The Just War Theory’s ‘Other’ – Ethics of Drone Strikes in Pakistan

Introduction – Just War Theory and the War on Terror

Questions of morality have been integral to discourses and debates of the contemporary war on terror. Following the attacks on September 11th, and on the same day, US President George Bush told congress that “enemies of freedom committed an act of war against our country” and promised that “whether we bring our enemies to justice, or bring justice to our enemies, justice will be done” (Bush 2001). The discourses of the Bush administration draw off a tradition of moral thought called just war theory. The reliance on just war thought is unsurprising as it is incorporated within international law and taught within the US military as an ethical framework to (Crawford 2003, 6). Yet the application of just war theory to the war on terror itself invites analysis.

Just war teaching emerged in the fifth century and has proven an evolving tradition, continuing to be adapted in the manner it is used by contemporary proponents in accordance with changes in contemporary war (Fisher 2011, 64). Nonetheless, there are core and settled principles within the tradition which are seen to provide an objective set of requirements for a war to be ethical and just: that it must be just in both cause (jus ad bellum) and in conduct (jus in bello). The jus ad bellum principle requires the authorization of war by a competent authority, for the right reasons, with the right intentions, as a last resort and for the harm which may occur from war to be judged disproportionate to the good which will likely be achieved (Fisher 2004, 67-76). The jus in bello principles further require taking precautions on the battlefield to ensure that the harm caused is indeed proportional to the good which can be achieved through the military operations and observing a norm of non-combatant immunity (Fisher 2004, 76-79).

How is the war on terror a just war? Through a just war view it may be argued that the US, a rational body of decision making and competent authority, is acting with the just cause of self-defence, the central intention guiding the war being to defeat a hostile enemy, war being the last resort against this enemy and the enemy causing so much harm that harms which will result from the war will be out-weighed by a greater good the war can achieve – meeting the jus ad bellum principles. It would also further argue that the jus in bello principles have been meet as military conduct in the war has been proportional to the good achieved and although non-combatants have been casualties of the war they have not been the intended targets. Contemporary just war theorists such as Jean Bethke Elshtain have put this position forward in defence of the war on terror (Elshtain 2002).

While just war thinking has been popularly provided as both a satisfactory explanation of the ethical dimensions of the war on terror and a justification for it, we may consider what postcolonial thinking may bring to examining the ethics of contemporary warfare. Can just war theory hold up to postcolonial insight into the ethical? Is just war teaching equipped to adequately account for contemporary colonial violence? Is there an ‘Other’ disguised within contemporary war ethics? What forms of racialized subjectivities are constructed through moral discourse during war time? And how may processes of racialization impact notions of the moral and the ethical? To answer these questions this essay juxtaposes just war thinking to postcolonial analysis of the war on terror using the Federally Administered Tribal Areas (FATA) of Pakistan as a case study throughout the essay. The following section highlights the limitations of just war theory in providing analysis of the ethics of the war on terror, arguing that the war does not operate through conventional notions of legitimate and just wars but through genealogies of colonial wars. The concluding section then presents Achille Mbembe’s theory of necropolitics as an alternative form of analysis into the ethics of contemporary war.

Contemporary War and the Limitations of Just War Theory

FATA is a collection of seven tribal agencies which border Afghanistan. FATA exists in irregular legal circumstances, a position drawing back to its past as a frontier region for colonial Britain (Shaw 2015, 1948). Proceeding independence in 1947 Pakistan continued the policy of exempting FATA from its conventional law, retaining rule over the region without providing judicial representation which other Pakistani citizens are given. In the contemporary, FATA has also once again returned to the attention of the colonial forces as a frontier. Since the war on terror FATA has served as a refuge and passage for various militant groups to cross into Afghanistan and conduct counter-US operations and later return into Pakistan for safety (Irfanuddin 2014). Utilizing this geopolitical situation and the uneven politico-legal position of FATA, it has been used by the US as the most central location in which they have tested their Unmanned Aerial Vehicles (UAVs), or drone, programme (Forensic Architecture, n.d.).

The example of drone operations in FATA highlights two significant shifts of modern warfare; firstly, enemy combatants being non-state armies, and secondly, the technological and scientific ‘revolution in military affairs’ opening up a variety of new weaponry. Is just war tradition theory enough to account for these shifts? Various political thinkers have put just war to scrutiny to test whether its traditional state-centric focus can operate in wars against non-state armies (Crawford 2003; Burke 2004; Fisher 2011). From a postcolonial view, one reason for the inapplicability of the trajectories of just and unjust war in the colonial context resides in construction of the European legal and political order and its relation to the Other within this order. Within the creation of European juridical order (Jus publicum Europaeum) a legitimate and just War is conducted by one state against another (Mbembe 2003, 23). The emphasis on the state in the operations of war derives from the Westphalian nation-state model in Europe. In the Westphalian order, the state is the model of political unity, rational decision making and the highest form authority within its borders. Outside of its borders the state cannot claim rule but instead holds the right to wage war or conclude peace. (Mbembe 2003, 23)

The war on terror, however, does not operate as a conflict between two distinct states and peace itself is not an available option. It has instead long been US policy to not make deals with groups defined as terrorist, a situation which particularly questions the applicability of the last resort principle (Crawford 2003, 15). For example, following September 11th the US and the Taliban conflicted over the release Osama bin Laden. Against an ultimatum presented by the US to either surrender bin Laden or face attack the Taliban offered to give bin Laden to a third country to conduct a trail and for the US to first prove his guilt first, to which the US replied that “[t]here will be no negotiations and no discussions,” (Kennedy 2001). Thus, within the war on terror peace and non-military options are actively ruled out in favour of a conflict of absolute hostility.

The US government itself has argued that with dramatic changes in warfare, different ethical, legal, and military standard should be expected. Since the September 11th attacks are described as unjustified aggression and the war on terror a just war, a legal and moral assertion to the right of self-defence is seen as the just cause of the US. By further arguing that self-defence needs to take different forms in contemporary war pre-emptive strikes have become included within the right to self-defence. As Secretary of Defense Rumsfeld argued:

The only way to deal with the terrorists that has all the advantage of offense is to take the battle to them, and find them, and root them out. And that is self-defense. And there is no question but that any nation on Earth has the right of self-defense. And we do. And what we are doing is going after those people, and those organizations, and those capabilities wherever we’re going to find them in the world, and stop them from killing Americans” (Rumsfeld 2001)

In this manner, it is argued that the changing nature of warfare has changed standards of what counts as imminent threat and what counts as self-defence. Traditionally an imminent threat was the visible mobilization of armies, navies and air-force in preparations of an attack (Crawford 2003, 14). The mobilization and organization of non-state armies, however, is not visible and thus the US administration has argued that “[w]e must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries” (National Security Council 2002).

Because of the invisibility of non-state army operations, it is the possibility of future terrorist attacks which war is being waged against and not a direct form of self-defence as used in the traditional sense. Warfare is temporally and spatially suspended for this reason, and only concludes when “every terrorist group of global reach has been found, stopped and defeated” (Bush 2001). It goes on indefinitely until the threat is seen to be resolved through the imaginary of a future of two options, you attack them or they will attack you. Yet, it cannot be known or calculated whether undertaking of war has been proportional, as no visible threat can be seen to be neutralized in gauging success. Nor is the paradoxical chance of increasing militancy and terrorist activity accounted for (Crawford 2003, 18-19). In the case of Pakistan, while suicide bombings have become common occurrence, they emerged as a problem following 2001 and have escalated in frequency and intensity in accordance with increasing drone activity with many suicide bombings having been said to be in retaliation to drone strikes by the perpetrator of the attack (Usmani and Bashir 2014, 7-8). As Jacques Derrida warned in an interview following September 11th, the war on terror may provoke fuel and produce even greater acts of terrorism than the attacks of September 11th (Borradori 200, 97-98). Yet even in such a circumstance, it would difficult to calculate whether the war on terror provoked the attack or it was an inevitability which the war indeed damped the results of.  For these reasons in a war against terrorism, calculations of proportionality and vague and ambiguous at best.

How can a war in circumstances where its opponents, results and duration are hidden be judged in terms proportional? This is a particularly relevant challenge to just war thinking as wars on the modern age are much more destructive than previous eras where the conduct and consequences and war were much more confined both spatially, temporally and in intensity. Wars in the contemporary era, exert large-scale damage and do occur not in a distinct battlefield but among civilian populations. Nonetheless, these wars have attempted to force an enemy into submission through intensive military action regardless of the impact on civilians. In Kosovo, targeting Serbian capabilities amounted to forms of infrastructural war that destroyed “bridges, railroads, highways, communications networks, oil storage depots, heating plants, power stations, and water treatment facilities” (Mbembe 2003, 30-31). Combined with the imposition of sanctions, these military tactics targeted and shut down the enemy’s necessary infrastructure for life, resulting in widespread harms to civilian life. The destruction of a petrochemical complex in the outskirts of Belgrade, for example, “left the vicinity so toxic with vinyl chloride, ammonia, mercury, naphtha and dioxin that pregnant women were directed to seek abortions, and all local women were advised to avoid pregnancy for two years” (Smith 2002, 367). With temporal and spatial and physical impacts of contemporary wars being far greater than in the past how is proportionality calculated, particularly when the results of war themselves cannot necessarily be known? For the reasons stated above, contemporary wars do not occur through and cannot be accounted for by just war thinking. Can the logics of necropolitics provide an alternative form of analysis of the ethical underpinnings of the contemporary war on terror?

The Necropolitics of the War on Terror

Mbembe’s theory of necropolitics originates as an expansion of Michel Foucault’s biopolitics. As articulated by Foucault, biopolitics denotes a technology of power which emerged at the end of the 18th century where the sovereign power took over the domain of life (Foucault 1978/1976, 25). Biopower operates to manage life, to propagate, sustain, enhance, proliferate, and rule over life. An underlying factor of biopower Foucault noted is the population. Under biopolitics governments don’t see themselves as dealing with individuals but with the population and its specifics: its birth and death rates, life expectancy, fertility, age of marriage, state of health, frequency of illnesses, patterns of diet and habitation. Biopower is in many instances a science regarding the management of life at the level of populations.

Mbembe necropolitics shifts the focus from the operations of the sovereign power over life on the level of a population, to the operations of power over death in a colonial context. To do so he relates biopolitics to its relations with to enmity (Mbembe 2003, 16). Using the example of the plantations and contemporary Palestine Mbembe questions whether “the notion of biopower [is] sufficient to account for the contemporary ways in which the political, under the guise of war, of resistance, or of the fight against terror, makes the murder of the enemy its primary and absolute objective” (Mbembe 2003, 12)? In doing so, necropolitics highlights the ways in which various weapons are deployed for the construction of “death-worlds” where various populations are subjected to the status of “living dead” (Mbembe 2003, 40).

Jamie Allinson argues that drones operate through an interweaving of biopolitical and necropolitical power (Allison 2015, 120). Its aerial surveillance of populations is a form of biopolitical function, with patterns of life scanned to take management of life. Yet the drone marked a shift towards a form of power which is not concerned with taking management over life in the traditional sense but through deciding who can live and who must die – what Mbembe describes as the ultimate expression of sovereignty (2003, 11). It is not concerned with concentrating bodies in camps, prisons or torture chambers such as in Abu Ghraib or Guantanamo Bay. Nor is it concerned with locating and capturing the subject, bringing the subject to trial and convicting the them. The drone strike is targeted, precise and instantaneous. There is no confrontation involved, it can dispose of more in a shorter space of time and like the armies it is purported to target, it has a mobile relation to space. Targets may be selected based on a kill list constructed through often questionable intelligence or they may be randomly selected through fitting a certain signature (Cavallaro, Sonnenberg, & Sarah 2012, 12). In neither situation are targets necessarily known before or after the attack, nor the exact number of casualties. Targeted locations are not necessarily enemy combatants on a battle field but are homes, hospitals, schools and public gatherings. Within colonial violence sovereign power can kill at anytime, anywhere for unknowable reason to the victims of colonial violence. It is not restricted by the ethical nor by laws of war. As Frederic Megret’s argues in his analysis of international laws of war, that laws of war were not created to be universally inclusive but founded through an exclusion of their applicability towards formally unacknowledged yet implied Other (Megret 2005).

For Megret, a central basis of the constitution and exclusion of the Other is the production of civilizational subjectivities where ‘uncivilized’ people are seen as unworthy of protection and incapable of respecting the laws of war (Megret 2005, 289). The frontiers and colonies may be ruled in lawlessness because of this denial of humanity on the scale of the population. As summarized by Fanon, “In plain talk, he is reduced to the state of an animal” (2004, 7). In her Frames of War Judith Butler expands how within prevailing epistemological framings of the war on terror, norms of ‘the human’ have functioned in excluding in the invaded Other from being recognizably human (2009). As articulated by Butler, frames allocate subjects as ‘human’ or ‘nonhuman’ – ‘grievable’ or ‘disposable’ – in accordance with normative conceptions of ‘human’ subjectivity (Butler 2009, 1-2). Yet the production of these norms of the human subjectivity has occurred in and been based on specific cultural contexts and has excluded lives who do not accord with these normative prerequisites from being recognizably. The ethical implication of this, as Butler argues, is that when lives are not apprehended as living first then they cannot be apprehended as injured or lost.

This form of racialized dehumanization of population creates different level of moral analysis, where immoral acts against certain subjects can be regarded as morally justified towards other. It operates through creating a binary between those to be protected, the normatively human, and those who are not recognizably human and can be put to death without resulting injury or loss to human life. Within media and military discourse, for example, drone have come to favourable light as it is often said drones “help save lives by taking humans out of harm’s way” (Lawlor 2003). Yet the life of those who are targeted, or impacted by drone strikes is not recognized as human life put in harm’s way (Allinson 2015, 120).

The just war theory thus does not operate in the contemporary purely as a discourse of morality and war, but functions within an assemblage of civilizational discourse drawing on colonial traditions of orientalism. Within the colonial imaginary, and within just war theory, the war on terror is a war between justice and injustice, good and evil. It is depicted as a war by the civilized against savages – a civilizational discourse produced for the purposes for self-legitimation. Two main subjects are produced within this discourse, a moral and ethical US and allies against an immoral and terroristic ‘Other.’ This construction of the moral and immoral subjects in a war of the civilized against savages creates different standards of moral evaluation, for example, the large-scale violence of the US state is described as rational, legitimate and just through a juxtaposed and relational description of the armies it engages with as irrational, illegitimate and unjust. These differing sets of moral standards align with the differing framing and apprehendability of life, masking injury to life due to life itself being unrecognizable. For all the reasons stated above, the just war is insufficient in accounting for the ethical dimensions of the contemporary colonial wars. The war on terror does not operate through just war traditions but through necropolitical logics. It is not restrictions by conventional notions of moral standards but accords itself absolute morality in all actions and in doing so legitimates its expression through the ultimate form of sovereignty, deciding who may live and who must die (Mbembe 2003, 11).

Conclusion

While the just war theory has assumed popularity as an ethical analysis of the war on terror and the set of principle guiding the war, serious concerns challenging the applicability of just war thinking to contemporary war may be raised. Contemporary wars have particularly been waged against non-state actors and have foreclosed non-military options and other potential resorts to terror in favour of absolute war. One which is temporally suspended but the achievements of cannot be gauged, its impacts on civilians is common and severe and non-combatants are not necessarily immune. For these reasons, contemporary wars are not best understood through trajectories of just and unjust wars but through genealogies of colonialism and their necropolitical logics. As has been argued, the primary purpose of the war on terror has not and cannot been expressed in self-defence as defends against an unknown threat. Instead its primary purpose has been the murder of its enemy through the deployment of weapons in the interests of exerting maximum destruction, or necropolitics. It is founded of not only ethical discourse but civilization genealogies of colonial discourse which create a distinction between those to be protected and those who can be put to death. Because of this, and within the contemporary colonial context, just war thinking occurs through the setting differing ethical standards where the otherwise unethical become acceptably moral – the large scale killing of certain population becomes a seen as a justified and proportional self-defence against a potential, unknown and assumed threat.

Bibliography

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