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Droning on about drones (II) – Humanitarian law may be counterproductive

Published on 09 August 2013
Updated on 05 April 2024

Drones, and now lethal autonomous robots, are not just technological marvels seeking a purpose – they have a purpose already, and a sinister one:

“Before he became attorney general in Bush’s second term, Michael Mukasey informed civil libertarians that they, and not those who illegally tortured prisoners of war, were going to have blood on their hands. The offence of the liberals, he claimed bizarrely in the Wall Street Journal, was to advocate judicial oversight of executive decisions about detention: ‘it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantánamo detainees may be that, in the future, capture of terrorism suspects will be foregone in favour of killing them.’ All that advocates of legal rights were going to achieve was the death of suspected terrorists, not their fair treatment.”[1]

Morality and moral hazard go together – in fact the latter may be considered morality’s overlooked “evil twin”. Popular wisdom has it: “The road to hell is paved with good intentions”. Italians have the adage: “Make a law – find the deception.”

It is naïve to think that governments and other actors will obey international law like a billiard ball follows the trajectory imparted to it by the cue. Reality is dynamic. Taxes beget tax-avoidance; states and other actors will react to any international law, or moral standard, imposed on the conflict with avoidance strategies, or even trying to twist them to their own advantage. Rendition and torture are immoral? Fine: use robots – robots do not write memoirs or turn “whistle-blowers”. Non-combatants should be protected? Fine: terrorists of all stripes will mingle among them better to hide. Expect the ratcheting up of tit-for-tats as the fortunes of war feed desperation.

At the most general level, we are individual and collective agents. We endure, act, or react – often creatively. When emerges in turn are enablers – another source of change in the context. We may never foresee mankind’s creativity, but to ignore it altogether would seem just as foolish.

In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them.

There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.

Frédéric BASTIAT

Humanitarian interventions are more prone than other social acts to the phenomenon of blow back – unintended because unforeseen consequences. In Biafra smuggling of weapons piggybacked on famine relief. After the Rwandan genocide, the refugee camps became the safe havens for génocidaires. Ethiopia engineered a famine to fill its coffers with import and other taxes from humanitarian missions. In Sierra Leone, cutting limbs was a way for groups “to get international attention” – and money. Remember the refugee camps at Srebrenica? This list is endless. Time and again, high-minded humanitarianism rode out in its steely steed of moral suasion – and damn the consequences. The consequences had the last say – each time. It gets even worse when morality arms itself. D2P in Lybia; and now, Syria? It is hubris to believe can we can right any wrong, and that enduring is not an option – but if we do intervene, please spare me the morality background music.

The failure of moral fervor to imagine, or take into account the dynamics of political life and conflict is heart-breaking. The persistence of this phenomenon in the face of contrary experience is discouraging. It is inevitable, as long as good intentions are deemed sufficient cause for assuming that the world will oblige.

Humanitarian law aims to protect the victim. Often the (actually superfluous) qualifier “innocent” victim is added for emotional effect, for sure, but also for a reason. Being perceived as “victim” is more than half the humanitarian game. Since WWII, participants in conflicts have vied in trying to obtain the badge of “victim” worthy of international concern and protection – from Palestine, through Biafra, to Kosovo. Some succeed – Tibetans; some fail – Kashmiri; some sit uncomfortably in between – the Kurds.

Lawyerism, as practiced in international fora, may spawn violence, rather than reduce it. Any line, which is drawn between what is legal and illegal, includes as much as excludes. By creating a lex specialis on “autonomous” robots, others (e.g. joy-stick commanded drones) are sort of “grandfathered”- they become an acceptable instrument of unconventional war. Surreptitiously, the moral issue turns into one of efficiency: when 250 lawyers vet targets, bombing Serbia becomes permissible- even something Tony Blair may be proud of. Sanctimonious sanctions killing 500’000 children are a legitimate way to induce Iraqi to oust Saddam – after all, the international community decided so.

Strong law demands strong governance. Soft law relies on ambiguity. A law without enforcement is no law, and hundreds of busy lawyers in new or clean shirts scurrying about will not make it so – it is a multilateral declaration of good intentions, backed by the opprobrium on the international community (whatever it may be). BTW: when challenged, the escape is often forward, and into “customary international law” – an oxymoron.

Modern states are on the way to self-domestication. The same dynamics obtain as in groups of hunter-gatherers – only far more complicated. Self-domestication is a pragmatic, long-term, tentative political process that demands courage and involvement on the parts of all governments. It is folly[2] – or hypocrisy, take your pick – to imagine that this ongoing process can be cut short by making collective hortatory statements (aka international humanitarian law) once and for all, and then outsource governance to a bunch of codex-wise lawyers gathered in Geneva.[3]

[1] Stephen HOLMES (2013): What’s in it for Obama? LRB Vol. 35, No. 14, 18 July 2013. This article is well worth reading.

[2] In the sense of Barbara TUCHMAN (1985): The march of folly. From Troy to Vietnam. Ballantine Books, New York.

[3] The recent hullaballoo about hegemonic spying on friends and foes alike is a case in point. After hectoring and posturing the matter quickly disappeared from the political scene. No country was willing to stand up for its rights as laid out in international law.

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