A new report details the awful civilian casualties inflicted by American drones, but the arguments over the weapons' use have begun to feel grimly familiar.
- By Sarah KnuckeySarah Knuckey is an adjunct professor and international human rights lawyer at the Center for Human Rights and Global Justice at the NYU School of Law and a special adviser to the United Nations special rapporteur on extrajudicial executions.
We are at an impasse in the debate over America’s use of drones and so-called "targeted killings." It is an impasse that the U.S. government can, and should, resolve.
The debate has come to follow a depressingly predictable pattern. Initial reports about a drone strike quote anonymous officials claiming that a number of militants were targeted. Journalists and human rights investigators then get word that local residents say civilians were killed. More detailed investigations are carried out. Witness testimony and other evidence, such as photos or videos of the victims and fragments of the missile, are gathered. Then, long reports are published alleging that the strikes killed or injured innocent men, women or children. Supporters of current U.S. practices critique these reports of civilian casualties, questioning their biases, evidence, or methods. In response, drone program critics dispute the relevance or validity of those reviews.
Officially, the U.S. government does not respond, or simply states that all strikes are investigated and comply with the law. Anonymous officials provide additional details to a select group of journalists. Those outside the government pore over these fragments of information, attempting to extract some nugget of truth. People on all sides of the debate often demand more transparency, although they are often seeking different kinds of information for very different reasons.
At this point, it almost feels scripted.
And, so, on Thursday, Human Rights Watch (HRW) released the most detailed account yet of one of the most controversial drone strikes of President Barack Obama’s time in office: a widely reported December 2013 strike on a Yemeni wedding convoy that killed at least 12 and injured 15 more. The report concluded that while the United States may have intended to target suspected members of al Qaeda in the Arabian Peninsula (AQAP), the evidence suggests that "some, if not all of those killed and wounded were civilians." (Earlier journalistic accounts reached similar conclusions.)
HRW’s findings demand an official response from the U.S. government — and not just the platitudes officials and spokespersons have parroted for the past year. The government needs to explain this strike and respond to the evidence of civilian deaths.
HRW presents evidence of civilian harm caused by this strike, but its legal and policy conclusions are delicately couched. The group ultimately does not say definitely whether the strike violated applicable law or policy, instead stating that the strike "may have" violated the laws of war, and that it "raises serious questions" about whether policies were followed. And HRW acknowledges at various points that more information is needed to make firm conclusions.
With this careful language, HRW’s latest report also brings to the fore the fundamental problem in attempting to assess U.S. strikes. There is an asymmetry of information that is virtually insurmountable: key information remains in the sole possession of the U.S. government.
The laws of war state that, in cases of doubt, individuals should be presumed civilian. But in U.S. public discussion, those killed in drone strikes de facto begin as militants. Injured victims and family members must provide evidence of their own civilian status. If the criticisms of NGOs are to have any impact in the U.S. debate, those groups must gather significant amounts of testimony, as well as additional corroborative evidence.
But how does one definitively prove civilian status? Or prove that no members of al-Qaeda were near the strike at the time it occurred, thereby countering the argument that the civilian harm was lawful and proportionate? And how can outside actors know if any nearby al-Qaeda operatives constituted high-value targets? How can outside actors assess whether the U.S. took reasonable precautions prior to the attack?
Alleged victims or NGOs can provide evidence documenting civilian deaths, but it may be possible that some other, publicly unknown information could indicate that a strike was legal or justifiable. Many cases are simply irresolvable without detailed information from Washington.
And so the American public and the international community are left concerned and ultimately guessing, repeatedly asking the same questions about the specific legal, policy, and factual basis for strikes.
The reported impact of civilian casualties in America’s drone war extend beyond the immediate deaths, with significant consequences for individual Yemenis and U.S. efforts to win over their hearts and minds. HRW’s report includes gruesome details, often absent from media accounts of strikes, on the wounds allegedly suffered by survivors. One man lost an eye, another his genitals. The report also highlights the broader, secondary impacts on family members. One of those allegedly killed left behind a blind father, a wife, and seven children, including a newborn. The groom in the convoy is quoted as saying that his wedding "became a funeral." A local sheikh who says he witnessed the strike says that the United States "turned many kids into orphans, many wives into widows." Other relatives and tribesman are said to have denounced the United States and Yemen, temporarily blocked a main road in protest, and demanded an international investigation.
Yet the U.S. government refuses to meaningfully engage on the issues surrounding strikes like the one on the wedding convoy and refuses to explain its legal interpretations, specific policies, or conduct. In October 2013, HRW and Amnesty International released major reports detailing evidence of civilian deaths resulting from U.S. strikes, alleging that certain strikes between 2009 and 2013 violated international law and U.S. policy. The government responded to those reports by stating that it had not violated the law and claiming that it carefully examines whether any strike caused civilian deaths. No specific evidence refuting the reports was offered.
Government officials also referred to a May 2013 speech in which Obama publicly addressed drone strikes and released a summarized version of new policies governing targeted killings, which promulgated new restrictions on such strikes. The president stated that a strike would not be launched unless there was a "near-certainty" that no civilians would be hurt or killed and only where a target posed a "continuing and imminent threat" and could not be feasibly captured. Shortly thereafter, Secretary of State John Kerry stated, "We do not fire when we know there are children or collateral [damage]….We just don’t."
U.S. officials have repeatedly leaned on these kinds of assurances. They did so once more on Thursday in responding to HRW’s new report. A Pentagon spokesman refused to comment on specifics, referring the Associated Press to Yemeni government statements that the targets were members of AQAP. The National Security Council’s spokeswoman, Caitlin Hayden, provided the Washington Post and Al Jazeera the same response she has offered journalists many times in the past: She would not comment on specifics, said the United States takes extraordinary care in its use of drones, and emphasized that civilian casualty claims are thoroughly investigated. The State Department seems to have not responded at all.
Meanwhile, anonymous U.S. officials "leaked" to the AP that two government investigations "concluded that only members of al-Qaida were killed" in the strike. How do they know this? What investigations were undertaken?
In the past, officials have stated that they "harness" their "relevant intelligence capabilities," gathering information from a "myriad" of sources. But it is has never been clear what kinds of investigations the government actually conducts. Indeed, the author of this latest HRW report, Letta Tayler, the organization’s senior terrorism and counterterrorism researcher, told me that she found no evidence that the United States had interviewed alleged witnesses of the wedding strike. And, on Thursday, Cori Crider, a lawyer at the NGO Reprieve, which investigates and has conducted advocacy against U.S. targeted killings practices, stated that the group wrote directly to the National Security Council about the strike "offering to connect them to witnesses and were ignored." In addition, two senior Yemeni officials told HRW that their sources said civilians were among the dead. But we still don’t know what steps the United States took to determine that all those killed were al Qaeda.
U.S. lawmakers who had apparently watched a video of the wedding strike told the AP that the video "showed three trucks in the convoy were hit, all carrying armed men." But it is widely known that carrying guns in this region of Yemen is common and hardly indicative on its own of militancy. Surely, U.S. investigations and congressional oversight are based on far more than simply reviewing video in the aftermath of a strike, especially in a case like this. But we don’t know, because the government won’t explain investigation outcomes or processes.
After Obama’s May 2013 speech, criticism of U.S. drone strikes significantly abated. Many critics of the administration were apparently satisfied that the targeting rules were restrictive and that real reform on improved transparency was near. But Thursday’s careful, detailed HRW report indicates that much, much more needs to be done to assure the public of the legality, ethics, and strategic effectiveness of the U.S. targeted killing program — and to ensure accountability. The U.S. government should take the first necessary step to resolve the impasse over drone strikes by sharing information — by explaining, on the record, its investigations into the wedding convoy strike and releasing at the very least redacted versions of the results of its investigations. It should do the same for past strikes in which civilian casualties have been credibly alleged, and for future ones.