On Friday 1 July, the US government released three documents on its policies and activities regarding the use of force “in armed conflict or in the exercise of the Nation’s inherent right of self-defense.” The release has been understood as a response to calls for transparency over US airstrikes undertaken using uninhabited aircraft to kill individuals in countries where the US is not at war – though the documents do not only cover these activities.

The information provided is limited but nevertheless illuminating, and contains some significant points of policy. The release comprises an Executive Order on preventing and addressing civilian casualties from “strikes;” a document discussing a limited amount of data on “US counterterrorism strikes outside areas of active hostilities,” including an “assessment” of the number of deaths these have achieved during Obama’s presidency; and a “fact sheet” summary.

Campaigners, academics, UN officials and other countries have consistently called for greater transparency and public scrutiny over the US activity of killing individuals outside of armed conflict using explosive weapons released from drones, which was nominally secret until relatively recently. These calls have included the request that data about casualties be published, in order for the impact of and harm caused by these airstrikes to be properly understood. Information about who is being killed and injured is a fundamental necessity for the democratic debate of such use of force against individuals, and should not constitute a controversial demand.

The Obama administration had pledged to release data on casualties in 2013, but Friday’s Director of National Intelligence (DNI) report was the first official elaboration of this information. Though not unwelcome, the extent to which the US government should be congratulated on this release as a significant act of transparency is limited. After almost fifteen years of such killings, releasing aggregate figures for six years and all countries of operation (which are unspecified), with the previous public acknowledgement of just two deaths of named individuals who had been wrongly killed, is highly insufficient.

As Faisal bin ali Jaber – brother-in-law of anti-extremist cleric Salem, killed by an airstrike in Yemen – noted this week, giving only numbers of “non-combatants” without the names of individuals killed – or even the location or date of the casualties covered by the statistics – means that people have no idea whether their loved ones were included in the list. Their losses thus remain unacknowledged. This represents a continuing affront to the dignity of these individuals and their families.

The DNI document confirms again however, as has been previously reported, that the US does not know the identities of many of those killed – or even the “precise number.” It states that there are “inherent limitations on the ability to determine” this. It instead reports that between 2372 and 2581 “combatant deaths” have occurred, and 64-116 “non-combatant deaths.”

There is a range of possible methods for recording casualties, which offer different levels of certainty or confirmation depending on the sources available to and the circumstances and resources under which different actors are operating. All casualty recording is valuable and necessary to undertake, including because more in-depth investigations may build on less detailed data already collected. The use of numerical ranges is a good practice in casualty recording where, with the sources available, there are uncertainties that cannot be resolved about how many people have been killed in individual incidents of violence. Accuracy and transparency are therefore better served by reporting conflicting credible and reliable accounts of an incident.

The DNI document’s use of ranges appears to mirror the practice of civil society, who must mainly rely on the assessment and corroboration of remotely accessed sources to report casualties (see for example the Bureau of Investigative Journalism’s methodology). As is clear in its presentation of the data, description of sources and caveats on what are considered to be “inherent limitations” in these “non-permissive environments,” the US does not undertake modes of investigation (including on-the-ground inquiry with eyewitnesses) that facilitate the level of confirmation required for it to know exact numbers, let alone most identities.

Though such limitations often bear on civil society organisations aiming to bring information to light despite opposition, opacity and danger, for the agents of violence this is arguably an unacceptable state of knowledge to hold – whether it may be considered a function of the platforms used to deliver force or not. It also contrasts sharply with public rhetoric around and justification of so-called “targeted” killings, which emphasises precision and the attacking of specific “high-value” individuals known to pose urgent, immediate danger that cannot be dealt with in any other way (though it has been previously revealed that this is not how the programme operates in practice).

The lack of disaggregation in the DNI data to the level of incident or individuals killed prevents a meaningful comparison with civil society data, as others have observed. It means that conclusions cannot be easily drawn about the differences in aggregate numbers – and whether these are down to different assessments of the same information, access to different information, or differences in definitions or approach in categorisation. In this context, the “general reasons for discrepancies” between US and civil society reporting, given in the DNI document and required by the Executive Order, cannot be fully assessed (though the implication that civil society organisations may not critically examine the credibility and reliability of local media reports which may contain “misinformation” can likely be easily responded to by these groups). Overall, not enough data or methodological information is given for real scrutiny of the information published.

The DNI document states that the US is open to receiving new information and revising assessments, which is a good practice in documentation. Though any reassessments should be expected to feed in to the harm mitigation and response measures described in the Executive Order, the visibility of changes in publicly released information will be minimal if the same format is maintained.

It is an important and positive aspect of the Executive Order that it calls on agencies to consider “credible” information from others including non-governmental organisations when reviewing, investigating or assessing casualties (both during armed conflict and “outside areas of active hostilities”). Again, it is a good practice in casualty recording to compare data with peers and for governments (who should be ultimately responsible for the recording of deaths) to use the work of civil society. During armed conflict, discussion between different actors on casualties recorded, and measures that should be taken to improve civilian protection based on analysis of this information, have also been significant to reducing the devastation caused to people living through war in other contexts such as Afghanistan, where the UN, international forces and others have undertaken effective dialogue on civilian casualties – even if disagreement on numbers remained.

The press office fact sheet accompanying the DNI document and Executive Order states that one reason for this release is to “set standards for other nations to follow” on “counterterrorism.” However, with respect to the use of airstrikes undertaken using drones, the practices adopted by the US have set highly negative standards, introduced without adequate scrutiny or democratic domestic or international debate (as with other aspects of what was previously referred to as the global war on terror).

In the documents released (and throughout these activities), the US appears to attempt to carve out an unclear legal space between war and peace of “counterterrorism operations,” which are “outside areas of active hostilities” but to which the law of armed conflict is still seen to be relevant, though different standards for the use of force than in armed conflict are also described to apply.

A distinction between civilians and combatants or fighters is not relevant outside of armed conflict – but is referred to both by the government and others in discussing “drone strike” activities. The use of this distinction in any description of these US operations helps to institutionalise and entrench practices that obfuscate and seek to alter the international legal framework by stretching the concept of armed conflict and of the battlefield. (The Bureau of Investigative Journalism refers instead to “reported” civilians in recognition of this as well as other methodological issues.) Similarly, applying arguments and policies on the “protection of civilians” (an armed-conflict based framework) in this context, and the inclusion of requirements applying to both armed conflict and “counterterrorism” in the same Executive Order, further serves to situate the killings of individuals by drone airstrikes within this space.*

The use of explosive weapons in populated areas, which the airstrikes in the DNI data often involve (with most airstrikes in Pakistan targeting residences for example), is often an indicator of escalation to armed conflict: such tactics are rarely a feature of law enforcement. Practice in the use of military drones “outside areas of active hostilities” for “counterterrorism” appears however again to be working to blur these boundaries as well as other expectations in the use of force – incursions across borders by drones are apparently becoming accepted as less serious than other incursions, according to some recent research.

In this context, international discussion to agree the standards that should apply to the use of military drones, based on the need to prevent harm to communities and the escalation of violence, is urgently needed. After almost fifteen years of US operations (which have involved the cooperation of a number of countries), and states such as the UK apparently using US precedents to undertake similar activities, such action is long overdue. Without it, there is a risk that last week’s US “transparency” will help, through its codification of practice, to serve only the greater institutionalisation of harmful standards and global precedents, rather than their scrutiny and challenge, and the upholding of a rules-based international system.

 

*Incidentally, even within the distinction in the DNI document, the interpretation of “combatant” described leaves many questions unanswered – the criterion of “meaningful integration into a group” for example could be expansively interpreted to apply far beyond fighters.

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