February 10, 2013
By James Jay Carafano, Ph.D.
We have been down this road before.
In 2007, a "special" U.N. rapporteur investigating human rights and combating terrorism issued a scathing assessment of American counterterrorism practices. As a sample of his "findings": He determined that the United States is not engaged in a war on terrorism. Apparently 9/11 and dozens more terrorist attacks aimed at the United States just didn't cut it as a justification for taking military action to defeat al Qaeda. Instead, he demanded that detained members of al Qaeda and the Taliban be set free.
The U.N. is entitled to its own opinion, of course. And some American voices have been even more critical of U.S. efforts to combat transnational terrorism. What does not pass the common sense test is that, with all the global challenges to human rights, the U.N. feels it should give priority to investigating the U.S. -- a country with a record pretty much unmatched for transparency, accountability and the rule of law.
What makes the practice particularly galling is that the U.S. pays one quarter of the U.N. budget. Essentially, then, we've paid the U.N. to lecture us on how to safeguard human rights. Somehow, I don't think this was what FDR had in mind when he called for setting up international forum to advance the cause of peace and justice.
And now the U.N. is at it again. Another U.N. special rapporteur, Ben Emmerson of the United Kingdom, has recently announced a new investigation. This time the U.N. will turn its "unbiased" eye into the U.S. use of drones abroad.
The presumption that drones create some daunting new challenge to the laws of war or ethical conduct of conflict is simply fatuous. New technology doesn't change the old rules we fight by. In assessing the ethical fitness of using new technology in combat, the most relevant principle of Just War doctrine is the standard of proportionality. Force must be used for a valid military purpose -- in other words, not indiscriminately. Moreover, the risk of harming innocents cannot be out of proportion to the direct military end that is anticipated. That standard doesn't change, whether a nation is using a machine gun, a cruise missile, a drone or a rock.
There may indeed be changes in how activists think about technology in war, but it may not be because the technology is changing. It may be because some elites want to change the ethics of war.
Enter the new breed of international human rights activists. "Special rapporteurs" and others of their ilk are using "lawfare" to try to rewrite the code of ethics. The aim is to misuse or reinterpret laws to make American actions appear illegitimate in the eyes of the world.
The problem with such lawfare is that it blurs the line between law and political advocacy. What is rational or legitimate becomes less important than what the advocates want. As a basis of public decision-making, that is far different from the rules of war derived from the Just War tradition.
In the case of drones, it is pretty clear how the U.N. would like to write the "new" rules of war. Steve Groves, an analyst at the Heritage Foundation who has been tracking the rapporteur activities for years, writes that "unless and until the U.S. can somehow promise that no civilian casualties will result from drone strikes, such strikes will be considered violations of international law." That, of course, is a virtually impossible standard to achieve.
The rapporteur's "investigation" is little more than a transparent attempt to rewrite the rules of war to his own liking.
-Examiner Columnist James Jay Carafano is vice president for defense and foreign policy studies at the Heritage Foundation.
First appeared in The Examiner.
James Jay Carafano, Ph.D.
Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow
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