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Gabor Rona of Human Rights First Responds…

Sunday, October 27, 2013 at 4:08 PM

…to my revised meta-study of drone strike casualties.

Ritika Singh’s updated meta-study of drone strike casualties reaches exactly the right conclusion: the more we hear from non-government sources, the more we understand the inadequacy of the US government’s disclosures and indeed, the duplicity in its claims that drone strikes are “surgical.” (Not that surgery is always so surgical).
But I wish Ritika had put a bit more underlying law into her analysis, starting with the legal significance of the word civilian. She notes that ‘civilian’ is not the same as ‘protected from targeting under the law,’ since “a civilian directly participating in hostilities can be lawfully targeted under the laws of war.” That statement perhaps assumes, but is missing a critical element: “in an armed conflict.” And that raises the most basic question of all about the context of a drone attack: “is it war?” Because if it isn’t, the contradistinction between “civilian” and “combatant” (or militant) simply doesn’t apply; nor does the concept of “direct participation in hostilities.” Nor, for that matter, does the acceptability of “proportionate collateral damage.” Instead, outside of war extrajudicial killing is permitted only if the target poses an imminent threat to American lives that cannot be ameliorated through non-lethal means.
In other words, whether or not in armed conflict, being a “militant,” “terrorist,” “insurgent” or the like does not necessarily make someone targetable. And no number of unintended casualties is acceptable. (Therefore, the President’s suggestion that outside of zones of active hostilities the risk of civilian casualties must be close to zero before an attack is authorized, while welcome, embraces terminology that elides the distinction between war and its absence).
The “Is it war?” question isn’t answered by reference to, or even correct application of, the authorization for use of military force (AUMF) passed by Congress in the wake of 9/11. The debate about whether a new AUMF is needed may have constitutional significance, but is irrelevant to the satisfaction of international law. The question “Is it war?” isn’t answered merely by one or more authorities “declaring” or otherwise asserting that it’s war. And it isn’t settled by the use of military, rather than other means.  It’s answered by reference to two international law criteria: one, are there at least two “parties” to the armed conflict with sufficient command structure to exercise the rights and responsibilities of international humanitarian law?; and two, are the hostilities attributable to those parties sufficiently frequent and/or severe to exceed the realm of mere law enforcement?
Studies that distinguish between militants, etc. on one hand, and “civilians” on the other, suffer from two types of flaw. The first and most evident flaw that Ritika’s analysis exposes is the reliance on media accounts that a target was a militant, etc. where such accounts merely repeat government allegations. Accounts that a target was not a militant may also be suspect, but less significant because neither a wrongful designation of “civilian,” nor an accurate designation of “terrorist,” “militant,” “insurgent,” etc., necessarily means the target was “targetable.” The second, less evident and possibly more significant flaw is the omission of the entire category of unlawful killings in which the wrong legal paradigm is applied, or the right paradigm is incorrectly applied. While the failure of the studies to note their limitations is regrettable, the greater source of error is government’s inability or refusal to answer the following questions: Where are we at war? Against whom? Who is targetable in that war? Where are we not at war? Who is targetable there? And pursuant to what legal criteria are all these questions being answered?
Ritika concludes that “the best methodology only serves to demonstrate how little we actually know about the civilian casualties from U.S. drone strikes.” True, and as long as we continue to accept the “civilian” vs. “other” distinction for targeting operations, we will continue to undercount the number of people illegally killed.