(for part 1, click here)
Source used in this Article
Assassination and Preventive Killing, Kasher, Asa. Yadlin, Amos. SAIS Review, Volume 25, Number 1, Winter-Spring 2005, pp. 41-57
The Proportionate Treatment of Enemy Subjects: A Reformulation of the Principle of Discrimination, BETSY PERABO, Journal of Military Ethics, Vol. 7, No. 2, 136 156, 2008
Blurring the Lines
Some moral theorists who comment on targeted killing, draw distinction between killing in peacetime and killing in wartime. Such a distinction is necessary when one considers the justification for targeted killing is very much dependent upon the context in which it occurs as peacetime killings tend to be more preventative and wartime more retributive. In either case, some common factors remain. Tesón, in Targeted Killing in War and Peace (see citation in part 1) provides a comparative analysis. In peacetime the TK must save many innocent lives and thus the reason for killing is just, the target must be morally cuplable and there can be no non-lethal alternatives. In a wartime setting, actions are judged by the standards of Just War Theory (jus in bello) and so we acknowledge that if the war is justifiable, the combantants have an inherent right to kill one another, as tragic and inhumane as that may seem to the innocent. The justification for wartime TK, the requirement to save innocent lives is replaced by the reasonable belief the TK will increase the chance for victory. In wartime, the moral culpability of the target is not considered as the victim is a component of the overall war effort and so culpability is placed upon the government represented by the target. With respect to alternatives, the requirement remains the same since war is considered a last resort, non-lethal alternatives have been explored and have either failed or been considered imprudent.
Terrorism blurs the distinctions between peacetime and wartime justification for TK. When confronting terrorists and considering the morality of TK, we are usually forced to recongnize the terrorist probably has no official state representation, may not identify himself as an enemy combatant, may be operating within the borders of a state which is not at war, and the terrorist target will not be functioning in a open and accessible way where apprehension or alternative measures can be employed. So, nevertheless, the idea of no non-lethal options stands. Moreover, we recognize the targeted killing of a terrorist avoids a potental for great harm, usually the loss of innocent lives and so the self-defense theme winds its way throughout the examination of TK.
Criteria for Justification
Typically when justifying killing in self-defense, one considers certain criteria as paramount. The idea of imminence suggests the threat posed by the target is very near to fruition and so any delay increases the likelihood the innocent will suffer. The concept of no alternative suggests that any reasonable action other than killing, such as apprehension, denial of resources to the target, etc. are either impractical or impossible. Despite the similarities with domestic violence, self-defense and the justification for deadly-force, we must not lose sight of the fact we are dealing with a state rather than an individual as the responsible agent and so we are attempting to establish a collective morality under which states may operate in order to preserve the sovereign rights of statehood and the necessity of the state to ensure its own survival as well as protect the natural rights of its citizens. Diplomats do not kill people, armies do and the instrument of killing, other than execution through a judicial proceding, is war and a just war is conducted under certain criteria. As I previously pointed out in a previous essay on this topic, the criteria for jus in bello requires humane weapons, discrimination of combatants, proportionality, fair treatment of prisoners, non-evil methods, and no reprisals. (see: The following entry in the Standford Encylopedia of Philosophy, http://plato.stanford.edu/entries/war/#2. Terrorism, changes the game, and centuries-old jus in bello does not necessarily adequately encapsulate the moral framework of this kind of targeted killing. So I refer to the analysis of Kasher and Yadlin, who establish as an a priori, the right of states of defend themselves.
Kasher & Yadlin, 2005:
The Principle of Self-Defense Duty
1. It is the prime duty of a democratic state to effectively defend its citizens against any danger posed to their lives and well-being by acts or activities of terror, both in the short run and in the long run.
2. In doing so, the state discharges its obligation to protect the human dignity of the citizen, both as person and as citizen.
3. Moreover, being a democratic state, it must fulfill its obligation while properly respecting the human dignity of each person, as a person.
As I have noted above, states must act to preserve themselves and protect their citizens and the enforcement arm of states is its armies. Hence Kasher and Yadlin define the principle of Military Necessity:
The Principle of Military Necessity
Military acts and activities against terror are right only if they are carried out under the following conditions:
1. Purpose Condition: The act or activity is taken in fulfillment of the basic duty of the state to defend its citizens from terror acts and activities.
2. Relative Effectiveness Condition: Any alternative act or activity (including refraining from any act or activity, respectively) would expose the lives or well-being of the citizens of the state, including its combatants, to greater danger.
3. Minimizing Collateral Damage Condition: The act or activity is carried out in a manner that strictly protects human life and dignity by minimizing all collateral damage to individuals not directly involved in acts or activities of terror.
4. Proportionality Condition: The act or activity is carried out in a manner that takes into account the relationship between its contribution to the defense of citizens from dangers of terror and the collateral damage it causes.
5. Fairness (or Universality) Condition: The act or activity is of universal applicability: its justification would justify carrying out parallel acts or parallel activities in all situations.
Finally, since Kasher and Yadler attempt to establish a universal framework for state morality when dealing with terrorism, they provide the following conditions, summarized in the Principle of Distinction:
1 There are different types of state duties toward individuals recognizing there are indivduals who are directly or indirectly affected by the state's action in differeing capacities.
2 There are different kinds of involvement by those responsible for terror, including those who are immediately dangerous, those who provide support, those who do planning,etc.
3 The state's actions should be prioritized in recognition of its duties toward the involved individuals so as to minimize injury to lives.In meeting these conditions, according to Kasher and Yadler, state's actions are morally permissible in that they adhere to the generally accepted Doctrine of Double Effect while respecting the human dignity of the affected individuals.
Distinction and Proportionality
Finally, I would like to focus on certain aspects of the Perabo analysis (see citation above) as she narrows her examination to the jus in bello principles of distinction (discrimination of combatants) and proportionality. The Principle of Distinction requires the recognition that certain representatives of the enemy population are combatant and some are non-combatant and execution of just war must take steps to protect the non-combatants from the effects of war. In modern war, simple definitions of what consititues a non-combant are difficult to attain. Simply put, Perabo establishes three criteria for determining an individual's combatant status:
My reformulation of the PD is therefore: In wartime, enemy subjects should be identified and treated in accordance with three criteria:
1. the actions they have taken and are taking, as this relates to the threat they pose (conduct);
2. their status as combatant, civilian, or member of a class between the two;
3. their guilt with respect to the initiation and prosecution of the war.
The first criterion prompts the question: Is this individual currently fighting or presenting an active threat to others? This criterion recognizes that those who are not uniformed military personnel may perform hostile acts or display hostile intent to act in a way that is harmful to their enemy, and thus should be subject to attack.The second criterion asks: How has this individual been classified, or how might he or she be classified, by criteria other than conduct? First and foremost is the question of whether he or she is a combatant according to formal legal standards, and which legal standards apply. But this may also include other criteria whether the individual is armed, whether he or she is wearing a distinctive emblem or insignia indicating membership in a belligerent group of some kind, whether he or she is an adult or anything else the country chooses to use in determining categories.The third criterion indicates that a full portrait of the enemy subject must include an assessment of his or her moral guilt or innocence. In order to assess guilt, a country’s authorities will need to have some knowledge of the political situation for example, whether the society is democratic, whether civilians control the military, and whether military service is voluntary. This criterion is the most problematic, both because guilt is difficult to assess and because developing policies that factor in guilt is a complicated (and sometimes impossible) process.
Having established a suitable criteria for distinction, Perabo then delves deeply into how such discrimination of the players intertwines with the principle of portionality. As she states in her introductory paragraphs:
This analysis suggests that the PD [Principle of Distinction] is deeply connected to the other primary jus in bello principle, the Principle of Proportionality (PP). In wartime, individuals should be subject to harm proportionately according to the extent to which they have taken actions or made threats; their status as soldier, civilian, or something in between; and the degree to which they are guilty for the initiation or prosecution of the war. That is, frequently the PD will collapse into the PP; though a few very vulnerable and powerless individuals will deserve complete immunity from all harm, many are appropriate targets of some harm, at least in theory.
In summary, I have attempted to present some analysis for a particular moral theory behind targeted killing. Because I have blended several points of view and hacked together a general framework for a very complex topic, some aspects of my analysis may be muddled or confusing. I understand what I am trying to present, I hope you do as well, but if you do not, check the sources and dig deep. This is one of those topics which defies a single-level google search.
The moral framework presented establishes states have a right to defend themselves and under certain conditions, killing in self-defense is morally permissible. In order to extend that permission to the state, we must define the state as a moral entity. We recognize that principles of discrimination and proportionality are integral to the question of moral permissiveness. Because of the nature of how, these killings are conducted, we provide a moral framework which respects the dignity of the innocent while acknowledging that the innocent may be injured in pursuit of the objective but the guilt for that injury rests upon the target.