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 Ethics of Drone Strikes

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6686_Enemark.indd ii 19/11/20 1:57 PM
 Ethics of Drone Strikes
Restraining Remote-Control Killing

E d i t ed by
C H R I S T I A N E NE MAR K

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 Edinburgh University Press is one of the leading university presses in the UK. We publish
academic books and journals in our selected subject areas across the humanities and social
sciences, combining cutting-edge scholarship with high editorial and production values
to produce academic works of lasting importance. For more information visit our website:
edinburghuniversitypress.com

© editorial matter and organisation Christian Enemark, 2021

© the chapters their several authors, 2021

Edinburgh University Press Ltd

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printed and bound in Great Britain.

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ISBN 978 1 4744 8357 5 (hardback)

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ISBN 978 1 4744 8360 5 (epub)

The right of Christian Enemark to be identified as the editor of this work has been asserted
in accordance with the Copyright, Designs and Patents Act 1988, and the Copyright and
Related Rights Regulations 2003 (SI No. 2498).

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 C ONTENT S

Notes on the Contributors / vii

Acknowledgements / x

INTRODU CTION / Thinking Ethically about Drone Violence / 1

Christian Enemark

ONE / Riskless Warfare Revisited: Drones, Asymmetry and

the Just Use of Force / 10
Robert Sparrow

TWO / Jus ad Vim and Drone Warfare: A Classical Just

War Perspective / 31
Christian Nikolaus Braun

THREE / The Complicated Reality of Drone Strikes for

Law Enforcement / 50
Max Brookman-Byrne

FOUR / Drone Violence as Wild Justice: Administrative

Executions on the Terror Frontier / 74
Christian Enemark

FIVE / ‘A New Departure’: Britain’s Lethal Drone Policy and

the Range of Justice / 93
Christopher J. Fuller

SIX / Ethics for Drone Operators: Rules versus Virtues / 115

Peter Olsthoorn

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 vi / Contents

SEVEN / Drone Warriors, Revealed Humanity and a Feminist

Ethics of Care / 130
Lindsay C. Clark and Christian Enemark

EIGHT / Armed Drone Systems: The Ethical Challenge of

Replacing Human Control with Increasingly
Autonomous Elements / 149
Peter Lee

NINE / Autonomous Armed Drones and the Challenges to

Multilateral Consensus on Value-Based Regulation / 170
Thompson Chengeta

CONCLUSION / 190
Christian Enemark

Index / 195

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 NO TES ON THE C ONTRIBUT ORS

Christian Nikolaus Braun is a Senior Lecturer in Defence and International

Affairs at the Royal Military Academy Sandhurst and a Visiting Fellow of
the Institute of Political Science at the University of Luxembourg. Christian
holds a PhD from Durham University. His thesis explored the morality of
targeted killing, often carried out by armed drones, from a classical Just
War perspective. His research agenda lies at the intersection of normative
International Relations theory, the history of political thought and Just War
theory. He has published in journals including International Relations, the
Journal of Military Ethics, the Journal of International Political Theory and the
Journal of Catholic Social Thought.
Max Brookman-Byrne is Senior Lecturer in Law at the University of Lincoln.
His research interests include the international law rules governing the resort
to force, the conduct of hostilities, and uses of modern weapons technol-
ogy. Max has published articles on the interaction between international
legal doctrines and the use of armed drones by the United States in Pakistan,
Yemen and Somalia, a topic that was also the focus of his PhD studentship
funded by the UK Economic and Social Research Council. He has worked
with non-governmental and civil society groups on the issue of armed drones
and airstrikes generally.
Thompson Chengeta is a European Research Council Fellow on Drone Vio-
lence and AI Ethics at the University of Southampton, where he undertakes
research and project-related leadership on autonomous weapon systems
(AWS). His PhD thesis (University of Pretoria) was on international law and
ethics relevant to the governance of AWS, while his LLM thesis (Harvard Law
School) was on elements that define human control over AWS. Thompson is
an executive board member of the Foundation for Responsible Robotics and

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 viii / Notes on the Contributors

also serves as an expert member of the International Panel on the Regulation

of AWS and the International Committee for Robot Arms Control.
Lindsay C. Clark is a European Research Council fellow on the DRON-
ETHICS project at the University of Southampton, focusing on drones
and ethics from the perspective of drone operators. Her research interests
include drone warfare, gender and feminist theory, and creative social-
science research methods. She completed her PhD at the Institute for
Conflict, Cooperation and Security at the University of Birmingham, where
she was also a research assistant for the Birmingham Policy Commission
report on ‘ The Security Impact of Drones: Challenges and Opportunities
for the UK’. She is the author of Gender and Drone Warfare: A Hauntological
Approach (Routledge, 2019).
Christian Enemark is Professor of International Relations at the University
of Southampton and Principal Investigator for a European Research Coun-
cil project on ‘Emergent Ethics of Drone Violence: Toward a Comprehensive
Governance Framework’ (DRONETHICS). His research interests include
global health politics, arms control, international security, and the ethics of
armed conflict. Christian’s publications include three authored books: Disease
and Security: Natural Plagues and Biological Weapons in East Asia (Routledge,
2007), Armed Drones and the Ethics of War: Military Virtue in a Post-Heroic Age
(Routledge, 2014) and Biosecurity Dilemmas: Dreaded Diseases, Ethical Responses,
and the Health of Nations (Georgetown University Press, 2017).
Christopher J. Fuller is Associate Professor in Modern US History at the
University of Southampton, specialising in American foreign policy from
1945 to the present day. His book See It / Shoot It: The Secret History of
the CIA’s Lethal Drone Program (Yale University Press, 2017) focuses on US
counterterrorism practices. Christopher’s research also explores the concept
of the United States as a post-territorial empire. His current book project,
Net Gain? The Internet and American National (In)Security, explores the role
played by new technologies, in particular those in the cyber domain, in
advancing and undermining US interests.
Peter Lee is Professor of Applied Ethics and Director of Security and Risk
Research and Innovation at the University of Portsmouth. He has been
researching military drone operations since 2012, and in 2016 he was
granted unprecedented research access to the two UK Royal Air Force (RAF)
Reaper drone squadrons for his book Reaper Force: Inside Britain’s Drone Wars
(John Blake, 2018). Peter currently serves as an Expert Adviser to the UK All
Party Parliamentary Group on Drones. He holds a PhD in War Studies from
Kings College London, and from 2001 to 2008 he served as an RAF chaplain.

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 Notes on the Contributors / ix

Peter Olsthoorn is Associate Professor in Military Leadership and Ethics at

the Netherlands Defence Academy. Besides leadership and ethics, he teaches
on armed forces and society, war and the media, and ethics and fundamen-
tal rights in the European Joint Master’s programme in Strategic Border
Management. Peter’s research is mainly on topics such as military virtues,
military medical ethics, armed drones and the ethics of border guarding.
Among his publications are the books Military Ethics and Virtues: An Interdis-
ciplinary Approach for the 21st Century (Routledge, 2010) and Honor in Political
and Moral Philosophy (State University of New York Press, 2015).
Robert Sparrow is a professor in the Philosophy Program at Monash Uni-
versity. He has been an ARC Future Fellow and has held prestigious visiting
fellowships at universities throughout Asia. Robert has published exten-
sively, in both academic journals and the popular press, on the ethics of
military robotics, social robotics, videogames, and AI. He is co-chair of the
IEEE Technical Committee on Robot Ethics and was a founding member of
the International Committee for Robot Arms Control.

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 AC KNOWLEDGEMENT S

The editor and contributors gratefully acknowledge the support of the Euro-
pean Commission. Many of the research activities leading to this volume
were supported by funding from the European Research Council, under
the European Union’s Horizon 2020 research and innovation programme,
for the project ‘Emergent Ethics of Drone Violence: Toward a Comprehen-
sive Governance Framework’ (DRONETHICS) (ERC-CoG-2017 grant no.
771082).
We also thank our fellow participants in a preparatory research work-
shop (‘Governing Drone Violence: Concepts, Moralities and Rules’) held in
Southampton, UK, on 16–17 July 2019. For sharing their ideas and debat-
ing with us constructively, we are grateful to Daniel Brunstetter (University
of California Irvine), Joseph Chapa (University of Oxford), Jessica Dorsey
(University of Amsterdam), Alex Edney-Browne (University of Melbourne)
and Jesse Kirkpatrick (George Mason University).

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 INTRODUCTION

Thinking Ethically about Drone Violence

Christian Enemark

This volume is a response to the continuing, worldwide increase in the

acquisition and violent use of armed, uninhabited aerial vehicles (UAVs
or ‘drones’). Over the last two decades, many different types of drone have
been developed and deployed primarily for military surveillance purposes.
However, political and popular attention has tended to focus on those
drones that are equipped also to conduct missile strikes. These larger, ‘Class
III’ aircraft (weighing more than 600 kilograms) typically have a payload
capacity of several hundred kilograms, can operate at long range for twenty-
four hours or more, and can fly at speeds of around 300 kilometres per hour
(Gettinger 2019, iv). Two of the best-known examples of an armed drone,
deployed first and most often by the United States, are the MQ-1 (Predator)
and MQ-9 (Reaper) aircraft. The salient feature of such weapon systems –
which combine aerospace, missile, satellite and video technologies – is that
they enable the near-instantaneous killing of a person made visible at a
precise location as far away as the other side of the world.
This capacity to conduct remote-controlled airstrikes against closely
observed targets is arguably an extraordinary development in world affairs.
Users of armed drones can surmount physical limits of space and time to an
unprecedented degree, and governments are increasingly equipping them-
selves to project state power in this way. According to recent assessments
produced by non-government organisations, at least ten and as many as
thirteen states have conducted drone strikes (Gettinger 2019, xiii; Drone
Wars 2020). Another thirty states have the capacity to do so or are in the
process of acquiring it (Gettinger 2019, xiii). Seven states run armed drone
development programmes, five states (China, Iran, Israel, the United States
and Turkey) export armed drones, and thirteen states have imported them.
France and the United Kingdom, for example, have conducted drone strikes

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 2 / Christian Enemark

using imported, US-made Reaper aircraft. And Italy and Australia have
placed orders for armed Reapers which are expected to become operational
in the early 2020s (Drone Wars 2020).
As lethal drone technology attracts higher levels of government interest
and investment, remotely controlled aircraft are becoming more capable
as well as more numerous, and technological momentum towards drones
controlled by artificial intelligence (AI) is accelerating. Meanwhile, the
notion of ‘risk-free’ engagement with remote enemies continues to be highly
attractive to political leaders who are sensitive to their citizens’ aversion to
casualties among national personnel deployed to distant and dangerous
places. Thus, it is reasonable to expect that the amount of drone violence
going on in the world could increase, with potentially many human lives
at stake. This prospect raises important ethical concerns for scholars and
policymakers alike. Yet uncertainty persists about the moral status of this
mode of remote-control killing and why it should be restrained. We keep
asking, for example: how, if at all, is drone violence morally distinguish-
able from (better or worse than) other forms of political violence? On
what basis can and should the use of armed drones be morally justified or
condemned? Who is justly or unjustly affected (directly and indirectly) by
violent drone use, and how? And how might the risks of certain kinds of
drone-related injustice be reduced?
Currently, among scholars who address drone use from an ethical per-
spective, the debate over its moral advantages and disadvantages takes
place predominantly on the terrain of Just War theory. This is the centuries-
old tradition of thinking ethically about why we may go to war (jus ad
bellum) and how we should fight it (jus in bello). Scholars interested in the
ad bellum ethics of armed drones tend to ask whether the availability and
capabilities of these aircraft increase the frequency of political decisions
to use force (justly or unjustly) in world affairs. Armed drones have been
commended, for example, as a means of facilitating humanitarian inter-
ventions which might otherwise be deemed far too risky (Beauchamp and
Savulescu 2013). However, there is also some jus ad bellum concern that
this risk-reducing technology could cause national leaders to feel less anx-
ious than before about resorting to violence when seeking to solve politi-
cal problems in world affairs (Sauer and Schörnig 2012; Kaag and Kreps
2014). When ethical attention turns to in bello matters, concern tends
to focus upon whether, how or by how much armed drones increase or
reduce the amount of unjust human harm caused by violence wielded for
a political purpose. One perspective is that drone technology, incorporat-
ing powerful target-identification capabilities, has the capacity to enable
a degree of discrimination and proportionality in the use of force that

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 Introduction: Thinking Ethically about Drone Violence / 3

is greater than what is achievable using other weapon platforms (Vogel

2010). Alternatively, from a jus in bello perspective, the accusation has been
raised that armed drones might instead enable less discriminate and less
proportionate uses of force because drone operators, being physically and
morally disengaged from the killing process, are less likely to act carefully
and humanely (Calhoun 2015).
More generally, some Just War scholars have insisted that the use of
armed drones is neither essentially new nor uniquely wrong, even though
these aircraft might exacerbate existing ethical concerns about warfare in
general. Rather, they argue, the advent of ‘drone warfare’ does not require
or justify any significant modifications to the way we traditionally view the
moral permissibility of killing in war (see Strawser 2010; Steinhoff 2013;
Schulzke 2017). Against this general view, however, other authors have
claimed that radical remoteness in the exercise of violence is distinctive
enough to raise profound questions about its moral basis. Highlighting
the absence of physical risk to the radically remote drone operator, these
authors have challenged the presumption (underpinning ethical assess-
ments that reference Just War principles) that drone violence always counts
as war in the first place. Daniel Brunstetter and Megan Braun (2011) have
argued, for example, that small-scale drone strikes need to be judged on
non-war terms because they are essentially a form of vim (‘force short of
war’). Hugh Gusterson (2016) has described the use of armed drones as ‘a
new form of state violence’ that does not equate to ‘war’ as a legal, ethical
or military concept. And for Grégoire Chamayou, the armed drone is an
‘unidentified violent object’ which gives rise to ‘intense confusion’ about
the applicability of ethical categories (Chamayou 2015, 14).
As a response to this uncertainty about how to conceptualise and make
judgements about drone violence, this volume assembles a set of ethical
assessments that includes but is not restricted to applications of traditional
Just War principles. In presenting a series of original essays demonstrat-
ing a variety of ways of thinking ethically about current and future drone
use, the aim is to expand the scope for discerning its potential to generate
just and unjust effects. Accordingly, the content of the volume is structured
around four broad themes: drone strikes as war; drone strikes as violent law
enforcement; the conduct of drone strikes by drone operators; and drone
strikes involving AI.
When airpower is subjected to ethical assessment, it is commonplace to
highlight 1945 as a key historical milestone. In August of that year, when
the Japanese cities of Hiroshima and Nagasaki were struck by atomic bombs
dropped from piloted US aircraft, an apotheosis of airpowered atrocity was
achieved. The deliberate and near-instantaneous destruction of tens of

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 4 / Christian Enemark

thousands of civilian lives was a clear and colossal breach of in bello ethics.
However, for the purposes of this volume, our moral interest is attracted not
only to the endangerment of civilians but also to the protection of those
who directly wield airpower. A more relevant milestone, therefore, is the
1999 campaign by NATO member states (Operation Allied Force) against
Serbia in its southern province of Kosovo, undertaken to prevent ‘ethnic
cleansing’ there. This campaign (conducted entirely from the air) exempli-
fied a newly heightened political desire to use violence in ways that avoid
exposing a state’s own personnel to physical risk. During bombing expedi-
tions, Serbian anti-aircraft missiles posed a risk, but NATO commanders
were so determined not to lose any pilots that they ordered bomber aircraft
to remain above 15,000 feet (and thus well beyond the range of retaliation)
(Creveld 2011, 327). Soon afterwards, with the advent of armed drones, it
was possible to reduce the risk of losing pilots even further: by removing
them from the cockpit.
Kosovo is the starting point for the volume’s discussion on the theme
of war. In Chapter 1, Robert Sparrow reflects upon the work of philosopher
Paul Kahn as it relates to drone violence, focusing on two of Kahn’s articles:
‘ War and Sacrifice in Kosovo’ (1999) and ‘ The Paradox of Riskless War-
fare’ (2002). Together, these articles represent a compelling expression of
the intuition that there is something deeply troubling about the profound
asymmetry of risk made possible by modern technologies of long-range
killing. Kahn’s ideas have been influential, and much cited, in the debate
that later emerged about the ethics of airstrikes using remote-controlled
drones. However, as Sparrow argues in his chapter, most participants in that
debate have struggled to motivate the intuition any more than Kahn did, let
alone to justify it. Many have instead concluded that extreme asymmetry is
something to be sought after, in order that states may better prosecute war
(or defend themselves against terrorist threats) while imposing less risk on
national military personnel. Taking stock of two decades of debate about
the ethics of ‘risk-free’ warfare – and drone strikes in particular – Sparrow’s
chapter assesses what we have learned from Kahn and his critics, and it
returns afresh to the critical issue of whether the use of armed drones pres-
ents unique moral challenges.
In Chapter 2, the ethical discussion of armed drones moves squarely
into the realm of Just War theory. Christian Braun places drone use in
the context of a contentious development in contemporary military affairs:
the increase in instances of states resorting to so-called ‘force short of war’
(vim). On the one hand, he observes, a shift in modern warfare away from
large-scale slaughter and towards more calibrated applications of force
(such as drone strikes) may be a step in the right direction in so far as

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 Introduction: Thinking Ethically about Drone Violence / 5

it signals greater constraint. On the other hand, because vim can appear
to be more compartmentalised and therefore containable, there is a con-
cern that this concept of non-war violence might prompt states to care less
about seeking non-violent methods of political problem-solving. Braun
acknowledges that the idea and practice of ‘force short of war’ put tradi-
tional jus ad bellum principles under pressure. Even so, in drawing upon the
classical Just War thinking of Thomas Aquinas, he concludes that the intro-
duction of an alternative framework of jus ad vim is unnecessary. Braun
argues instead that the jus ad bellum needs to be renegotiated in the light of
novel technologies and circumstances. Providing such a renegotiation, he
explains how the ad bellum principles of sovereign authority, just cause and
right intention should be applied to address moral concerns surrounding
drone-based targeted killings.
Sometimes, it might make more sense to think ethically about drone
violence as being neither vim nor bellum. In Chapter 3, Max Brookman-
Byrne begins to shift the volume’s focus away from war and towards another
non-war concept of state violence: lethal law enforcement. From an inter-
national law perspective, analysing the extraterritorial use of armed drones
for a law enforcement purpose can appear simple: if they are used during
armed conflict, there is a requirement to abide by international humani-
tarian law (IHL); outside of armed conflict, the use of armed drones must
adhere to international human rights law (IHRL). However, as Brookman-
Byrne argues, such binary thinking is not well matched to the ‘complicated
reality’ of law enforcement drone strikes. In considering drone strikes con-
ducted during an armed conflict, he challenges the presumption that these
are necessarily part of that conflict and therefore governed by the permis-
sive rules of IHL. The chapter’s examination of US drone strike campaigns
in Yemen and Somalia suggests another possibility: that the use of armed
drones emulates colonial-era techniques of territorial policing based on air-
power. If such use is thus more accurately regarded as serving a law enforce-
ment function, Brookman-Byrne reasons it should be regulated not by IHL
but by the more restrictive rules of IHRL.
In Chapter 4, Christian Enemark offers another perspective on the
state use of armed drones as an object of governance manifesting outside
the paradigm and morality of war. In some circumstances, he argues, the
drone violence wielded remotely by the US government resembles more
closely a non-war form of state violence – lethal, punitive law enforcement
(capital punishment) – even though the lawfulness of that violence itself
is questionable. In parts of the world that are relatively under-governed
and outside zones of ongoing conflict, the remote user of armed drones
appears sometimes to act in the manner of a lawman delivering ‘wild

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 6 / Christian Enemark

justice’ to outlaws. This wildness manifests in the US government’s recent

practice of conducting ‘personality strikes’ against alleged terrorists. These
strikes, Enemark argues, amount to a practice of administrative execution
and thus fall short of ethical expectations for the state use of lethal force
in non-war (law enforcement) circumstances. Instead, this punitive form
of drone violence is ‘wild’ because it merely mimics the legalism of proper
criminal justice practice. When drone-based killings in the guise of law
enforcement are sanctioned and conducted secretly by non-judicial agents
of government, the ethical problem is that there is too much potential for
unjust (arbitrary) violation of a person’s right to life. As the chapter shows,
drone violence as wild justice thus presents a governance challenge: either
to prohibit personality strikes outside war zones or to tame such violence
by arranging for it to be judicially authorised.
In Chapter 5, Christopher Fuller continues problematising the assign-
ment of drone violence to the war paradigm, shifting the discussion towards
the UK experience. The chapter assesses Prime Minister David Cameron’s
2015 authorisation of the drone-based targeted killing of Reyaad Khan, a
British citizen and member of Islamic State. This attack, carried out in Syria,
was the first known instance of a British drone being used lethally inside
a country where the UK is not involved in a war. Accordingly, Cameron
described the strike as ‘a new departure’ for the UK when revealing his gov-
ernment’s new drone policy and its adoption of the US government’s con-
troversial interpretation of international law for ‘war on terror’ purposes.
Fuller provides an ethical assessment of the way in which the UK govern-
ment has remained vague about the purpose of its post-2015 drone policy,
the legal basis which underwrites it, the associated decision-making process
and the accountability mechanisms which exist for strikes. He explores the
evolution of the UK’s armed drone fleet, ministers’ statements and govern-
ment policy documents in an effort to reveal the ethos which has driven the
government’s adoption of lethal drones for counterterrorism. In doing so,
Fuller advances an argument that Britain’s drone policy is the product of a
set of morally problematic attitudes towards self-defence, justice and the
imminence of terrorist threats.
Beyond considerations of state policy and practice, individual agency
is morally significant too, so it is useful also to conceptualise drone vio-
lence by reference to the perspective and personal experience of the drone
operator who directly wields that violence. In Chapter 6, Peter Olsthoorn
moves the ethical discussion away from traditional, rules-based, state-
centric modes of thinking about military violence. Today, most militaries
regard virtue ethics as an important complement to regulations and codes
imposed from above. Established military virtues such as honour, courage

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 Introduction: Thinking Ethically about Drone Violence / 7

and loyalty dominate official lists of virtues, values and desired behaviours
within those militaries, and there is a growing body of literature on military
virtues. Yet, as Olsthoorn argues in this chapter, it is evident that some con-
ventional soldierly virtues are not particularly helpful to military personnel
operating armed drones. His chapter assesses the ethics of drone violence
from the perspective of military virtues and military ethics education, and
it addresses the question of what change might be needed: a new set of vir-
tues; a different interpretation of the existing virtues; or an abandonment
of efforts to teach virtues? This challenge arises, Olsthoorn argues, partly
because armed drones raise risk asymmetry in war to a new level, so the
chapter also addresses the extent to which, and how, the possibility of ‘risk-
less warfare’ make drone use ‘virtue-less’.
In Chapter 7, Lindsay Clark and Christian Enemark follow Olsthoorn in
exploring the necessity for refreshing our ethical thinking when it comes to
armed drones. Drawing upon feminist theory, they explain the relevance and
potential applicability of an ‘ethics of care’ to the life-and-death decisions to
be made by individual drone operators. Although some scholars have applied
care ethics to a range of peacetime contexts, this mode of morality has hith-
erto been largely absent from thinking about contemporary warfare. The
chapter is premised on an expanded notion of what constitutes ‘just’ drone
warfare, and the rationale for such expansion is that it promises to illuminate
potential injustices which might otherwise go unnoticed. The authors argue
that, in order for the operators of armed drones to care (ethically) for poten-
tial victims of drone strikes, two things must be recognised and respected:
first, that in the exercise of wartime violence the potential unjust effects upon
innocent bystanders are not limited to immediate physical injury and death;
and second, that an armed drone equipped with a powerful video-camera has
the capacity to reveal to its operator some of the intimate features of a targeted
individual’s ordinary life. In combination, as the chapter shows, these factors
can generate an ethical challenge for a conscientious drone operator: to avoid
killing an individual in circumstances where he or she would thereby know-
ingly deprive dependent civilians (e.g. the individual’s family members) of a
critical source of care.
Currently, the process of conducting drone strikes requires intensive
human input, but in Chapter 8 Peter Lee shifts the volume’s ethical discus-
sion towards a future in which that process relies increasingly upon machine
autonomy. Although some militaries have ambitions to develop and deploy
a drone system (for example, the MQ-9 Reaper system) that incorporates
autonomous functions, the expected emergence of AI-enabled drone strikes
presents practical and ethical challenges. The relevant practical considerations
are illustrated by the chapter’s explanation of the evolution in applications of

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 8 / Christian Enemark

military airpower involving piloted, remotely controlled and autonomous

aircraft. As Lee then explains, the way we think ethically about and plan for
airborne lethal autonomous weapon systems (LAWS) is made difficult by
several factors. These include the ongoing contestation among philosophers
and engineers about the meaning of non-human ‘autonomy’ and ‘degrees’
of autonomy. Also, there is persistent concern about human biases possibly
being transferred into machine decision-making, and the issue of how fairly
to distribute moral responsibility for LAWS-generated effects remains unre-
solved. To address these challenges, the chapter discusses some suggested
principles that could guide and restrain the future use of armed and autono-
mous drones.
In Chapter 9, Thompson Chengeta continues the exploration of ethical
challenges potentially arising from AI-controlled drones, and he focuses on
how their use might be restrained through international legal regulation.
His starting point is the 2013 recommendation of a moratorium on the
production of LAWS to the UN Human Rights Council by its Special Rap-
porteur on extrajudicial, summary or arbitrary executions. The response by
UN member states to this recommendation was to resolve that relevant dis-
cussions should occur within the framework of the UN Convention on Cer-
tain Conventional Weapons (CCW). However, the critical problem here is
that the introduction of CCW-based regulation requires consensus among
all the treaty’s members. Thus, to achieve principled and legally binding
restraints on the use of autonomous armed drones, scholars and policy
practitioners need to confront a set of challenges to multilateral consensus.
As Chengeta explains, these challenges include: threats to multilateralism
in arms control generally; ongoing concerns about a military AI arms race;
anti-activist sentiments and ‘banphobia’ among arms control diplomats;
and differing international understandings of what moral values are appli-
cable to the deployment of autonomous weapons systems.

References
Beauchamp, Zack, and Julian Savulescu. 2013. ‘Robot Guardians: Teleoperated
Combat Vehicles in Humanitarian Military Intervention’, in Killing by Remote
Control: The Ethics of an Unmanned Military, edited by Bradley J. Strawser. Oxford
and New York: Oxford University Press, 106–25.
Brunstetter, Daniel, and Megan Braun. 2011. ‘ The Implications of Drones on the
Just War Tradition’, Ethics & International Affairs 25 (3): 337–58.
Calhoun, Laurie. 2015. We Kill Because We Can: From Soldiering to Assassination in the
Drone Age. London: Zed Books.
Chamayou, Grégoire. 2015. Drone Theory. London: Penguin.

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 Introduction: Thinking Ethically about Drone Violence / 9

Creveld, Martin van. 2011. The Age of Air Power. New York: PublicAffairs.
Drone Wars. 2020. ‘Who Has Armed Drones?’, updated July 2020, https://dronewars.
net/who-has-armed-drones
Gettinger, Dan. 2019. The Drone Databook. Center for the Study of the Drone, Bard
College, https://dronecenter.bard.edu/projects/drone-proliferation/databook
Gusterson, Hugh. 2016. Drone: Remote Control Warfare. Cambridge, MA: MIT Press.
Kaag, John, and Sarah Kreps. 2014. Drone Warfare. Cambridge: Polity.
Sauer, Frank, and Niklas Schörnig. 2012. ‘Killer Drones: The “Silver Bullet” of
Democratic Warfare?’, Security Dialogue 43 (4): 363–80.
Schulzke, Marcus. 2017. The Morality of Drone Warfare and the Politics of Regulation.
London: Palgrave Macmillan.
Steinhoff, Uwe. 2013. ‘Killing Them Safely: Extreme Asymmetry and Its Discon-
tents’, in Killing by Remote Control: The Ethics of an Unmanned Military, edited by
Bradley J. Strawser. Oxford and New York: Oxford University Press, 179–208.
Strawser, Bradley J. 2010. ‘Moral Predators: The Duty to Employ Uninhabited Aerial
Vehicles’, Journal of Military Ethics 9 (4): 342–68.
Vogel, Ryan J. 2010. ‘Drone Warfare and the Law of Armed Conflict’, Denver Journal
of International Law and Policy 39 (1): 101–38.

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 ONE

Riskless Warfare Revisited: Drones, Asymmetry

and the Just Use of Force
Robert Sparrow

In 1999 Yale law professor Paul Kahn published some philosophical reflec-
tions on the then recent air campaign over Kosovo, under the title ‘ War and
Sacrifice in Kosovo’. This paper and his subsequent ‘ The Paradox of Riskless
Warfare’ (2002) contain some of the earliest, and still some of the most
provocative, reflections on the emerging phenomenon of asymmetric wars
conducted, by one party, almost entirely from the air.1 Unsurprisingly, both
papers, but especially the latter, have become key sources in the literature on
the ethics of drone warfare. The invitation to present at the ‘Governing Drone
Violence’ workshop in 2019, some two decades after the first of these papers
appeared, seemed a fitting opportunity to re-evaluate Kahn’s work in the
light of the subsequent literature and experience gained from twenty years
of ‘riskless warfare’. In this chapter, after setting out the key contributions of
each paper in the first two sections, I note some limits of Kahn’s treatment
of the ethics of asymmetric warfare, and his account of the structure of Just
War theory, for debates about drones. In the fourth section, I discuss how
Kahn’s claims have fared after two decades of discussion of his work, again
highlighting the implications of his (mis)understanding of Just War theory,
and also of his relative neglect of the normative significance of sovereignty,
for the plausibility of his account of the ethics of riskless warfare. I then turn
to the history of ‘riskless’ warfare over the last two decades and argue that, for
the most part, it suggests that Kahn was prescient in his concerns and (thus)
that the attention paid to his work has been warranted. I conclude by sug-
gesting that, even though Kahn’s most famous claim, about the role played
by risk in justifying the moral privileges of combatants, is false, his papers
are likely to remain an important source of insights into the ethics of drone
warfare for many years to come.

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 Riskless Warfare Revisited / 11

The Paradox of Riskless Warfare

Although it was preceded by ‘ War and Sacrifice in Kosovo’, Kahn’s ‘ The
Paradox of Riskless Warfare’ is more often cited, and for that reason I have
chosen to begin with it. A central claim in the paper, which has been highly
influential in the subsequent debate about drones, is that war is consti-
tuted by the mutual imposition of risk amongst combatants. According to
Kahn, combatants have a moral permission to direct lethal force against
enemy combatants because – and in so far as – enemy combatants pose
a risk to their lives (Kahn 2002, 2–3). On this account, then, the right of
self-defence plays a central part in explaining the ethics of war. Another key
claim, which follows from the first, is that the removal of risk from ‘war’
fundamentally alters the ethics of the use of lethal force. In the absence of
risk, according to Kahn, ‘war’ becomes policing (Kahn 2002, 4). Where,
on Kahn’s account, the ethics of the use of force in war is structured by the
difference between combatants – who pose a military threat – and non-
combatants – who do not – the ethics of the use of force in policing is
structured by the distinction between guilt and innocence. Combatants
in war are justified in directing lethal force against other individuals who
have, in an important sense, ‘done no wrong’. Moreover, combatants are
also permitted to kill non-combatants as an unintended but foreseeable
consequence of attacks targeted at combatants. However, neither of these
permissions exists in the context of policing. Police are only justified in
directing force in extremis at those who are individually morally guilty and
they are under a much more demanding obligation to avoid ‘collateral
damage’, if they are permitted to do so at all.
Kahn’s arguments have been widely taken up in the debate about tar-
geted killing and drone warfare (see, for example: Kaag and Kreps 2014,
107–17; Enemark 2013; Galliott 2017; Schulzke 2017). However, it is
worth noting at this point that Kahn himself (2002, 5) suggests that his
arguments imply that those who are themselves not at risk as a result of
enemy action have no moral permission to attack enemy combatants in
conventional wars – a much more radical conclusion. I will return to these
central claims below. For the moment, I want to note that the ‘Riskless War-
fare’ paper also includes a number of other arguments that have played
important roles in subsequent debate about drones.
First, Kahn suggests that, even as it allows powerful states to adhere more
strictly to the Just War principles of distinction and proportionality, the pur-
suit of riskless warfare may lead to a circumstance where the enemy has no
choice but to violate jus in bello (Kahn 2002, 6).2 For instance, weak states
may only be capable of targeting enemy civilians through terrorist attacks
on foreign soil if they want to strike back at an aggressor that is conducting

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 12 / Robert Sparrow

high-altitude bombing beyond the range of their anti-aircraft weapons. This

argument was developed at greater length as a critique of drone warfare by
Suzy Killmister (2008). Second, Kahn acknowledges that armed forces have
strong moral reasons to try to reduce the risk to the lives of their own per-
sonnel and therefore to pursue riskless warfare. Famously, Bradley Strawser
(2010) has endorsed this claim in order to argue that states are morally
obligated to use drones in some circumstances. Third, Kahn (2002, 7)
highlights the danger that an ability to fight riskless wars may undercut the
democratic legitimacy of those wars that governments do choose to fight.
Where there is no risk of their sons and daughters coming home in body
bags, democratic publics may be disinclined to engage with debates about
the wisdom of going to war, and governments may be able to initiate wars
without public consultation. As Kahn notes, and Kaag and Kreps (2014)
and Enemark (2013), amongst others, have argued further, the capacity of
drones to facilitate the use of force without the risk of (friendly) casualties
may ultimately work to the detriment of the social contract.
Finally, ‘Riskless Warfare’ includes another argument about the implica-
tions of asymmetry for the ethics of wars justified as humanitarian interven-
tions, which has not received so much attention. In so far as war requires
risk, Kahn suggests, conducting riskless warfare on behalf of another
requires at the very least that they are at risk (2002, 7–8). Otherwise, ‘our’
forces could not be justified in firing on targets who themselves pose no
risk to our troops. It is worth noting that this argument is clearly in tension
with Kahn’s claim that combatants themselves must be at risk before they
have a moral permission to use deadly force. Nevertheless, he suggests that,
if our use of force is ultimately going to be justified by the fact that our tar-
gets have made themselves ‘dangerous men’, those targets must genuinely
be dangerous to those with whom we have chosen to identify ourselves, at
least. This argument implies that the use of force to support humanitarian
interventions could only be justified when massacres are taking place or
there is at least a widespread threat to human life.

War and Sacrifice in Kosovo

This last argument is a less ambitious version of an argument that is made
at greater length in the paper ‘ War and Sacrifice in Kosovo’. This paper
contains some interesting ideas that do not receive as much emphasis in
‘ The Paradox of Riskless Warfare’, including, I believe, some key insights
that have been neglected in subsequent discussions. In particular, in ‘ War
and Sacrifice’ Kahn argues that wars of humanitarian intervention require
one to form a moral community with the population on whose behalf

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 Riskless Warfare Revisited / 13

one is intervening (1999, 6). Otherwise one could not be acting in ‘self-
defence’ when one deploys lethal force to protect them. A refusal to accept
risk, according to Kahn, jeopardises this. Willingness to sacrifice is the cost
of moral community (Kahn 1999, 6). Relatedly, Kahn argues that there is
a rhetorical and pragmatic contradiction involved in calling something
a moral emergency of the sort that might justify going to war yet at the
same time being unwilling to put the lives of our troops at risk in the
course of that war (1999, 4). Here, and in a number of other places, Kahn
is emphasising the ‘expressive’ content of the actions of states. What does
it say about us when we are unwilling to accept risks in the course of the
pursuit of some goal (Kahn 1999, 4)? In particular, what does it say about
us when we are unwilling to risk the lives of ‘our’ troops? How can we say
that what’s happening in some other nation is so terrible that it justifies
the resort to war and then imply that it’s not worth the cost of American
lives? As Kahn notes, this seems especially problematic when the deci-
sion to pursue ‘riskless’ warfare may actually place the lives of those on
whose behalf we are intervening at more risk; for instance, because bombs
dropped from beyond the range of enemy air defences may be more likely
to go astray and cause ‘collateral’ damage. An unwillingness to tolerate US
casualties therefore risks implying that the lives of US citizens are of more
value than the lives of the citizens of the nations in which the US goes to
war (Kahn 1999, 4).
‘ War and Sacrifice’ also observes that an ability to conduct riskless wars
might place powerful states under more obligations to intervene to pre-
vent wrongs around the world (Kahn 1999, 3). This thought has been fur-
ther developed by Beauchamp and Savulescu (2013) to suggest that those
concerned for human rights should actually welcome the development of
drones, precisely because these aircraft do lower the threshold of war and
thus make it more plausible for powerful liberal democratic states to con-
duct wars of humanitarian intervention. Conversely, Kahn notes that the
capacity to conduct riskless warfare might make it too easy for powerful
states to go to war. Governments that can conduct riskless wars do not need
to worry about winning over their civilian population in the face of the
prospect of significant casualties in their armed forces (Kahn 1999, 5). As I
shall discuss further below, this has also been a central concern in the debate
about the ethics of drone warfare. Finally, Kahn observes that the willing-
ness to intervene militarily to defend human rights anywhere in the world
implies a significant transformation – and, arguably, an erosion – of sover-
eignty (1999, 5–6). Most obviously, the argument that large-scale human
rights violations anywhere in the world justify any nation in the world tak-
ing military action to try to halt or prevent them grants sovereign immunity

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 14 / Robert Sparrow

only to states that guarantee the basic human rights of those within their
territories. More subtly, Kahn suggests, in so far as we are required to postu-
late a moral community in order to explain how risk to others can grant us
a right to use force, riskless warfare implicitly denies, or at least discounts,
the normative significance of borders.3

Some Limits of Kahn’s Treatment

Although Kahn’s arguments have been widely taken up in the debate about
the ethics of drone warfare, it is worth emphasising that both papers predate
the first reported uses of armed drones. Kahn’s meditations were prompted
by the use of airpower, especially at high altitudes, and precision munitions,
in the NATO campaign against Serbian forces in Kosovo, rather than by the
use of armed drones. Indeed, neither paper even mentions drones. Thus, not
only do Kahn’s arguments provide little support for the idea that drones raise
distinctive moral issues (‘drone exceptionalism’), they actually undercut it. It
also has to be said that the intellectual fecundity of Kahn’s papers is achieved
at the cost of philosophical precision. In particular, Kahn tends to use the
terms ‘riskless warfare’ (or ‘risk-free warfare’) and ‘asymmetry’ interchange-
ably. Yet a moment’s thought reveals that these are not equivalent. One
might, for instance, be involved in (putatively) riskless warfare that was com-
pletely symmetric, as, for instance when two states engage in aerial warfare
over the territory of another using only remotely piloted aircraft (Strawser
2013, 13–14).4 Perhaps more importantly, asymmetric warfare (or ‘asymme-
try of risk’) is a much more widespread phenomenon than riskless warfare
and is enabled by a much wider range of technologies. As we shall see in the
discussion below, the distinction between riskless and asymmetric warfare is
sometimes quite important to the discussion of the ethics of the use of force.
Kahn’s discussion also suffers from two further problems that have been
to the detriment of the subsequent literature on the ethics of ‘riskless war-
fare’. First, while Kahn’s account of the distinction between the ethics of
‘war’ and ‘policing’ purports to be structured by the distinction between
‘classic’ (Walzerian) Just War theory and revisionist Just War theory, his
account of both – and of the former in particular – is inaccurate.5 As a result,
he fails to properly distinguish between these two different ways of thinking
about the ethics of war. As I will discuss further below, his lack of accuracy
on these matters has also afflicted many of the subsequent discussions of
riskless warfare. Second, and relatedly, although Kahn pays some attention
to the role played by the concept of sovereignty in our thinking about war,
he fails to take it seriously enough. Again, the later literature on the use of
drones has often repeated this error under his influence.

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 Riskless Warfare Revisited / 15

Lessons from the Literature

Let us turn now to this literature in order to evaluate Kahn’s discussion
in the light of the now two decades of arguments about riskless warfare.
Much of the literature drawing on Kahn has been concerned with the ethics
of the use of armed drones. However, the first lesson of the literature on
drones is that drones need not be armed in order to change the calculus of
the use of force in particular circumstances. An unarmed drone with a laser
target designator, in combination with a platform capable of delivering a
precision munition, will often facilitate striking targets of opportunity with
the same degree of accuracy as an armed drone. Moreover, as I observed
above, riskless war can be fought without drones by means of aerial bom-
bardment, cruise missiles, and long-range artillery fires directed at targets
who lack weapons of the same range. It is not the absence of risk but the
capacity to loiter that makes drones morally distinctive – if indeed there
is anything morally distinctive about them. While these are important les-
sons of the literature post-Kahn, they do not contradict his claims so much
as the claims of some of those who have relied upon him: Kahn himself
was not writing about drones.
Second, the last two decades have seen a vast flourishing of what has
become known as ‘revisionist’ Just War theory (Lazar 2017). In so far as
revisionist Just War theory has been concerned to distinguish itself from –
and to criticise – classic Just War theory, it has also greatly improved our
understanding of the structure and merits (or lack thereof) of the latter. As
a consequence, it is now clear that the way Kahn attempts to connect the
moral permission to kill with the right to individual self-defence in war is
mistaken. There is not necessarily anything morally problematic about the
existence of asymmetry between combatants or even the total absence of
risk to particular combatants in war. It is permissible to fire at someone
who is not, and has no intention of, pointing a gun at you. Indeed, in
wartime it is permissible to kill enemy combatants while they are asleep or
from such a range that they are not even aware of one’s existence. ‘Classic’
Just War theory explains this with reference to the collective nature of the
enterprise of war. By enrolling in the armed forces, each combatant has
made themselves, as Walzer puts it, a ‘dangerous man’ (sic) – but the dan-
ger combatants pose is to enemy combatants collectively, not individually
(Walzer 2015, 145). Sleeping enemy combatants may be targeted because
they might kill one of ‘us’ at some stage in the future (Sparrow 2011).
Only if there was no threat to any of the combatants on one side of the
conflict might the intuitions that Kahn trades on have some force. Even
then, as long as the conflict is properly characterised as war, combatants

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 16 / Robert Sparrow

on both sides will arguably retain the moral privilege to direct lethal force
at other combatants. On classic accounts, war is fundamentally a relation
between states rather than between individuals, and combatants are legiti-
mate targets because they are the means by which states attack each other
and defend themselves (Sparrow 2005; Zohar 1993).6
Revisionist Just War theory is a broader church than ‘classic’ Just War
theory – especially in so far as Walzer has come to represent, almost single-
handedly, the latter tradition. What unites revisionists is their commitment
to individualism and consequent willingness to abandon the idea that jus in
bello and jus ad bellum are independent (Lazar 2017; McMahan 1994, 2004).
That is to say, according to revisionist accounts, the ethical constraints on
those engaged in combat will vary depending on whether or not they are
fighting in a just cause. At first sight, it might seem as though this establishes
more room for the idea that enemy combatants must pose a risk to me per-
sonally before I am permitted to kill them. However, in fact, the emphasis
on the different moral permissions granted to just versus unjust combatants
by revisionist Just War theory has the result that risk is less important for the
ethics of war. Even if just combatants do pose a risk to the lives of unjust
combatants, the latter have no right to target the former because one has no
right to self-defence against someone who is defending themselves against
an unjust threat one has imposed oneself. Because they fight in an unjust
cause, unjust combatants have no moral permission to kill (McMahan
1994; Rodin 2002). Conversely, it is the unjust threat to the basic human
rights of just combatants that grant the latter the moral permission to kill
unjust combatants. While this threat might involve a threat to life, it need
not. For instance, just combatants would be justified in directing lethal
force against unjust combatants who were armed only with (hypothetical)
non-lethal weapons if this was the only way the former could prevent
the latter from successfully invading and taking over their homeland
(McMahan 1994). Even according to (most) revisionist accounts, then, the
absence of risk need not render it illegitimate for (just) combatants to use
force against enemy combatants.
There is an ethical quandary associated with the existence of asymmetry
in military resources available to states rather than individuals, which is
already discussed in Walzer (2015, 68–72). The jus ad bellum criterion of
‘reasonable prospects of success’ suggests that weak states that are threat-
ened by strong states may not be justified in going to war, as there is little
prospect that they would win. On the one hand, this seems reasonable,
as futile wars of self-defence may lead to high numbers of casualties on
both sides to no good end. On the other hand, this is clearly a perverse
consequence of the structure of Just War theory, in so far as it seems both

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 Riskless Warfare Revisited / 17

to encourage states to pursue military might and to deny the right of weak
states to defend themselves in practice. While the use of drones may serve to
dramatise such asymmetry, drones are no more or less likely to establish it
than any other military technology. Thus, while there is indeed a profound
dilemma here when it comes to the presence, interpretation and justifica-
tion of the ‘reasonable prospects of success’ criterion in the doctrine of jus
ad bellum, this is a question for the broader literature on Just War theory
rather than for the literature on riskless warfare.
There is, though, a related tension within jus in bello, which Kahn and,
later, Killmister (2008) have highlighted. Where warfare is highly asymmet-
ric, especially where it is conducted mostly by drone strikes, it may effectively
be impossible for combatants from the weaker state to attack combatants
of the more powerful state, especially while taking reasonable precautions
in attack (Enemark 2013, 60; Killmister 2008). The only options available
to those being targeted by drones, to place the attacking state under politi-
cal pressure to desist, may be to adopt means and methods of warfare that
are forbidden by jus in bello, for instance, attacking enemy combatants with
improvised explosive devices (IEDs), without taking reasonable precau-
tions to avoid civilian casualties, or directly targeting civilians in violation
of the principle of distinction. This does generate a pragmatic dilemma for
the attacking state. Should they continue to employ drones and risk elevat-
ing the likelihood of terrorism? Or should they reduce the chance that their
enemy will resort to illegal means by allowing the enemy some opportunity
to direct their attacks at legitimate targets, thereby placing the lives of their
own troops at risk? In so far as the choice involves trading off different sorts
of risks to different parties this is also an ethical dilemma (Enemark 2013).
However, the suggestion that, in such circumstances, the prescriptions of jus
in bello are waived or weakened for the weaker state is a dangerous one, with
radical implications for Just War theory, at least as classically conceived of –
and probably also for revisionist accounts. Traditionally, the prescriptions
of jus in bello are supposed to be absolute; if a state, or even a combatant,
is unable to fight without violating them, then they are not permitted to
fight at all. Allowing that these prescriptions may sometimes be ignored for
the sake of the pursuit of a morally important victory risks rendering them
irrelevant, as no party to a conflict ever believes that it is not important
that they win the battle – let alone the war. At the very least, then, there are
strong rule consequentialist reasons for continuing to hold that asymmetry
provides no excuse for violations of jus in bello.
What asymmetry may do is place the combatants of the more powerful mili-
tary under stronger obligations when it comes to the operationalisation of the
requirements of jus in bello. In particular, what is required of the operators of

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 18 / Robert Sparrow

drones when it comes to ‘feasible precautions in attack’ (see ICRC 1977, Article
57) may in practice be more demanding than what is required of warfighters
who are physically present in the battle space (Rosén 2014). In order to comply
with the principles of distinction and proportionality, combatants must take all
feasible precautions to identify that they are not inadvertently attacking non-
combatants or placing a disproportionate number of non-combatants at risk
when attacking combatants (Henderson 2009, ch. 7). What counts as feasible
will be context-dependent, but a significant consideration will be the extent to
which any given action to confirm the nature and identity of the target (and the
presence or absence of non-combatants within the area likely to be affected by
the weapon used to attack the target) places the combatants tasked with this
action at risk (Schmitt 2005). Because the operators of remotely piloted aircraft
do not subject themselves to more risk by taking more care to identify targets
and determine the location of non-combatants, it might seem that it is appro-
priate to demand more of them when it comes to satisfying the requirement to
take precautions in attack. However, while personal risk is one consideration
in determining what it is reasonable to expect of warfighters by way of precau-
tions in attack, it is not the sole or even the main consideration. The price of
the moral permission to kill that is granted to combatants includes the require-
ment to take on some personal risk where necessary to ensure that this permis-
sion does not come at too great a cost to non-combatants (Walzer 2015, 156).
The military capacity represented by the attacking (or reconnoitring) units is
also relevant. For this reason, risk to the remotely operated platform itself will
be relevant to the calculation of what is required by way of precautions in attack
(Rosén 2014).
Another important lesson from the literature is that the advent of risk-
less war has been even more corrosive of intuitions about sovereignty than
Kahn foresaw. After the September 11 attacks, the United States reserved
for itself the right to attack those it identified as its enemies wherever they
were located around the globe (Boyle 2015; O’Connell 2015). Perhaps as a
result of the apparent ease with which the US was able to assert this ‘right’ in
the international arena, both as a matter of fact and at the level of rhetoric,
subsequent discussions of drones have tended to soft-pedal the extent to
which drone strikes constitute an affront to the sovereignty of the states in
whose territories they occur (O’Connell 2018). However, because – and in
so far as – sovereignty is established by the existence of a monopoly on the
legitimate use of armed force within a territory, drone strikes in the territory
of another state without the permission of its government violate sover-
eignty and are themselves acts of war (Boyle 2015, 120).7 If Cuba launched
drone strikes in Florida there would be no equivocation about this. It is
the infringement on the right of another sovereign government, rather than

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 Riskless Warfare Revisited / 19

the scale of the destruction that results, which makes the use of force an
act of war. As long as we maintain this intuition, then the ethics – if not
the legality – of the use of lethal drones is more straightforward than is
often appreciated. If they are used in a war, then they must only be used to
target combatants as per any other weapon. Drone strikes in the territory
of another state without that state’s permission will be an act of war and –
unless they are conducted in self-defence or (perhaps) with permission
from the UN Security Council – will almost always be a violation of jus ad
bellum for that reason (O’Connell 2015). If they are used with the permis-
sion of a state then the use of force should be governed by the domestic law
of that state, with some constraints from international humanitarian law
(Schmitt 2010, 315). In these circumstances the ethics of the use of force is
indeed governed by the logic of policing rather than of war.
The exception to this clear dichotomy is where strikes are used in ter-
ritories over which there is no clear sovereignty, either because the state has
failed or because there is a civil war. In such cases, there may well be space
for arguments about jus ad vim of the sort that have been developed by
Brunstetter and Braun (2013). If there is no violation of sovereignty, then
the use of force per se may not constitute an act of war. If the scale of the
destruction that will result from the use of drone strikes is small enough,
then the conflict may not qualify as war on that basis. If both of these con-
ditions are met, then it may be reasonable to hold that the expectation that
the highly demanding requirements of jus ad bellum should be met before
the use of force is legitimate is no longer justified. That is to say, it may be
that we should be instead thinking about jus ad vim instead of jus ad bellum.
However, it is, I think, an open question as to whether Kahn’s arguments
about the logic of policing have application here. It is plausible to think that,
where the burden of justification for the use of force is lower, the obligation
to avoid non-combatant casualties is higher (Brunstetter and Braun 2013).
If states are not fighting for survival or to defend the international order,
then there can be less justification for risking the deaths of non-combatants.
And if states are going to be resorting to the use of force more often, we have
good reason to demand that they take more care when it comes to the selec-
tion of targets. That is to say, whatever replaces jus in bello when it comes to
regulating the means used to pursue political goals through the use of ‘force
short of war’ (vim) should probably be more demanding.
Yet it remains hard to believe that risk to individuals – especially risk
to combatants – should play a central justificatory role here. The justifica-
tion of the use of force short of war still proceeds by means of reference to
reasons of state, and the state’s justification for killing particular people,
or attacking particular sorts of targets, is not a function of whether those

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 20 / Robert Sparrow

people or targets have the capacity to threaten the lives of those tasked with
attacking them. Given that the logic of the extraterritorial use of force is
already so alien to the social contract regulating the relation between the
sovereign and its citizens (Kahn 2013, 203), it does not seem implausi-
ble to me that, in claiming for itself the right to take the lives of those it
identifies as its enemies, the state also assumes the right to risk the lives of
those who it acknowledges have done nothing wrong. That is to say, while
those engaged in the just exercise of force short of war might be required to
take more care to avoid innocent casualties than combatants in war, unlike
those agents of the state involved in policing they may nonetheless retain,
contra Kahn, the right to risk innocent casualties in situations where their
own lives are not at risk and/or where there is not an urgent necessity to
prevent an immediate threat to the lives of others.
None of this is to imply that there are not profound ethical problems
with the use of force short of war. It may well be that we should insist that
all extraterritorial use of force outside of war be conceptualised as extraju-
dicial killing and condemned on that basis (O’Connell 2018). My point
here is solely that, even if we do endorse the idea of jus ad vim, it does not
follow that the absence of risk to combatants therein would dictate that
such use of force should be governed by the logic of policing rather than
some distinctive conception of jus ad vim. Moreover, in any case, we should
resist absolutely the idea that the ability of powerful states to get away with
attacks conducted in the territory of other states without the outbreak of
widespread hostilities means that these are cases of vim rather than bellum.
The use of force across territorial borders without permission will always be
an act of war and, as such, a threat to the stability of the international order.
According to my reading of the literature, then, one of the central claims
of Kahn’s work on riskless warfare – that war is constituted by the mutual
imposition of risk amongst combatants considered as individuals – has
fared poorly in the light of subsequent reflection. However, the discussion
that it provoked has contributed much to our understanding of the ethics of
asymmetric and ‘riskless’ war, including, especially, drone strikes.

Lessons from History

The various lessons enumerated above are only the lessons that I have drawn
from the literature on riskless warfare: there may be others. Moreover, not
only do we have the benefit of two decades of philosophical discussion in
assessing Kahn’s arguments today, we also have the advantage of another
two decades’ experience of ‘riskless’ wars waged by the United States.8 While
the US invasion and occupation of Iraq and Afghanistan involved large

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 Riskless Warfare Revisited / 21

numbers of ‘boots on the ground’, all of the United States’ post-2000 mili-
tary operations have been radically asymmetric. In Pakistan, Yemen, Soma-
lia and Libya they have arguably been ‘riskless’.9 The US’s operations in
Syria have involved some ground troops but have also relied heavily on the
use of precision airpower. Even in Iraq and Afghanistan a significant por-
tion of US military operations have been conducted according to the logic
of riskless warfare; in particular areas and/or at particular times this logic
has arguably been the dominant one. The lessons of this history are harder
to draw than one might have hoped due to the controversy about the justice
of the cause of the US in these wars and also about key empirical claims
about the consequences of the use of drones. Nevertheless, I believe it is
possible to draw a number of lessons about the practice of riskless warfare,
highly relevant to Kahn’s original two papers and to subsequent discussions
of the ethics of drone warfare.
Again, one clear lesson is that asymmetry is not solely the product of
drones. For instance, casualties amongst US ground forces in combat in
Iraq and Afghanistan have been a fraction of the casualties amongst the
insurgent forces against whom they have fought. This profound asymmetry
is generated by use of indirect fires, superior small arms, night vision equip-
ment, body armour, and rapid medical evacuation by helicopter, amongst
other technologies. Any conclusions we reach about asymmetry will there-
fore have wider implications than Kahn, with his emphasis on the use of
airpower, intended.
The evidence from subsequent conflicts also suggests that Kahn was
prescient in his worries about the implications of the pursuit of ‘riskless’
warfare for the safety of those in whose names we claim to fight. While
the figures on the number of civilian casualties due to drone strikes are
notoriously controversial, there is no doubt that drones have caused a
significant number of civilian casualties and there is some evidence that
drones cause more civilian casualties per strike than do manned aircraft
(Lewis and Holewinski 2013). This may well be because the capacities of
drones encourage their use to strike individuals, and targets of opportunity
more generally, in circumstances where a manned aircraft would not be
employed. A confounding factor here, though, is the identification of the
relevant counterfactual. Arguments about the ‘precision’ of drones often
proceed by drawing a contrast with the use of airpower in previous gen-
erations of conflict. If the alternative to a drone strike is saturation bomb-
ing from a B-52, drones will obviously be preferable. However, in some
cases, as suggested above, were it not for the availability of drones, particu-
lar targets might not have been attacked, especially where the struggle to
win ‘hearts and minds’ and/or domestic political opinion weighs against

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 22 / Robert Sparrow

causing civilian casualties. Assessing the extent to which the availability

of drones contributed to civilian casualties in any given attack therefore
requires assumptions about the existence and impact of alternative means
for pursuing military/political goals.
A similar dialectic is at play in discussions about the implications of
the desire to pursue riskless warfare for the number of civilian casualties
incurred in conflicts in which drones – or the use of precision airpower
more generally – have played a large role. Airstrikes may start wars, but
they seldom end them; conflicts that begin with airstrikes on military tar-
gets may continue via the use of small arms against civilians. The ongoing
civil war in Libya is the obvious case in point. More generally, as I discuss
further below, a reluctance to commit ground troops may result in conflicts
continuing where a willingness to accept friendly casualties might have
facilitated a rapid and decisive settlement. That being said, at least when it
comes to triggering wars, the opposite worry is also sometimes apposite: in
some cases, the use of ground forces might well trigger a broader conflict,
causing more civilian casualties, than the use of drones.
One lesson from the history, then, is that we need a better understand-
ing of the implications of the affordances of military technologies – and of
the ways these relate to political considerations – for the uses to which they
are put. Important normative arguments in the debate about the ethics of
riskless war turn on counterfactual claims that implicitly rely on assump-
tions about the affordances of drones and about the public’s tolerance for
casualties, both friendly and civilian, in the course of war. This intersection
of Science and Technology Studies and Political Science/Peace Studies is a
productive site for further investigation.
The historical evidence also seems to bear out concerns about the capac-
ity to wage riskless war lowering the threshold of war and undercutting
the democratic legitimacy of war. The two decades since the publication of
Kahn’s papers have been distinguished by the number of countries in which
the United States has conducted kinetic strikes. Drones have become the
‘go to’ tool for foreign policy whenever the US government has felt com-
pelled to ‘do something’ about undesired events unfolding elsewhere in
the world. While there is, admittedly, some controversy about the impact
of friendly casualty rates on domestic support for participation in war (see,
for instance, Gelpi et al. 2006, which also includes a useful overview of
the broader controversy), it is difficult to believe that the American public
would have tolerated such extensive military engagements abroad over such
long periods, especially in so far as these have all been ‘wars of choice’,
except for the fact that casualty rates have been dramatically reduced as a
result of the US preference for riskless war.10

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 Riskless Warfare Revisited / 23

Contra Beauchamp and Savulescu (2013), though, the increased will-

ingness of the US to use military force has not led to better outcomes
when humanitarian emergencies have occurred. While there are some
well-publicised incidences of drone strikes being used to avert particular
abuses (Vale 2017), one would be hard pressed to nominate an example
where the use of airstrikes has been associated with a reduction of the
number of human rights abuses in some territory or conflict. The case of
the 2011 NATO intervention in Libya, which Beauchamp and Savulescu
cite with some approval, has subsequently provided evidence for precisely
the opposite conclusion. There, as in Syria and Yemen, in the absence
of the willingness of the international community to commit substantial
number of ground troops, civil wars and insurgencies have continued –
and continued to generate human rights abuses – despite significant num-
bers of drone strikes. In fairness, Beauchamp and Savulescu’s argument is
explicitly couched as a promissory note about what might happen in years
to come as drone technology improves. To date, however, evidence of the
contribution that drones make to responses to humanitarian emergencies
remains thin. Indeed, if anything, the ability to respond with drone strikes
seems to reduce the political pressure on governments to take more effec-
tive action to respond to humanitarian emergencies.
There is, however, at least one interesting example where the involve-
ment of drones arguably increased the threshold of conflict. In June 2019
Iranian military forces shot down a US Global Hawk drone, which (they
claimed) had violated Iranian airspace while conducting surveillance oper-
ations (BBC 2019). Although the US initially responded by planning retal-
iatory airstrikes, these were quickly vetoed by US President Trump and a
campaign of offensive cyber operations was announced instead (Nakashima
and Sonne 2019). It is hard to imagine that there would not have been sig-
nificantly more pressure on the US president to respond with kinetic attacks
had Iranian forces shot down a manned aircraft. Whether the surveillance
flights would have been flown – or flown with the same mission priorities –
had an unmanned aircraft not been available is another question. However,
presuming that the answer to this question is yes, then the use of drones
instead of manned aircraft in this instance appears actually to have reduced
the risk of war.
Another lesson of the last two decades is that Kahn was right to draw
attention to the implications of the capacity to wage riskless war for the
institution of – and for our thinking about – sovereignty. As I noted above,
subsequent to the September 11 attacks the US claimed for itself the right
to use military force to disrupt the plans of those it identified as threat-
ening its interests no matter where they were located. While subsequent

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 24 / Robert Sparrow

administrations have backed away from defending this presumptive ‘right’

so aggressively in public, the US continues to conceptualise the use of
drones as a legitimate tool of foreign policy. Critics of the ‘global war on
terror’ have pointed out that the assertion of this right denies, or at least
discounts, the sovereignty of other states. However, it is now clear that the
implications of the capacity to wage riskless warfare for sovereignty are
radically uneven. A select group of states, primarily in Western Europe and
North America, have ‘real’ sovereignty. Everybody knows that the use of
force on their territories without their permission would be acknowledged
globally as an act of war, which would be responded to with a level of force
easily recognisable as war. But the rest of the world has no presumptive
immunity to the operation of drones. The capacity of powerful states to
wield force across the entire face of the globe has therefore arguably led to
the evolution of a two-tier international order.
In so far as sovereignty is a normative as well as an empirical notion, it is
difficult to clearly distinguish ‘theoretical’ from practical threats to states’ sov-
ereignty. Nevertheless, there is a sense in which the willingness of powerful
states to use force across national borders represents an external and concep-
tual threat to sovereignty. If they do choose to use force, of course, this consti-
tutes a practical, albeit still external, threat to sovereignty. However, in some
cases, drone strikes also pose a practical internal threat to the sovereignty of
the states in which they take place. The political consequences of a policy of
drone strikes may include the collapse of civil order and the onset of civil
war. This happened in Libya and worries about the possibility it might occur
again have played a significant role in foreign policy deliberations about the
use of drones in Pakistan and Syria. Note that if State A conducts military
operations, including airstrikes, within the territory of State B without State
B’s permission, this is itself sufficient to show that State B no longer possesses
a monopoly on the use of force within its territory. Should the public come
to believe that the state can no longer protect it from the predations of foreign
actors, this perception is likely to undercut support for the government and
increase the risk of civil unrest.
Kahn’s arguments about the role played by imagined communities and
differential weighting of human lives in the conduct of riskless war have
also, for the most part, been borne out by the history of conflicts since he
published them. As I noted above, Kahn suggested that the advent of riskless
warfare establishes – or perhaps just intensifies – two ethical and rhetorical
challenges when it comes to the justification of wars of humanitarian inter-
vention. According to Kahn, in the absence of risk to members of one’s own
political community, one could only be justified in the use of force against
those who are carrying out atrocities abroad if one was willing to expand

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 Riskless Warfare Revisited / 25

one’s sense of moral community to include those one intends to defend.

When one does this, a risk to them then becomes a risk to ‘us’ and so the
use of force may be justified. However, at the same time, because the use of
airpower will often elevate the risk to the lives of those on whose behalf we
intervene, an unwillingness to place ‘our’ own troops at risk implies that the
lives of those we claim to be defending are worth less than the lives of our
own citizens. This in turn undercuts the claims of intervening states to be
genuinely motivated by humanitarian concerns.
Both of these dynamics have been present to some degree at least in
arguments about the justification of military interventions in Libya, Syria
and Iraq. The outrages being committed against civilians in these con-
flicts were widely publicised at key points in the campaign to rally political
support for military interventions. Yet there has been little political will for
anything more than ‘riskless’ warfare, with the consequence that the situation
of the civilian populations in these countries has remained dire. The failure
of the international community to do more does indeed call into question
whether these interventions have genuinely been motivated by humanitarian
concerns rather than by realpolitik. Moreover, not only have civilians some-
times been exposed to more risk as a result of the US’s preference for remote
targeting on the basis of aerial surveillance over more demanding military
operations conducted on the ground, but also the US’s decisions about where
it chooses to employ drones suggest that not all human lives count the same
in their strategic and ethical calculations. For instance, while the US has been
willing to attack ‘terrorists’, with concomitant risk to civilians, in Yemen and
Somalia, it is hard to imagine them doing so in France or Germany. The avail-
ability of alternative means to arrest suspected terrorists or disrupt terrorist
plots in the latter states is, one suspects, only part of the explanation. As Uwe
Steinhoff (2013) has observed, the practice of riskless warfare seems essen-
tially continuous with a racist history of imperialism in which white people
assumed the right to settle the affairs of people with brown skin and tried
to do so by bombing them. It is, for instance, striking how few people with
white skin have been killed by drones in the last two decades.
One complexity here is that, as I observed above, the use of airpower
alone is not capable of protecting civilians from atrocities. Perhaps because
this is becoming increasingly obvious, the argument for the use of drones
has, to some extent, shifted from protecting the innocent to punishing the
guilty. It is the ‘evil’ of ISIS that has justified drone strikes rather than the
suffering of the civilian populations where ISIS has operated. Again, though,
one wonders whether there would be governmental or public support in the
US for these strikes except for the fact that they take place in the territories of
(what are, according to an essentially racist narrative) ‘savage’ peoples.

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 26 / Robert Sparrow

The Future of Riskless War?

War is in part a technological endeavour. New technologies have the poten-
tial to reshape the face of war. However, the timeline over which such
changes occur is uncertain and often longer than we expect. The modern
use of drones and the development of increasingly autonomous weapons
seem likely to prompt such a revolution in military affairs. While it is still,
in a sense, early days for the practice of riskless warfare, one thing its brief
history to date shows is that its impact on military culture and organisation
is likely to be profound. What does it mean to be a warrior when one no
longer needs physical courage to participate in war (Sparrow 2013; 2015a;
2015b)? What sorts of people, with what sorts of capabilities and strengths,
should militaries be looking to recruit to operate their drones? The amount
of philosophical and anthropological attention being paid to the idea of
‘moral injury’ at the moment (Enemark 2019; Kirkpatrick 2015; Lee 2018;
Meagher 2014) is one indication that various armed forces are already seek-
ing to recast courage as something that still has a central role to play in an
age of riskless war. The challenge of reimagining the warrior is only likely
to become more profound as drones and autonomous weapons become
more capable.
Kahn was one of the first people to draw attention to the challenges
posed by these technologies for the ethical framework we use to think
through the justification of war. With the benefits of two decades of hind-
sight we can now see just how prescient these early papers were. While, as I
have argued, the central claim about the role of risk in justifying the moral
privileges of combatants can now be seen to be mistaken, the observations
and provocations that Kahn made alongside of them have proved to be
incredibly productive in terms of the subsequent debate about the ethics of
drone warfare. When it comes to the future of the debate about riskless war,
then, we may still find things to learn from its origin.

Notes
I would like to thank Christian Enemark for the invitation to participate in the
‘Governing Drone Violence’ workshop in Southampton in 2019. I would also like
to thank the other participants in the workshop for discussion of the paper that
became this chapter: conversations with Daniel Brunstetter and Jesse Kirkpatrick
were especially helpful. Thanks are also due to Tony Coady, Larry Lewis and Mary
Ellen O’Connell, for correspondence and assistance over the course of the drafting
of this chapter.
1. Michael Walzer also published an essay ‘Kosovo’ in 1999 (Walzer 1999). The
only other competitor in this regard, Michael Ignatieff’s Virtual War: Kosovo and
Beyond, was published in 2000 (Ignatieff 2000).

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 Riskless Warfare Revisited / 27

2. Roughly speaking, the principle of distinction requires that combatants only

directly target other combatants or objects that have a clear military role, while
the principal of proportionality requires them to use only the amount of force
required to achieve their military objective.
3. Kahn later expanded on this idea in a 2013 paper, ‘Imagining Warfare’ (Kahn
2013): I regret that space restrictions prevent me from treating that discussion
in the current context.
4. As we will see below, even in this case war would involve risk to the interests of
the warring states.
5. It is worth observing that there is significant controversy about the extent to
which Walzer’s account itself revises rather than accurately reflects the history
of the Just War tradition.
6. Kahn himself acknowledges this in later work (Kahn 2013).
7. It is worth observing that it is possible, perhaps even likely, in some cases
that the United States did in fact have permission from the government of the
relevant territory to conduct drone strikes, although those governments denied
this publicly in order to avoid domestic political backlash.
8. British forces have also been involved in ‘riskless warfare’ in Afghanistan and
Syria, as have French forces in Libya and Mali. There is also, of course, a long
history of the use of drones by Israel in Palestine, Syria, Egypt, Lebanon and
Iran. For reasons of space I shall concentrate here on those lessons that might
be drawn from the history of the US’s engagements.
9. In so far as these campaigns have also involved covert operations by Special
Forces on the ground, ‘risk’ here is a matter of degree. Nevertheless, it is plau-
sible to hold that these campaigns were conducted in the expectation that it
would be possible to dramatically reduce friendly casualties by prioritising
attacks that could be conducted from the air.
10. In this context, the distinction between risk-free and asymmetric warfare is
important – at least at the level of the imaginary of war. As the US experience
of its invasions of Vietnam, Iraq and Afghanistan attest, asymmetric wars still
generate friendly casualties. ‘Risk-free’ warfare, by definition, does not. When it
comes to the initial level of public support for going to war, it is not the actual
numbers of casualties but rather the imagined casualties that are at issue. As
conflicts proceed, the actual casualty rates become increasingly important for
the level of public support for war.

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 TWO

Jus ad Vim and Drone Warfare: A Classical Just

War Perspective
Christian Nikolaus Braun

Introduction
One of the most contentious developments in contemporary interna-
tional relations has been the increase in uses of ‘force short of war’, such as
targeted killings, limited retaliatory drone strikes or the imposition of
no-fly zones (see, for example, Ford 2013). On the one hand, in so far as
it signals greater constraint, the shift away from the mechanised slaughter
of modern warfare towards more calibrated applications of force may be
hailed as a step in the right direction. On the other, because force short of
war appears more compartmentalised and therefore containable, it may
encourage greater profligacy on the part of states in respect of the recourse
to arms. Just War theory, the predominant moral framework for addressing
the ethical questions that warfare provokes, has struggled to make sense
of force short of war. Not only has one possible response, Michael Wal-
zer’s suggestion of jus ad vim (the just use of force short of war), been
hotly debated, but this suggestion has also become a discursive ‘battlefield’
in the ‘war of ethics within the ethics of war’ (Vaha 2013, 183) between
Walzerian and revisionist Just War thinkers.1 For example, Helen Frowe
(2016) and Daniel Brunstetter (2016) have disagreed about the moral pur-
chase of jus ad vim, with the former critiquing the concept from a revisionist
perspective as being redundant, and the latter, arguing in Walzer’s terms,
continuing to support the viability of the suggestion.
In this chapter, as a contribution to ethical thought about armed drones,
I argue that the debate about the use of force short of war would benefit
from a third way approach to Just War that sides with neither Walzerians nor
revisionists all of the time. On the basis of the classical Just War thinking of

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 32 / Christian Nikolaus Braun

St Thomas Aquinas, I support revisionists in their critique that jus ad vim as

a distinct moral framework is redundant. At the same time, however, I side
with Walzerians who argue that force short of war puts the principles of Just
War, in the way they are commonly applied today, under pressure. What is
needed, I assert, is not a distinct new moral framework, but a renegotiation
of Just War principles in the light of novel circumstances. I illustrate my argu-
ment by providing a renegotiation of the three deontological jus ad bellum
criteria – sovereign authority, just cause and right intention – with regard to
one of the most controversial contemporary military practices: drone-based
targeted killings.

Jus ad Vim as a Distinct Moral Framework

In the preface to the fourth edition of Just and Unjust Wars, Walzer (2006a,
xv–xvi) introduced a novel moral framework in response to the measures
taken by the US and its allies against the regime of Saddam Hussein prior
to the 2003 invasion of Iraq. In what he called jus ad vim, Walzer pondered
over a theory governing the just use of force short of war. In his treatment
of counterterrorism policies, on which most of the jus ad vim debate subse-
quently concentrated, Walzer (2007, 484) observes that there is a ‘different
“feel”’ to such operations as they are neither outright acts of war nor acts of
peacetime policing. Consequently, Walzer (2006b, 12) argues that ‘we can’t
stop with just war theory’, identifying a need to ‘maneuver between our
conception of combat and our conception of police work, between inter-
national conflict and domestic crime, between the zones of war and peace’.
He thus abandons the strict distinction between two moralities which he
continues to uphold for what he sees as a clear dichotomy between war and
peace, and his ‘maneuver’ between these two moralities gives birth to jus ad
vim as a distinct third moral framework.
Only ten days after the 9/11 attacks, Walzer (2001) distinguished
between a ‘metaphorical war’ against terrorism and the ‘real thing’, expecting
that the line between policing and war paradigms would become blurred.
In order to demonstrate the difficulty of applying either paradigm, Walzer
provides an example which illustrates his idea about jus ad vim. Referring
to a US Hellfire missile strike against five alleged al-Qaeda militants driving
in a van in the Yemeni desert in 2001, Walzer (2006b, 10) hypothetically
transfers the strike to Afghanistan, a zone of war where the United States
was engaged in armed conflict, and to Philadelphia, a zone of peace within
the US itself.2 Had the attack happened in Afghanistan, Walzer reasons, it
would have been justified to directly target terrorists as enemy combatants,
as ‘It is part of the awfulness of war that people actively engaged on the

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 Jus ad Vim and Drone Warfare: A Classical Just War Perspective / 33

other side can legitimately be killed without warning’ (2006b, 10). Had the
attack happened in Philadelphia, however, Walzer asserts that the policing
paradigm would have had to be applied: ‘In Philadelphia, the (suspected)
terrorists would have to be arrested, arraigned, provided with lawyers, and
brought to trial. They could not be killed unless they were convicted – and
many Americans, opposed to capital punishment, would say: Not even
then’ (2006b, 10). With regard to the Yemen attack, Walzer (2006b, 11)
provides the moral rationale behind jus ad vim as a hybrid between war and
policing paradigms:

Yemen is somewhere between Afghanistan and Philadelphia. It isn’t a war

zone, but it also isn’t a zone of peace – and this description will fit many, not
all, of the ‘battlefields’ of the ‘war’ against terrorism. [. . .] The Yemeni desert
is a lawless land, and lawlessness provides a refuge for the political criminals
called terrorists. The best way to deal with the refuge would be to help the
Yemeni government extend its authority over the whole of its territory. But
that is a long process, and the urgencies of the ‘war’ against terrorism may
require more immediate action. When that is true, if it is true, it doesn’t seem
morally wrong to target Al Qaeda militants directly – for capture, if that’s
possible, but also for death. Yemen in this regard is closer to Afghanistan
than to Philadelphia.

Under circumstances as found in Yemen, the concept of jus ad vim might

function as justification for counterterrorism operations; although legally
acts of war, jus ad vim actions should not be judged in the same way as
actual war because the lethal force employed resembles neither the quan-
tum nor the duration of traditional warfare (Walzer 2006a: xiv). Unfortu-
nately, Walzer never elaborated in any greater detail on his idea of jus ad
vim. This task has been taken on by a new generation of Just War thinkers,
of whom Daniel Brunstetter (see, for example: Brunstetter and Braun 2013;
Brunstetter 2019) has been the most prolific. I believe that the importance
of this task is increasing as the use of armed drones (arguably a type of vim)
increases worldwide.

Jus ad Vim and the ‘ War of Ethics’

Walzer’s interpretation of the Just War has been challenged ever since he
first put forward his argument in 1977. Most of his contemporary critics
work within the analytical tradition of moral philosophy and have thor-
oughly investigated his argument (see, for example: McMahan 2009; Frowe
2014). Employing Rawls’s method of reflective equilibrium, revisionists start
from Walzer’s Just War idea as the ruling theory that must be scrutinised for

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 34 / Christian Nikolaus Braun

logical incoherence and pursue the goal of constructing a better theory. The
primary target of these thinkers is the prominent role Walzerians award to
the state. Revisionists reject the domestic analogy, which presumes that the
relations between individual human beings and states are alike, and allocate
moral responsibility for killing in war to individuals, not states. Their hope
is to discredit Walzer’s Just War theory, which Frowe (2014, 13) describes as
‘a very state-based, collectivist approach to war’, and to argue for a ‘reductive
individualism’ which is reductivist because revisionists hold that the rules
which regulate killing in war are the same as those regulating interpersonal
killing outside of war. The core argument of reductivism is that there exists
only one set of moral principles which applies all the time, rather than dis-
tinct principles for different moral domains such as war and peace. At the
same time, revisionists are individualists as they argue that moral theory
must concentrate on individuals rather than collectives such as states.
Given this conviction that there is only one morality, Walzer’s call for jus
ad vim as a distinct third moral framework besides those of war and peace
inevitably triggered a negative response from revisionists. That critique was
provided by Helen Frowe, who assessed Walzer’s idea of jus ad vim as elabo-
rated by Brunstetter and his co-author Megan Braun. Not surprisingly, as
for revisionists there is no moral difference between the conditions of war
and peace, Frowe (2016, 122) detects an unnecessary concentration on the
question of whether a specific use of force counts as war or not. Moreover,
she (2016, 119–20) criticises Brunstetter for considering the jus ad bellum
principles as a ‘one-off judgment’ which only needs to be met at the onset
of war, while, if interpreted correctly, they must continuously be reassessed
as long as the war lasts. Most importantly, Frowe (2016, 123–6) argues that
jus ad vim, as a distinct moral framework besides jus ad bellum, is ‘redun-
dant’; the existing jus ad bellum framework can appropriately judge uses of
‘force short of war’. In his rebuttal, Brunstetter situates the conversation
about jus ad vim within the wider debate between Walzerians and revision-
ists. Brunstetter (2016, 131) asserts that Frowe’s understanding about the
use of force derives from a worldview that is ‘fundamentally’ different from
his. In particular, he takes issue with the revisionist claim that there is no
moral difference between the state of war and the state of peace. Brunstetter
(2016, 131) further rejects the rights-based liability account which revision-
ists propose instead.
Overall, despite their exchange about substantive aspects of jus ad vim,
a reader who does not associate themselves with either camp cannot fail to
notice that the conversation between the two authors seems rather narrow
as a consequence of the ‘war of ethics’. Moral debate about the worrisome
expansion in the use of force short of war would thus benefit from a third

6686_Enemark.indd 34 19/11/20 1:57 PM

Another random document with
no related content on Scribd:
 —Si vous pensiez aux morts, pourquoi étiez-vous si joyeux?
Cette droite réplique me décontenance.
Elle sent son avantage, et comme un bon combattant s’empresse de
redoubler l’attaque:
—Je répète ma question: pourquoi regardez-vous, en dansant, le chemin
de fer de Mureiro Vanelli, et, en fronçant les sourcils, la fille de Mureiro
Vanelli? J’ai peur que vous ne soyez injuste et pour mon père et pour moi,
monsieur de Tourange... Il n’y a que deux choses qui aient de la valeur au
monde, l’intelligence des hommes, et la beauté des femmes. Il y a plus
d’intelligence dans la tête de papa que dans tout un troupeau de
fonctionnaires et de subalternes, et, s’il se sert de cette intelligence pour
glorifier la beauté de sa fille, j’ai le droit d’en être fière... Non, ne soyez pas
injuste... ni ingrat. Si je l’avais voulu... non, j’allais dire une banalité... Vous
êtes intelligent, certes, mais j’aurais voulu vous donner le goût de la
domination, de la conquête... Qui veut conquérir le monde, qu’il conquière
la femme d’abord!
Elle parlait, elle parlait... mais, je n’entendais pas son babil. Seul me
touchait l’éclair de ses yeux éclatants, et l’haleine, l’haleine rôdeuse,
l’haleine embaumée...
Et ma joie, la sainte joie de mes entrailles, ma bonne joie d’ouvrier
agonisait devant l’horrible désir de la prendre, celle-là, de la clouer, toute
frémissante, contre l’œuvre, comme une bête maléfique et merveilleuse...
Il y eut, dans ses prunelles batailleuses, comme un éclair de triomphe et,
entre ses dents serrées, comme un grincement. Mais, comme je pliais sa
taille, comme ma bouche forçait ses lèvres, un éclat de rire brutal nous
redressa brusquement et Vigel bondit.
Je lâchai madame de Faulwitz, et fis un pas vers l’intrus. Une minute,
nous nous regardâmes, presque épaule contre épaule. Il était grand et
souple, mais, je le dépassais en hauteur et en largeur, et je me rappelais le
jour où j’avais si bien lancé le pauvre Moutier contre les troncs des trams...
Et je me disais que, pour un rien, ce n’est pas dans cette direction mais dans
l’autre, du côté de la fausse pelouse, où l’on enfonce si bien, que le
camarade Vigel serait expédié.
A deux pas, ayant rajusté son feutre, madame de Faulwitz souriait et
jouait avec son sautoir. Alors, tout à coup, Vigel se retourna vers elle.
 —Ah! vous en êtes venue à vos fins! Il vous fallait le rouler celui-là
aussi... Joliment bien combiné, le rendez-vous! Mais, halte-là, j’interviens
cette fois... J’interviens dans votre carrière galante.... Il y a longtemps que
j’aurais dû le faire! j’aurais dû vous écraser la tête, la première fois, vous
rappelez-vous, sur la bonne glace du Peï-ho... ou encore à Saïgon, quand je
voulais vous poignarder sur la belle terre rouge... Elle aurait bien bu le
sang!
Je m’approchai, pour le prendre au collet. Mais Elsa Vanelli, qui n’avait
pas bronché, m’arrêta d’un signe. Elle haussa les épaules et dit froidement:
—Dummkopf!
Puis, avec un rire léger:
—Oh! tous ces hommes, quels vaniteux! Le voilà qui parle de rendez-
vous. Alors, vous croyez que c’est pour vous, Vigel, ou pour Tourange que
je suis ici? Non, mon cher, non... Pour qui? Vous voulez le savoir? Suivez-
moi, je n’y vois aucun inconvénient.
Elle assura le pli de sa jupe, ouvrit son ombrelle et s’en alla
tranquillement, tandis que nous restions sur place, en vérité un peu penauds.
Quand elle eut marché quelques mètres, elle se retourna et fit claquer ses
doigts, comme on appelle un chien; et cela brisa notre immobilité, nous la
suivîmes.
Le soleil maintenant blanchissait le ciel, gonflait l’énormité de la nue,
rapetissant, écrasant la digue sur la surface couleur de rouille. Un cou de
canard émergeait comme un crochet de fer. Je reconnus bien vite l’endroit
où nous conduisait madame de Faulwitz. Un bouquet de lataniers, un
tournant, une haie de lianes aux éternelles grappes teintes... Voici l’enclos
où, à l’ombre de son palmier à sucre, dort Justus Barnot. Une herbe
miraculeusement haute l’emplit et déferle sur les îlots rectangulaires des
tombes. Toutes lavées, toutes nettes, on dirait fermées d’hier, sont ces
dernières, et, de grandes gerbes multicolores et parfumées, une profusion de
fleurs, toutes luisantes encore de leur bain d’aurore, chamarrent l’uniformité
grise de leurs dalles. Dans un coin stationnent, brancards baissés, trois
larges brouettes vides, et, tout auprès, une équipe de trois coolies, sous la
surveillance d’un marin du Lotus, s’occupe à redresser une croix sapée par
les pluies.
Madame de Faulwitz nous regardait, et son regard disait: «Voilà ceux
pour lesquels je suis venue!»
 Mais aucune parole ne sortait de ses lèvres. Après une courte pause à
l’entrée, elle se dirigea droit vers la tombe de Just Barnot, l’homme du
comte de Faulwitz, et, dégageant sous les fleurs un coin de la pierre, s’y
agenouilla.
Quand elle fut relevée, elle vint se placer entre nous deux, et tous trois,
silencieux, reprîmes le chemin de la digue.
Un oiseau se mit à chanter sur un mode étrange. Des corbeaux et des
hérons s’envolaient, comme en s’étirant, du somme paresseux des
feuillages.
Nous avions l’air de rêver tous trois.
A hauteur de la véranda de ma sala, je fis halte, et mes deux compagnons
m’imitèrent. Avant que j’aie pu ouvrir la bouche, madame de Faulwitz
s’était écartée d’un pas, et, d’une voix inattendue, de la voix posée,
sérieuse, d’une amie loyale, un tantinet «grande dame», un tantinet
«patronne»:
—Il y a eu beaucoup de morts, dit-elle, il est juste que les vivants soient
récompensés, et je suis sûre que papa le fera... le fera comme je le lui
demanderai... Monsieur de Tourange, on ne peut rien pour vous, que vous
souhaiter l’avenir de Dieu; mais, vous, Vigel, venez me parler.
Il se rapprocha vivement d’elle, et, tandis que je me détournais pour
vérifier le tas de mes bagages empilés sous l’auvent de la véranda, je les
entendis qui causaient en chinois.
La fin de l’entretien vint à mes oreilles, au moment où je reparus sur le
chemin, mais en paroles françaises, prononcées à très haute voix par
madame de Faulwitz:
—C’est convenu. Voulez-vous me ramener auprès de mon père? Une
locomotive est là... Vous savez, je pense, la conduire?—ajouta-t-elle avec
un sourire.
Et Vigel s’inclina.
Je les accompagnai jusqu’à la voie. Vigel bouscula vers la gauche le
mécanicien annamite et mit la main au volant de la coulisse.
—En arrière, d’abord, dit madame de Faulwitz, en lui touchant l’épaule
du manche de son ombrelle, je veux voir les bords de la troisième rivière.
Les roues grincèrent et, lentement, la noire machine recula, comme un
buffle ébloui.
 —Adieu, me crièrent-ils ensemble.
Je tirai ma montre. J’avais deux heures au moins avant le départ de mon
convoi. Je songeai alors soudain qu’il y avait une autre femme à Chang-
préah, à qui mon adieu était dû. Et incontinent je me mis à la recherche de
Fagui.
Le sort de la folle avait été provisoirement réglé, quelques jours
auparavant, à la suite d’une conférence entre le docteur, Vallery et moi. Le
docteur nous avait répondu d’une maison à Marseille, où les soins donnés
permettraient d’espérer la guérison; et, pour la dépense, Vallery, au nom de
la Compagnie et en souvenir de M. Lacroix, moi, au nom de l’amitié et en
souvenir de Moutier et de Lully, nous étions engagés à y pourvoir.
Fagui n’avait plus qu’une semaine pour se promener sur le ballast, et
pour jouer avec les reflets des rails; et j’étais bien sûr de la trouver quelque
part entre la digue et le terminus.
Je n’avais pas fait deux cents mètres que je distinguais la tache claire de
sa robe, sur l’autre bord de la voie, à hauteur précisément de ce fameux
aiguillage où Vigel rêvait naguère, avec candeur, d’un beau patapouf du
train officiel. Je continuai mon chemin le long de la digue, et, quand je
parvins à portée de voix, je l’appelai par son nom, en agitant mon casque.
Elle ne parut pas m’entendre et garda sa position bizarre.
De loin, j’avais cru la voir accroupie, maintenant je discernais qu’elle
était debout, mais penchée en avant, le cou tendu, guettant je ne sais quoi...
Instinctivement mon regard suivit la direction ainsi surveillée, et j’aperçus,
au débouché de la forêt, la fumée d’une locomotive—sans doute, celle de
Vigel et d’Elsa.
Revenant à Fagui, j’éprouvai un certain malaise à constater que la main
de la folle s’appuyait sur le levier de l’aiguillage. Je savais ce dernier
heureusement bloqué, mais, néanmoins, me hâtai de répéter mon appel:
«Fagui! Fagui!» Ce qui lui fit redresser le buste, mais ne sembla point la
décider à abandonner son poste.
La locomotive arrivait comme une charge de buffles, et, craignant que la
pauvre femme ne se lançât imprudemment à la dernière minute, je courus
moi-même pour traverser la voie. J’entendis sur ma droite le déchirement
du sifflet à vapeur, et, devant moi, comme en réponse, le cri lamentable, le
cri suraigu, qui imite celui de la grenouille prise... La folle se tint une
seconde toute raidie, les deux mains crispées à la tige de fer, et soudain,
avant que j’eusse pu bouger un doigt, le levier de l’aiguillage décrivait un
arc de cercle.
. . . . . . . . . . . . . . . .
Nos locomotives du Siam-Cambodge n’étaient pas des joujoux à la
dernière mode. Elles avaient encore pour la contre-marche, en cas de
catastrophe imminente, le bon vieux levier à renversement; et, pour faire
marcher cette mécanique, en moins de deux secondes, sans oublier le
robinet du régulateur, il fallait une adresse, une vigueur, une décision dignes
d’un maestro du métier—dignes du directeur en chef des Railways du
Siam-Haut-Cambodge qu’Henry Vigel, le bien récompensé des gens du
kilomètre 83, est aujourd’hui.

XX
Saïgon.
Ainsi, voici la ville où naguère, sous le retentissement sourd du soleil
équatorial, j’écoutais chanter, avec orgueil, la force de mon sang, la force de
ma race! Mais, aujourd’hui, quelque chose est éteint. Trop de morts, peut-
être, trop de morts! C’est comme une cendre brûlante qui pleure à l’heure
de la sieste, sur les beaux jardins noirs.
J’éprouve une lassitude funèbre, un désir de fuir, et en même temps une
peur veule d’être retenu à la dernière minute, d’être ligoté, moi aussi, dans
ce grand voile de torpeur qui plane... Et je ne veux pas! Je veux m’évader
de cette Cochinchine plate et sans espaces, de ce radeau étouffant, près
d’être submergé par les eaux limoneuses!
J’ai demandé des nouvelles d’Hervé de Sibaldi. On m’a montré la
direction de la rue de Bangkok et des longs saos du cimetière. Madame de
Sibaldi, opérée d’un fibrome, est restée sur la table d’opération. Le
lendemain, le boy a trouvé Sibaldi dans sa chambre à coucher... Le revolver
était de tout petit calibre, et la cervelle avait dû mettre un long temps à
glisser par le trou. La figure était affreusement crispée. Il aimait cette
femme à ce point?
Mon interlocuteur sourit.
—Il était au-dessous de ses finances; et ce pirate d’A-phat l’avait engagé
dans certaine affaire d’assurances franco-chinoises dont il lui était difficile
de sortir autrement que par la porte qu’il a choisie. C’est la ville qui a payé
les obsèques, et tous les Saïgonnais, je dois le dire, étaient derrière le
corbillard. M. A-phat montra de l’esprit d’à-propos, en se faisant prescrire
par son médecin, d’urgence, une cure d’air à Singapore.
. . . . . . . . . . . . . . . .
Je m’embarquai le soir même. Je restai toute la soirée accoudé au plat-
bord. Au-dessous de moi, clapotait l’eau visqueuse, le sang obscur de
l’artère gonflée par la marée. Quelle singulière idée d’avoir bâti une ville,
là, parmi les palétuviers infects! Une idée de marchands, évidemment, qui
savent ausculter la terre et la piquer aux points sensibles, ainsi que les
fourmis, dit-on, agissent avec leurs proies! Je me souviens... J’admirai,
naguère, qu’elle ne fût pas posée vaniteusement en étage, mais à plat, et
selon le dessin d’un arc. Où est-elle la flèche vibrante de cette machine
bandée par l’intérêt, par la passion, par le rêve? Je ne vois plus la pointe.
Quelque chose est irréparablement détendu.
Notre bateau s’en fut sournoisement, sans tapage, glissa sur le tortueux
cheminement noir. Depuis longtemps, les passagers étaient couchés.
Solitaire je restai sur le pont, à regarder distraitement apparaître sur ma
droite, puis sur ma gauche, au gré du balancement des sinuosités du fleuve,
l’éparpillement d’or des lumières de Saïgon. Elles s’amincissaient à chaque
oscillation, se groupaient, s’incrustaient dans la barre obscure de l’horizon
—pareilles à ces clous de cuivre qui brillaient avec une signification
incertaine, sur la canne dont mon ami Moutier avait soutenu ses derniers
pas. . . . . . . . . . . . . . . . .
En mer.
Et maintenant?...
Maintenant que mon vieil An-hoan n’est plus là, pour dégager le signe
essentiel!...
Une enveloppe est sous mes yeux et son adresse est écrite:
R. P. du May
Mission catholique de Shanghaï

Chine.
Et ma main court sur le papier:
«... Père, je ne suis pas un blasphémateur, je suis un suppliant.
 »Je suis un homme de bonne volonté.
»Père, voici ma foi. C’est la foi des hommes au visage pâle, des civilisés.
Ils savent que la terre leur a été donnée pour être devant eux comme une
boule de glaise, et qu’il leur faut la repétrir. Ils savent qu’il faut appliquer la
règle et l’ébauchoir, mesurer, tracer, couper... Mais ils ne savent pas selon
quel modèle, selon quel dessin. Faites bien attention. Père, ce qu’ils
demandent tous, ces bons ouvriers, c’est une grande épure, ce n’est pas un
manuel d’apprentissage, ni un règlement de chantier!
»Père, quand Moïse fit construire l’arche, Beséleel et Ooliab surent, que,
pour plaire au Seigneur, il fallait «dix rideaux de vingt-huit coudées de long
et quatre de large, en fin lin retors d’écarlate deux fois teinte», et «que
chaque ais devait être assemblé à rainure et languette, et qu’il en fallait
vingt du côté méridional qui regarde le vent du midi.»
»Mais quel Beséleel nous dira ce qu’il faut pour que notre œuvre, qui
regarde les alizés et la mousson, soit agréable à notre Seigneur? Où est-il,
celui-là à qui «le modèle a été montré sur la montagne»?
»Père, devant le grand Silence, savez-vous ce qu’ont dit beaucoup de
mes frères? Ils ont dit: «L’homme est fait à l’image de Dieu et à sa
ressemblance. Faisons de la terre le temple de l’homme, et ce temple sera à
la meilleure ressemblance du temple de Dieu. Le plan de Dieu est en nous,
selon les lignes de nos désirs; et l’œuvre de nos mains, servant notre désir,
est divine.»
»Je ne suis pas de ceux-là, Père. Ma devise est la vôtre, je veux qu’il soit
visible, éclatant, que je travaille ad majorem Dei gloriam... Mais comment
le puis-je? Car j’ai peur...
»Père, j’ai peur de faire du mauvais ouvrage.
»J’ai lu sur la pierre d’une tombe de moine ces mots redoutables:

Si operarete bene
Averete il paradiso.
Averete il inferno
Si operarete male.

»Je veux «œuvrer bien». Dites-moi où je puis lire le plan, où je trouverai

l’épure et la légende?»
 Je m’arrête. Je regarde par le sabord l’éclat d’une constellation
inconnue... La plume tombe de mes mains. A quoi bon? Je sais bien
d’avance ce que me répondra le Père, et que cela ne me satisfera point.
«Vous voulez bien œuvrer, mon ami, vous vous défiez des mauvais
monuments; mettez donc une petite croix au-dessus de celui que vous
entreprenez... Dieu reconnaîtra les siens!»
Et puis, il y a mon péché, dont je ne me repentirai point. Mon péché du
bord du marais, quand la grande barre de lumière éventrait la digue, et que
tout étincelait, et que tout le cercle de bronze de la forêt grondait de mon
triomphe et de mon orgueil. Mon péché!... alors que j’ai compris la joie, et
que ce n’était rien de tomber, comme un enfant maladroit, en courant, les
dents serrées et les yeux fous vers Elle.
Ma main hésite, rature, froisse. Mon regard s’hypnotise sur le carré noir,
fulgurant d’étoiles, et puis, sur le tout petit carré blanc qui porte une
adresse... J’hésite... Un «fluit» léger, à peine comme d’une aile de mouette
effleurant l’eau, et, sans doute quelques bulles de phosphorescence qui ont
rejailli...
Comme la nuit est belle!

FIN

E. GREVIN—IMPRIMERIE DE LAGNY—3197-4-13.

DERNIÈRES PUBLICATIONS
Format in-18 à 3 fr. 50 le volume
Vol.
ADOLPHE ADERER
Amours de Paris 1
BARON DE BATZ
Vers l’Échafaud 1
RENÉ BAZIN
Davidée Birot 1
 E.-F. BENSON
Rose d’Automne 1
HENRY BIDOU
Marie de Sainte-Heureuse 1
RENÉ BOYLESVE
Madeleine Jeune Femme 1
LOUISE COMPAIN
La Vie tragique de Geneviève 1
LOUIS DELZONS
Le Maître des Foules 1
MARC ELDER
Marthe Rouchard, fille du peuple 1
ANATOLE FRANCE
Les Dieux ont soif 1
LÉON FRAPIÉ
La Mère Croquemitaine 1
J. GALZY
L’Ensevelie 1
GYP
Fraîcheur 1
JULES LEMAITRE
Chateaubriand 1
LOUIS LÉTANG
L’Or dispose 1
RAYMONDE LORDEREAU
Vaincue 1
PIERRE LOTI
Un Pèlerin d’Angkor 1
JEANNE MARAIS
Nicole, courtisane 1
PIERRE MILLE
Louise et Barnavaux 1
ÉMILE NOLLY
 Gens de Guerre au Maroc 1
J. NORMAND
Regardons la Vie 1
RICHARD O’MONROY
Pour être du Club 1
GASTON RAGEOT
A l’Affût 1
CLAUDE SILVE
La Cité des Lampes 1
MARCELLE TINAYRE
Madeleine au Miroir 1
FRANZ TOUSSAINT
Gina Laura 1
ROBERT DE TRAZ
Les Désirs du Cœur 1
JEAN-LOUIS VAUDOYER
La Maîtresse et l’Amie 1

NOTES:
[A] Maison cambodgienne et siamoise.
[B] Cigares.
[C] Petit enfant annamite.
[D] Appellation honorifique du roi de Siam.
[E] Variété de chevreuil particulière à l’Indo-Chine.
[F] Races d’Indochine, non annamites, habitant de préférence la forêt.
[G] Chimères dont il est question dans les Râmayana, employées couramment
dans l’ornementation architecturale khmère.
[H] Écriture phonétique inventée par les premiers Pères missionnaires portugais,
pour la transcription de la langue annamite, et encore officiellement en usage en
Indochine.
[I] Pour cai-nha, maison annamite.
[J] Véhicule, pousse-pousse.
[K] Cuisinier.
 [L] Littéralement enfant-pankah.
[M] Bandar-log, peuple des singes. Voir le Livre de la jungle, de Kipling.
[N] Démons familiers de la croyance populaire annamite.
[O] Serpent polycéphale, motif essentiel de l’architecture khmère.
[P] Pierre de Bien-hoa, pierre rouge employée en Cochinchine pour la construction
et pour l’entretien des routes.
[Q] Le cimetière de Saïgon est au bout de la rue de Bangkok.
[R] Riz non décortiqué.
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