The South Asia Channel

The ‘willy-nilly’ drone doctrine

The ‘willy-nilly’ drone doctrine

Last weekend, the Associated Press released a study of ten drone strikes in Pakistan in the last 18 months. This is the most ambitious journalistic investigation of drones so far, which also does what the Obama administration has so far failed to do:  to meaningfully investigate claims of civilian casualties and publicly evaluate why those killed were targeted.

The study found that at least 138 militants were killed, while the remaining 56 were civilians and tribal police. It is difficult to extrapolate much from ten cases. But if the same pattern held true for other strikes, the civilian casualty rate would be far less than is commonly asserted in Pakistani public discourse — but also far higher than the Obama Administration has suggested previously. Senior counterterrorism official John Brennan has in the past suggested the civilian casualty rate was zero, whereas President Obama has described it as "few." In contrast, Pakistani public discourse often suggests that most casualties of drone strikes are civilians. The AP article quotes prominent Pakistani public figure Imran Khan on drones: "Those who lie to the nation after every drone attack and say terrorists were killed should be ashamed."

The coverage of the AP study so far (and even the headline of the story itself) has largely focused on the discrepancy between the AP’s finding that mostly militants were killed in the drone strikes it examined, and the common assertion in Pakistani media and politics that drones are primarily killing innocent civilians. Inflated civilian casualty claims due to drones are certainly a problem in Pakistan. They not only distort public discourse and policy-making, but they also inhibit sound analysis of what is causing civilian casualties, and possible steps to prevent and mitigate civilian harm in the future. However, reading the AP reporting as only exposing the hot air behind bogus civilian casualty claims misses the real contribution this study makes to the overall debate about drones.

The AP study is novel because it is based on something more substantial than the whispers of anonymous officials in the halls of Islamabad and Washington. AP took the time (and risk) to actually speak to those who knew the individuals killed, who saw the strike take place, and in some cases buried family members.

What’s more, contrary to those who suggest that any ground reports will be hopelessly compromised by propaganda and anti-American bias, what the villagers interviewed told the AP smacks of truthfulness. If the local villagers were motivated to lie to inflate civilian casualties — as one of the anonymously cited intelligence officials in the AP story seems to suggest — they certainly gave AP the wrong impression. According to the 80 villagers AP interviewed, militants were the only victims in six of the ten strikes examined.

And while the AP found that militants were killed more frequently than civilians, it did find civilian casualties in a number of strikes. This begs the question: if the AP is doing assessments like this, why isn’t the U.S. government? To the best of our knowledge, U.S. review of drone strikes consists of video footage before, during, and after the incident. For example, following one strike in which AP found that three women and two children were killed, the anonymous intelligence officials’ rebuttal was that women and children had not been observed prior to the strike.  Certainly no public investigations of drone strike cases — of the type that typically follow allegations of civilian casualties by the U.S. military in Afghanistan — have been forthcoming.

This is problematic because, while video surveillance can be an aide to investigation, it often presents an incomplete picture. Even with the best intelligence in the world, the conflict in the tribal areas of Pakistan is murky, as are the activities and affiliation of individuals operating within it. Across the border in Afghanistan, where troops have years of experience with the terrain and the communities, and greater field intelligence and access, mistakes are regularly made. The Administration’s claims that such mistakes are almost impossible to avoid, or its attempts to dismiss claims to the contrary as propaganda alone, willfully disregards all the military has learned in its past ten years in Afghanistan and Iraq.

In addition, video surveillance is often not enough to determine who is a civilian or who is a combatant under international law. Under international law, members of an armed group that is party to the conflict, or civilians who directly participate in hostilities can be directly targeted. While there are ongoing international legal debates about what constitutes "direct participation," the provision of food, shelter or medical care to one of the parties to a conflict, or mere association with one warring party does not constitute participation.

In Afghanistan, our organization, Open Society Afghanistan, has had more access to investigate such cases, and found that civilians have sometimes been killed or detained because their proximity to insurgent groups led to a sort of "guilt by association." Studies like the AP report raise concerns that the United States may be applying the same broad standards for direct participation in Pakistan. In one strike documented by the AP, 38 civilians and tribal police were reportedly killed at a public jirga — a level of civilian harm that U.S. intelligence officials disputed on the grounds that "the group targeted was heavily armed, some of its members were connected to al-Qaida," according to the article. The AP analysis of the incident based on villagers’ accounts found that some militants were present but that the majority was comprised of civilians, tribal elders, and tribal police — many of whom may well have been armed given the cultural context and insecurity in Waziristan. 

The lack of transparency in the Obama’s Administrations’ drone policy have made it impossible to know how the U.S. government chooses its targets in any given incident, and thus difficult to get any real traction on important questions of civilian harm.  The Obama Administration’s response to such concerns has ranged from outright denial to mere assertions that its strikes comply with international law (for example, in speeches by Legal Advisor Harold Koh and counter-terrorism advisor John Brennan). In a recent chat forum, President Obama dismissed the potential civilian harm from drones, as "not huge" concerns and assured those on the chat room that the U.S. use of drones was "judicious" and not "willy-nilly." Such remarks were the most candid, but also disturbingly casual in addressing these critical concerns.

The AP’s findings starkly illustrate where the Obama Administration is falling short on public accountability for civilian casualties. At the same time, reaction to the AP report demonstrates how the debate over the percentage of civilian casualties can distract attention from equally critical issues, specifically the complete lack of transparency and how the U.S. distinguishes between militants and civilians.  The Administration’s closeted response to serious public concerns about its drone program does not befit its stated democratic values.  Given the prominence of drones to U.S. national security policy, and the demonstrated consequences of these strikes, we need to move beyond the "willy-nilly" standard of killing.

Erica Gaston is a human rights lawyer for the Open Society Foundations specializing in civilian casualty issues. Chris Rogers is also a human rights lawyer for the Open Society Foundations specializing in human rights and conflict in Afghanistan and Pakistan.