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Latest Data on Drone Deaths

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A study published in the Jamestown Foundations’ Terrorism Monitor a few days ago claims it sheds “New Light on the Accuracy of the CIA’s Predator Drone Campaign in Pakistan.” (Never mind the fact that as civilians, CIA agents are not entitled to wage war and would have to be considered ‘unlawful combatants’ if brought to justice.)

The question addressed here is a simple but very important one from a jus in bello perspective: what is the proportion of civilian deaths to combatant deaths in such strikes? No one is actually keeping track, but the authors aim to develop a good estimate by extrapolating from both Western and Pakistani news sources. On this basis they conclude:

Widely-cited reports of the inaccuracy and disproportionality of civilian to militant deaths in the CIA’s ongoing Predator drone campaign against the Taliban and al-Qaeda in Pakistan are grossly misleading. The most detailed database compiled to date, assembled by the authors of this article, indicates (among other important findings) that the strikes have not only been impressively accurate, but have achieved and maintained a greater proportionality than either ground operations in the area or targeting campaigns elsewhere

Now, I haven’t studied their coding closely enough to understand how it enabled them to arrive at such wildly different conclusion than this study last year, which used a similar methodology; however simply by reading over the article itself I can already see three problems:

1) Their definition of ‘civilian’ excludes adult men and boys over the age of 13:

All children under 13 and women were assumed to be civilian, along with all of those specifically identified as civilians, bystanders or locals uninvolved in the fighting. Where it was impossible to determine whether a person killed was properly categorized as a suspected militant or civilian, we assigned them to the category of “unknowns.”

Numerous scholars, myself included, have shown how misleading it is to assume all women are civilians and all men and older boys are combatants; and to build this gendered stereotype into one’s dataset immediately prejudices the data in favor of finding fewer civilian deaths.

2) The authors are to be commended for using the label “suspected militants” rather than “militants” – too many right-of-center commentators assume that a terror suspect is in fact a terrorist, just as too many left-of-center commentators use the term “war criminal” to describe individuals who have never yet been convicted of a war crime. Yet these authors somehow fail to notice the ethical implication in the behaviors they are describing: the US is carrying out a mass murder campaign against individuals suspected of committed crimes, in the absence of any sort of effort to determine whether or not they are actually guilty. In short, what renders these individuals putative “legitimate targets” appears to be nothing more than the suspicions of those with their fingers on the trigger. Oh, and possessing testicles.

3) Now that said, the way that they have gone about exploring the concept of discrimination is very interesting: they have compared the ratio of civilian/”suspected militant” deaths with drone to equivalent ground operations by US troops, by Pakistani troops, and by Israel’s targeted killings campaign, and in inter-state wars historically. All of these are interesting and helpful comparisons. I’d be interested to see them replicated with data that properly coded “civilian” dead – which would need to involve a consideration of the context of each attack.

That said, strictly speaking the authors are measuring the concept of “distinction” or “discrimination,” not the concept of “proportionality.” The distinction principle measures the ability to hit combatants while minimizing the costs to civilians. Proportionality measures the overall good of an attack relative to its overall negative side-effects.

From a human security perspective, I would argue the appropriate measure for an analysis of proportionality would not be the number of civilian death to combatant deaths, but rather the number of civilian deaths by drone strikes to some estimate of the number of Pakistani civilians who will not now die as a result of militant activity.

I leave it to the number crunchers to figure out how to calculate this.

[cross-posted at Duck of Minerva]

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  • wengler

    People in the US tend to throw around the word “unConstitutional” and affix it to any program or policy that they don’t like. In this case however, there has to be some sort of recognition of how much of a dictator we have made the Executive on military affairs. The 2001 AUMF says thusly the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    Congress has not declared war against Pakistan or groups within Pakistan. But under such broad sweeping language, there is no place on Earth that cannot be blown up by the authority of the President nor any person that he cannot ordered killed. This might be off-topic, but I bring it up to prove a point about the legal standing of this entire operation.

    According to the US government’s own official investigation into the September 11, 2001, terrorist attacks, nearly everyone involved in the terrorist conspiracy has been caught or is in custody. Therefore we are left with legacy groups whose supposed threat to the US is on par with the one that attacked over nine years ago. The point is that any strike by the US against Pakistan at this time would be a crime if there were any actual legal structure existing to enforce laws like murder. Of course bombing people who don’t like you, and then bombing the new people that don’t like you for bombing the first people tends to beget a policy that becomes increasingly genocidal.

    We appear to only have one supreme law in this country, and that is that there is one person that can determine if anyone should live and die and that is the President of the United States. Our amoral political culture appears to accept this as normal and desirable, but I am sure they will play their part as terribly hurt innocent victims when these operations start to blowback here.

    • E.

      Wengler makes a good point. It is further worth noting that, as our wars of aggression have dragged out over a decade, that the current generation of “suspected militants” (in the case of boys 13 and older) were toddlers when the 9-11 attacks were “planned, authorized, committed” and thus their ability to have “aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” was probably very limited. In fact, since the average age of Taliban commanders is currently 25, even those men were unlikely to have been doing much planning, authorization, or harboring.

      Certainly by the time that 2014 roles around (now being bandied about as the end of US combat operations) a generation will be at war who has no direct connection to the 9-11 attacks that were used as an excuse to launch the wars of aggression in Afghanistan and Iraq that have now carried over into Pakistan, and threaten to spread to Yemen and beyond.

  • E.

    Regardless of whether it is a Pakistani or a US paper reporting a figure for “suspected militants killed”, one has to ask exactly who is doing the counting. The majority of these strikes take place high in the mountains of Northern Pakistan, in an area that can reasonably be estimated to be more under the control of tribal warlords than the government. In the wake of a missile strike on someone’s village, exactly who is supposedly hiking up to these locations, poking around in the rubble, and making an accurate assessment of “militant, militant, civilian, unknown, Taliban commander…”

    Unless the good folks from Jamestown can validate the original source of their “data” – from US or Pakistani military, Red Crescent, etc – and the collection method (i.e., airborne surveillance, physical inspection) – then it begins to sound a lot less like a genuine “study” and a lot more like the folks at a neo-con think-tank using numbers of dubious provenance to justify an illegal and unsuccessful aerial bombardment campaign by painting it as being more discriminate than previous reports have indicated.

  • Lurker

    Although I’m no fan of the drone warfare, I’d like to contest your characterisation of the CIA agents as “non-combatants”. In fact, they are very likely combatants. If I were to defend a CIA drone operator against murder charges in a foreign court, I would use the following arguments.

    First, I would posit that at least the following applies: Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model

    The drone operators are quite clearly “civilian members of military aircraft crews”. Even though the CIA drones might be “civilian” from the US legal point of view, they are quite clearly military aircraft from the standpoint of international law.

    Second, I would posit that from the standpoint of international law, CIA is a military organisation, although it is formally a civilian organisation according to the domestic law. It is quite clearly “an other militia — belonging to a Party to the conflict and operating in or outside their own territory” and it fulfils the four basic conditions:
    (a) that of being commanded by a person responsible for his subordinates;
    (b) that of having a fixed distinctive sign recognizable at a distance;
    (c) that of carrying arms openly;
    (d) that of conducting their operations in accordance with the laws and customs of war.

    a) CIA drone operators have (I’m sure) a clear bureaucratic chain-of-command, although they are not operating under UCMJ.
    b) the drone operators are (quite likely) carrying a CIA identification badge hanging from their clothes: thus, they could be recognized for targeting while fulfilling their duties.
    c) The drones are carrying arms openly and the operators are in defended locations. (Thus, they are not spies operating covertly in hostile territory.)
    d) The aerial bombardments conducted have been a staple of the warfare of the civilized nations for the over 90 years, so the rules of war are followed.

    • cpinva

      you are wrong on every level. the cia is not now, nor has it ever been a “military” organization, in any way, shape or form. that its operatives may (or may not) display ID cards, and may (or may not) openly carry weapons, makes it no more a military organization than the local police dept. it is an intelligence gathering entity. always has been.

      any cia operative engaging in combat operations is, by definition, committing a war crime. simply put, by the terms of the geneva conventions (which we are a willing signatory to), un-uniformed parties (what is normally accepted as “clearly identifiable markings”), engaging in combat operations are “unlawful combatants”, per international law.

      the aerial bombardment of which you speak, engaged in for the past 90 years, has been done with planes clearly identified as to country of origin (the “enola gay” and “bock’s car” both had standard army air force markings on their wings and fusilage). even our “stealth” aircraft are clearly identified, so that line doesn’t hold water.

      were i to offer advice, to any cia operative unfortunate enough to find themselves in a court of law, i would advise them to not retain “Lurker” as counsel for their defense, as surely no good would possibly come of that.

      • Lurker

        Actually, in many cass, “a local police department” may be considered a combatant organisation if they are taking active part in hostilities. The domestic legal definition of the civilian does not preclude a legal combatant status in international law. This has been quite clearly shown in the US practice: the Serbian police were considered legitimate targets during the Kosovo war.

        I’m not trying to defend the drone strikes as such. I am simply arguing that the combatant protections of the Geneva conventions are meant to be read so that the definition of “combatant” is applied generously. It is a two-edged sword: legal immunity from prosecution, but no immunity from enemy action.

        And if the drone operators are sitting in Virginia, that is “battlefield”, meaning that an opposing military force could, in theory, lawfully target the activity. (In practice, of course, that is quite impossible, but that is the whole point of the exercise.)

        • I’d be willing to concede Lurker’s point that there’s probably a way to finagle the law on this, and it will be interesting to see what courts do when the opportunity presents itself. Although I mostly understand it as Gayle Force describes below, on the basis of the conventional wisdom among humanitarian law experts.

          That aside, here’s an important distinction to keep in mind: the concept of combatancy as far as determining legitimate military targets is not the same things as lawful combatancy for determining POW status of combatants. And what POW status signals is lawful combatancy – it basically means you can’t be tried for participating in hostilities. Gayle Force and Philip Alston (and, at this point, I) am arguing CIA agents don’t have the right to participate in hostilities and could be tried for so doing. That doesn’t mean that they wouldn’t be perfectly legitimate targets during hostilities, as long as they are participating.

  • Lurker, you might want to read Philip Alston’s take on the U.S. drone program.

    The CIA are civilians. The U.S. themselves designates them as civilians. They do not openly carry arms. They don’t have insignia that can be seen at a distance because they are not on the battlefield. Given that they do not satisfy two of the first three criteria, they can’t satisfy the fourth.

    And your first argument is puzzling, as the CIA do not actually accompany troops. No, they often push the buttons for drone attacks from here in the United States. We kill people in Yemen from Virginia. The military has its own drone program, as it happens, for use on the battlefield.

    Under the laws of war, ANYONE can be held liable – military contractors, civilians, armed groups, like paramilitaries or terrorist organizations – because the liability is determined by the status of the victim or the act itself or the weapon used, not the perpetrator.

    Finally, you’re arguing a Nuremberg defense, which doesn’t hold. Even if you can argue the CIA counts as military, there is no complete immunity. If you were arguing in a foreign court, the prosecutor would point out that for grave breaches of the law of war, there is personal liability, even for the military. And an awful lot of countries would call the CIA drone program, which is extrajudicial killing not on a battlefield by a civilian who is ALSO not on a battlefield in a country against which we have no declared war and without any minimum of due process (the CIA won’t release how it comes to determine who should be targeted), a grave breach.

    It’s also kind of just fun you argue the Hague 1907 Convention should apply when the U.S. has been running around labeling people “enemy belligerents” and says it doesn’t and has no relevance. The foreign judge will LOVE that.

  • Anyway, Charli, excellent post. Considering only women and children “civilians” is so troubling.

  • Eric

    It isn’t only women and children that are being considered as civilian. The distinction is that women and children are automatically considered civilian. People with testes are being weighed in some non-specific manner.

  • Bill Murray

    Should jus in bello matter at this point. Isn’t it more jus in occupation and jus in neighboring country that is ostensibly our ally?

  • Mojo

    From the New America Foundation study:
    “Thus, the true non-militant fatality rate since 2004 according to our analysis is approximately 28 percent. In 2010, it is more like eight percent.”

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