Gabor Rona on Targeted Killing: A Response to Michael Lewis

[Gabor Rona is the International Legal Director of Human Rights First]

Over at Lawfare,  Mark Mazetti’s New York Times Magazine article “The Drone Zone” generated a rich discussion on targeted killing with entries by Ken Anderson, Geoff Corn, me, Charles Dunlap, Laurie Blank, and Michael Lewis. Mike took particular aim at my comments and I’m grateful to Opinio Juris for giving me the opportunity to reply.

Mike says drones are good for civilians since they are the most discriminating weapon in the history of warfare. Actually, drones are, thankfully, stupid. They don’t, as of yet, make targeting decisions. Humans do. And Mike is right that those humans might exercise greater restraint than an “in theater” pilot whose life is at risk. But that addresses only the lesser of two factors influencing civilian casualties: mistaken determinations of targetability under pressure of attack, resulting in collateral damage.

The more significant factor that Mike does not mention is the pre-meditated determination, also made by humans, of who is targetable. This determination is not made merely by “drone pilots.” The other, arguably more influential, humans who Mike does not mention and who are also not at personal, physical risk are the politicians and military leaders who define and implement the criteria for killing. Question: are these people more inclined to take greater liberties on targetability if their personal risk, or that of their constituency, is reduced to zero? I think the answer is obvious and threatens to undermine the calculus of IHL much more than the benefits of safe distance would serve to lessen civilian casualties.

I think Mike also misses an important point in suggesting that the U.S. is justified in relying on IHL targeting authority in, say, Yemen and Somalia because it’s Al Qaeda (or its “associated forces”) who plot to kill Americans from there. The concept of “co-belligerency” upon which the “associated forces” concept relies is a creature of international (meaning inter-State) armed conflict, where parties and their armed forces are easily discernible. To apply the concept to non-international armed conflict (meaning wars involving non-State armed groups) by analogy ignores the significant differences between these two categories of armed conflict, causing IHL to be applied where it does not belong, against people to whom it does not apply.This is not to say that under no circumstances can the U.S. use lethal force against persons in, say, Yemen. It is to say that absent the necessary nexus to a party to an armed conflict in which the U.S. is also a party, the use of lethal force must satisfy the more stringent “imminence” standard of human rights law, rather than the more lax targeting standards of IHL.

In any case, Mike’s point about AQAP changing its name to avoid death is unclear. I know of no one who claims either that the right to target Anwar Aulaqi rests on the name of his organization or, contrarily, that the U.S. could not have killed him if his outfit had instead been called the Better Business Bureau of Yemen.

Several folks have dismissed as naive my concern that promiscuous targeting policy sends the wrong message to the likes of Assad and Mladic. They take too short a view of history.  I don’t claim that the U.S. taking liberties with the principle of distinction will cause the next Srebrenica or that better U.S. targeting behavior will prevent it. But if the US is, indeed, the indispensable nation for promotion of international human rights, then just consider how Abu Ghraib and enhanced interrogation techniques affected the ability of the U.S. to complain about torture elsewhere and how that disability affects the will and ability of the international community to bring torturers to justice.

Finally, Mike makes an interesting point in speculating that what people really object to is the application of IHL instead of HRL where all the casualties are on one side. I don’t believe that this, alone, would disqualify IHL, but I do believe that IHL subscribes to the “it takes two to tango” school in a broader sense. You can’t apply IHL without armed conflict and you can’t have armed conflict without parties. If the reason hostilities are one-sided is that there is no identifiable party to whom hostilities against the U.S. can be attributed, then killing people on the basis of IHL authority – even if correctly implemented – is wrong. It is a violation of human rights and danger to the finely tuned balance between security and humanity that IHL represents.