Drone aircraft, civilian casualties, and the law

A Reaper UAV being prepared for a test flight, Creech AFB, Nevada. Image by Getty Images via Daylife

The Wall Street Journal editorializes today about the use of UAVs in the war on terror. It makes the case that despite concerns, their use is legal under international law, and that drones minimize civilian casualties. Both of these points may be true, but in typical fashion the Journal eludes one of the key questions and contradicts itself on the other.

This is a topic I know a little about: In 2008 I edited a feature article for a national magazine on the team of Air Force personnel that operates the drones from trailers outside of Las Vegas (check back next week for the link), and last month I interviewed the UN Special Rapporteur on Extrajudicial Killings, Philip Alston, who has been the most outspoken official about the question of the legality of the US program.

As is too often the case, the Journal in its editorial is guilty of dishonesty by omission. It implies that the only issue of international law at hand is that the law

…allows states to kill their enemies in a conflict, and to operate in “neutral” countries if the hosts allow bombing on their territory. Pakistan and Yemen have both given their permission to the U.S., albeit quietly.

But that is not Alston’s beef, as he told me when I spoke to him in his office on December 7 and 10, and as he told Amy Goodman of “Democracy Now” in October pursuant to a report to the General Assembly he issued  (good luck finding it on the UN’s Kafka-esque website). Rather, it’s a matter of taking proper measures to prevent civilian casualties.

The Journal blithely claims that the drones are more accurate than alternatives, and superior at targeting combatants out of uniform. I’ve seen screen shots of what the drone operators see, and the level of detail that can be ascertained from 12,000 miles away is flabbergasting.

Yet, the Journal states,

Civilian casualties are hard to verify, since independent observers often can’t access the bombing sites.

Wait a minute: The drones can tell whether a targeted individual is the right guy or not before they shoot him, but they can’t go back afterward and see if there are any dead children lying around? This is ludicrous!

It’s also the main point Alston raises regarding the drones’ legality, but you wouldn’t know that from the Journal‘s editorial. According to international law, parties to armed conflict must take reasonable steps to prevent civilian casualties. Whether the US is doing so in this case, we have no idea. Alston:

We have no real information on this program…There’s no accountability for it. There’s no indication of the rules that they use…It’s possible to justify a particular killing, but the CIA has never tried…They have simply issued a general assurance…Well, if Israel or some other country that we’re scrutinizing says that, we say, “Sorry, guys, it’s not enough. We need to get the details.”

Alston continues:

I’m calling for the government to make clear the details of the program; the legal basis, under US law, on which they are relying; the rules that they have put in place which govern the CIA actions, assuming there are rules; and what sort of accountability mechanisms they have.

The drones are an incredible tool of war, a disruptive technology on the order of the iPod. They are no doubt effective, and they save American lives. All good. They may also save civilian lives. Also good. How hard can it be to verify this point? And wouldn’t it behoove the battle for hearts and minds to do so?

Does anyone know if there would be any intelligence risks at stake, or tactical disadvantages, to do another fly-over and check for collateral damage? I haven’t heard either, but I’d be interested to learn one way or the other.

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