Tag Archives: Law

Book Review: Piracy and Armed Robbery at Sea

Robin Geiss and Anna Petrig. Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden. Oxford University Press, 2011. 340 pp. $110 


9780199609529

By Alex Calvo

The Law of Counter-Piracy Operations: From Hollywood films to some Chinese popular perceptions of their Eastern neighbors, piracy and pirates retain a powerful hold in contemporary culture. However, it is their most recent incarnation in areas like the Gulf of Guinea, the Malacca Straits, and the Horn of Africa, that is carefully followed by anybody involved in maritime affairs, from ship owners and operators to naval officers and international lawyers. Among other aspects of piracy, the legal regime of pirates and operations against them is of the foremost importance, and therefore any volume devoted to them proves a welcome addition to the literature on the sea and what Julius Caesar labeled as “hostis humani generis,” or the enemies of humankind. This is exactly what Piracy and Armed Robbery at Sea purports to be, and actually is: a single-volume treaty on the law applicable to counter-piracy operations, with a regional focus on Somalia and the Gulf of Aden. The book achieves the goals of providing a comprehensive approach to the subject, with plenty of primary sources, case law where applicable, and legal commentary on controversial or unclear aspects. While readers may note the absence of topics such as the rights of victims, the ransom industry, and non-Western legislation, this does not detract from the overall quality of the work, which furthermore contains a number of sources in its appendixes which can be very useful to the practitioner.

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As clear from the title, the subtitle, and introduction, this book seeks to provide the reader with a detailed explanation of the different legal regulations and principles under which piracy is fought in one of the corners of the world where it is most pervasive, and which, crisscrossed by myriad SLOCs (sea lanes of communication), no major power can ignore it. In connection to this, the first aspect of the text we should note is that this is indeed a law book, and perhaps more accurately a “black letter law” book, in the sense that it focuses on positive law, with just the minimum amount of social, economic, and other considerations provided in Chapter one and later interspersed in the text. When the authors delve outside the strict borders of the law, it is to better explain the rationale behind legal rules, a good example being their discussion of judicial and prison capacity in- countries like Kenya (p. 174-179) and the Seychelles, which supports and complements their explanation of the agreements signed between them and the European Union for the local trial and imprisonment of pirates. Having said that, they also discuss possible future developments of the law, such as specialized international tribunals to deal with piracy (p. 179-184).

A second important characteristic we may stress is the logical fashion in which the text is divided into parts, and then subdivided into chapters, which very much aids for the reader who wishes to go through the text from beginning to end, and those who prefer to go straight to one of the issues discussed in the volume. A third strong point is that, while focused on positive law, the authors stop to discuss areas where applicable rules may not be clear or even be controversial, providing a summary of arguments and their own views. An example is the practice of embarking law-enforcement personnel from one country on a naval (or state) ship of another, with the associated legal complexities.

This photo taken Sunday, Jan. 4, 2009 provided by French Defense Minister shows suspected pirates arrested by Marine commandos of the French Navy in the Gulf of Aden, off Somalia coasts. French government officials say the Jean de Vienne intercepted and captured 19 pirates Sunday as they tried to take over two cargo ships, one Croatian and the other Panamian. French Navy vessel Jean de Vienne is seen on background. (AP Photo/French Navy/French Defense Minister/HO)
This photo taken Sunday, Jan. 4, 2009 provided by French Defense Minister shows suspected pirates arrested by Marine commandos of the French Navy in the Gulf of Aden, off Somalia coasts. French government officials say the Jean de Vienne intercepted and captured 19 pirates Sunday as they tried to take over two cargo ships, one Croatian and the other Panamian. French Navy vessel Jean de Vienne is seen on background. (AP Photo/French Navy/French Defense Minister/HO)

The Book’s Strong Points: The text provides a comprehensive look at applicable legislation and extensive discussion of unclear aspects. As noted, the authors make an extensive effort to cover the different legal aspects of the fight against piracy, adding their commentary and summaries of other views where positive law is unclear or developing. Examples include three possible interpretations of Article 105 UNCLOS, providing universal or limited criminal jurisdiction, a conflict-of-law rule, or a reaffirmation “that prosecution is based on domestic criminal law and procedure” (p. 149-151), and a discussion of the differences between transfers and extradition, noting how generally speaking “in the piracy context, the change in custody is not brought about by the formal means of extradition” and “transfers in the piracy context do not fulfill the characteristics of deportations or exclusions.” (p. 192-194)

The Expanding Range of Somali Piracy
The Expanding Range of Somali Piracy

Three gaps: Non-Western Views, Piracy Victims, and the Ransom Industry and Middlemen

There are three aspects that, if incorporated in future editions of the book, may make this work even more complete. First of all, we should note a lack of Chinese, Indian, Japanese, Russian, and South Korean views, even though all these countries contribute to the struggle against piracy in the Horn of Africa. It would be interesting to find some legal commentary, domestic legislation, or actual cases, from these jurisdictions. Second, we cannot fail but note a complete and utter disregard for piracy victims, who are basically absent from the text. While the death penalty, torture, and the principle of “non-refoulement” are dealt with extensively (p. 210-220), there is no discussion of reparations for victims, and of their procedural standing other than when serving as a connection point for states to exercise jurisdiction.

The authors’ concern with the human rights of alleged and convicted pirates is commendable, and so is their extensive treatment of those rights in their book, but caring about the rights of the accused should not be seen as incompatible with at least providing some cursory explanation of those of the victims. Finally, another notable absence is that of the “middlemen” and more widely the “industry” managing ransoms, and their possible criminal liabilities. No look at the legal framework of the fight against piracy is complete without an examination of the rules and practice designed to strangle their finance, but despite the subject occasionally emerging in the pages of the book, there is no section specifically dealing with it. Is it perhaps too sensitive?

Conclusions: It is a useful and quite comprehensive study, though suffering from some gaps. We can thus conclude that this is a book that anybody interested in piracy and counter-piracy operations, the law of the sea, and more generally maritime and naval affairs, will find useful, both as a detailed introduction to the legal rules applicable to counter-piracy operations, and as a reference work. It is to be hoped, however, that future editions incorporate non-Western views, victims’ rights, and the law applicable to pirate financing.

Alex Calvo is a guest professor at Nagoya University (Japan) focusing on security and defence policy, international law, and military history in the Indian-Pacific Ocean. Region. A member of the Center for International Maritime Security (CIMSEC) and Taiwan’s South China Sea Think-Tank, he is currently writing a book about Asia’s role and contribution to the Allied victory in the Great War. He tweets @Alex__Calvo and his work can be found here.

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Deciphering the Japanese Ship Guarding Act

Written by Simon O. Williams with research support credited to Michitsuna Watanabe

First released by The Maritime Executive, July 1st, 2014

Over six months since the Japanese government issued a landmark national law permitting privately contracted armed security personnel (PCASP) aboard Japanese flagged vessels, there remains confusion and uncertainty as to its scope and practical application. The legislation is entitled the “Special Measures Act for Security of Japanese Vessels in Pirate Infested Waters” of 20th November 2013, Law No.75 (Japanese Ship Guarding Act.) This Act, along with its supporting Orders and Ordinances, sets the policies, procedures, and applications for the employment of armed guards aboard Japanese flagged oil tankers. It is written exclusively in Japanese and requires not only translation, but also analysis by those seeking to provide or procure compliant maritime security services for the Japanese market.

THE ACT

Despite the Act being rolled out more than half a year ago, Japanese ship-owners and operators struggle to find foreign PCASP and private maritime security companies ready to provide their services aboard Japanese vessels.

According to Mr. Henri Vlahovic, founding director of Amniscor Ltd., which offers market entry support to companies in this sector, “while our team has developed the right compliance solutions for the constantly evolving procedures in Japan, significant challenges remain for foreign private maritime security companies to enter this new-born market. There are several reasons, including a lack of comprehensive information on policies and laws, which themselves are still not completely defined and remain emerging. This is compounded by protracted application procedures that hinder, rather than foster, advancement of this crucial new industry segment in Japan. The Japanese Ministry Of Land, Infrastructure, Transportation and Tourism (MLIT) is still missing sufficient mechanisms to attract foreign service providers, while Japanese ship-owners’ demand for high standard PCASP is steadily increasing.”

So as the demand grows, supply of services remains lacking due to the complexity of navigating the Japanese legal system, especially the hurdle of deciphering the Japanese Ship Guarding Act, which can be seen as scaring off foreign security providers.

While the world now observes a trend in piracy and maritime-armed robbery, priority areas shifting to West Africa and Malacca, the Act came into existence against the backdrop of increased PCASP deployment aboard vessels transiting the High Risk Area– the Horn of Africa and the Indian Ocean. The Japanese government accepted the correlation of increased use of PCASP with decreased successful pirate boarding in this region. Coupling this with Japan’s energy dependence being exclusively sea-borne from source countries mostly in the Middle East, authorities sought strategies to protect their vulnerable maritime assets and energy flow. However, unlike some other nations which could place PCASP on-board their ships at-will, Japanese flagged vessels were prevented from doing so as firearms possession is prohibited by the Japanese Swords and Firearms Control Law of 1958.

The recently adopted Japanese Ship Guarding Act provides an exception to this Law. The Japanese legal system is composed of three unique components: Laws, Orders, and Ordinances.

The Act itself is actually a Law, meaning that it was passed by a vote in the Diet, Japan’s parliament. However, it also includes Orders and Ordinances, which can be modified without Diet debate by the cabinet or the relevant ministry, in this case—MLIT. This allows the cabinet and MLIT the necessary legal latitude to independently adapt or expand the scope of the legislation without Diet approval, a crucial aspect to respond to the fluid nature of maritime operations and maritime threats.

THE ORDERS

According to the relevant Orders, to obtain MLIT permission for embarking armed guards on Japanese flagged vessels, the candidate vessel must be a Japanese flagged tanker carrying crude oil and meeting certain fundamental static requirements as set down in the Ordinances described below.

The Orders prescribe the use of PCASP only within a designated High Seas area in the Gulf of Aden and Indian Ocean along with a ‘passing area’ at Bab-el-Mandeb, the entrance to the Red Sea.

Japanese Ship Guarding Act Subject Area

According to Mr. Takashi Watanabe, the Deputy Director of MLIT’s International Shipping Division, the operational area remains the High Seas, beyond twelve nautical miles from shore, as prescribed by the UNCLOS framework, while the territorial sea spaces of these oceans are considered transit areas. This means that armed guards may be onboard within twelve nautical miles, designed specifically to facilitate embark and disembark procedures in a coastal state’s territorial sea, but in such locations they are forbidden from using weapons.

As these requirements are prescribed specifically in the Order and not the Act itself, the Japanese government maintains the jurisdiction to modify such specific geographic requirements as needed to adapt to fluid operational and threat conditions.

Should security operations be needed to protect the Japanese fleet in West Africa or Malacca, for example, the government maintains the power to grant these permissions in the form of a new or modified Order which can expand the subject area for a security response.

Likewise, should the need for increased protection be deemed necessary aboard vessels other than crude oil tankers, such as LNG carriers, fishing vessels, or even perhaps the Japanese whaling fleet, cabinet can similarly expand the scope of the Order to include these parameters.

THE ORDINANCES

Related Ordinances specify that in order to qualify for armed security permission, Japanese oil tankers must have a maximum speed no faster than eighteen knots fully loaded, and have a freeboard less than sixteen meters (distance between the water line and the deck or other places where humans can enter the ship.) Ships must also have a secure citadel where crew members can seek refuge and continue external communication in the event of an attack, along with primary preventative measures including a water discharging system and razor wire along exposed areas of the deck.

Application forms are included with the Ordinances as appendices available in Japanese only, which ship-owners must submit to MLIT for obtaining permission to employ PCASP aboard their Japanese flagged vessel. However, a summary of required information has been created and is presented below.

This includes applications to authorize a Ship Security Plan, modify all or part of the Ship Security Plan, confirm security personnel and their weapons, change of security personnel, submit the guarding implementation plan, and notify MLIT about lost or stolen firearms.

Ship-owners must submit a designated guarding plan for each candidate vessel to MLIT along with personal details of the PCASP and their embarked weapons. These applications are free of any charges and commissions and have validity periods of two months, after which a new application must be submitted.

DESIGNATED GUARDING PLAN

An application must be submitted to MLIT detailing the Designated Guarding Plan. This plan includes information on the ship-owner, including copies of their personal identification documents and criminal record check. It also must include details of the candidate vessel, certification of its Japanese flag possession, architectural schemes, pictures, and drawings. This evidence shall detail the equipment required under the Regulation to prevent and reduce damage by piracy, including that of the citadel, razor-wire, water discharge system, and appropriate storage facilities for firearms. Moreover, a written pledge by the Ship’s Master (Captain) must be enclosed stating that he/she is over twenty years old, and does not have any psychological or physical conditions which may impact his performance, is not a previous criminal offender, and is capable of overseeing and monitoring the possession and use of firearms onboard for special security activities.

The ship-owner or their liaison must also submit relevant documents about the PCASP to be embarked on the vessel and the company they hail from. Along with copies of relevant PCASP team leader or company director’s personal identification documents, such as residency card, a medical certification by a doctor or public body indicating this individual does not suffer from any psychological issues, addictions, or other health problems that can impact this line of work must be included. They must also submit results of a clean criminal background check indicating they have not been imprisoned in the past five years or have been a violent criminal within the last ten years. A copy of the guards or guarding company’s insurance or alternative form of liability protection demonstrating that the PCASP to be employed are insured for the scope and duration of their operations must be included.

The ship-owner or their designated liaison must submit documents indicating details of the intended voyage, cargo, number of rifles, bullets, and activities to take place on the candidate vessel during the special security period. Photographs of weapon profiles and serial numbers must be attached for the specific firearms slotted to be brought on-board.

VERIFICATION OF DESIGNATED GUARDING BUSINESS (DGB) PERSONNEL

MLIT also requires an application to verify what they call the Designated Guarding Business (DGB) Personnel, or PCASP, to be engaged in special security activities aboard the candidate vessel. This is the middle stage after ship-owner’s Designated Guarding Plan has been approved, but before they receive the final greenlight to undertake the specific maritime security operations requested in their Guarding Implementation Plan, described in the subsequent section.

The verification of Designated Guarding Business Personnel by MLIT takes approximately two months to process, so it is imperative for ship-owners to begin this process early. It requires them to provide evidence attesting to the quality and competence of the individual guards scheduled to embark upon their vessel. It requires evidence of their training and education which must be submitted in a document indicating that the individuals were trained by the relevant maritime security company along with a video demonstrating their proficiency for MLIT review and record-keeping. These videos must demonstrate (1) rifle handling and the other basic skills, (2) inspection of firearms, (3) loading / unloading various types of ammunition, (4) shooting form and weapons handling, (5) marksmanship and external variables. In some circumstances MLIT may issue a paper test to be completed by PCASP in order to verify their qualifications and education.

As is standard throughout this industry, medical certification by a doctor or public body must be produced that indicates the mental and physical health of the candidate. A document indicating the employment relationship between the maritime security company and the individual guard must be provided along with copies of the individual’s passport, residence permit, as well as a clean criminal background check indicating they have not been imprisoned in the past five years or have been a violent criminal within the last ten years. Evidence of insurance coverage for damages that can occur from their activities should also be included.

GUARDING IMPLEMENTATION PLAN

After guards are approved by MLIT, the ship-owner must submit the Guarding Implementation Plan at least five days prior to the commencement of the special security arrangements. Like the other documents, there is no fee for MLIT processing this request.

To this they must attach a copy of the contract between the ship-owner and PCASP or their hiring company along with details of the special security activities planned. This shall include navigational charts for the assigned vessel’s voyage indicating the location where weapons will be loaded/unloaded and if relevant, where PCASP will embark/disembark.

NOTIFICATION FOR LOST OR STOLEN FIREARMS

When guns are lost or stolen, the Master of the approved vessel must submit a pre-form document which is included with the Act to report the location, nature, and reason for the loss along with indication and identification of the missing items. Masters are requested to contact MLIT for updates to the document and to submit the details as soon as possible after their disappearance.

RULES FOR THE USE OF FORCE (RUF)

Mr. Takashi Watanabe of MLIT highlights that the use of firearms to deter pirates attacking a Japanese vessel remains a last resort. The preliminary steps taken beyond deterrence with razor wire are discharging water and escaping the crew into a reinforced citadel, or protected area.

To use rifles, additional steps are required. First, PCASP must warn the suspected pirates using all other means, both audio and visual, without using firearms. Second stage is warning by rifle use, safely firing warning shots into the sky or sea to deter attack.

Only in cases which the first two measures are undertaken, but the pirates do not halt their attack, are PCASP aboard Japanese flagged vessels permitted to shoot at the pirate ship for the purpose of protecting the lives of crew members.

The Japanese government’s move to permit PCASP onboard their vessels is certainly a step welcomed by the international maritime community. Its redundant safety and approval protocols will keep their seafarers safe and energy supply uninterrupted, while ensuring that PCASP operations remain monitored for compliance. Although challenging to decipher, the Japanese legal system caters specifically to this complex Act, placing its components within the numerous levels of Law, Order, and Ordinance that permit the Japanese cabinet and MLIT the flexibility to expand the Act’s scope and geographic-area as new threats against the Japanese fleet emerge and security responses evolve.

 

Written by Simon O. Williams with research support from Michitsuna Watanabe, under the auspices of Tactique Ltd. Their team remains available for contact at info@tactique.org should there be queries regarding this subject or related compliance matters.

This article is for information only and does not constitute legal consultation services.

Reconsidering the Imminence Requirement in a Post-9/11 World

THIS ARTICLE WAS ORIGINALLY PRINTED ON APR 4, 2013 AND IS BEING RE-PRINTED FOR “CHALLENGES OF INTELLIGENCE COLLECTION WEEK.”

AbbottabadOne of the most vexing questions in international law is determining under what circumstances a state may lawfully use military force against another state or non-state actor. The U.N. Charter takes a very conservative approach: use of force, according to Article 51, is authorized “if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”1 The international community has long since abandoned the notion that a state must wait until it is actually under attack before it can employ military force. Instead, the concept of “imminence” has been read into Article 51. Daniel Webster famously articulated this rule after the so-called Caroline case: preemptive force can be used only if there is “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation.”2 But even this more deferential rule has proven unworkable in the age of modern warfare. Modern military technology and techniques allow aggressors to launch devastating attacks without significant notice. Additionally, terrorist groups have become increasingly sophisticated in both their tactics and capability to evade detection. To combat these threats, states often gather intelligence that must be acted on in a matter of hours, and special forces are prepared to respond to threats on extremely short notice. For example, President Obama ordered U.S. Navy SEALS to attack a compound in Abbottabad, Pakistan that was believed to be housing Al Qaida leader Osama Bin Laden. Although the operation turned out to be a major success, Obama later explained that his advisors were only 55% confident that Bin Laden was in the compound.3 Of course, there was no suggestion that Bin Laden was planning an imminent attack on the United States, or even that he would soon relocate to a new hideout. The time-sensitive nature of the intelligence and the enormous stakes, however, justified the use of military force without any delay to collect more detailed intelligence or seek the aid of the Pakistani government. The Abbottabad raid is an example of how the traditional notion of imminence must be adapted to meet the needs of the Global War on Terror. This post seeks to explain why such a shift is needed and suggests a framework for evaluating the use of military force when a threat is not imminent in the traditional sense.

Changing Nature of Threats

The notion of imminence is an intuitive concept for most people. The requirement is familiar from domestic criminal law, which allows a person to use deadly force in self-defense if he believes such force is “immediately necessary for the purpose of protecting himself against the use of unlawful force….”4 The imminence requirement is also consistent with the predominant view of international relations, enshrined in Article 2(4) of the U.N. Charter, that states are to refrain from using force against another state unless authorized by international law.5 This rule, although a good starting point, is strained by the realities of the current international system.

The imminence requirement developed in a time when military conflict occurred almost exclusively between sovereign nations. It was relatively simple to detect a neighbor amassing conventional forces along your border or positioning naval forces off your shore. It also developed in a time when wars were fought by conventional means: by soldiers on battlefields. The need for imminence applied only in deciding to initiate military force. Once two states were at war, there was generally no requirement of imminence before engaging enemy forces.6 The rise of non-state terrorist groups has altered this dynamic in two important ways. First, terrorist groups have developed tactics that are difficult to anticipate. If states wait until a terrorist attack is imminent, they may be unable to prevent a catastrophe and may have difficulty attributing blame after the fact. Second, because terrorist groups are non-state actors, it is often unclear who is a combatant that may be targeted and who is merely a bystander or sympathizer.

Despite the difficulties of applying the imminence requirement in a post 9/11 world, the Obama administration has continued to acknowledge a need for imminence when using military force against members of Al Qaida and other terrorist groups. In a Department of Justice white paper the Obama administration concluded that deadly force could be used against an American citizen abroad if that citizen “poses an imminent threat of violent attack against the United States” and capture is infeasible.7 In a 2011 address, John Brennan, who at the time was President Obama’s Homeland Security Advisor, remarked that imminence would continue to play an important role in constraining America’s use of military force to conform to international law. Importantly, he qualified his support by stating: “a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups, in part because threats posed by non-state actors do not present themselves in the ways that evidenced imminence in more traditional conflicts.”8 Articulating this new approach to imminence will be an important foreign policy challenge as the U.S. continues to prosecute the war or terror. The U.S. must develop a conception of imminence that both maintains the legitimacy of our military actions under international law and allows us to act preemptively against terrorist attacks.

Additional Factors to Consider

Altering the criteria for the lawful use of military force is a delicate task. Taken to an extreme, a more flexible rule could stipulate that force is appropriate whenever the potential benefits of a military operation outweigh the potential costs.9 This is the decision-making process envisioned by proponents of International Realism. States, as rational actors, would take any action in which the expected benefit exceeded the expected cost. Because, in the realists’ view, the international system is anarchic, there are no extra-national rules that govern when use of force is appropriate. The views of realists, however, have been largely rejected by the United States. If force is used in an unbounded manner, we risk losing legitimacy with the international community. Instead, the new paradigm must incorporate additional factors while still limiting the use of force by imposing legal constraints.

In a 2012 speech Attorney General Eric Holder suggested a new framework for determining which threats are imminent. When considering use of force against a terrorist target, the United States would consider the window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.10 This framework is a step in the right direction. The primary shortcoming of the traditional imminence doctrine is that it fails to adequately consider the potential cost of failing to act. The magnitude of a potential threat is an important consideration in deciding when preemption is justified. It is appropriate to preempt a nascent nuclear attack at a much earlier stage than would be appropriate for an attack using conventional weapon. Considering the window of opportunity allows decision makers to weigh the risks of inaction. A related concept is the so-called “zone of immunity.” This term was coined by Israeli Defense Minister Ehud Barak, and refers to a situation in which failure to take prompt military action will result in the enemy being immune from future attack.11 For example, Barak argued that after a certain point, Iran’s nuclear program would be sufficiently safeguarded that no aerial strike could disable it. When there is potential for a zone of immunity, the relevant question should not be when an attack is imminent, but when immunity is imminent. This flexibility does not mean that force can be used without limits. As Attorney General Holder explained, the use of force is always constrained by four fundamental principles: necessity, distinction, proportionality, and humanity.12 With these limitations intact, it is appropriate to consider the window of opportunity, zone of immunity, and the magnitude of harm that a successful terrorist attack would occasion.

Using Technology to Develop New Standards

Technology has profoundly affected the manner in which states react to threats to their national security. Its effect on the imminence standard is mixed. Some technologies have made it easier to collect and act on intelligence, thus expanding the window of opportunity to preempt terrorist attacks. For example, the use of satellite surveillance and unmanned aerial vehicles (UAVs, or “drones”) allows U.S. forces to track, observe, and engage individual terrorists remotely and without putting American service members in harm’s way.13 The ability to gather intelligence remotely and project power rapidly over long distances permits the United States to wait longer before initiating an attack because terrorist operations can be detected at earlier stages and individuals can be engaged on short notice by UAVs. In this sense, new technologies make the imminence standard more demanding. But technology can also compress the timeframe available for decision-making. For example, the decision to freeze financial assets of suspected terrorists must be made quickly and without notice due to the possibility the assets will be electronically transferred.14 Similarly, the advent of cyber-terrorism means terrorist groups can launch attacks on American infrastructure or financial institutions with no notice.15 These developments require the relaxation of the imminence requirement. Perhaps most importantly, technology can aid in decision-making by evaluating the imminence of potential attacks. Sophisticated computer programs can aid in weighing the risks and benefits of using force. In the near future, we may be able to develop systems that can gather intelligence, decide whether an imminent threat exists, and employ deadly force to eliminate the threat.16 Whether this type of technology can be used more widely will depend on whether it can incorporate the legal and ethical rules discussed in this article.

Conclusion

Developing a modern definition of imminence is an important and challenging goal for policy makers. Imminence is a concept that resists a strict legal definition and is better suited for practical determinations. In 2010, Nasser Al-Aulaqi filed a lawsuit in federal court seeking to prevent the U.S. government from killing his son, Anwar Al-Aulaqi, who had allegedly been placed on the U.S. government’s “kill list.”17 Al-Aulaqi wanted a court order stating that his son could be killed only if the government could show that he “presents a concrete, specific, and imminent threat….”18 The court held that it could not issue such an order because it was a political question: “the imminence requirement of [the plaintiff’s] legal standard would render any real-time judicial review of targeting decisions infeasible.”19 Despite being difficult for courts to apply, the administration should seek to develop a definition of imminence that will serve as a guide for future military actions against suspected terrorists. In doing so, it can provide the flexibility needed to respond to evolving threats while maintaining the respect of the international community.

George Fleming is a law student at Harvard Law School and former surface warfare officer in the U.S. Navy.

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1. U.N. Charter art. 51 (emphasis added).
2. Daniel Webster, The Papers of Daniel Webster: Diplomatic Papers: Volume 1, 1841-1843, 62 (Kenneth E. Shewmaker & Anita McGurn eds., Dartmouth Publishing Group, 1983).
3. “Obama on bin Laden: The Full “60 Minutes” Interview” (May 2, 2011), available at http://www.cbsnews.com/8301-504803_162-20060530-10391709.html.
4. Model Penal Code § 3.04(1) (1962) (emphasis added).
5. See U.N. Charter art. 2, para. 4 (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”). This understanding is at odds with the international realism school of thought. Under that theory, states use military force as a means of advancing their interests in an anarchic system. See generally Kenneth Waltz, Theory of International Politics (1979).
6. For example, during World War II, American fighters targeted and destroyed an aircraft carrying a Japanese official who planned the attack on Pear Harbor. See Harold Hongju Koh, Legal Advisor, U.S. Department of State, Keynote Address at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010). See also U.S. Army Field Manual, 27-10, The Law of Land Warfare, ¶ 31 (1956) (authorizing attacks on individual officers).
7. Department of Justice White Paper, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force (2013).
8. John Brennan, Assistant to the President for Homeland Sec. & Counterterrorism, Keynote Address at the HLS-Brookings Program on Law and Security (Sep. 16, 2011).
9. A very simple formula would compare (probability of success × benefits of success) with (probability of failure × cost of failure) + (cost of inaction).
10. Eric Holder, Attorney General, U.S. Department of Justice, Speech at Northwestern University School of Law (Mar. 5, 2012).
11. Mark Landler & David Sanger, U.S. and Israel Split on Speed of Iran Threat, N.Y. Times, Feb. 8, 2012.
12. See Holder speech, supra note 10.
13. See generally Jane Mayer, The Predator War, New Yorker, Oct. 26, 2009.
14. See, e.g., Exec. Order No. 13,382, 70 C.F.R. 38567 (2005).
15. See generally Matthew C. Waxman, “Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4), 36 Yale J. Int’l Law. 421 (2011).
16. See, e.g., Kenneth Anderson & Matthew Waxman, “Law and Ethics for Robot Soldier,” Policy Review, 176 (Dec. 1, 2012). An example of this type of technology is the Navy’s AEGIS Combat System
17. Al Aulaqi v. Obama, 727 F. Supp. 2d 1 (2010). Anwar Al-Aulaqi was killed by an American UAV in 2011.
18. Id.
19. Id. at 72 (internal quotation marks omitted).

Drones, Ethics, and The Indispensable Pilot

The on-going conversation about the ethics of drones (or of remotely piloted aircraft[1]) is quickly becoming saturated. The ubiquity of the United States’ remotely piloted aircraft program has arisen so suddenly that ethicists have struggled just to keep up. The last decade, though, has provided sufficient time for thinkers to grapple with the difficult questions involved in killing from thousands of miles away.

In a field of study as fertile as this one, cultivation is paramount, and distinctions are indispensable. Professor Gregory Johnson of Princeton offers a helpful lens through which to survey the landscape. Each argument about drone ethics is concerned with one of three things: The morality, legality, or wisdom of drone use.[2]

Arguments about the wisdom (or lack thereof) of drones typically make value judgments on drones based upon their efficacy.[3] One common example argues that, because of the emotional response drone strikes elicit in the targets’ family and friends, drone strikes may create more terrorists than they kill.

Legal considerations take a step back from the question of efficacy. These ask whether drone policies conform to standing domestic and international legal norms. These questions are not easily answered for two reasons. First, some argue that remote systems have changed the nature of war, requiring changes to the legal norms.[4] Second, the U.S. government is not forthcoming with details on its drone programs.[5]

The moral question takes a further step back even from the law. It asks, regardless of the law, whether drones are right or wrong–morally good, or morally bad. A great deal has been written on broad questions of drone morality, and sufficient summaries of it already exist in print.[6]

If there is a void in the literature, I think it is centered on the frequent failure to include the drone operator in the ethical analysis. That is, most ethicists who address the question of “unmanned” aircraft tend to draw a border around the area of operations (AOR) and consider in their analysis everything in it–enemy combatants, civilians, air power, special operations forces (SOF), tribal leaders, hellfire missiles, etc. They are also willing to take one giant step outside the AOR to include Washington–lawmakers, The Executive, military leaders, etc. Most analyses of the ethics of drones, then, include everyone involved except the operator.[7] This is problematic for a number of reasons discussed below.

Bradley Strawser, for example, argues in favor of remote weapons from a premise that leaders ought to reduce risk to their forces wherever possible. He therefore hangs his argument on the claim that drone pilots are not “present in the primary theater of combat.”[8] While this statement is technically correct, it is misleading. The pilot, while not collocated with the aircraft, plays a crucial role in the ethical analysis.

Sarah Kreps and John Kaag argue that the U.S.’s capability to wage war without risk, may make the decision to go to war too easy. Therefore, any decision to go to war under such circumstances may be unjust.[9] This view is contingent upon a war without risk, which fails to consider the operator, and the ground unit the operator supports.

Paul Kahn goes so far as to call remote warfare “riskless.” But suggesting that remote war is riskless supposes that at least one side in the conflict employes no people at all. Where there are people conducting combat operations, there is risk. Contrary to Kahn’s position, drones are controlled by people, in support of people, and thus, war (as we know it) is not riskless.

The common presupposition throughout these arguments, namely that remote war does not involve people in an ethically meaningful way, is detrimental to a fruitful discussion of the ethics of remote warfare for three reasons.

First, the world has not yet seen, and it may never see, a drone-only war. What that means is that even though the drone operator may face no risk to him or herself, the supported unit on the ground faces mortal risk.[10] The suggestion, then, that a remote warfare capability produces war without risk is empirically untenable.

Second, there exist in this world risks that are non-physical. Cases of psychological distress (both in the military and outside it) abound, and the case has been made in other fields that psychological wounds are as real as physical ones.[11] There have already been a small number of documented post-traumatic stress disorder (PTSD) cases among drone operators.[12] Though the number of cases may be small, consider what is being asked of these individuals. Unlike their counterparts, RPA crews are asked to take life for reasons other than self defense. It is possible, and I think plausible, to suggest that killing an enemy, in such a way that one cannot ground the justification of one’s actions in self-defense, may carry long-term, and latent, psychological implications. The psychological risk to drone operators is, then, present but indeterminate.

Finally, there is the often-neglected point that a government which chooses to conduct remote warfare from home changes the status of its domestic military bases. That government effectively re-draws the battlespace such that it includes the drone operators within its borders. RPA bases within the Continental United States (CONUS) become military targets that carry tremendous operational and tactical significance, and are thereby likely targets.

There is a fine point to be made here about the validity of military targets. According to international norms, any violent action carried out by a terror network is illegal. So what would be a valid military target for a state in wartime is still an illegal target for al Qaeda. Technically, then, a U.S. drone base cannot be called a valid military target for a terrorist organization, but the point here about risk is maintained if we consider such bases attractive targets. Because the following claims are applicable beyond current overseas contingency operations against terror networks, the remaining discussion will assume the validity of U.S. drone bases as targets.[13]

The just war tradition, and derivatively the international laws of war, recognize that collateral damage is acceptable as long as that damage does not exceed the military value of the target.[14] The impact of this fact on domestically operated drones is undeniable.

Suppose an F-15E[15] pilot is targeted by the enemy while she sleeps on a U.S. base in Afghanistan. The collateral damage will undoubtedly include other military members. Now suppose a drone operator is targeted while she sleeps in her home near a drone base in the U.S.. In this scenario, the collateral damage may include her spouse and children. If it can be argued that such a target’s military value exceeds the significance of the collateral damage (and given the success of the U.S. drone program, perhaps it can) then killing her, knowing that her family may also die, becomes legally permissible.[16] Nations with the ability to wage war from within their own domestic boundaries, then, ought to consider the consequences of doing so.[17]

There will be two responses to these claims. First, someone will object that the psychological effects on the drone operator are overstated. Suppose this objection is granted, for the moment. The world of remote warfare, though, is a dynamic one, and one must consider the relationship between technology and distance. The earths sphere creates a boundary to the physical distance from which one person can kill another person. If pilots are in the United States, and targets are in Pakistan, then the geometric boundary has already been reached.

It cannot be the case, now that physical distance has reached a maximum, that technology will cease to develop. Technology will continue to develop, and with that development, physical distance will not increase; but information transmission rates will. The U.S. Air Force is already pursuing high definition cameras,[18] wide area motion imagery sensors,[19] and increased bandwidth to transmit all this new data.[20]

If technology has driven the shooter (the drone pilot, in this case) as far from the weapons effects as Earths geometry allows, then future technological developments will not increase physical distance, but they will increase video quality, time on station and sensor capability. Now that physical distance has reached a boundary, future technological developments will exceed previously established limits. That is, the psychological distance between killers and those they kill will decrease.[21] 

The future of drone operations will see a resurgence of elements from the old wars. Crews will look in a mans face, seeing his eyes and his fearthe killer must shoot at a person and kill a specific individual.[22] Any claim that RPA pilots are not shooting at people, but only at pixels will become obsolete. The command, dont fire until you see the whites of their eyesmay soon become as meaningful in drone operations as it was at Breeds Hill in 1775.[23]

As this technology improves, the RPA pilots will see a target, not as mere pixels, but as a human, as a person, as a husband and father, as one who was alive, but is now dead. Increased psychological effects are inevitable.

A second objection will claim that, although RPA bases may make attractive targets, the global terror networks with whom the U.S. is currently engaged lack the capability to strike such targets. But this objection also views a dynamic world as though it were static. Even if the current capabilities of our enemies are knowable today, we cannot know what they will be tomorrow. Likewise, we cannot know where the next war will be, nor the capabilities of the next enemy. We have learned in this young century that strikes against the continental United States are still possible.

The question of whether drones are, or can be, ethical is far too big a question to be tackled in this brief essay. What we can know for certain, though, is that any serious discussion of the question must include the RPA pilot in its ethical analysis. Wars change. Enemies change. Tactics change. It would seem, though, that remotely piloted weapons will remain for the foreseeable future.

Joe Chapa is a veteran of the U.S. Air Force. He served as a pilot and instructor pilot in Oklahoma, Nevada and Missouri, and completed two deployments to Afghanistan and Europe. He earned a B.A in Philosophy from Boston University, an M.A. in Theological Studies from Liberty Baptist Theological Seminary and an M.A. in Philosophy from Boston College (anticipated 2014). The views expressed here are of the author, and do not necessarily reflect those of the Air Force, the DoD or the U.S. government.

[1] Throughout this essay, I will use the terms ‘remotely piloted aircraft’ and ‘drone’ synonymously. With these terms I am referring to U.S. aircraft which have a human pilot not collocated with the aircraft, which are capable of releasing kinetic ordnance.

[2] This distinction comes from a Rev. Michael J. McFarland, S.J. Center for Religion, Ethics, and Culture panel discussion held at The College of The Holy Cross. Released Mar 13, 2013. https://itunes.apple.com/us/institution/college-of-the-holy-cross/id637884273. (Accessed February 25, 2014).

[3] The following contain arguments on the wisdom of drones. Audrey Kurth-Cronin, “Why Drones Fail:When Tactics Drive Strategy,”Foreign Affairs,July/August 2013; Patterson, Eric & teresa Casale, “Targeting Terror: The Ethical and Practical Implications of Targeted Killing,”International Journal of Intelligence and Counterintelligence”18:4, 21 Aug 2006; and Jeff McMahan, “Preface” in Killing by Remote Control: The Ethics of an Unmanned Military, Bradley Strawser, ed., (Oxford: Oxford University Press, 2013).

[4] For example, Mark Bowden, “The Killing Machines,” The Atlantic (8/16/13): 3. Others disagree. See Matthew W. Hillgarth, “Just War Theory and Remote Military Technology: A Primer,” in Killing by Remote Control: The Ethics of an Unmanned Military, Bradley Strawser, ed. (Oxford: Oxford University Press, 2013): 27.

[5] Rosa Brooks, “The War Professor,” Foreign Policy, (May 23, 2013): 7.

[6] For an excellent overview of the on-going discussion of drone ethics, see Bradley Strawsers chapter Introduction: The Moral Landscape of Unmanned Weaponsin his edited book Killing By Remote Control (Oxford: Oxford University Press, 2013): 3-24.

[7] This point highlights the merits of the Air Force’s term ‘remotely piloted aircraft’ (RPA). The aircraft are not unmanned. Etymologically, the term “unmanned” most nearly means “autonomous.”  While there are significant ethical questions surrounding autonomous killing machines, they are distinct from the questions of remotely piloted killing machines. It is only because the popular term “drone” is so pervasive that I have decided to use both terms interchangeably throughout this essay.

[8] Bradley Strawser, “Moral Predators: The Duty to Employ Uninhabited Aerial Vehicles,” Journal of Military Ethics 9, no. 4 (16 Dec 2010): 356.

[9] Though I do not have the space to develop it fully, this argument is well-grounded in the just war tradition, and is one of the stronger arguments against a military use of remote warfare technology.

[10] Since September eleventh, 2011, U.S. “drone strikes” have been executed under the Authorizatino for The Military Use of Force, signed by Congress in 2001. From a legal perspective, then, all drone strikes, even those outside Iraq and Afghanistan have been against targets who pose an imminnent threat to the United States. Thus, even any reported “targeted killings” in Yemen, Somalia, Pakistan, or elsewhere, were conducted in self-defense, and therefore involved risk.

[11] By way of example, consider cases of hate speech, bullying and ‘torture lite’ in Rae Langton, “Beyond Belief: Pragmatics in Hate Speech and Pornography,” in Speech & Harm: Controversies Over Free Speech, ed. Ishani Maitra and Mary Kate McGowan (Oxford: Oxford University Press, May, 2012), 76-77.; Isbani Maitra, “Subordinating Speech,” in Speech & Harcm: Controversies Over Free Speech, ed. Ishani Maitra and Mary Kate McGowan (Oxford: Oxford University Press, May, 2012), 96.; Jessica Wolfendale, “The Myth of ‘Torture Lite’,” Carnegie Council on Ethics in International Affairs (2009), 50.

[12] James Dao, “Drone Pilots Found to Get Stress Disorders Much as Those in Combat Do,” New York Times, (February 22, 2013).

[13] The question of whether organizations like al Qaeda are to be treated as enemy combatants (as though they were equivalent to states) or criminals remains open. For more on the distinction between combatants and criminals, see Michael L. Gross, “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defense?” Journal of Applied Philosophy, vol. 23, no. 3, (2006): 323-335.)

[14] Avery Plaw, Counting the Dead: The Proportionality of Predation in Pakistan,Bradley Strawser, ed. in Killing by Remote Control (Oxford: Oxford University Press, 2013): 135.

[15] A traditionally manned U.S. Air Force asset capable of delivering kinetic ordnance.

[16] This statement is only true of enemy states. As discussed above, all terror network targets are illegal targets.

[17] I have developed this argument more fully in “The Ethics of Remotely Piloted Aircraft” Air and Space Power Journal, Spanish Edition, vol. 25, no. 4, (2013): 23-33.

[18] Exhibit R-2, RDT&E Budget Item Justification, MQ-9 Development and Fielding, February 2012, (page 1). (http://www.dtic.mil/descriptivesum/Y2013/AirForce/stamped/0205219F_7_PB_2013.pdf) accessed 30 July 2013.

[19] Lance Menthe, Amado Cordova, Carl Rhodes, Rachel Costello, and Jeffrey Sullivan, The Future of Air Force Motion Imagery Exploitation Lessons from the Commercial World, Rand Project Air Force, (page iii). (http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR1133.pdf) accessed 30 July 2013.

[20] Grace V. Jean, Remotely Piloted Aircraft Fuel Demand for Satellite BandwidthNational Defense Magazine,  July 2011. (http://www.nationaldefensemagazine.org/archive/2011/July/Pages/RemotelyPilotedAircraftFuelsDemandforSatelliteBandwidth.aspx) accessed 30 July 2013.

[21] Ibid, 97-98.

[22] Ibid, 119.

[23] George E. Ellis, Battle of Bunkers Hill, (Boston: Rockwell and Churchill, 1895), 70.