Proportionality and Discrimination: How the Drone Debate Misses the Point

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April is, appar­ent­ly, to be a month of protest against drones. The pro­test­ers, work­ing off the assump­tion that drones are indis­crim­i­nate killing robots, plan to build pub­lic oppo­si­tion to the air­craft through nation-wide protest events at var­i­ous cities and even a few drone man­u­fac­tur­ers. These pro­test­ers, how­ev­er, will run up against two very big prob­lems for their cam­paign: they’re wrong, and no one cares.

The Guardian quotes one orga­niz­er as say­ing, “There is a tremen­dous amount of scep­ti­cism with the pub­lic about drone attacks in oth­er coun­tries. There is con­cern that inno­cent peo­ple are killed and ene­mies of the Unit­ed States are being made.” While the lat­ter sen­tence is cer­tain­ly true, the for­mer is ver­i­fi­ably false. In fact, despite a small drop in pub­lic con­fi­dence over the last year, drones remain incred­i­bly pop­u­lar. As do tar­get­ed killings.

That orga­niz­er, Nick Mot­tern, runs a web­site called Know Drones. Know Drones also makes an inter­est­ing claim: “US drones are attack­ing now in Afghanistan, Pak­istan, Yemen, Soma­lia, Ugan­da and the Philip­pines, in absolute dis­re­gard for inter­na­tion­al law and the US Con­sti­tu­tion.” At least half that sen­tence is either untrue or unver­i­fi­able. The claim that drones are “attack­ing” Ugan­da, for exam­ple, are just wrong: there are only unarmed sur­veil­lance drones there. Many peo­ple claim drones have struck at the Philip­pines, except that both the Fil­ipino and Amer­i­can gov­ern­ments have denied it. And it actu­al­ly is not a giv­en that tar­get­ed strikes against declared ene­mies of the U.S. are against the U.S. Con­sti­tu­tion (at least, if one accepts Pres­i­dent Oba­ma’s read­ing of his duty to defend the coun­try under Arti­cle II).

So what about inter­na­tion­al law? Gen­er­al­ly the deci­sion to use force in a time of war­fare are gov­erned by the Law of Armed Con­flict, or LOAC. It presents three cri­te­ria for using force:

  1. Mil­i­tary neces­si­ty. Force should only be used when it is nec­es­sary to accom­plish a mil­i­tary objec­tive. So the bases, train­ing camps, and plan­ning cen­ters of an ene­my orga­ni­za­tion are fair game for tar­get­ing, while hos­pi­tals and civil­ian areas are not.
  2. Dis­tinc­tion. The use of force should dis­tin­guish between com­bat­ants and non-com­bat­ants. That does­n’t make every civil­ian casu­al­ty a crime, but intent and restraint mat­ter.
  3. Pro­por­tion­al­i­ty. A bit self-explana­to­ry: basi­cal­ly, don’t car­pet bomb an entire city to kill one guy. At a gran­u­lar lev­el this becomes trick: is one size muni­tion more appro­pri­ate for a giv­en tar­get than anoth­er? Clear­ly, yes, but it’s not a sharp line one can draw in the sand.

There’s a lot more to LOAC and I don’t intend this to be a com­pre­hen­sive analy­sis of it — just a gen­er­al guide. Accord­ing to these three cri­te­ria, do drones vio­late LOAC?

That depends. For some tar­gets, mil­i­tary neces­si­ty makes per­fect sense. Mem­bers of al Qae­da in Pak­istan, who planned the Sep­tem­ber 11th attacks, are an obvi­ous choice. Mem­bers of al Qae­da in the Ara­bi­an Penin­su­la in Yemen, who have attempt­ed sev­er­al attacks on the U.S., could also qual­i­fy.

Attack­ing them at their homes presents a more dif­fi­cult sub­ject: when the U.S. fired a mis­sile at Bait­ul­lah Mehsud while he was hid­ing at a farm­house with his wife, was strict mil­i­tary neces­si­ty in play? It is pos­si­ble but the White House nev­er pre­sent­ed its jus­ti­fi­ca­tion for the strike. And what of Pak­istani insur­gents who have not tar­get­ed the U.S. in any way? What of the Soma­lis who have not attacked the U.S.? Or the pos­si­bil­i­ty of Malian rebels, who also have not attacked the U.S.?

Those ques­tions remain unan­swered and it’s incum­bent on Pres­i­dent Oba­ma to answer them imme­di­ate­ly. The far­ther away from Pak­istan we go with drone strikes, the less eth­i­cal and legal their use becomes under the cur­rent pub­lic jus­ti­fi­ca­tion for them. After a cer­tain point, they will become unjus­ti­fi­ably mil­i­tar­i­ly. They may have already done so.

Drones can be dis­crim­i­nate, but are they used dis­crim­i­nate­ly? Even by the most unchar­i­ta­ble esti­mates, drones kill around 4 mil­i­tants for each dead civil­ian — a ratio on par with lim­it­ed air cam­paigns in Libya and Koso­vo. Here the ques­tion becomes far murki­er. The use of “sig­na­ture strikes,” where groups of peo­ple are tar­get­ed with­out know­ing their iden­ti­ty or intent, sug­gest that in many cas­es drones are not used dis­crim­i­nate­ly. Yet when used against ver­i­fi­able tar­gets, drones can be some of the most dis­crim­i­nat­ing weapons ever used in war­fare (that’s their appeal to pol­i­cy­mak­ers). In oth­er words, the pol­i­cy to use drones mat­ters as much as the tech­nol­o­gy itself.

As for pro­por­tion­al­i­ty, drones are one of the most lim­it­ed weapons around — despite the hor­ri­ble recur­rence of mist­imed or mis­tar­get­ed strikes. Most drone mis­siles car­ry a tiny amount of explo­sive (around 20 lbs or so), and new­er drone mis­siles don’t even car­ry explo­sives at all: they are essen­tial­ly met­al slugs. It is dif­fi­cult to imag­ine a weapon being tuned to incur less col­lat­er­al dam­age.

Still, using a drone with an explo­sive war­head to strike at a sin­gle, low-lev­el insur­gent push­es the bound­aries of pro­por­tion­al­i­ty under the terms of con­flict, even in Pak­istan.

The real­i­ty is, drones are just a plat­form — one that enables and incred­i­ble amount of accu­ra­cy and lim­i­ta­tion but also presents the poten­tial for abuse and mis­use. We do not know how much they have been abused or mis­used because of gov­ern­ment secre­cy — that is why the some­times over­stat­ed claims by drone oppo­nents go large­ly unchal­lenged by the gov­ern­ment.

The pol­i­cy of coun­tert­er­ror­ism — specif­i­cal­ly, the deci­sion by Pres­i­dent Oba­ma to engage in lethal force against ter­ror­ists — is what real­ly mat­ters to this debate. It needs to be debat­ed, vig­or­ous­ly, includ­ing by the gov­ern­ment. Yet sad­ly, that debate is being over­shad­owed by the obses­sive focus on the air­planes car­ry­ing out this pol­i­cy. By focus­ing so much on the tech­nol­o­gy of coun­tert­er­ror­ism, crit­ics are miss­ing the far more wor­ry­ing deci­sions made at the White House that have dra­mat­i­cal­ly expand­ed tar­get­ed killings world­wide. Pick­et­ing a man­u­fac­tur­er, as this mon­th’s protest will do, is non­sense: they need to focus their efforts on get­ting the White House to come clean about the pro­gram.

joshua.foust
Joshua Foust used to be a foreign policy maven. Now he helps organizations communicate strategically and build audiences.

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