The Rules - Engaging HVTs & OBL

[jmm99]

The first two articles contain a wealth of data re: US drone strikes in Pakistan from a number of primary reporting organizations. So, they are worth reading for that reason alone.

However, I'm using them here to illustrate the diversity between the reporting organizations in determining who is and who is not a "civilian". In short, the reported data are within the same metadata ball park so far as total persons killed are concerned; but vary dramatically in allocating "civilian" deaths among the total killed.

First, we have A Meta-Study of Drone Strike Casualties (by Ritika Singh, July 22, 2013), describing the three major Western reporting organizations, as well as one organization reporting for 2011 only and another only critiquing the other organizations' reports:

Five studies have played perhaps the most substantial role in shaping the public debate on civilian deaths from drone strikes. The New America Foundation (NAF) and the Long War Journal (LWJ), both based out of Washington DC, have created databases that are cited often by the media, policymakers, and academics. The Bureau of Investigative Journalism (BIJ) has also done work in this space—work challenging the low estimates of its American counterparts. The Columbia Law School Human Rights Clinic (CHRC) weighed in on the discussion with a recount of the number of drone strike casualties in Pakistan in 2011, using the data provided by these three organizations. And the International Human Rights and Conflict Resolution Clinic at Stanford Law School and the Global Justice Clinic at the NYU School of Law teamed up to conduct an investigation into several aspects of the U.S. targeted killing program in Pakistan and to provide a detailed narrative about the law and the policy behind it for the interested observer. This latter report does not offer estimates of its own, but it does present a critique of the others.

If you are interested, Google Search will take you to their webpages (databases and formal reports).

Here are the bottom lines for the Western big three:

As of this writing, NAF’s casualty counts for Pakistan stand at: 258 to 307 civilians killed, 1,585 to 2,733 militants killed, and 196 to 330 unknown killed. The total number of people killed is 2,039 to 3,370. The rate of the civilian deaths, in other words, ranges between eight and fifteen percent.
...
As of this writing, LWJ claims “2,526 leaders and operatives from Taliban, Al Qaeda, and allied extremist groups” and “153 civilians” have been killed in Pakistan since 2006. This yields a civilian death rate of nearly six percent.
...
As of this writing, BIJ’s number of civilians killed in Pakistan since 2004 runs from 411 to 890 (the number of children killed is 167 to 197). The total killed is between 2,566 and 3,570. This leaves a civilian death rate that ranges greatly—between as low as twelve percent and as high as thirty-five percent.

Note that the totals (adjusted for different reporting periods) are about 3000, plus or minus 500 or so - a fairly low deviation, as opposed to the "civilian" deviations.

For 2011, we can compare four Western studies, with the following results:

Number of Deaths from U.S. Drone Strikes in Pakistan in 2011

Militants
NAF 303 – 502
LWJ 405
BIJ N.A. category
CHRC 330 – 575

Civilians
NAF 57 – 65
LWJ 30
BIJ 52 – 146
CHRC 72 – 155

Unknown
NAF 32 – 37
N.A. for other three

Total
NAF 392 – 604
LWJ 435
BIJ 447 – 660
CHRC 456 – 661

Civilian Casualty Death Rate
NAF 9% – 17%
LWJ 7%
BIJ 8% – 33%
CHRC 11% – 34%

Again, the metadata tends to center for total persons killed, but diverges as to the percentages of "civilian" deaths especially on the high end.

These data were further refined in the second article, Chris Woods of the BIJ Responds (by Ritika Singh, July 25, 2013). BIA has been a major critic of the Obama administration's drone strike policies - and has alleged a relatively high rate of "civilian" deaths (see above).

In this piece, however, Chris Woods notes the relative metadata centering - as to total persons killed - and adds another report and set of sources:

I found your metastudy extremely interesting—particularly on that question of overlaps [between the estimates of the different counting groups]. What should happen—as data publicly available on the drone strikes improves—is that we might expect convergence on the datasets. That does seem now to be taking place with NAF and BIJ—which are far closer than [they were] a year ago. As you note, being dynamic is the key.

For your general [reference,] Oxford Research Group also did a meta-analysis of datasets back in 2011. BIJ’s data hadn’t been published then; and a number of Pakistan organisations still strove to record casualty data. A different time and different conclusions.

Ririka then added the following comments and chart:

The study Woods draws attention to includes estimates from the New America Foundation and the Long War Journal, but is particularly interesting because it compares numbers from other organizations we almost never consider in this debate—several of which are based in the region: the Conflict Monitoring Centre (CMC), the Institute for Conflict Management’s (ICM), The News, Pakistan Institute for Peace Studies (PIPS), Pakistan Body Count, and Strengthening Participatory Organisation (SPO).

As the report points out, the numbers of total deaths “tend to converge in the 800s and 900s, with 483 and 1,184 as outliers.” But a range of 2 to 789 civilian casualties in 2010 in Pakistan suggests that the difference between the estimates really may lie in the terminology—not the casualties.

One can easily create a high or low number of "civilians" by simply jinking around with the definition. E.g., this "rule" defining both "civilians" and "combatants" as follows: Everyone is presumed to be a "civilian", unless it appears beyond a reasonable doubt that the person is an immediate lethal threat. What definition one picks is more determined by one's politics and what policies one feels is better for him or her.

The next post will consider two more articles describing an impasse in the USG caused by different politics and policies.

- to be cont. -

[jmm99]

Both articles are by Hays Parks.

The first is from 2012, Update on the DOD Law of War Manual. First, we need some background:

The United States military historically has held a leadership position in the development and publication of law of war manuals for its forces and those who command them to ensure compliance with the law of war obligations of this nation. U.S. Army General Orders No. 100, prepared by Professor Francis Lieber during the U.S. Civil War, was accepted and promulgated by President Abraham Lincoln on April 24, 1863. Thereafter the U.S. Army published RULES OF LAND WARFARE in 1914, in amended version in 1917, in an updated version in 1940, and again in slightly amended form in 1944. The Navy (May 1941, in draft form only) and Air Force (1976) published separate manuals. In 1956 the Army prepared and adopted a new manual, Field Manual 27-10, THE LAW OF LAND WARFARE, following U.S. ratification of the four 1949 Geneva Conventions the preceding year.

The project to replace FM 27-10, with an all services Law of War Manual, began in the mid-1990s. It went along fairly smoothly (despite the significant legal changes caused by GWOT, and more than one argument with the Bush White House). By 2010, the Manual was ready for publication.

Then, the Obama Administration's DoS, DoJ and NSC lawyers raised a number of roadblocks - which were not well met by the underqualified DoD civilian lawyer who was newly appointed as editor. We pick up that story in the second article from 2013, Where is the Law of War Manual? Here!:

From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.

Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.

One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.

Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.

Of course, one should not be surprised that politics - and resultant policies - reared their heads.

The first article provides some more examples of political correctness imposing its will:

Editing responsibilities were assumed by a young DOD attorney lacking military or law of war training or experience.

By way of example of State Department comments: The manual contains a chapter providing an explanation of each of the basic law of war principles. Even though they previously agreed to them, State Department lawyers complained that there was an unduly lengthy discussion of military necessity while not providing sufficient discussion of and emphasis on proportionality.

The law of war principle of military necessity was contained in U.S. Army General Orders No. 100 written by Francis Lieber (e.g., articles 14-16). Because it often is misunderstood, a long explanation was necessary. In contrast, proportionality was not a part of any law of war treaty until 1977, at which time it was adopted on the condition that the term proportionality itself not be used in the treaty text because a vast number of nations – including the former Soviet Bloc, Middle Eastern (other than Israel) and African nations – declined to accept that the principle existed.

Ironically, the manual’s discussion of military necessity was carefully researched and drafted by the late Edward Cummings who until his untimely death in 2006 was the State Department’s most senior and experienced law of war expert. The text had been endorsed by State Department lawyers as well as the international peer review.

Without consultation with the DOD Law of War Working Group, the new DOD editor deleted the discussion of military necessity from the main body of the manual, copying it and inserting it as a footnote, apparently to “reduce its emphasis”; and placed the paragraphs on proportionality ahead of the discussion of the principle of distinction until it was brought to his attention that but for the centuries-old pedigree of the principle of distinction there would be no principle of proportionality.

By way of another example, State Department lawyers, wanted the term “belligerent” to be substituted for “combatant”.

As adopted and used by nations for more than a century, combatant is the accepted law of war term. It was adopted in the Annex to the 1899 Hague Declaration II (ratified by the United States in 1902) and its successor, the 1907 Hague Declaration IV (ratified by the United States in 1909), and Articles 43(2) and 44 of the 1977 Protocol I Additional to the 1949 Geneva Conventions (signed by the United States in 1977 but not ratified due to objections not relating to use of the term combatant). In contrast, the term belligerent is not used in any law of war treaty insofar as reference to individuals is concerned.

These specific examples deal with terms that are material to rules of engagement - and distinctions between combatants, non-combatants and civilians.

I think it is just as well that an impasse has been reached on the DoD Law of War Manual. The gap between the positions in the 2010 final draft and the later changes demanded by DoS, DoJ and NSC cannot be easily bridged. I don't think they should be bridged. The gap between the 2010 final draft and the apparent position of many EU-NATO governments is even larger.

If those issues were solely matters of legal semantics, much less would be at stake. However, the same politics and policies also materially affect strategy and tactics - just as different politics and policies materially affected strategy and tactics in the Bush administration.

Regards

Mike

[jmm99]

Tools and Tradeoffs: Confronting U.S. Citizen Terrorist Suspects Abroad (Byman & Wittes, 17 Jun 2013):

The killing of Awlaki as he left a funeral in Yemen put a spotlight on an important question: how does the U.S. government confront an American terror suspect abroad?

For policymakers, the presence of American jihadists in foreign countries presents several tricky policy problems compared with similar foreign terrorists. In this paper, we explore the costs and benefits of several distinct approaches available to the U.S. government in confronting the threat of Americans fighting jihad against the United States from abroad.

These include:

• Targeting suspects with lethal force.

• Capturing terror suspects and trying them in federal court.

• Capturing suspects and detaining them in military custody.

• Assisting the government of other countries to prosecute suspects on their
own.

• Tolerating the activities of the terror suspects.

Also within this paper, we catalog the American citizens abroad who have joined the jihadist cause and operated overseas, focusing on those Americans who traveled overseas to join the enemy and have not attempted to return.

Regards

Mike