Global Justice in the 21st Century

            After the atomic bombs were dropped on Hiroshima and Nagasaki, and the colossal scale of devastation disclosed, there was a momentary embrace of sanity and rationality by world leaders and cultural commentators. There was a realization that living with such weaponry was at best a precarious journey into the future, and far more likely, an appointment with unprecedented human catastrophe if not apocalypse. This dark mood of foreboding did produce some gestures toward nuclear disarmament tabled initially by the U.S. Government, but in a form that reasonably struck others at the time, especially the Soviet Union, as a bad bargain—the U.S. was proposing getting rid of the weapons for the present, but retaining the materials, the technology, and the experience needed to win handily any nuclear rearmament race. In other words, the United States offered the world a Faustian Bargain that rested on bestowing trust upon the dominant geopolitical actor on the global stage, and depended crucially on Soviet willingness to go along on such a basis, an option that never seriously tempted the Stalinist approach to world order.

            It should not seem surprising then or now that given the political consciousness of those running the strongest and richest modern states, that this kind of one-sided deal was not an attractive response to nuclear weaponry. Even the governments most closely allied with the United States in World War II, the United Kingdom and France, were unwilling to forego the status and claimed security benefits of becoming second tier nuclear weapons state. And of course, America’s rivals, first, the Soviet Union and later China, never hesitated to develop their own nuclear weapons capability, interpreting security and global stature through the universal geopolitical optic of countervailing hard power, that is, maximizing military capabilities to defend and attack. Thus disarmament faded into the obscurity of wishful thinking, and in its place a costly and unstable nuclear arms race ensued during the whole of the Cold War, with an array of situations that came close to subjecting humanity to the specter of a nuclear war. That this worst of all nightmares never materialized provides little reassurance about the future, especially if public and elite complacency about the risk of nuclear warfare persists.

            What is less appreciated than this failure to eliminate the weaponry in the immediate aftermath of World War II was the adoption and implementation of a Plan B.  The United States pushed hard for the negotiations that led in 1968 to the Nuclear Nonproliferation Treaty, which was successfully marketed to most states in the world. The NPT represented a one-sided bargain in which non-weapons states agreed to give up their weapons option in exchange for two commitments by nuclear weapons states: to share fully the non-military benefits of nuclear technology, especially relating to producing energy that was early on expected to be both clean and cheap; and to undertake in good faith efforts to achieve nuclear disarmament as the earliest possible time, and even to go further, and to work toward the negotiation of general and complete disarmament. This nonproliferation agreement over the years, although a success in Western realist circles, has experienced a number of discrediting setbacks: a few countries with nuclear weapons ambitions stayed outside the treaty and managed to acquire the weaponry without adverse consequences to themselves (India, Pakistan, Israel), while others (Iraq, Iran) have been attacked or threatened because they were suspected of seeking nuclear weapons; there has been a virtual failure of will to seek nuclear disarmament despite a unanimous World Court reaffirmation of the NPT obligations in its 1996 Advisory Opinion on The Legality of Nuclear Weapons; and there has been a discriminatory pattern of geopolitical management of the NPT, most notably ignoring Israel’s nuclear weapons program while treating Iran’s alleged pursuit of a breakout capability as justifying recourse to war.

            This nonproliferation approach has been accompanying by three massive forms of deception that continues to mislead public opinion and discourage serious debate about the benefits of nuclear disarmament even at this late stage: First, the fallacious implication that the states that do not possess nuclear weapons are currently more dangerous for world peace than the states that possess, develop, and deploy these weapons of mass destruction, and have used them in the past; secondly, that periodic managerial moves among nuclear weapons states, in the name of arms control, are steps in the direction of nuclear disarmament—nothing could be further from the truth as arms control aims to save money and stabilize reliance on nuclear weaponry by way of deterrence, and is generally averse to getting rid of the weaponry; thirdly, the phony claim, endorsed by Barack Obama in his Prague speech of 2009 on the theme, that obtaining a world without nuclear weapons is to be sure an ‘ultimate’ goal to be affirmed, but that it is not a political project that can be achieved in real time by way of a phased and verified nuclear disarmament treaty. In actuality, there is no genuine obstacle to prudently phasing out these weapons over the course of a decade or so. What blocks the elimination of nuclear weapons is only the dysfunctional refusal of the nine nuclear weapons states to give up the weaponry.

            It should be appreciated that this two-tier approach to nuclear weaponry is a departure from the approach taken to other weapons of mass destruction—that is, either prohibiting a weapon altogether or allowing its use in a manner consistent with the principles of customary international law bearing on the conduct of war (proportionality, discrimination, necessity, and humanity). Regimes of unconditional prohibition exist with respect to biological and chemical weapons, and are respected, at least outwardly, by the main global geopolitical actors. Why the difference? The atom bombs dropped on Japan were to a degree, despite the havoc, legitimized because used by the prevailing side in what was claimed to be military necessity and perceived as a just war. The contrast with the prohibition of chemical weapons widely used by the German losing side in World War I illustrates the lawmaking role of geopolitically dominant political actors that impose their will on the evolution of international law, especially in the security domain.

            The U.S. reliance on attack drones to engage in targeted killing, especially in third countries (Yemen, Somalia, Ethiopia, Pakistan) has raised controversial international law issues of sovereign rights in interaction with lethal acts of war, especially those far removed from the zone of live combat. The increasing reliance on drones during the Obama presidency has produced unintended deaths, civilians in the vicinity of the target and attacks directed at the wrong personnel, as with the NATO helicopter attack that killed 24 Pakistani soldiers who had been deployed near the Afghan border on November 25, 2011, provoking a major international incident (although not a drone attack, it was linked by angered Palistani officials to similar mis-targeting by drones). There are also unconfirmed reports of drone follow up raids at sites of targeted killing that seem directed at those who mount rescue operations or arrange funerals for prior victims. As with the Bush torture debate the political leadership in Washington has turned for justifications to government lawyers who have responded by developing drone legal briefs that seem somewhat analogous to the notorious Yoo ‘torture memos.’ There are, however, some differences in the two contexts that work against equating the two controversies about post-9/11 war making.

            For one thing, torture has a long history, having been practiced by governments for centuries, and its relatively recent prohibition is embedded in a clear norm criminalizing torture that is contained in the International Torture Convention of 1984. Torture is also enumerated as one of the Crimes Against Humanity in the statute of the International Criminal Court. Drone technology adapted to serve as a battlefield weapon is, in contrast, of extremely recent origin. Nothing in international law exists that is comparably specific with respect to drone attacks to the legal repudiation of torture. There is some resemblance between efforts by Obama law officials to stretch the conception of self-defense beyond previously understood limits to justify targeted killing and the Bush lawyers who claimed that water boarding was not torture. Expanding the prior understanding of the legal right of self-defense represents a self-serving reinterpretation of this core international legal norm by the U.S. Government. It seems opportunistic and unpersuasive and seems unlikely to be generally accepted as a reframing of the right of self-defense under international law.

            Perhaps, the most important difference between the torture and drone debates has to do with future implications. Although there are some loopholes involving extraordinary rendition and secret CIA operated overseas black sites, torture has been credibly prohibited by President Obama. Beyond this, the repudiation of torture has been understood in a manner that conforms to the general international consensus rather than the narrowed conception insisted upon by the Bush-era legalists. In contrast, drones seem destined to be central to operational planning for future military undertakings of the United States, with sharply escalating appropriations to support both the purchase of increasing numbers and varieties of drone. The government is  engaging in a major research program designed to make drones available for an expanding range of military missions and to serve as the foundation of a revolutionary transformation of the way America will fight future wars. Some of these revolutionary features are already evident: casualty-free military missions; subversion of territorial sovereignty; absence of transparency and accountability; further weakening of political constraints on recourse to war.

            Future war scenarios involve attacks by drones swarms, interactive squadrons of drones re-targeting while in a combat zone without human participation, and covert attacks using mini-drones. A further serious concern is the almost certain access to drone technology by private sectors actors. These musings are not science fiction, but well financed undertakings at  or beyond the development stage. It is in these settings of fhere, especially, where the analogy to nuclear weapons seems most pertinent, and discouraging. Given the amount invested and the anticipated profitability and utility of drones, it may already be too late to interrupt their development, deployment, and expanding sphere of use. Unlike nuclear weaponry, already some 50 countries reportedly possess drones, mainly adapted to surveillance. As with nuclear weaponry, the United States, and other leading political actors, will not agree to comprehensive prohibitions on the use of drones for lethal purposes.

            If this line of reasoning is generally correct, there are two likely futures for attack drones: an unregulated dispersion of the weaponry to public and private actors with likely strategic roles undermining traditional international law limits on war making and public order; or a new non-proliferation regime for drones that permits all states to possess and use surveillance drones within sovereign space and allows some states to make discretionary use of drones globally and for attack purposes until a set on constraining regulations can be agreed upon by a list of designated states. That is, drone military technology will perpetuate the two-tier concept of world order that has taken shape in relation to nuclear weapons, and reflects the consensus that both nuclear disarmament and unrestricted proliferation of nuclear weaponry are unacceptable. In this regard, a counter-proliferation regime for drones is a lesser evil, but still an evil.

            The technological momentum that has built up in relation to drones is probably too strong to be challenged politically. The military applications are too attractive, the technology is of a cutting edge fantasy quality, the political appeal of war fighting that involves minimum human risk is too great. At the same time, for much of the world this kind of unfolding future delivers a somber message of a terrifying unfolding vulnerability. At present, there seems to be no way to insulate societies from either intrusive and perpetual surveillance or the prospect of targeted killing and devastation conducted from a remote location. It may be contended that such an indictment of drones exaggerates their novelty. Has not the world lived for decades with weapons of mass destruction possessed by a small number of non-accountable governments and deliverable anywhere on the planet in a matter of minutes? This is superficially true, and frightening enough, but the catastrophic quality of nuclear weaponry and its release of atmospheric radioactivity operates as an inhibitor of uncertain reliability, while with drone their comparative inexpensiveness and non-apocalyptic character makes it much easier to drift mindlessly until an unanticipated day of reckoning occurs by which time all possibilities of control will have been long lost.

            As with nuclear weaponry, climate change, and respect for the carrying capacity of the earth, we who are alive at present may be the last who have even the possibility of upholding the life prospects of future generations. It seems late, but still not too late to act responsibly, but we will not be able to make such claims very much longer. Part of the challenge is undoubtedly structural. For most purposes, global governance depends on cooperation among sovereign states, but in matters of war and peace the world order system remains resolutely vertical and under the control of geopolitical actors, perhaps as few as one, who are unwilling to restrict their military activities to the confines of territorial boundaries, but insist on their prerogative to manage coercively the planet as a whole. When it comes to drones the fate of humanity is squeezed between the impotence of state-centric logic and the grandiose schemes of the geopolitical mentality. 

Tags: nuclear weapons capability