Drones can't commit crimes

So, who is responsible?

We need international treaties on armed drones and an authority to enforce those agreements, argues US Marine and Leiden PhD student James Welch.

(Het originele Nederlandstalige artikel staat hier)
The Americans and British thought that Muammar Gaddafi had left the country, but in reality, the Libyan dictator gave himself away. They intercepted a phone call: he’s still in Sirte and about to flee. So when a column of some hundred vehicles set off, the Western army commanders knew: there he goes. An American Predator drone, a tiny aircraft controlled by a pilot in Nevada via a satellite connection, was launched from Sicily.

The drone shot some Hellfire anti-tank missiles at the convoy and Gaddafi ran from his car into a free-standing building that happened to be occupied by Libyan rebels, who tortured him and then shot him.
Gaddafi was the worst kind of thug, a rapist and responsible for torture and slaughter of many people; he also backed international terrorism with financial aid. Nonetheless, the drone attack was controversial, as James Patrick Welch, a legal expert on drones, explains.

“You might argue that he was the army commander, but at the time he was on the run and no longer an actual threat. Fleeing is a kind of surrender. There are people who claim this was a targeted killing and not an assassination, but they are really blurring the lines there.”

Welsh (1955), an American, has led a “very active and adventurous life”, as he calls it. Nowadays, he trains police officers in Belgium and Abu Dhabi, but back in the seventies he was a member of the US Marine Corps. He has also served in warzones in Iraq and Afghanistan training the Military Police. “Two cars full of explosives rammed the wall of the base in Afghanistan where I was stationed and blew it up, then men with guns came running through the hole in the wall – America had to give up the base.”

“I recall my first encounter with an armed drone.” Welch writes in his thesis. He was serving in Iraq at the time. “It was heavily laden with Hellfire missiles as it buzzed close by, just above my head. I was driving close to the landing strip and, despite being on the ‘just side’, there was something remarkably eery about the experience, that sent a shiver down my spine. That experience, and other ones like it, allowed me to comprehend and relate, at least marginally, the sort of psychological trauma faced daily, by many, both guilty and innocent alike.”

Last week, he faced another kind of opponent, one that is new to him: the opposition committee at his doctoral defence. His dissertation has the thriller-like title The Grotius Sanction: Deus ex Machina and discusses the legal and ethical aspects of drones used in war and counter-terrorism. Its most important recommendation is international regulations for the use of armed drones, which requires an international institution that has the actual power and authority to enforce those regulations.

“The treaties should at least recognise that war in the twenty-first century is completely different from anything that has gone before”, Welch continues. “The time of huge armies in distinctive uniforms meeting on the battlefield is gone. We need a clear, common language because one person’s pre-emptive self-defence is another’s unbridled aggression. Thirdly, nations must be able to defend themselves against these new threats, but that response should be proportionate and subject to international law. It should also be possible to hold them to account for any violations. The law should apply to everybody, or it the law for none.”

If the rest of the world wants these rules and enforcement too, it’s high time we did something about it. The United States already have a fleet of ten thousand Unmanned Combat Aerial Vehicles (military people are bit disdainful of the term “drone”) and another fifty countries also have them or are working on it. The Dutch army, too, have ordered a range of drones, intended for reconnaissance for the time being, but the airforce’s four largest ones could be fitted with weapons.

There’s another reason to get a move on – according to Welch, it’s only a matter of time before drones and other armed robots are fully autonomous. “That raises entirely new questions about responsibility. Something is only a crime if there is a mens rea: the intention to commit a crime. A machine does not have intentions, so it can’t commit a crime. So, who is guilty if something goes wrong? The programmer? The commander who dispatched the robot? The politician who controls the commander? Or do they share the guilt?”

Ethics, argues Welch, should be the principle on which drones, especially fully autonomous ones, are built instead of some thoughts on the problem in hindsight when the hangar door is already wide open. “So far, that’s not been the case: the makers simply wanted to fulfill a tactical demand. We can already see the consequences of that: the Iranians managed to capture an American recon drone and now they say they have reverse engineered it.”

In Welch’s opinion, humans should always be in the loop somewhere, particularly for killing operations. “We give the robots a license to kill, based on their analyses. But machines do not have our emotional intelligence, so they can’t interpret the question of whether something is a legitimate target. How do you surrender to an autonomous drone, for example? Can it comprehend surrender?”

The biggest ethical issue, one that is already a problem, is that they are very cheap, in political terms. Yes, innocent people are killed, but drones still do a better job than bombs or missiles. “We don’t actually know how many innocent people have become victims. The media can’t reach the places that are attacked so they have to obtain news from local, often tribal sources. Of course, the guns are removed from the victims before they take the picture, so everyone seems innocent.

Another – even greater – political advantage is that if the pilot is not in the aircraft, you don’t have to deal with dead pilots, obviously increasing the temptation to deploy drones more often. “Former President Obama, for all his Nobel Peace Prize, was the real king of drones. He ordered huge volumes of drone attacks, even though you just create more enemies and terrorists if you deploy drones indiscriminately. Attacks like that should only be used for a decapitation strike, when you want to take out just one major player. Hellfire missiles are not Snickers bars that you can just toss around freely.”
By Bart Braun

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