Michael Lewis’ Response to Gabor Rona on Targeted Killing

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

I want to thank Gabor for continuing a discussion started over on Lawfare a couple of weeks ago and to thank Opinio Juris for allowing me an opportunity to respond.  As I had the last word on Lawfare I believe Gabor will be given the final word here.

Gabor is correct that drones themselves are “stupid” in that they do not make any targeting decisions themselves.  Should that ever change it will fundamentally alter how IHL regulates the use of such weapons.  But we are a long way from having “untethered” drones loosed on the battlefield and I have found no appetite for such a development amongst operational military commanders.

However this “stupidity” does not change the fact that, as a weapons system, drones are capable of more accurately discriminating between civilians and legitimately targetable individuals than any other weapons system we currently possess.  This is because drones allow for a dispassionate assessment of each weapon employment by both senior military commanders and trained legal officers before the shot is taken.  No other weapons system (special forces, artillery, manned aircraft, regular ground troops) currently available allows senior commanders and legal officers such access to individual weapons employment decisions.

While Gabor seems to agree that drones as a weapons system possess this ability to distinguish between civilians and legitimate targets, he concludes that the military will be disinclined to take advantage of that capability.  Curiously he concludes that if neither senior leadership nor its “constituency” (I believe meaning soldiers) is at risk then “greater liberties” will be taken with targetability determinations.  I have always found the exact opposite to be true.

By now everyone in the US military understands the detrimental effect that civilian casualties have upon mission success in a counterinsurgency.  Senior commanders and lawyers want weapons employment decisions to be tightly controlled because they understand how much damage poor decisions can cause.  The only exception to this tight control is when soldiers are perceived to be at risk.  Lawyers and commanders alike give great deference to decisions, even bad decisions, made in the heat of battle by soldiers, or airmen who felt threatened.  Remove that excuse for mistakes and you have removed any leeway that commanders are willing to give to junior personnel that undermine mission success by harming civilians.  Not only does Gabor’s conjecture ascribe sinister motives (or at least a reckless indifference for human life and a complete incomprehension of counterinsurgency doctrine) to most senior military commanders, it flies in the face of recent reports by organizations like CNN that civilian casualties from drone strikes are indeed very low.

Gabor also criticizes what he views as my conflation of international (IAC’s) and non-international (NIAC’s) armed conflicts.  He points out that co-belligerency is a creature of IAC’s and not NIAC’s.  I find it curious that someone from an organization that has steadfastly maintained that detainees in the NIAC between the US and al Qaeda should be afforded many of the procedural protections associated exclusively with IAC’s (the Geneva Conventions and Additional Protocol I) should now claim that the line between these two types of conflicts is inviolable.  I believe that state practice in the past decade has begun to establish that transnational armed conflicts such as the conflict between the US and al Qaeda are governed by a combination of the laws governing IAC’s and NIAC’s.  We have seen that conflation in the procedural rights afforded detainees as well as in the targeting rules that have been employed in Afghanistan and Iraq.  The nature of transnational armed conflicts makes such conflation appropriate.

Regarding Yemen specifically, AQAP has conducted over 200 attacks in the past two and a half years against government, military and civilian targets in Yemen.  If the US chooses to aid the Yemeni government in its counterinsurgency operations against AQAP it may rely on IHL to do so and need not subject itself to the more stringent “imminence” requirements of HRL.  Whether this is an example of “co-belligerency” or merely aiding an embattled government, there is little question that IHL applies.  I leave the discussion of Yemen before 2009 for another time

Lastly, I agree with Gabor that it “takes two to tango” in the sense that IHL requires some threshold of violence be met.  My point was that focusing solely on US military casualties when examining this threshold is improper.  Any group that is killing or repeatedly targeting hundreds of US civilians meets the threshold of violence, even if they fail to kill a single American soldier.  If such attacks can be prevented without putting a single US soldier at risk, all the better, but the lack of risk to US soldiers should have no bearing upon the applicability of IHL.  The threshold of violence that determines whether IHL applies to a conflict must take into account all those that are being killed and targeted, not just the military casualties being suffered by each side.  Any other outcome would perversely reward terror groups that exclusively target civilians with all the protections of HRL while those that focused on military targets would be subject to targeting under IHL.  This cannot be how the scope of IHL is determined.