It has been over a decade and half since lethal drones were first introduced in the skies over Afghanistan, but scholars and policymakers alike are still struggling to determine the appropriate role for this technology. In Preventive Force, a recent collection of eleven original articles, this struggle is taken up by a mix of academics and practitioners. The timely volume centers on issues arising from preventive military action by the United States and its lethal use of drones.
The chapters represent a wide variety of views and provide much material for helping one decide what the moral and legal framework for the preventive use of force by drones should look like. In addition, the editors provide a very helpful and detailed survey of the issues in their introduction. Most of the chapters are first-rate, and I found myself taking extensive notes on many of them. In this all-too-brief review, I will only touch on some highlights of a few of the chapters.
Jennifer Taw (ch. 2) offers an illuminating discussion of cost-benefit analysis of preventive war, providing real-world examples to substantiate her points. Hers is not a cosmopolitan perspective; this is the analysis a single state must go through from the point of view of its own self-interest. Taw concludes that while preventive force is rarely worth the cost, “American drone strikes against terrorist targets arguably remain a rare form of preventive military action that passes the cost-benefit analysis test” (p. 55).
Stephan Sonnenberg (ch. 5) argues that drones are a classic example of “disruptive technology,” and that, being a unique category of weapons, they require a new regulatory framework under the law of armed conflict. Sonnenberg addresses many of the political problems resulting from U.S. drone policy, notably how using the language of “surgical precision” to describe drone strikes creates the false impression in the public mind that these strikes can always be conducted without collateral damage.
Contrary to Sonnenberg, David Glazier (ch. 6) argues that drones do not present any particularly unique problems, and he clarifies a number of the common points of confusion concerning the legality of drone use by the United States, particularly the congressional 2001 Authorization for Use of Military Force. But most of his chapter explores the international Laws of Armed Conflict (LOAC). Glazier discusses distinction and proportionality at length, concluding that “it is extremely likely that some U.S. strikes have violated” these principles (p. 157). Additionally, he provides good explanations of the LOAC concerning exactly who within what groups may be targeted, “signature” strikes, where drones may be employed, the question of a state's consent, and who may lawfully employ lethal drones.
Like Glazier, Daphne Eviatar (ch. 7) does not believe we need a new legal framework, but she does believe drone strikes in some places, such as Pakistan and Yemen, fall under International Human Rights Law (IHRL) rather than LOAC. Where there is no ongoing “armed conflict,” IHRL applies and sets strict limits for the use of lethal force. According to Eviatar, the current U.S. use of drones goes well beyond what is allowed, and the United States should acknowledge its human rights obligations beyond its own territory.
Although many have argued that U.S. drone strikes violate international law, customary international law seems to be evolving to accommodate such actions. Avery Plaw and João Franco Reis (ch. 9) argue that the use of force by the United States and others such as Israel, Turkey, and Russia is “creating a new practice permitting limited, episodic exercises of force in response to cross-border attacks by nonstate actors” (p. 229). They explain different interpretations of “self-defense,” and adopt a “realist” approach to customary international law as they review five cases that support an emerging international acceptance of state actions against foreign terrorist attacks. Once a state sustains a lethal attack from a nonstate actor abroad, the authors maintain, episodic responses are acceptable, so long as there is a continuing real threat on the horizon, even if not an immediate one.
John Emery and Daniel Brunstetter (ch. 10) maintain that traditional law enforcement is too restrictive, while the laws of war are too permissive, for the regulation of drone warfare. Accordingly, they develop a hybrid framework, which they term jus ad vim—the just use of force short of war. They propose criteria for continual but discrete smaller-scale uses of force that lean strongly toward law enforcement: (i) a transparent process to define who is targeted and why, with evidence presented against the targets through grand-jury indictment or trial in absentia; (ii) clear evidence that the target poses an ongoing threat; and (iii) the opportunity for those targeted to surrender, which rules out signature strikes except in exceptional cases.
Ben Jones and John M. Parrish (ch. 11) begin with a discussion of “dirty-handed actions,” that is, actions involving incommensurable moral values. On the ground, they posit, war may always be a matter of “dirty hands.” Nevertheless, the standards of just war ethic (JWE) and law enforcement ethic (LEE) are useful guides for targeted killing by drones. The focus of their article is on “in-between zones,” that is, places that are neither zones of war where armies fight nor zones of peace patrolled by police. After reviewing proposals by Michael Walzer, the authors come down in favor of LEE over JWE. “The mere presence of a dangerous individual domestically does not compel us to abandon the LEE, nor should this dynamic alone lead to a different conclusion for a faraway land” (p. 301). In other words, counterterrorism may present genuine moral dilemmas, but dirty-handed actions should be allowed only in relatively rare, emergency situations. The possibility of a specific, dirty-hands dilemma does not justify a policy that regularly violates LEE.
In a provocative final chapter (ch. 12), Deen Chatterjee questions the entire premise of using preventive force to combat terrorism. If we are serious about prevention, says Chatterjee, we should seek nonmilitary ways of preventing terrorism from arising in the first place. To this end, he calls for a shift in priorities to proactive policies, which he terms a “just-peace approach.” We must address the deeper issues of peace and justice, rather than merely consider whether fighting terrorism requires a loosening of just war principles—the project in which other of the authors are engaged.
The chief reasons for the tensions and resentments that breed terrorism, according to Chatterjee, are poverty, deprivation, and humiliation; hence, we must attack these problems with economic development and political accommodation. To be sure, this just-peace approach cannot guarantee total security, but neither does the policy of preventive military intervention that has been counterproductive, causing much resentment and distrust toward the United States.
None of this is to diminish the work of the other authors in the collection, but Chatterjee's contribution is an urgent call to take a step back from the counterterrorism framework that informs the rest of the volume, and as such it is a fitting final contribution. Chatterjee's vision is that of a global culture that undertakes collaborative efforts to promote just peace by directly addressing the socioeconomic conditions of poverty and inequality. He recognizes that this will take much time and political will. Nevertheless, the sooner we make this our first priority, the better hope we may have for the future.
