By Jenny Chung C’12
|Claire Finkelstein, Jens Ohlin, Ambassador Thomas Graham, Daphne Eviatar and Kevin Govern|
On Wednesday, November 30 the Institute for Law and Philosophy (ILP) of the University of Pennsylvania Law School hosted a panel discussion on the “Ethical and Legal Dimensions of Targeted Killing,” drawing an audience of faculty, students, and members of the public, and which brought to light a “sea change” in modern conceptions of war and national security policy.
Moderated by Claire Finkelstein, an ILP co-director and Algernon Biddle Professor of Law and Professor of Philosophy, the panel brought together four prominent authorities in the fields of international and criminal law, national security policy, military ethics, and human rights.
Finkelstein opened by highlighting both the timeliness and relevance of discussing military ethics as an issue with which both the Obama and Bush administrations have grappled in combating terrorism.
She noted the “enormous sea change” the nation has undergone in recent decades concerning “fundamental conceptions related to war [and] the traditional distinction between combatants and civilians.” In addition, because the notion of sovereignty now plays a decreasingly important role in terms of identifying enemy threats to the country, Finkelstein said, important issues have emerged surrounding “how we think about the relationship between U.S. military action in the fight for security and the civilian-combatant divide.”
Finkelstein also identified the expansion of executive authority in the wake of 9/11 as another ideological shift. “We have according to many policymakers and lawyers been in a protracted state of emergency since 9/11—in times of emergency, the executive branch is conceived of as having broader powers,” she said. “What do we make of a state of emergency with no beginning, middle or end in sight?”
The panel commenced with a question on whether the Obama administration’s current use of targeted killing can be considered ethically or legally problematic.
Jens Ohlin, Associate Professor at Cornell University Law School and expert in international humanitarian law, criminal law and international law, asserted that the Obama administration has demonstrated “remarkable restraint” in carrying out targeted killings.
“I’m convinced [that] under international humanitarian law if civilians are participating in hostilities they can be targeted,” he said, adding that this approach has served as a “guiding principle” to the administration.
|Claire Finkelstein, Jens Ohlin and Ambassador Thomas Graham|
Ambassador Thomas Graham, Special Representative of the President for Arms Control, Non-Proliferation, and Disarmament (1994-1997), emphasized that the acceptability and legality of targeted killings and the drone technology used in such operations depend largely on whether or not they occur in a war zone.
“Using targeting killing drones in struggle against the Taliban is a legitimate part of military action,” he explained. “The use of military weapons like drones in Yemen, far removed from any war zone, is problematic.”
Senior Associate at the Law and Security Program of Human Rights First Daphne Eviatar contended that the methods adopted by the current administration are not lawful.
“It’s not clear that the admin is targeting only belligerents because of the secrecy surrounding the program,” she said. “The administration doesn’t even acknowledge it has a CIA drone program, which conducts the bulk of its strikes. We don’t know who they’re targeting, why, or the extent of civilian casualties because it’s not recorded—there’s a murky view of what’s going on.”
Ave Maria School of Law Associate Professor Kevin Govern, who specializes in military ethics and military law, expressed confidence that “adequate legal oversight” is exercised and argued that the perception of killing occurring more often than capture is mere “speculation confirmed by rumor and innuendo.”
The question that followed concerned who could permissibly targeted in war aside from combatants and elicited a range of responses from the panelists.
While there exists a “functional equivalence” between citizens engaging in hostilities and enemy combatants, Ohlin said, it is exceedingly difficult to identify the civilians who are directly participating in hostilities (DPH).
He suggested as a possible solution the categorical classification of individuals belonging to hierarchical nonstate groups who exercise a “continuous combat function” as combatants.
Eviatar corroborated the notion that DPH status is difficult to assess and added that targeted killings are based on intelligence that may not be altogether accurate. “Mistakes are being made all the time in that area,” she said. “More transparency on the kind of intelligence being used is important to knowing whether the right people are being targeted.”
The panelists then turned to the question of the extent of military duty to capture rather than kill in international conflicts.
According to Ohlin, while international humanitarian law dictates capture on condition of surrender, the law of armed conflict does not. “It’s a determination of what body of law applies,” he explained. “If you’re going to argue there is a duty to capture, I take it what you’re really arguing is that the law of armed conflict just doesn’t apply to the operation.”
|Daphne Eviatar and Kevin Govern|
Eviatar voiced a contrary opinion, suggesting that while there may exist no duty to attempt capture upon surrender, “killing must be militarily necessary.” Drone technology complicates the issue, she said, because it is unclear whether it is possible to surrender to a drone.
“The Pentagon’s statistics indicate 84 to 86 percent of ongoing kill-or-capture operations involved no use of violence,” Govern said, maintaining that “elected legislators” must be trusted to perform their role as “oversight” and the military to “ensure a detailed planning process” precedes every operation.
When asked whether the targeted killings of Osama Bin Laden and Anwar al-Awlaki were legal and ethical under the principles of law and morality of war, Govern replied that as they met the four basic criteria: “military necessity, proportionality of the use of force, avoidance of unnecessary suffering and discrimination/discernment,” both were legally and ethically justified.
Eviatar contended, however, that while the Bin Laden raid is widely regarded as morally justified, “it may have been an illegal operation.” She added that “al-Awlaki was also problematic because […] there was no real indication that he was DPH and should have been subject to arrest and prosecution.”
In Graham’s view, there had never been any intention to capture Bin Laden alive, as that would have “triggered terrorist actions all over the world to get him released.” While the raid was “contrary to policy,” he nevertheless believes it was justified.
The case of al-Awlaki, however, was “very different” and due process should have taken precedence over military necessity, Graham said. “He was an American citizen killed by the U.S. government without a full trial in a country that wasn’t part of a war zone,” he explained. “I don’t think something like the al-Awlaki case should ever happen—there has to be some deference paid to the fact that we do have a Constitution.”
Additional Event Photos: Panel Discussion: Ethical and Legal Dimensions of Targeted Killing (Flickr)