Tag: drones (page 2 of 2)

Unpacking the Anti-Drone Debate

My student Lina Shaikhouni and I have a new Foreign Policy piece in which we make “The Case Against the Case Against Drones,” to paraphrase Stephanie.

Therein, we argue that although there are many good reasons why drones shouldn’t be used as they are being used, or where they are being used, the arguments against drones per se are often based on misconceptions or assumptions for which we don’t have good data.

In particular, we point out:

1) drones are not killer robots
2) there’s no evidence that “video game” warfare makes war more likely
3) drones don’t violate humanitarian law
3) we don’t have good data on civilian casualties

We also argue that the focus on drones per se is a distraction from what are actually more profound and wider issues:

… Those who oppose the way drones are used should shift focus to one of the big normative problems touched by the drone issue: whether truly autonomous weapons should be permitted in combat, how to accurately track the civilian cost of different weapons platforms, and whether targeted killings — by drones or SEAL teams — are lawful means to combat global terrorism… Focusing on the drones themselves misses this bigger picture.

What you see above is a visualization of the data on which our argument is based, created with help from Dan Glaun (click here for clearer picture). We ran a search for “drone warfare” on DailyOpEd.com, which indexes opinion articles and letters to the editor, and identified 29 hits that dealt with drones specifically (as opposed to just mentioning them in the context of arguments about other things). We loaded these documents into a tool called DiscoverText and used it to render a tag cloud of the most frequently used words across the set of op-eds.

We then drilled into the text itself, studied it closely, and used a consensus coding scheme to tag specific instances of the types of misconceptions we identified across all the op-eds. Any statistical or numerical references in the article are based on this coding. While we don’t single out any author in particular as intending to make any of these particular arguments, the aggregation of passages across many op-eds adds up to a pattern in the broader debate. Specific quotations emblematic of the misconceptions we noticed have been high-lighted in the info-graphic above.


North Waziristan: Drones and Compellence

North Waziristan has witnessed 20 drone strikes in the first four months of this year, which is a relatively lower number than the previous year (in 2010 there were a record setting 104 drone strikes in North Waziristan or 8.67 strikes per month). The relative “silence of the drones” this year is mainly attributed to a lull following the imprisonment of a CIA agent, Raymond Davis, who was accused of murdering two men in Pakistan on 27 January. One day after the US paid diyya (thereby implicitly reinforcing sharia in Pakistan) to have Davis released there was a drone attack which killed 40-50 tribesmen attending a jirga near Datta Khel in March. Another 25 people were killed (reportedly including 3 women and 5 children) a few days ago. Yesterday, NATO helicopters violated North Waziristan’s airspace creating panic amongst the residents according to Khyber TV.

In addition to targeting militants, these actions may be part of an attempt to once again increase pressure on the Pakistani military. The US would like to see a full scale military assault on North Waziristan led by the Pakistani army in order to root out the Haqqani Network, Al Qaeda, Tehrik-i-Taliban (TTP) and other militants fighting along side or under the Taliban banner. The Pakistani government, military, and intelligence services are all reluctant for a host of logistical, tactical, strategic, and political reasons.

If America is trying to use drone strikes to pressure Pakistan’s military, then this may help to explain Pakistan’s unusual reversal of position in early March when the military claimed that drone strikes were actually remarkably effective in killing Al Qaeda and Taliban militants. In other words, the surprising “admission” (which now appears to have been largely forgotten by Pakistani officials) may have just been a tactical attempt to take away US leverage by eliminating the argument that a ground invasion is the only way to root out militants effectively. The real question is why the Pakistani government abandoned its clever new tactic and returned to public denunciations of “intolerable” drone strikes (which rely on complicit support from Pakistan’s intelligence services). Was the original shift a miscommunication or an external manifestation of an intra-bureaucratic dispute? Did the reported slaughter of influential tribesmen as well as unarmed women and children force Pakistani elites to shift back to a denunciation posture for domestic political reasons? And/or did the US simply indicate that drone and other militarized forms of compellence would continue to escalate regardless of Pakistan’s new found acceptance of drones or the actual amount of collateral damage until Pakistan’s army invades North Waziristan?


Actually, We Don’t Know How Many Civilians Are Dying in Drone Strikes.

Peter Bergen and Katherine Tiedemann at the New America Foundation are keeping one of the most useful datasets on drone strike fatalities that I know of. They’ve been tallying reports of strikes since 2004. They limit their data to those reported by:

“news organizations with deep and aggressive reporting capabilities in Pakistan (the New York Times, Washington Post, and Wall Street Journal), accounts by major news services and networks (the Associated Press, Reuters, Agence France-Presse, CNN, and the BBC), and reports in the leading English-language newspapers in Pakistan (the Daily Times, Dawn, the Express Tribune, and the News), as well as those from Geo TV, the largest independent Pakistani television network.”

This gives them a systematic, if conservative, estimate of total fatalities. They then gather, archive and code the data in a transparent and replicable way – unlike other estimates of drone strikes that don’t provide evidence of how they derive their statistics. Bergen and Tiedemann’s results gives us a descriptive picture of how drone strikes have increased over time and changed by location and impact. Their website includes a set of helpful visualizations:

While I find the effort impressive and have sometimes cited Bergen and Tiedemann’s data as decent mid-range estimates of drone-strike fatalities, I am developing some reservations about the coding methods being used and the inferences being made after looking more closely at their dataset. In particular, Bergen and Tiedemann’s estimates of the ratio between civilian to militant deaths by strikes bears closer examination.

1) It’s important to emphasize that these estimates, most recently outlined in a Foreign Policy article entitled “There Were More Drone Strikes — and Far Fewer Civilians Killed”, do not actually measure of the ratio of civilian to militant deaths. They measure the ratio of reported civilian to reported militant deaths. This is a very important distinction that seems to have been lost on Bergen and Tiedeman, who claim in their recent Foreign Policy piece “even as the number of reported strikes has skyrocketed, the percentage of non-militants killed by the attacks has plummeted.” It is more accurate to say that the percentage of non-militants reported killed by the attacks has plummeted.

Acknowledging that this is data on news reporting more than data on actual deaths puts the data in a different light. For example, the declining trend in ‘civilian deaths’ could mean fewer civilians are in fact being killed. Or it could mean a shift in how reporters are interpreting ‘civilian’ or ‘militant’ over this time period – a period in which the very concept of the “civilian” is being degraded in popular, media and diplomatic discourse both by evolving events and by the notion, among other things, that a person loses their civilian status simply by being suspected of militancy against their government.

2) But let us set aside for a moment the question of whether (and which part of) war law (and therefore the civilian/combatant distinction) really applies to US airpower inside Pakistan. And let’s assume that it is legitimate to treat “suspected militant” as synonymous with “combatant” and “non-suspect” as synonymous with “civilian.” I still worry that Bergen and Tiedemann are overestimating militant deaths in these reports. One of the reasons for this is probably inevitable given their method: they rely on what mainstream reporters say, and reporters rely on information from the governments doing the killing. But another reason is completely within their control: by using “militant” rather than “civilian” as the default code when the actual status of the deceased, according to the reports, is “unknown” or contested.

For example, Bergen and Tiedemann record a December 31, 2009 attack in which CNN reported 2 were killed, 3 injured, and it was unclear whether any of the dead or injured were militants; and in which AFP reported 3 militants were killed and that “the identity of the militants is not known yet”; This event was coded in the Bergen/Teidemann dataset as “Al-Qaeda/Taliban killed: 2-5; Others killed; unknown.”

At a minimum, it would seem to me, this event should have been coded as 2-5 deaths “status unknown” rather than counting as either definitely militants or definitely civilians. In fact, however, it would be more consistent with humanitarian law, from which the civilian/combatant distinction is derived, to record any deaths in which the status of the deceased are unknown as civilians. (Article 50(1) of the 1st Additional Protocol to the Geneva Conventions states that “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”)

I would be interested to know how the Bergen/Tiedemann ratio of “civilians”/(non-militant suspects) to “combatants”(militant suspects) would change if their coding were replicated with either of these two minor yet significant changes introduced. (In the case of the Jamestown Foundation study released earlier this year the latter approach would have made an enormous difference in their findings even with males over 13 excluded, jumping the civilian hit rate from 5% to 27%.)

3) All this only goes to show how impoverished our understanding of the civilian impacts of different weapons will remain until some independent verification mechanism is established for tallying and reporting the dead in today’s wars. Important efforts are underway to fill this critical gap in the Geneva regime and should be supported by advocates of human rights and humanitarian accountability.

[cross-posted at Lawyers, Guns and Money]


Latest Data on Drone Casualties

A study published in the Jamestown Foundations’ Terrorism Monitor a few days ago claims it sheds “New Light on the Accuracy of the CIA’s Predator Drone Campaign in Pakistan.” (Never mind the fact that as civilians, CIA agents are not entitled to wage war and would have to be considered ‘unlawful combatants’ if brought to justice.)

The question addressed here is a simple but very important one from a jus in bello perspective: what is the proportion of civilian deaths to combatant deaths in such strikes? No one is actually keeping track, but the authors aim to develop a good estimate by extrapolating from both Western and Pakistani news sources. On this basis they conclude:

Widely-cited reports of the inaccuracy and disproportionality of civilian to militant deaths in the CIA’s ongoing Predator drone campaign against the Taliban and al-Qaeda in Pakistan are grossly misleading. The most detailed database compiled to date, assembled by the authors of this article, indicates (among other important findings) that the strikes have not only been impressively accurate, but have achieved and maintained a greater proportionality than either ground operations in the area or targeting campaigns elsewhere

Now, I haven’t studied their coding closely enough to understand how it enabled them to arrive at such wildly different conclusion than this study last year, which used a similar methodology; however simply by reading over the article itself I can already see three problems:

1) Their definition of ‘civilian’ excludes adult men and boys over the age of 13:

All children under 13 and women were assumed to be civilian, along with all of those specifically identified as civilians, bystanders or locals uninvolved in the fighting. Where it was impossible to determine whether a person killed was properly categorized as a suspected militant or civilian, we assigned them to the category of “unknowns.”

Numerous scholars, myself included, have shown how misleading it is to assume all women are civilians and all men and older boys are combatants; and to build this gendered stereotype into one’s dataset immediately prejudices the data in favor of finding fewer civilian deaths.

2) The authors are to be commended for using the label “suspected militants” rather than “militants” – too many right-of-center commentators assume that a terror suspect is in fact a terrorist, just as too many left-of-center commentators use the term “war criminal” to describe individuals who have never yet been convicted of a war crime. Yet these authors somehow fail to notice the ethical implication in the behaviors they are describing: the US is carrying out a mass murder campaign against individuals suspected of committed crimes, in the absence of any sort of effort to determine whether or not they are actually guilty. In short, what renders these individuals putative “legitimate targets” appears to be nothing more than the suspicions of those with their fingers on the trigger. Oh, and possessing testicles.

3) Now that said, the way that they have gone about exploring the concept of discrimination is very interesting: they have compared the ratio of civilian/”suspected militant” deaths with drone to equivalent ground operations by US troops, by Pakistani troops, and by Israel’s targeted killings campaign, and in inter-state wars historically. All of these are interesting and helpful comparisons. I’d be interested to see them replicated with data that properly coded “civilian” dead – which would need to involve a consideration of the context of each attack.

That said, strictly speaking the authors are measuring the concept of “distinction” or “discrimination,” not the concept of “proportionality.” The distinction principle measures the ability to hit combatants while minimizing the costs to civilians. Proportionality measures the overall good of an attack relative to its overall negative side-effects.

From a human security perspective, I would argue the appropriate measure for an analysis of proportionality would not be the number of civilian death to combatant deaths, but rather the number of civilian deaths by drone strikes to some estimate of the number of Pakistani civilians who will not now die as a result of militant activity.

I leave it to the number crunchers to figure out how to calculate this.

[cross-posted at Lawyers, Guns and Money]


Undefended Buildings

I have been meaning for a few days to respond to this query on the law of land warfare posted recently at La Riposte:

Article 25 of the Hague Convention on the Law of Land Warfare states “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited” and violation of this article is listed as a War Crime under Article 8 of the Rome Statute of the International Criminal Court. Do American drone attacks on family compounds within Afghanistan and Pakistan, believed to be occupied by members of the Taliban violate Article 25?

It is difficult to imagine how such a building, located in a village full of civilians could be construed as being defended, especially against an unmanned aircraft flying 25,000 feet overhead. Adequate defense against such an attacker would have to consist of air-defense artillery or missiles with a sophisticated tracking system to locate and engage the small, quiet drones.

Let’s consider a couple of justifications that might possibly be made for what appears, on the surface, to be an egregious violation of the Laws of Land Warfare. First, someone might claim that the building wasn’t the target – it was only a particular person or persons inside the building who were the targets, and the nature of the structure they were occupying was immaterial. But using that logic, such persons could be legitimately targeted anywhere, including schools, mosques, hospitals, and any other building.

It’s also possible someone could claim that just because there were people in the house who possessed guns, the building was “defended.” Such an argument rings hollow on several counts. First, inhabitants of Pakistan’s tribal areas are allowed to have weapons, precisely for the defense of their persons and property. Second, simply because the occupant of a building has a weapon, it doesn’t mean they will use it defensively. If approached by military or police forces they may choose to run away, to surrender, or to fight. Only in the latter case would the building become a “defended” position and thus merit bombardment.

I have only two things to add to this analysis, with which I generally concur. The first is that the general prohibition in the original Hague Conventions, reiterated in the Rome Statute, is also given more nuance by Articles 48-57 of the First Additional Protocol to the Geneva Conventions of 1977. Some of the treaty law relevant to this question includes:From Article 48:

The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.

From Article 49, which among other things suggests these rules probably apply not only in Afghanistan but also in Pakistan, Yemen and elsewhere in this “globalized” “war”:

“The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.”

Article 51 spells out more closely the definition of “civilians,” but in terms of the question asked by E. about dwellings, it is the definition of “civilian objects” that really matters, and that is in Article 52:

para. 1: Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

para. 2: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

para. 3: In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Finally, Article 57 outlines precautions to be taken prior to attacks, specifically those:

with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects

Now note that the precautions to be taken are those to avoid civilian deaths rather than injury to one’s own forces, which suggests to me that the use of unmanned craft at all in situations such as these is particularly galling, since part of the key purpose of drones, and air power in general, is the minimization of harm to our ground forces.

Now here’s the catch, however. The United States is not a party to the Additional Protocol I, so in international law terms the question of whether the US must adhere to these rules remains open. One argument sometimes made is that these rules are accepted by so many states they have the status of binding customary law. The International Committee of the Red Cross has in fact, has made this claim; though others such as David McGrogan demur.

One way to look at this, however, is that AP1 constitutes not a set of new rules but rather a widely recognized clarification of the general prohibition in the original Hague treaty (to which the US is a party) and that therefore it is reasonable to assume that the US ought to be following these guidelines if it means to conform to Hague rules.

My final comment on this query, however, is to say that the key ethical concerns here are not really about drones per se, but about the use of air power at all in civilian areas where the goal is simply to pick off a small number of specific individuals.


The Drone and the Cyborg

The drone and the cyborg were born near the dawn of the nuclear age (i.e. the Vergeltungswaffen and the Kamikaze), and appeared in several previous conflicts, but they did not simultaneously reshape the dynamics of war until after 2001.

The armed drone represents a displaced subjectivity that eludes the laws of war and Eurocentric/ anthropocentric notions of sovereignty. The soldier operating the drone spies, hunts, and kills from thousands of miles away; s/he murders combatants and non-combatants without taking any risk or responsibility. The drone violates the sovereign territory of foreign powers for days at a time – the drone is becoming a permanent armed presence in the skies of the targeted zones. The armed drone is the manifestation of a literally disembodied soldier on the battle zone; the armed drone is an avatar.

The cyborg seems to be the opposite of the drone; s/he is flesh over mind. There is a temptation to view the cyborg as more human because of the relatively primitive technology employed in its manufacture. Nevertheless, the cyborg is also transhuman or a portent of a posthuman future – s/he fuses flesh and explosive matter in a manner that becomes indistinguishable. As Faisal Devji reminds us:

“And indeed the cyborg as a sign of the posthuman future is nowhere more clearly made flesh than in the figure of the suicide bomber who transforms his own body into an explosive device.  Can the human and nonhuman parts of this cyborg be distinguished from one another so that we can say which does the killing and who does the dying?” (Faisal Devji, The Terrorist in Search of Humanity, 2008).

Like the drone, the presence of the cyborg has grown rapidly in the zone of combat. Before 2002, for example, Pakistan had only had one cyborg attack. Last year, there were ninety. In fact, the cyborg is increasingly integrated as a component of insurgent attacks.

Both the drone and cyborg are immoral and extralegal instruments of terror and vengeance. (If war is socially sanctioned murder, then neither technology has been socially sanctioned. The cyborg has been explicitly condemned by the ‘ulema). Both technologies are highly accurate, nearly unstoppable, and devastatingly lethal. These technologies are marked by a moral and tactical equivalence at least in the public statements of insurgents.


Kandahar and My Lai; Drone Strikes and Carpet Bombing

 The New York Times recently posted reports about the U.S. military’s trial of soldiers accused of randomly killing civilians in Afghanistan’s Kandahar province, “for sport.”  Apart from the horrors of the alleged crimes, there is a terrible irony in the stories.  This goes beyond the fact that these kinds of incidents are hardly news.  They are completely predictable in any war, even among the best-trained and most disciplined armies—let alone those in which governmental and military leaders provide signals that make incidents like Abu Ghraib possible.  

The irony also goes beyond the coincidence that this story appeared in the New York Times the same day as another, titled “CIA Steps Up Drone Strikes on Taliban in Pakistan.”  That story re-emphasized the open secret that Pakistan has become the new Cambodia.  Like that other unfortunate nation, Pakistan is being targeted because another of America’s wars is not going well.  But rather than accepting the original war’s folly, our military and civilian leaders, in their consummate wisdom, have expanded it to nearby countries.  Supposedly, it is these nations’ failures to control their populations and borders that explains the war’s failures.

But the real irony is the prosecution of these soldiers, when the architects of the war–responsible for placing the soldiers in Kandahar to begin with–are taking actions that predictably lead to large civilian casualties as well.  It is, of course, true that from a legal standpoint, there are differences in the intent of the killers:  in the first case, intentional; in the second, unintentional.  It is also true that in the first case, the soldiers allegedly knew their victims to be innocent.  In the second, military officers believe themselves to be targeting Taliban or al-Qaeda fighters—though of course their information is often faulty.  And, of course, the soldiers should be prosecuted for their alleged crimes.
But the strategic effects of these incidents is little different.  Who would you hate more if your home was destroyed and your children killed by Predators?  The Taliban fighters who the missiles were intended to kill and who were conducting operations in your area—or the American military and CIA personnel sitting at their desks in Creech Air Force Base?  Perhaps both equally—but, more likely, those who pulled the trigger.  Nor is a grieving Afghan likely to care about the legal niceties that help the drone controllers sleep at night–or be assuaged by the payments the U.S. government sometimes disburses to relatives of its collateral carnage.
To my mind, the closest analogy to this situation comes from Vietnam:  The well-deserved prosecution and conviction of Lieutenant William Calley for the My Lai massacre–at about the same time that the U.S. government was carpet-bombing Vietnam and Cambodia to the tune of untold thousands of civilian deaths—all with the broad rationale that we would thereby win hearts and minds.

No doubt our new smart bombs and drones kill fewer innocents–though still far too many, given the futility of the “war on terror.”  But if I were an Afghan grieving over a drone’s dismemberment of my family, would I care about this sign of “progress?”


The Flimsy Case for Drone Warfare

Amitai Etzioni, a law professor at George Washington University, has followed up the State Department’s justification for drone attacks in Pakistan with an argument of his own, published in the new issue of Joint Force Quarterly.

Here is the first paragraph, sentence by sentence with commentary:

The substantial increase in the employment of unmanned aircraft systems in Afghanistan, Pakistan and other arenas has intensified debate about the moral and legal nature of the targeting killing of people who are said to be civilians.

Oh good. Because when I first saw the title – “Unmanned Aircraft Systems: The Moral and Legal Case” I almost thought Etzioni believed he needed to make the case for unmanned systems per se. But of course it’s not the systems themselves that are at issue. The issue is in using them – or any technology – for targeted killings of civilians, whatever we might suspect those civilians of doing, and particularly inside the sovereign borders of countries with whom we’re not at war. A better title for this particular piece might be “Targeted Killings of Civilian Terror Suspects: The Moral and Legal Case.”

The US and its allies can make a strong case that the problem is those who abuse their civilian status to attack truly innocent civilians and to prevent our military and other security forces from discharging their duties.

OK, fair enough. But note this is a PR argument, not a legal or a moral argument per se.

In the long run, we should work toward a new Geneva Convention, one that will define the status of so-called unlawful combatants.

Fair enough also. I myself have been in favor of an Additional Protocol that would create a multilateral consensus around what current law means in an era of asymmetric war. But note that this implies there is actually no legal case to be made for this behavior using existing law.

These people should be viewed as having forfeited most of their rights as civilians by acting in gross violation of the rights of others and of the rules of war.

Whoa, stop the presses. Quite a jump from arguing that the US should point out that these individuals are abusing humanitarian law for their own purposes, and suggesting that the law be updated, to suggesting that they lose all their rights “as civilians.” What I think Etzioni means is that they should lose their immunity from attack as civilians.

As far as I understand it, there is no legal justification for this – that is, no “legal case” to be made here. If they are civilians, they lose their immunity only as long as they are directly participating in hostilities. If they might actually be considered combatants, then Etzioni’s distinction between “innocent” and “abusive” civilians doesn’t make much sense. And even if it did, he suggests no means to distinguish between the two categories for the purpose of making sure you avoid “innocent civilian” casualties – arguably one of the key moral dilemmas that would need to be addressed in order to “make the case.”

Etzioni makes a few other unconvincing statements in supporting his argument: he overestimates, in my view, the differences between today’s wars and previous wars; his claim that we must kill terrorists before they attack us hinges on the notion that terrorists cannot be deterred or rehabilitated (they can); and he seems to be arguing that the UN Charter regime is irrelevant, when he suggests that no government who wishes to target a terrorist on foreign soil should wait for the consent of the foreign government. Maybe his goal is to push us back into a world where conventional war is the norm – go ahead and undermine the territorial integrity norm, and that’s what you’ll have.

This poor execution (pardon the pun) detracts from the two important points he makes: a) the US needs to make a clear moral case for these tactics if we are going to use them and b) the ethical/legal dilemmas raised by targeted killings suggest the need for a new multilateral consensus about what the laws of war mean – a new Additional Protocol to the Geneva Conventions, perhaps.

But ultimately, I think this article really does nothing to help us think through what a genuine moral / legal case for targeted killings would be, whether there actually is one, or what those new rules would need to look like in order to remain consistent with the larger body of humanitarian law. Mostly, it looks like apologism for existing US policy and a roadmap for rhetorical strategies policymakers might use to dupe the public into thinking it’s within the bounds of the law whether or not it actually is.

Danger Room has a bit more on this particular article. Etzioni has also been on NPR with his views; I’ve not had a chance yet to find out if he expounds more on them there than in the written piece.

I’ll be writing more on this by and by, but I’m curious what readers think about the moral/legal dilemmas associated with targeted killings, by drones or even by manned aircraft. The blog at National Defense University Press has solicited reactions from the general public, so consider leaving a comment there as well.


What is the status of CIA drone operatives in international law? (Short answer: I don’t know, but that shouldn’t matter.)

Despite our modern ideas about a separation between civilians and soldiers in international law (and then complain about the breakdown of the legal distinction in counterinsurgency conflict or situations like Pakistan), civilians have almost always accompanied military forces into the field. These include journalists, clergy (not within the armed forces of an army) and “camp followers” which may have included cooks, tailors, menders, prostitutes, etc.

That these individuals were there and an essential part of the operations of the armed forces, was accepted. Yet, because they were not formally “enlisted” they were considered as civilians and not subject to direct attack so long as they did not take a direct part in hostilities.
This doesn’t render the principle of distinction irrelevant of course. It’s still one of the key principles upon which the law of war rests. However, it does suggest that we sometimes forget that the line has not always been crystal clear between combatants and civilians.
Yet, a major recent difference has been the increasing technological dependence of the armed forces in their military missions. This has resulted in civilians working on computer and weapons systems, possibly crossing certain lines in terms of distinction and participating in a conflict in a direct way.
Efforts trying to regulate civilian participation have not been particularly successful. As is relatively well known, efforts to regulate private military firms (PMFs) have been less than satisfactory (and even the US government who employs them has trouble exercising jurisdiction over their behaviour). The Montreux guidelines are just that – guidelines – and without any enforcement mechanism.
However, the CIA drone issue is different from that of PMFs. The CIA is a state-sanctioned institution. It’s armed and uses force against other actors. So what does it mean for their status under their international law? Are they directly participating in hostilities? Is their participation allowed?

Other important “guidance” here comes from the (controversial) ICRC study on the direct participation in hostilities. This document has been, is and will be subject to a lot of scrutiny (and it will be interesting to see, exactly, which states consider it authoritative. I’m thinking not many…). However, for our purposes here, a lot of the criticism (typically directed to ‘insurgent’-like actors and a supposed ‘revolving door of protection’) does not really apply.

Actually, the position taken with regards to private military firms and civilian employees would seem consistent with what the United States has typically put forward:

III Private contractors and employees of a party to an armed conflict who are civilians (see above I and II) are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities.

The fifth point of the study, (V Constitutive elements of direct participation in hostilities) is more controversial as some might deem the criteria as far too narrow for the purpose of modern fighting. (ie: On just one point, the United States would likely argue that someone who did financing for a terrorist organization was ‘fair game’). While this might provoke more controversy for their targets, for our purposes, the DPH guidelines suit the CIA Drone pilots rather well.

In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:
i. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
ii. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
iii. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).

Regardless of whether or not the threshold is too high or narrow, there is no question that what the CIA drone pilots are doing falls into this category.

Therefore, I would argue the two most important legal issues here are:

1. Is there participation in hostilities legal?
2. Are they subject to attack?

The first question is more difficult to answer than the second. I would argue that the default position regarding civilians accompanying armed forces is that their presence may be authorized by a state/military force (because of the increasing essential tasks that they perform). In this sense, I would argue that their presence is legal if they are authorized by a state and armed forces AND they carry out their operations in line with the laws of war. This implies that all actors should receive instructions and training in the laws of war.

Key to this framework – and I think this is rather obvious from what is stated above – is that although civilians may accompany the armed forces and assist them in a variety of ways, they remain civilians – not combatants or non-combatants (which, in US military parlance are considered to be chaplains and medical personnel). However, they are different from “regular” civilians in that their functions in relation to combat render them targetable.

If we take the case of a contracted computer specialist who accompanies a unit to a forward operating base, I would suggest: 1) His presence is legal. 2) His activities may constitute direct participation in hostilities 3) He may be subject to attack. 4) He, like the rest of the armed forces, must carry out his activities in line with the laws of war.

I think it is clear that for policy reasons the military should do its best to ensure that his participation does not constitute combat functions – although where one draws the line in this day and age is almost impossible to tell.

Article 4(A) of the Third Geneva Convention also makes it clear that should these authorized individuals be captured in an international armed conflict that they are to be given POW status. States/armed forces must therefore provide such civilians with appropriate identification cards.
However, again the CIA case is difficult because it poses several direct challenges to this scenario.

As suggested above, legal questions surrounding the participation of civilians revolve around civilians accompanying the military into the theatre of operations. The CIA case is different – many, if not most, of the operations seem to be coming from abroad or within the United States. Are the civilians therefore within the theatre of operations? And does distance render this ‘arithmetic’ irrelevant?

An important question here is whether or not the CIA operations can be considered as supporting military operations? The CIA program seems to operate at arms length from the DoD/Air Force Program – although how near or far is almost impossible to say. It may be that the CIA and US government considers the Agency to be part of the broader effort in the abstract “War on Terror” and therefore, yes, they are supporting military operations. They may also see themselves as working within a “self-defence” scenario whereby they are responding to the threat of terrorism posed by radical extremists in Pakistan.

Others, however, may see this as problematic because, legally, the conflict in Pakistan must be considered separately – not as an international armed conflict, but as an internal armed conflict and subject to a different set of international rules.

I think questions as to the status of the legality of the conflict in Pakistan are jus ad bellum issues and I will ignore them for the purpose of this post. I am also going to work from the assumption that a drone attack is an “armed attack” for the purpose of the laws of war and that this makes it the appropriate law to apply when considering the CIA operations.

I would therefore apply the following argument regarding the CIA drone pilots:

1. They are civilians.
2. Their activities constitute direct participation in hostilities in a law of war context.
3. They may be subject to attack, regardless of their location. The same may be said for a civilian who provides logistical support for military operations at the Pentagon. Of course, the same may not be said of a civilian who works at the Pentagon Best Buy (and yes there is one) who is supporting the staff who work at DoD, but is not directly participating in hostilities. This individual may be at risk because he/she works at a military target, but is not targetable. He/she must be taken into a proportionality consideration when a strike is being considered or planned.)
4. Their armed attacks must be carried out in line with the laws of war.

But what about their legality?

There is no question that the CIA is not part of the armed forces of the United States. Typically referred to as “other government agency” in military documents, one typically struggles to see them named within the DoD literature.

Yet international law stipulates that armed forces are not necessarily the only groups which may participate on the battlefield. For example, in a situation of a “mass uprising” (levée en masse), civilians may participate in an armed attack with immunity. Similarly guerrilla/partisan movements which follow certain rules have been recognized by the law of armed conflict since 1949.

However, none of these categories work particularly well. The CIA operatives do not meet the standards of these categories and nor were these categories ever really intended to apply to state actors. Ultimately, the Agency represents not “the” armed forces of the United States but “an” armed force of the United States. And this is essentially the main difficulty with regards to their legal classification.

Therefore, I simply can’t help but conclude that the CIA program is operating in a legal grey area – there is just not enough law or examples to render a crystal clear verdict on the status of the CIA operatives. The state-sanctioning of the activity means that they are not simply rogue individuals who are operating like some kind of armed group (unless you want to consider it a state-sanctioned armed group – in which case I don’t know how you would distinguish this from the armed forces). There are differences and developments here which international law has not yet had a chance to catch up with.

Practically, however, this should not make an operational difference. As I have suggested above, I think regardless of who is carrying out the attacks, they must be done in accordance with the laws of war. This is the really important key factor – at least for me. Not who is carrying out the attacks, but whether they are actually done in accordance with the applicable law.

It seems to me that there is no doubt that the individuals who are carrying out these activities are directly participating in activities and are targetable. Additionally, their civilian status does not relieve them of law of war obligations.

To me it would seem that the legality of the participation becomes really important if someone wanted to arrest and charge the CIA pilots for their missions. Practically speaking, I find this highly unlikely.

However, there is a more important issue of accountability here – what happens in a case of gross negligence? Or A clear violation of the laws of war? Who is responsible? I think this is where there is more room to be concerned. And how this will play out remains to be seen.

I’m curious as to what other international legal-politicos out there think of this. Am I missing something? Law simply does not have all of the answers – at the end of the day, I think it will be more helpful if the CIA program is going to have to be judged on its effectiveness vs the amount of damage it does and this will likely be done on political and moral grounds.


Join a Live Web Seminar on Drones and International Law

With growing attention to the legal implications of unmanned drone attacks (LA Times reported yesterday that the US is considering expanding its campaign to Quetta), the latest International Humanitarian Law Live Seminar at Harvard’s Humanitarian Law and Policy Forum is particularly timely. The title is “Unmanned Weapons and Challenges to International Humanitarian Law” and it will be webcast live Thursday morning at 9:30 eastern time. Register to attend here, or join the group’s Facebook page. I’ll check in with thoughts and analysis after I listen, but nothing beats hearing these kinds of discussions live.


Droning On

The New York Times reported Friday that the Obama Administration has stepped up its Predator strike campaign in Pakistan concurrent with the announcement of a troop surge in Afghanistan. The article focuses on comparing estimates of civilian casualties from strikes and estimates of how controversial the strikes are – interestingly, the greatest blowback comes from Pakistanis who live outside of the tribal areas: many of those in the FATAs presumably approve because they are worse off when the militants have free rein in the area.

An Amnesty International representative is quoted as saying that regardless of civilian casualties or political support, the attacks are problematic as such:

‘Anything that dehumanizes the proces makes it easier to pull the trigger.’… The political consensus in support of the drone program, its antiseptic, high-tech appeal and its secrecy have obscured just how radical it is. For the first time in history, a civilian intelligence agency is using robots to carry out a military mission, selecting people for killings in a country where the US is not officially at war.

I see an important error and an omission here.

First, drone are not robots. They are remote-controlled weapons piloted by a human being. We should bear in mind the distinction between such weapons and truly autonomous weapons with the capacity to make independent firing decisions. (At Firedoglake, Scarecrow has other issues with this quote.)

As for the social distance between weapons-bearer and victim, this debate is as old as the long-bow and catapult, and is not what makes the US’ drone strikes radical. The bigger issues with drone is not whether they’re as surgical as we hope, but whether the mission itself is legitimate. The targets of such strikes are political leaders of a social movement / terror network / insurgency call it what you will who are, by and large, going about their business at the time they are killed. As Mary Ellen O’Connell explains at IntlLawGrrls, assassinating them rather than capturing them and putting them on trial is counter to international law.

And it’s important to bear this in mind as evidence begins to mount that drone strikes are effective. I’m not going to argue that they may well be. A policy can be effective and still have too many negative externalities to be worthwhile. Or, it can be worthwhile from a policy point of view and still be wrong.

Ward Thomas has shown that there are good reasons why assassination is against the rules of war. If Obama is going to persist with drone warfare, I’d like to see our “multilateral President” make a solid legal argument for why this is consistent with international law, or seek to amend the law to fit the changing times. Simply violating it without a discussion reminds me too much of his predecessor.

[Cross-posted at Current Intelligence]


Drone Wars Kill on Average 33% Civilians

Peter Bergen and Katherine Tiedemann published an analysis at the New America Foundation a couple of days ago on civilian deaths from drone strikes in Pakistan. Key points from the callout on the site:

“The Obama administration has dramatically ratcheted up the American drone program in Pakistan. Since President Obama took office, U.S. drone strikes have killed about a half-dozen militant leaders along with hundreds of others, a quarter of whom were civilians.”

Actually, the call-out understates the percentage of dead civilians: if you read the piece it looks like the study shows civilians comprise actually around 33% of those killed in drone strikes. That’s a third, not a quarter, folks.

Three other quick reactions below the fold, and more once I’ve had the chance to crunch some numbers of my own.

1) It’s good to see a measured analysis of collateral damage from drone deaths, since the numbers are wildly over or underreported by the parties to the conflict. Their Methodology is here; the Appendix with their data is here. We need some tracking like this for collateral damage at the global level. Unfortunately most studies of civilian deaths either aggregate all civilian deaths or focus on intentional deaths which are war crimes. It’s hard to know what percentage of all civilian deaths and injuries are “collateral damage” of this type, but it would be useful to ignite a policy discussion about acceptable levels of damage.

2) This goes to a second point of the article: the shaky legality of drone strikes. Unlike willfully targeting civilians, accidental harm to civilians is permitted by the law, as long as it’s proportionate to the military gains achieved by these strikes. So, does hitting militants in civilian areas constitute a “proportional” means of attack if you know approximately 1/3 of your victims are civilians? To me this seems unreasonably high, particularly since the drones are justified on the basis that they are more discriminate than other weapons systems. In legal terms, the problem is there’s not an internationally-agreed-upon means to judge proportionality. I wonder how Duck readers would answer this question.

3) Ethics aside, a related point is the political impact of so many civilian deaths, which has made US drone policy quite unpopular in Pakistan, even among those who would prefer the Taliban be driven out of the Federally Administered Tribal Areas; and they provide militants with ready-made propaganda fodder. Bergen and Tiedemann write:

While there is little doubt that the strikes have disrupted al Qaeda’s operations, the larger question is to what extent they may have increased the appeal of militant groups and undermined the Pakistani state. This is ultimately a lot more worrisome than anything that could happen in Afghanistan, given that Pakistan has dozens of nuclear weapons and is one of the world’s most populous countries.

Given that President Obama has expanded this drone program in the FATAs since he took office, it’s probably time we had a discussion of the costs and benefits, in human security and national security terms.

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