your best. I’ve long thought that the distinction between targeting civilians on the one hand, and striking a military target knowing with near certainty that civilians will be killed in so doing, was extremely thin. I cometely agree with you that distinguishing the first as intentional and the second as unintentional is essentially specious. It’s a legal fiction created to help soldiers deal morally with what they are doing in war. It’s not a distinction which stands up to real rigorous moral or legal reasoning.

  2. good, but i feel like people in the media & in office & so on take their cues on this from international law principles of proportionality and distinction in war.

  3. Very interesting post.  I think another important distinction to make between the comparisons is the difference between the humanitarian legal regime and the “peace time” legal regime.  Determining the legality of drone strikes and their proportionality in comparison to the threat alleged depends on the legal regime such attacks are viewed through.  The humanitarian legal regime was specifically developed to take into account the variables and ambiguity of warfare, asymetrical or otherwise.  So, if you are comparing apples to apples, you would need to apply the arguably “intentional” killing in Newtown or elsewhere under the same legal regime as the arguably “indiscriminate” killing which results from munitions and drone strikes.

  4. Kevin’s point is an excellent one, but I think the more relevant domestic criminal law analogy (as a way of assessing/criticising public reactions to Newtown and drones) is sentencing law. I can only speak for Australian sentencing law, but an Australian sentencing judge would identify any number of relevant contrasts between Lanza and whoever fires those drones, including their respective motives, Lanza’s specific seeking out of children to kill (both in choosing the primary school to attack, and in entering classrooms), that Lanza’s actions consisted of a hundred of more repeated deadly acts (although perhaps that also applies to the drone-lords). possibly the terror of some children before they died, the deliberate killing of rescuers, etc. There’s also the difference between the individuals (one presumably a troubled and ill young man, the other presumably a fairly privileged, older adult (or group of adults.) Some of these differences suggest that Newtown is worse than the drones, some suggest the reverse, people may differ on many. But my point is that the claim that the two incidents aren’t really comparable seems to be supported by (at least some versions of) domestic sentencing law.
    Specifically, in relation to Kevin’s point on the distinction between intention and recklessness, the main Australian case on reckless killing (concerning a man who deliberately, though probably also drunkenly, drove his truck into a crowded, flimsy building, killing five people) includes this surprising statement: “The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm.” ‘just as blameworthy’ strikes me as a big call, but I think it makes sense if you regard ‘the purposes of the criminal law’ as a reference solely to guilt or innocence, not sentencing. Indeed, Australian sentencing judges have routinely held that intentional killing is more blameworthy than reckless killing.

  5. I agree with all of the comments to my post.  Specifically:

    Dan — there is no question that, under the Rome Statute, a perpetrator is guilty of intentionally directing attacks against a civilian population if he knows that civilians are virtually certain to die as a result of an attack.  That necessarily follows from Art. 30(2) & (3) of the Rome Statute, which apply oblique intent/dolus directus in the second degree to circumstance and consequence elements.

    Peter — legally, of course, the wartime/peacetime distinction is critical. I was simply responding to Ben’s analogy between drone strike deaths and one-time events like the drunk driver plowing into a crowd; my point was that because the US uses drones again and again despite knowing that innocents will die as a result, its actions cannot simply be disregarded as “unintentional.”  Whether the US’s drone strikes should be considered disproportionate under IHL is a much more difficult question.

    Jeremy — absolutely.  My point was simply that there are significant differences between Newtown and drone strikes in terms of culpability (which would be most apparent at sentencing), but not necessarily in terms of intent.

  6. Or perhaps the distinction is:
    1. Killing of children at Newtown = unlawful
    2. Killing of children as collateral damage by drone strikes = arguably lawful (subject to lots of facts, is IHL/LOAC applicable etc etc)
    Maybe the better domestic law analogy is to that of the public executioner in a jurisdiction that has the death penalty. You may not agree with the death penalty, you may think the person should find a nicer line of work, but presumably you do not think of them in the same way as another person who also intentionally kills a fellow human being but without legal basis.

  7. The analogy Kevin thinks captures the situation involving drones  better ( the last paragraph ) does not work really. It fails to capture the fact that in drone cases an attempt ( a deliberate effort ) is made to avoid non combatant deaths; an important difference I think when it comes to asking to what extent the actions were blameworthy etc.  In the car example, Kevin puts forward, where the person knows that his driving the vehicle will kill innocent by standers, this is not the case ( he drives and does not take any measures to not kill bystanders )  and so the example is not analogous to the drone cases where children die . Once this is noticed and granted Kevin cannot draw the conclusion he is after viz that we should not take it easy with the drone caused deaths even though they were unintentional. 

  8. Some of the reaction must be related to the media treatment of the two events. 
    Also, I would imagine (and hope) that the value on one child’s death as collateral damage is more than zero.  That value for that child killed as collateral damage I would submit might be higher in a signature strike setting as opposed to an individual strike because of the possibly more problematic intentionality even in LOAC for the criteria used in signature strikes (from what we read).
    At some point the lines for outrage for the 20 dead children at Newtown and some X number of children dead as collateral damage cross and that equilibrium point is reached.
    That point might be at 20 (Newtown) and 40 (drone strike).  Or 20 (Newtown) and 400 (drone strike).  Or 20 (Newtown) and 4000 (drone strike).  But if the value of the drone strike children as collateral damage is not zero then at some point the lines cross.
    At that point it might be interesting to adjust for domestic law vs. LOAC. 
    I would note that domestic law intentionality (at least in California) includes express and implied malice aforethought.  California Penal Code defines murder as  “Cal. Penal Code §187(a) defines murder as “the unlawful killing of a human being . . . with malice aforethought.” Malice may be express or implied. Cal. Penal Code § 188. Malice is considered “express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” Id.
    Based on weak criteria, a signature strike collateral damage child death can be viewed as an unlawful killing under LOAC due to the problematic intentionality of the signature strike itself under LOAC rules. 
    In domestic law, such a strike death could also meet the implied malice vision of murder as one might say the “circumstances attending the killing show an abandoned and maligant heart”. 
    At some point, the two visions would coincide as a matter of law though the objective values on each dead child could still be radically different depending if one is sitting in Pakistan or in the United States as a Pakistani or an American.
    Horrible and grim math it is, but it does seem to be there somewhere.
    Best,
    Ben

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