Targeted Killing

Thoughts on the Human Rights Watch and Amnesty International Reports

By Benjamin Wittes
Wednesday, October 23, 2013, 8:50 AM

I have now read both of the two major human rights reports released yesterday on civilian casualties in drone strikes---one by Amnesty International on strikes in Pakistan and the other by Human Rights Watch on strikes in Yemen. I have a few thoughts on them.

First, it is impossible for a modestly-moral person to read these reports without something approaching nausea. They are grisly. They involve the deaths of numerous apparently-innocent people. The deaths appear to have taken place at the hands of the United States. The reports involve some substantial new reporting on these incidents. And they thus raise serious questions about the way at least those drone strikes they cover took place: What went wrong, why, and how we can minimize the chances of such disasters in the future?

The power of both reports, however, is diminished---to what degree I am honestly not sure---by two factors that are worth spelling out. The first is that neither of these reports even purports to examine a representative sample of drone strikes. Rather, the two groups went looking for drones strikes that had killed civilians---and they found some. Given that President Obama has said publicly that "it is a hard fact that U.S. strikes have resulted in civilian casualties," this is hardly surprising.

Amnesty's report is admirably candid on this point. In the introduction, the authors note that the document "is not a comprehensive survey of US drone strikes in Pakistan" but "a qualitative assessment based on detailed field research into nine of the 45 reported strikes" in North Waziristan between January 2012 and August 2013. The report "highlights incidents in which men, women and children appear to have been unlawfully killed or injured." At one level, this focus makes sense. Human rights groups report on human rights violations, so one can't fault the groups for shining a light on those cases that seem most problematic. But as a reader, one needs to be careful not to generalize from findings like these. Even if we take all of the facts both groups allege at face value, neither report really changes our understanding of either the likelihood of civilian casualties, the number of them, or the utility of drones as a tool in overseas counterterrorism. Examining the costs is a worthy endeavor, but to me the much more important is the scope and magnitude of those costs---and on that point neither report adds much to the existing conversation.

A more serious problem is that both reports---in slightly different ways---seem to overstep what the facts they report will actually support. Sometimes, the overreach is subtle and factual. Sometimes, it's legal---and pretty blatant. Three of these overreaches warrant specific mention.

First, Human Rights Watch builds much of its analysis around the proposition that the drone strikes it examined "did not adhere to policies for targeted killings that US President Barack Obama disclosed in a speech in May 2013." Yet as the group acknowledges, all of the strikes examined in the report predate Obama's speech at the National Defense University, some by several years. Human Rights Watch mentions this fact a few times but it does not seem to have assimilated it. This speech announced changes in policy with respect to drone strikes. Throughout the report, Human Rights Watch holds the administration accountable for not complying with policies it had not yet adopted, and it sometimes seems to treat violations of those policies as somehow indicative of violations of violations of international law.

Second, the reports---particularly the Amnesty report---have a way of conflating legitimate targeting which may produce civilian collateral damage with horrible errors that simply should not happen. The most glaring example of this is Amnesty's treatment of the June 4, 2012 strike that killed Abu Yahya Al-Libi, a senior Al Qaeda leader. According to the Amnesty report, an initial drone strike killed five people and injured four others (the report does not say whether any were civilians). A group of 12 people, including both local residents and foreigners "whom villagers said were Arabs and Central Asians who were likely to be members of al-Qa'ida" showed up "to assist victims." Al-Libi was "overseeing the rescue efforts" and was killed in the second strike, along with between 9 and 15 other people, including six local tribesman who "as far as Amnesty International could determine, had come only to assist victims." In other words, six tribesman were killed working alongside a group of Al Qaeda operatives under a senior Al Qaeda official were killed.

Amnesty considers this strike a potential "war crime" both because it constituted an attack on civilian rescuers and, quite amazingly, because Al-Libi may not have been directly participating in hostilities at the time of the strike. (I'm really not making this up. See pp. 29-30.) In other words, Amnesty's position is that it may be a war crime to target a senior Al Qaeda leader when he's doing something other than plotting attacks---if, that is, it's lawful to target him at all. There are many serious issues these reports raise; this kind of overreach undermines them all.

Finally, both Amnesty and Human Rights Watch seem to be alleging war crimes while not quite admitting that's what they are doing. Human Rights Watch does this subtly---by laying out standards of law the United States does not accept, reporting facts that seem to violate those standards, and then demanding "prompt, thorough, and impartial investigations into all cases where targeted strikes may have resulted in unlawful killings" with "criminal prosecutions as appropriate." Amnesty is more blatant about it. The group coyly declares at the outset that it is "unable to reach firm conclusions" about its case studies and their "status under international law," going so far only as to say it is "seriously concerned" that the strikes "may constitute extrajudicial executions or war crimes." But draw firm conclusions it then does. For example, on page 23, it declares flatly that its evidence "indicates that Mamana Bibi was unlawfully killed"---leaving open only the question of whether the illegality was a war crime or an extrajudicially execution.

Many of the facts these groups report are horrifying and warrant investigation. Both groups would have done their case a service had they had a little more faith that those facts speak for themselves.