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Ben Farley on Collateral Damage and Accidents

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Monday, December 31, 2012 at 5:00 PM

Benjamin Farley writes in with the following comments on my exchange with Kevin Jon Heller and Glenn Greenwald:

I just read your post responding to Kevin Jon Heller’s response to your conversation with Greenwald regarding the comparison of children killed in drone strikes versus children killed at Newtown.  As usual, I enjoyed your post but I was struck by a couple of points that I thought I might raise for you.  First, I would be careful describing collateral damage as accidental deaths.  Deaths due to collateral damage are not unexpected or absent intent; in fact, for a proper proportionality analysis, a commander must assess the reasonably likely number of civilians who will be killed in a strike and balance that against the military advantage gained through the strike.  It is thus essential that the commander be able to anticipate these deaths.  That said, it may be appropriate to describe those deaths that exceed this value—the deaths of civilians who could not reasonably have been anticipated—as accidental.  Second, I might note that within the frame of extrajudicial killings you describe in the last paragraph, the wrongfulness of the collateral deaths stems not only from the wrongful strike on the primary target but [from] a violation of each collateral victim’s individual right to life under the framework of international human rights law.

Farley’s point is well taken. The word “accident” is perhaps not the correct one to describe all collateral deaths in drone strikes, though it certainly describes some. I suppose this is why we use the term “collateral,” cold as it is. The point is that the collateral death is not the purpose of the strike that produces it but a byproduct of a strike on a presumably-lawful target. Farley’s clarification actually reinforces the point I was making yesterday that the morality of drone strikes is hard to separate from the underlying question of whether one does or does not accept the war paradigm. After all, we accept in warfare, as Farley notes, that a strike may be appropriate (proportional) even if some collateral deaths are anticipated. Outside of the context of warfare, this argument would be an absurdity; deaths collateral to a murder are simply additional murders.

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