Gabor Rona Also Comments on Mark Mazzetti, The Drone Zone, & Geoffrey Corn and Kenneth Anderson's Posts

By Kenneth Anderson
Thursday, July 12, 2012, 11:52 AM

Gabor Rona, international legal director of Human Rights First and esteemed commenter on several Lawfare posts, sends us this further comment on the Lawfare discussion around Mark Mazzett's New York Times Magazine piece from last weekend, The Drone Zone.  (Ken originally posted the link to Mazzetti along with a comment, which prompted to Geoff Corn to send in additional thoughts, and now Gabor has joined in as well. Readers will see that all of us are engaged in a discussion about drone warfare that is much broader than Mark Mazzetti's original article.) We're delighted to post Gabor's comment:

I agree 100% with what Geoff Corn says and I add another 200% worth of concerns about what Ken Anderson  says on the moral and legal challenges of drone warfare.

The first 100% of agreement is with Geoff’s suggestion that because the "pilot" of a drone does not experience the same risks as do infantry or pilots "in theater" - because the drone operator has greater opportunity for deliberation - his or her targeting decisions ought be subject to greater scrutiny than those of a soldier facing a "kill or be killed" moment. Technology doesn't change the rules of military necessity, distinction, proportionality, and obligation to undertake precautions, but it does change their implementation. In short, IHL without a doubt embodies the rule that "to whom much is given, much is expected." (I can almost hear some Lawfare readers chuckling: "Aha! I suspected that IHL was socialism!").

But there's something twice as important about the difference between remote and non-remote killing, which is my 200% point that Geoff doesn't discuss. It happens not at the altitude at which drones fly and individual targeting decisions are made, but at the higher altitude at which drone policy is made. It is whether the principles and rules of warfare mentioned above - military necessity, distinction, proportionality, and obligation to undertake precautions - will be under-applied or over-applied when personal risk is removed from the equation.

The problem of under-application, which is about 50% of my additional 200%, is simply the flip side of what Geoff discusses: that instead of more diligently applying the rules, we will become less diligent because it's easy, even though we should be more diligent because we can be.

The problem of over-application, which is the remaining 150% of my concern, is one of war-creep: the irresistible impulse to apply the more relaxed rules of targeting that IHL offers, rather than the more stringent ones of international human rights law. This is not merely theoretical. People are already dying in far flung places because of promiscuous American interpretations of what it means to be an "associated force" of an enemy against whom we are at war; or what it means for someone in Yemen or Somalia (or Mali?) to be "directly participating in armed conflict" against the United States.

Remote targeting capabilities carry with them a double whammy: 1) a substantial risk of permanent global war, 2) in which the elimination of risk emboldens the attacker to pay ever-receding lip service to the traditional rules of warfare targeting.

This is no less than an end to IHL as we know it.

Now I suppose Ken would consider this statement precisely the kind of Chicken Littleism that he takes issue with in his post. And I think he’s right that there’s little difference between a drone strike and “the person who fires a cruise missile from a computer console deep inside a ship hundreds of miles out in the ocean” when the two are taken in isolation. But there’s a big difference between a cruise strike as part of a larger military campaign that includes boots on the ground, and one that doesn’t.

And when I say an end to IHL as “we" know it, I mean the rest of the world as distinguished from Americans. The rest of the world has a more recent history of experiencing the effects of war on the civilian population. The anomaly of 9/11 aside, you need to go back to the civil war to see anything in the U.S. akin to what Europe's and Africa's and Asia's and Central America's and South America's civilians have experienced in spades throughout the 20th century. Because our civilians are not at risk, because our leaders do not pay a political price for the death of others that they would pay were it the death of our own, we Americans have been able to construe the law of armed conflict 's targeting provisions broadly. The Atlantic divide over terminology - its IHL in Europe, but it’s still "law or war" or LOAC in the US - is evidence of our conceptual differences.

The point is this: if one's interpretation of the rules is largely informed by a parochial cost/benefit analysis of personal risk, then we have more to fear than to gain from the growth of remote warfare. This is not to say that drone attacks are inherently wrong or that we should always keep boots at risk on the ground in order to discourage us from going off the rails. Rather, it is to suggest that as personal risk declines due to the growth of remote targeting, we must be extra vigilant to stay true to the principles and rules that govern conduct of hostilities. In other words, what Geoff said. Because the consequences of seeing an end to IHL as we know it are simple and devastating. It is not the end of civilian protection in war because of who the drones kill, but because of what drone policy says about the disposability of IHL principles and rules to the likes of Assad and the purveyors of the next Rwanda and Srebrenica.