In a widely-publicised report (‘Living Under Drones’), academics from Stanford Law School and the New York University School of Law, have recently cast fresh doubt on the moral/legal status of the continuing use by the United States of unmanned aerial vehicles. As is all too familiar in these cases, the conclusions and claims of the authors have been uncritically accepted in media reports. This is a pity, since the agendas of those involved, and defects of the methodology of the report, are very obvious. There are some important issues regarding the strategic importance/significance of the use of drone-strike capability in modern irregular warfare, and how traditional just war concepts may be applied to drone use. Regrettably, the Stanford/New York collaboration makes little contribution to this debate. Instead, it palliates extreme left wing and broadly anti-American interests. The extent to which some American academics will do this never ceases to amaze!
The main conclusions of the report are based on interviews conducted in Pakistan with 130 people who were survivors or witnesses of drone attacks, or relatives of victims of such attacks. Specifically who might be interviewed was suggested by a local human rights organisation, the ‘Foundation for Fundamental Rights’, which had been set up in early 2011 to campaign against drone attacks. Am I the only person that thinks that this is not a reliable research methodology?
Of course, those who have been close to the site of a drone-strike, or have had neighbours or relatives who were harmed, are likely to think such strikes are a bad thing and are likely to fear being harmed themselves. They are also likely to be supportive of counter-strikes against the supposed source. This is how populations in a ‘war zone’ do behave, and North Waziristan (where the interviews took place) is in the front line of a war, isn’t it? Interestingly, this point is nowhere made in the report and, surely, it is absolutely crucial for determining what is legitimate in war and what is not, in order to establish a clear context for the discussion.
The other source of information for the 150 page report is the Bureau of Investigative Journalism, which operates out of City University (London). According to data from this privately-funded organisation, anything between 14 and 34% of the victims of drone strikes may be civilians (‘it is difficult to obtain data’). ‘Living Under Drones’ also reports very recent journalistic speculation (CNN, 6 September) that only 2% of those killed are ‘high-level’ targets, which carries the implication that the other 98% might be, in some sense, illegitimate killings. Indeed, more broadly, there is a persistent suggestion that what we are talking about here is ‘extrajudicial killing’, in which case 100% of the victims are illegitimate. This appears to be the view of the UN Special Rapporteur on these things, who has reportedly declared President Obama to be a war-criminal, which may be a little embarrassing for a president who is also a Nobel Peace Laureate.
The Stanford/New York report contains a great deal of loose and exuberant talk by people who ought to know better. As is well recognised, there is a great deal of politically-inspired violence going on in the world and that situation is not going to change for the foreseeable future. If we are to ameliorate the harm of these conflicts through the application of humanitarian principles, we need to distinguish between intra-national crime (albeit politically inspired) and law enforcement on the one hand, and war, on the other. In the former, it is reasonable to require due process. In the latter, we need to recognise that the adversary parties are trying to kill each other in order to advance their aims. The principle rule here is that the only legitimate targets are those persons who are actually participating in the hostilities, who may be called ‘combatants’. Humanitarian law recognises that persons not ‘participating’ may be unintentionally harmed and that such harming is not necessarily an offence (the principle of ‘double-effect’). Of course, there are difficulties in drawing lines in the matter of the level of ‘participation’ that might be required to confer ‘combatant’ status, but the CNN speculation referred to above, that only ‘top militants’ are legitimate targets, is plainly absurd. It is as if we were to limit the targeting of regular (formal) war to generals, who equally may constitute only 2% of the fighting force.
In these irregular conflicts, determining who is a combatant is a difficult matter but we cannot ignore it. They are the people who are carrying the explosives and assembling the IEDs, and scouting the targets and conveying the messages. They come and go and they are not wearing uniforms, or badges of affiliation, but they are participating in hostilities and they are legitimate targets. There is data available about the victims of al Qaeda/Taliban attacks in Pakistan, and, in particular, Afghanistan. This shows a very high proportion (80%+) of civilian casualties. I wonder if the Foundation for Fundamental Rights, or the worthies at Stanford and New York, have any opinion on the legitimacy of this? It is a central principle of humanitarian law that all belligerents are to be held to the same standards. So why don’t we do so?
In fact, drone technology permits considerable care in targeting and there is reason to think that that care is generally being taken; so what is the problem? Drone technology also allows the party that has it to better preserve the lives of its own combatants, and this is also an important moral requirement that is sometimes overlooked. For some, though, the use of unseen weapons seems ‘unfair’ (sometimes called the ‘sitting-duck scruple’). It is an intuition we can understand (think of German paratroopers falling from a clear sky over Crete towards New Zealand defenders) but it is not recognised in humanitarian law.
There is a need to discuss the application of traditional humanitarian principles to the conduct of modern war. A prejudiced and superficial analysis by a group of lawyers from Stanford and New York isn’t much help.