Why killing "criminals" with drones is a war crime.

Scrutinizing culture.
Aug. 31 2010 1:33 PM

Ban Drone-Porn War Crimes

Death by joystick is immoral and illegal.

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It's hard not to feel less than triumphant knowing that these men, whoever they were, were being cremated before our eyes by men and women who work in air-conditioned bases in Las Vegas (for the Air Force drones) and Virginia (for the CIA's). They put in eight-hour shifts sitting at video-gamelike consoles in front of screens displaying drone porn, which they attempt to synch up with the often inaccurate intelligence that we're fed from a variety of notoriously unreliable sources—the CIA, private contractors, and bribed tribal locals with a grudge. And then these men and women use their joysticks to target and annihilate suspected Bad Guys. The problem is that while they often succeed in killing alleged Bad Guys (if you believe the often inaccurate after-action reports that are always claiming they got the "No. 3 Taliban commander in the province" or some such unverifiable boast), they kill a lot of innocent civilians as well.

Even the military has been forced to admit that we have been killing innocents by mistake. You've read the stories of the Afghan wedding parties massacred by misguided drone-porn attacks and may have thought it was mainly Taliban propaganda. You may have missed this item in the New York Times from May 29: "The American military on Saturday released a scathing report on the deaths of 23 Afghan civilians, saying that 'inaccurate and unprofessional' reporting by Predator drone operators helped lead to an airstrike in February on a group of innocent men, women and children."

What does it look like when "inaccurate and unprofessional reporting by Predator drone operators" happens? Nat Hentoff reprinted this account citing "Drone and Democracy" by Kathy Kelly and Josh Brollier:

The social worker, who did not want his name used, described a drone hit in that area a year ago that killed three people: "Their bodies, carbonized, were fully burned. They could only be identified by their legs and hands. One body was still on fire when he reached there. Then he learned that the charred and mutilated corpses were relatives of his who lived in his village, two men and a boy aged seven or eight. They couldn't pick up the charred parts in one piece."

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Of course, there's a lot of controversy over the percentage of noncombatants killed in the drone strikes. One study, not very convincingly, puts civilian casualties at slightly above 3 percent. Another says 10 percent, another a full one-third, Brookings far more. Do these different numbers yield different moral conclusions? Are the drone strikes defensible at 4 percent murdered innocents but indefensible at 33 percent? There's no algorithm that synchs up the degree of target importance, the certainty of intelligence that's based on, and potential civilian casualties from the attack. It's a question that's impossible to answer with precision. Which suggests that when murdering civilians is involved, you don't do it at all.

I found myself drawn into thinking about these questions in the course of writing a (forthcoming) book about the future of nuclear war, some of the reporting for which has appeared in Slate, which addresses the moral questions at the heart of our doctrine of nuclear deterrence. A doctrine that essentially uses the threat of genocide to prevent genocide. There are those who argue that even the threat of a nuclear strike is a war crime, and they have the backing of a little-noticed advisory opinion of the World Court issued in 1996.

Although drone strikes are obviously not the same as a nuclear strike, the principles that govern what defines a war crime in the body of international laws, conventions, and treaties (several of which, like the Rome Treaty Against Genocide, we have not signed), the principles by which one judges whether a weapon can be used in a "just war" way, are fundamentally the same when it comes to protection of noncombatant "collateral damage."

These are the principles that have caused human rights organizations, U.N. officials, and the ACLU here to object to various aspects of the drone program. These so-called "just war" principles have not been given much weight by the Obama Justice Department, which has glossed over or ignored them in giving its sanction to stepped-up drone warfare.

The two key "just war" principles are "distinction" and "proportionality." Distinction means that an act of war is illegitimate if it does not at least attempt to make a distinction between military and noncombatant civilian casualties. Nukes obviously don't, can't—despite all the rhetoric of the "warfighting" faction of nuclear strategists who believe nukes should be used the same as other battlefield weapons.

But can drones make these distinctions? I've read arguments that drones offer more precision than other battlefield weapons, because drone porn gives the Predator joystick operators more time to examine the targets intimately and cross-reference intelligence. But what they really offer is more precise views of less precise targets.

The "foes" in Afghanistan do not wear uniforms. I'm not saying all Taliban look alike, but the pious believers don't look very different from the "provincial commanders." Some have called the whole drone program "targeted assassination" that violates even U.S. prohibitions, especially when carried out by the CIA, which was supposed to be prohibited from carrying out assassinations. (The ACLU just filed suit over planned "targeted killings" of American citizens, such as radical Islamist Anwar al-Awlaki, who is now in Yemen and likely to be targeted by drones.)

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