Preventive Force

Drones, Targeted Killing, and the Transformation of Contemporary Warfare

Kerstin Fisk, Jennifer M. Ramos

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9781479881222
• Topic: Politica e relazioni internazionali
• Subtopic: Relazioni internazionali

More so than in the past, the US is now embracing the logic of preventive force: using military force to counter potential threats around the globe before they have fully materialized. While popular with individuals who seek to avoid too many “boots on the ground,” preventive force is controversial because of its potential for unnecessary collateral damage. Who decides what threats are ‘imminent’? Is there an international legal basis to kill or harm individuals who have a connection to that threat? Do the benefits of preventive force justify the costs? And, perhaps most importantly, is the US setting a dangerous international precedent?

In Preventive Force, editors Kerstin Fisk and Jennifer Ramos bring together legal scholars, political scientists, international relations scholars, and prominent defense specialists to examine these questions, whether in the context of full-scale preventive war or preventive drone strikes. In particular, the volume highlights preventive drones strikes, as they mark a complete transformation of how the US understands international norms regarding the use of force, and could potentially lead to a ‘slippery slope’ for the US and other nations in terms of engaging in preventive warfare as a matter of course. A comprehensive resource that speaks to the contours of preventive force as a security strategy as well as to the practical, legal, and ethical considerations of its implementation, Preventive Force is a useful guide for political scientists, international relations scholars, and policymakers who seek a thorough and current overview of this essential topic.

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Introduction

The Preventive Force Continuum

Kerstin Fisk and Jennifer M. Ramos

Preventive force is a security strategy defined along a continuum. While the scale of preventive force varies, the strategic aim is the same: to thwart the development of possible future threats from suspected ill-willed actors. At one end of the spectrum are extreme forms of preventive force, including preventive nuclear strikes and preventive wars. The 2003 war in Iraq is one such example of a preventive war: the United States went to war based on concerns that Saddam Hussein was attempting to acquire nuclear weapons, which were considered threatening to the future security of the United States. Closer to the other end of the spectrum are smaller-scale applications of preventive force, including drone strikes1 outside of legally recognized war zones, which target and kill individuals regarded as potential security threats.2 Although preventive targeted killings entail a relatively more limited use of force compared to war, the dramatic expansion of the drone program is consistent with the United States’ enduring commitment to preventive action.

There is much to debate with regard to the security ramifications of preventive force, as well as its political, legal, and ethical implications. For instance, does using force before a threat fully materializes complicate future security? Are the perceived benefits worth the potential costs? Some worry that expanding the customary understanding of a rightful response to a potential threat paves the way for other states—allies and adversaries alike—to follow the United States’ lead in using force preventively (Fisk and Ramos 2014). As noted throughout this volume, there are also increasing concerns that preventive targeted killing will not only become a trend for other states in the international system, but also will create a “slippery slope” to war.3 For example, some claim that drones in particular may make preventive attacks against non-imminent threats easier, and thus “create an escalation risk insofar as they may lower the bar to enter a conflict” (“Recommendations and Report of the Task Force on U.S. Drone Policy,” 2014, 31).

We focus in particular on drones because they represent seemingly ideal weapons in the war on terrorism: relatively low-cost, low-risk tools with disproportionately large benefits, especially for states that face “liberal complaisance” (Schweller 1992, 243). When faced with a non-imminent but likely lethal threat, “liberal complaisance often leaves states militarily unprepared for defensive action, much less large-scale preventive action” (Schweller 1992, 244). While there are other types of limited preventive force, including special operations and cyber-attacks, we concentrate on drone strikes not only because of the timeliness of the issue, but also because of the ethical, legal, and strategic considerations these strikes embody. We believe the international community is at a turning point in what it deems acceptable regarding the use of lethal force. And this has implications not only for fighting terrorism, but also for how states deal with other types of adversaries, including other state leaders and political challengers. An estimated nine states (including the United States, Israel, Britain, Iran, and China) have developed armed drone technology as of this writing, and this number is expected to grow in the near term (New America Foundation 2015a). Compounding this trend is the recent news of the Obama administration’s policy change to allow armed drones—rather than unarmed drones—to be sold to America’s allies (Ryan 2015). It has therefore become increasingly important to contemplate the costs and benefits of even smaller-scale uses of preventive force in both material and normative terms, and in relation to broader effects on the overall stability of the international system.

With these considerations in mind, this volume seeks to offer a comprehensive resource that speaks to the contours of preventive force as a security strategy. Our goals are threefold. First, we seek to clarify the pros and cons of U.S. drone policy by situating drone strikes within a broader preventive force framework. Doing so recognizes a long tradition of academic scholarship on preventive motivations and helps provide the theoretical underpinnings for analyzing and contextualizing drone policy, something that is missing from the current literature on targeted killings and drones. Second, we attempt to ascertain the long-term impact of the preventive use of force on the stability and security both of states and of the international system. Third, we endeavor to build upon existing literature that debates the legality and morality of targeted killings by advancing legal and ethical guidelines for preventive action, including, in particular, a regulatory framework for the use of drones.

Previous work on preventive force has applied this security concept in a useful, but somewhat limited way, often thinking of it only in its extreme form—war. Some scholars in the realist tradition, for instance, argue that anticipated shifts in the distribution of power in the international system—real or perceived—drive the declining leader to initiate war (see, for example, Thucydides 1972; Morgenthau 1948; Gilpin 1981; Copeland 2000; Betts 1982; Levy 1987; Van Evera 1999; Ripsman and Levy 2007; Weisiger 2013). The bargaining approach conceptualizes preventive war as the result of credible commitment and information asymmetry problems (as in Fearon 1995; Powell 2006; Lake 2010) when capabilities are expected to shift (for instance, due to acquisition of weapons of mass destruction [WMD]) and affect bargains between states at a future time. According to this view, states cannot credibly commit not to use future power in their own favor. This generates the incentive to strike first in order to secure a better deal than one expects to receive down the road. In essence, states adopt “better now than later” logic to curtail a threat expected to arise at an indeterminate point in the future.

Yet not all cases of systemic power shift result in preventive war. Thus, other scholars look to the domestic level for answers. For example, Schweller (1992) argues that democracies are less likely than other regimes to engage in preventive war (or do not do so at all). The logic is straightforward: democratic publics are averse to costly wars (especially ones justified on such shaky grounds); thus the projected domestic political costs lead political elites to reason that preventive war is too large a political risk. Other researchers disagree with this assertion, however. For instance, Jack Levy (2008) investigates several cases in which he argues that democratic publics were in favor of preventive military force (Israel in 1956 and 1981, and the United States during the Gulf War, for example). While Levy concedes that democracies are certainly more constrained than non-democracies when considering the preventive war option, the recent U.S. invasion of Iraq serves to further his point that regime type is only one factor in determining whether or not a state will wage a preventive war.

In terms of changing beliefs about preventive war, scholars of U.S. foreign policy have explored why and how state leaders have shifted away from the once dominant perspective that preventive war is illegitimate, immoral, and illegal and have, in turn, adopted a more benign view of prevention (Renshon 2006; Silverstone 2007). Thomas M. Nichols, in his 2008 book, Eve of Destruction: The Coming Age of Preventive War, argues that the international community as a whole is in a “new age of prevention” and therefore must find ways to protect and maintain international order by acting multilaterally and recommitting to the United Nations (also see Dombrowski and Payne 2006). An array of studies has also focused on international legal justifications for preventive war (Doyle 2008) and the ethical issues surrounding preventive war in the context of just war theory (Totten 2010; Chatterjee 2013; Colonomos 2013).

Others have examined key ethical and legal questions that accompany more limited uses of preventive force, such as targeted killing, in the context of the war on terrorism (including Plaw 2008; Otto 2011; Finkelstein, Ohlin, and Altman 2012; Guiora 2013; Kaag and Kreps 2014).4 For example, while some assert that drones offer a more “humane” weapon of war (Lewis 2013; Strawser 2013), others focus on the moral hazard they present: “To say that we can target individuals without incurring troop casualties does not imply that, we ought to” (Kaag and Kreps 2012, emphasis in original; see also Brunstetter and Braun 2011, 2013). Legal analysts debate which body of law governs drone strikes, from domestic law to international human rights law to international humanitarian law, as well as their subsequent legality (Brooks 2004; Bakircioglu 2009; Dinstein 2010; Kreimer 2003; Lubell 2010; O’Connell 2012; Solis 2010; Van Schaack 2014). In essence, these studies ask us to reconsider the traditional definitions, limits, and guidelines of war and examine how and to what extent these apply (or do not) to the use of armed drones.

Our volume is distinct from these earlier works in two primary ways. First, it merges together essays authored by scholars and practitioners from a wide variety of backgrounds, including political science, law, philosophy, human rights, and defense. Second, it gathers these distinct but related perspectives into a broader, unified theme that situates targeted killings and drone strikes within the context of preventive force, as part of a larger and longer-term shift in the manner in which force is applied. In this way, it highlights the continued U.S. policy of preventive force; the narrative of the Iraq War in 2002–2003 is still in use today, albeit elsewhere.

Historical Trends in U.S. Preventive Logic

Anticipatory logic is nothing new in U.S. foreign policy. Throughout its relatively short history, the government of the United States has consistently maintained that the anticipatory use of force is both legal and legitimate, as well as in line with customary international law.5 The criteria for determining the legitimate anticipatory use of military action were first established in a letter from U.S. Secretary of State Daniel Webster to Lord Ashburton following a British attack on an American ship called the Caroline in December 1837. In the event now commonly referred to as the “Caroline affair,” the United States charged Britain with an unjustified attack on its ship near the U.S.-Canadian border. Webster’s letter to Ashburton, dated July 1842, argued that the following conditions must hold in order for the initial use of force by a state to be considered justified: the first use of force should be “(i) ‘overwhelming’ in its necessity; (ii) leaving ‘no choice of means’; (iii) facing so imminent a threat that there is ‘no moment for deliberation’; and (iv) proportional” (quoted in Doyle 2008, 12). The resulting “Caroline standard” established that anticipatory force is acceptable so long as a state demonstrates that the threat of attack is imminent; the threat must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation” (Webster 1842, quoted in Moore 1906). In other words, in order to be legitimate, the first use of force must be preemptive—demonstrably necessary as well as proportional to the overall goal of self-defense (for a more detailed description of circumstances leading up to the event, see Glazier, Chapter 6).

In contrast, preventive force—which refers to the anticipatory use of force in order to eliminate a non-imminent, perceived potential threat before it has a chance to manifest—has been considered immoral and illegitimate by the United States and the broader international community for nearly a century. For instance, in line with members of his administration who attributed World War II to the preventive motivations of Adolf Hitler, President Truman labeled preventive wars “aggressive” and “the weapon of dictators” (Truman 1950). The preventive war option was also rejected by the Eisenhower administration, as was evident when Secretary Dulles told the press, “Any idea of preventive war is wholly out of the question as far as the United States is concerned” and “is not, and as far as I can forecast, never will be any part of the United States foreign policy” (quoted in Silverstone 2007, 84). Scott Silverstone (2007) maintains that the United States fully considered the preventive attack option at several points during the Cold War6 but ultimately discarded it based on established norms, in particular the view that preventive force was immoral and inconsistent with American ideals.

A related concern was how Americans would be perceived by the rest of the world (Silverstone 2007). These worries over ethical culpability were confirmed following Israel’s 1981 preventive strike on Iraq’s Osirak nuclear facility, as the United Nations Security Council unanimously rebuked the move as aggressive and in violation of international law. In fact, the United States and Iraq worked together on the Security Council resolution that condemned Israel for acting “in clear violation of the United Nations Charter and the norms of international conduct” (Silverstone 2007, 160).7

U.S. Preventive Logic into the Twenty-First Century

The greater the threat, the greater the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.

—“National Security Strategy of the United States,” 20028

The condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

—U.S. Department of Justice, White Paper9

Scholars have developed various explanations for the United States’ preventive war in Iraq in 2003, ranging from George W. Bush’s personality (Renshon 2006) to a “neoconservative moment” (Schmidt and Williams 2008, 194). For some, the turning point that paved the way for the preventive war came earlier. Silverstone (2007), for instance, maintains that heightened fear over nuclear proliferation in the 1990s provided the context for a normative shift favoring preventive force. The threat of nuclear proliferation to “rogue” states, including North Korea and Iraq, led the Clinton administration to seriously contemplate preventive strikes on nuclear facilities.

From this perspective, the preventive war...