Blue moon, you targeted me standing alone…

Yesterday Charli wrote a post on whether or not those opposed to the use of drones should use the concept of “atrocity law” instead of “war crimes” or human rights violations.

I wonder if others who generally oppose “targeted killings” think the concept of “atrocity law” might be a more useful way of framing this problem publicly than talking about “war crimes” or “human rights” specifically – concepts that by their nature draw the listener’s attention to a legal regime that only partially bears on the activity in question and invites contrasting legal views drawn from contrasting legal regimes.

Charli asks this question given that:

I think there is significant and mounting evidence of normative opposition to the targeted killings campaign (regardless of arguments some may make about its technical legality under different legal traditions), and according to even the most conservative estimates it meets the other criteria of a significant number victims and large-scale damage. No one can doubt it’s highly orchestrated character.

I’m going to go with “no” on these questions. First, unlike Charli, I’m not certain there is “mounting evidence of normative opposition to the targeted killings campaign” in anything other than the protests of a relatively insular group of legal-academics-activists (Phil Alston et al) who tend to be critical of these kinds of things anyway. In previous posts I have raised doubts about whether or not we can determine if targeted killing is effective, and how some activities have challenged and changed legal framework for the War on Terror. However, if anything, I think there is growing consensus within the Obama administration that the program works, it is effective and I think it is popular.

Additionally, I do not see how invoking the term “atrocity” will get us beyond many of the political problems involved in invoking other terms like “human rights law” or “war crimes”. If anything, “atrocity” seems to be an even less precise, more political term.

However, I think this conversation points to a third, larger issue that Charli is mostly concerned with – civilian death in armed conflict. Or, to put it another way – What expectations may we reasonably seek to place on our states when they carry out military actions? Those who write, research and teach on international law typically anchor their discussions in the legal principles of proportionality, necessity and distinction. However, these are notoriously vague terms. And, as such, when it comes to drones, many argue that these legal principles are being undermined.

In thinking about this question, I’ve been reminded of the recent controversy over the decision of the International Criminal Tribunal of the former Yugoslavia in the Gotovina Case. In it, the Court ruled that a 4% error rate in targeting in a complex military operation was tantamount to a war crime. Four percent.

Was this a reasonably conclusion for the ICTY to make? Are militaries (and the military in question here was not a Western military dealing with high-tech military equipment) really expected to do better than a 96% accuracy rate when it comes to targeting? And if so, on what grounds can we (or the Court) say this is the case? And, bringing this back to Charli’s post, would we benefit from thinking about a 4% error rate in terms of “atrocity”?

There are two very good summaries of the case at Lawfare and IntLawGrrls for more background information on the case. Some concerned former military professionals (many of whom are now professors) – admittedly, another insular group of legal-academics-activists of a very different source – have put together an Amicus Brief for the Gotovina Appeal which is well worth reading.

However, immediate questions of legality aside, I think this raises a larger question as to what we can reasonably expect from military campaigns, especially what levels of accuracy. Are all civilian deaths “atrocity”? Historically, the laws of war have said no – that proportionality may sometimes render it permissible (if no less regrettable). And I believe that all but the most ardent activists would agree with this historically rooted position. But it is clear that our perceptions of reasonable death rates have changed since the Second World War. So the question is what governs our ideas about proportionality and civilian deaths in an age of instant satellite imagery, night vision and precision guided weaponry? Unfortunately, I’m not sure the drone debate has given us any useful answers nor the basis to produce them.

I appreciate that there are important differences here – the military is, in theory, a hierarchical chain of command that is obliged to follow the laws of war. The CIA (who carries out the drone program) are civilians who do not meet these expectations and their status in law is questionable. But status here is not the issue (at least for this blog post and how it relates to Charli’s concerns). Instead, it is whether and at what point civilian deaths may be considered “atrocity”, on what basis we can and should make that decision and whether that language would make any useful or practical difference.

There is no doubt that recent move to a “zero-civilian death” or high expectations of few casualties has been rapid. Certainly it is at least part of the increased legal activity by governments, IGOs and NGOs in the realms of international law and the laws of war. However, I think it is also the result of a false promise that better technology can allow us to have “clean” wars. It is a promise that is made by governments to their populations, but one that has also clearly influenced activists in terms of their expectations – whether they are set in terms of laws, rights or atrocity.

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