Briefing Note: On Target? Drone strikes, legitimate military objectives, and civilian casualties
Accounts of U.S. drone strikes in Pakistan, Yemen, and Somalia abound. In most cases, news agencies highlight the killing of a top Al-Qaeda member or “suspected” terrorists hiding in dubious militant compounds. AFP recently reported a new drone attack that killed at least 7 people in North Waziristan, a Pakistani tribal district near the Afghan border. Although the victims were not identified, local security officials said all of them were militants. But the Bureau of Investigative Journalism (TBIJ), a British NGO that tracks CIA drone strikes, cautioned that three of the victims may have been innocent civilians.
At least two conclusions may be drawn from this example. First, the U.S. policy of targeted killings is not limited to “personality strikes”, which are aimed at known high-value suspected terrorists; it also covers “signature strikes”, targeting groups of unknown individuals who have been determined, through surveillance, to exhibit certain patterns of activity commonly associated with terrorist operations. Signature strikes increase the risks of target misidentification and collateral damage.
Second, the actual number of civilian casualties from drone strikes will remain highly contested. On the one hand, the numbers provided by the United States minimize the total of civilian deaths because U.S. counts all military-age males found in a strike zone as combatants or potential co-belligerents of Al-Qaeda. On the other hand, human rights groups may be more inclined to count persons whose status is unconfirmed as civilians, thus reporting a higher number of civilian casualties.
The issue that lies at the heart of the controversy around the U.S. drone program can be framed in one simple question: who can be targeted? Unfortunately, there is currently little consensus among scholars, decision-makers, and humanitarian actors. The answer depends on the legal framework that governs targeted killings.
The United States has defended its drone program mainly on the basis of the existence of an armed conflict with Al-Qaeda and its right of self-defense. The laws of armed conflict authorize belligerents to attack members of an organized armed group, such as Al-Qaida and affiliates, as well as any civilians taking direct part in hostilities. Because targets are considered legitimate by virtue of their affiliation with an armed group or their function in an armed conflict, the United States asserts its right to target individuals even outside of the traditional battlefields. According to this interpretation, the laws of armed conflict follow the individual wherever he or she goes. Moreover, reliance on the right of self-defense allows the United States to preventively target individuals who purportedly pose an imminent threat, without the need to establish the target’s connection to the armed conflict between Al-Qaeda and the United States.
So long as targeted attacks from drones comport with the principles of distinction, proportionality, and precaution, personality or signature strikes are likely to be consistent with the laws of armed conflict, even if civilian casualties ensue. After all, in times of war, knowing the name or identity of a legitimate military target before an attack is irrelevant. Some argue that the precision and accuracy of drones make them the most humanitarian weapon available, since the likelihood of indiscriminate attacks is substantially diminished. This alone may justify tightening the legal standards of proportionality and precautions prior to an attack so as to minimize unnecessary civilian losses and target misidentification, which will ultimately subject drone strikes to much closer scrutiny.
That said, the most precarious aspect of the U.S. drone program is not the use of drones itself, but the arbitrary designation of individuals to a terrorist group and the relaxation of the standards and criteria for determining who is a legitimate military target.
At present, merely being suspected of engaging in terrorist activities seems to warrant the deprivation of life without due process of law. Given the technological advantages of drones and the secrecy of the CIA drone program, carrying out targeted killings outside of the traditional battlefield may have become too easy. As a result, human rights advocates are pushing for the application of law enforcement standards and human rights law to the conflict with Al-Qaeda and terrorist organizations, in order to ensure the adoption of alternatives to the use of deadly force as a first resort (i.e., capture). Additionally, human rights law may be less tolerant of collateral damage, even if proportionate in relation to the military advantages of an attack.
As a policy matter, it is important that a consensus on the standards and criteria for targeted killings be reached, particularly as other countries may develop their own drone programs in the future. And despite the lack of effective legal mechanisms for the enforcement of international law, the United States has an incentive to comply with the laws of war in order to prevent Al-Qaeda from using drone strikes as a recruitment tool. But as long as the American public continues to perceive targeted killings of suspected terrorists as legitimate, there will be little incentive for other branches of the U.S. government to limit the Executive’s current policy of targeted killings.