Two Unpleasant Possibilities Regarding the Drone Program

by Kevin Jon Heller

A number of people have responded to my drone posts (see here and here) by arguing that the “near certainty” standard Obama endorsed regarding the possibility of civilian casualties represents a break from the past — a new targeting standard, not an old one. If that’s the case, someone needs to tell the Secretary of State. Here is what John Kerry said today (emphasis mine):

“The only people that we fire on are confirmed terrorist targets, at the highest levels, after a great deal of vetting,” Kerry told a group of young people at the University of Addis Ababa.

“I am convinced that we have one of the strictest, most accountable and fairest programs,” Kerry said. The United States is the only nation known to operate killer drones against foreign targets.

“We do not fire when we know there are children or collateral,” civilians, Kerry said. “We just don’t. We have absolutely not shot at high-level targets when we have seen that there are people there.”

There are really only two possibilities. The first is that despite the US’s insistence that it refuses to launch a drone attack unless there is near certainty that civilians will not be killed, it actually applies the much less strict principle of proportionality that is at the heart of IHL. The second is that the US does, in fact, apply the near-certainty standard — but is just really, really bad at targeting, routinely mistaking civilians for combatants (at weddings and funerals, during rescue missions, and so on).

I’m not sure which possibility is more disturbing.

http://opiniojuris.org/2013/05/26/two-unpleasant-possibilities-regarding-the-drone-program/

4 Responses

  1. Isn’t it true that to kill a human because you don’t like their politics is murder and to embark upon a slippery slope from which there is no way back?

  2. Kevin: this was probably not meant to reflect a legal standard.  It seems that you added the word “civilians,” but he used the word “people.”  Certainly, the new standard is not to not target “people.”
    The important question remains: what is Obama’s standard?  Does he even understand that a state can target a “civilian” who is DPH in a theatre of war or who is DPAA as a matter of self-defense?

  3. Kevin,
    Your post that “we are really bad at targeting” feeds right into the (quite old) claim that drones cause excessive civilian casualties.  Even according to TBIJ (which has consistently had the highest estimate of civilian casualties of any of the casualty aggregation sites) we are at 2.5% civilian casualties in Pakistan over the past 17 months.  That is unheard of accuracy and discrimination. 
    You also repeat the TBIJ claim that the US “targeted rescuers”.  This is simply false.  TBIJ expends a great deal of energy researching its claims of civilian casualties, but makes no effort to learn about targeting problems associated with drones and how those manifest themselves and how they have been solved.  So you have ridiculous claims (like the one that the US “targeted rescuers”) that not only go unchallenged but get implied support from respected academics like yourself.  Most unfortunate.

  4. Note that Pres. Obama’s speech was followed by release of a Policy Standards and Procedure sheet that set forth certain “precondictions” and addressed those who are DPH or DPAA and non-combatants.

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