How Joshua Foust Mischaracterizes the Targeted Killing Report from Human Rights Watch

Joshua Foust thinks that Human Rights Watch (HRW) and Amnesty International misinterpret the context of US drone strikes in Yemen and Pakistan:

This week, two major reports by international human rights organizations have called into doubt the legal and ethical frameworks of drone strikes carried out by President Obama…in at least some cases, it appears these organizations, while laudably advocating on behalf of innocent victims of conflict, are getting important facts wrong about drone strikes. The resulting incomplete picture casts an uncharitable light on a program that, while far from perfect, White House officials argue is one of the most effective, low-impact tools in the global struggle against violent extremism.

I haven’t read the Amnesty report, so I withhold any commentary there. However, Foust strongly mischaracterizes the HRW report.

In the above quote, Foust makes it clear that he’s refuting an opinion on “drone strikes.” In the case of the HRW report, Foust quite widely misses his mark because HRW addresses the legality of certain targeted killings under International Humanitarian Law (IHL) and International Human Rights Law (IHRL), not the legality or morality of drones as a weapon platform. HRW is not coy about the distinction [emphasis mine henceforth]:

The use of drones does not directly affect the legal analysis of a particular attack. These remotely piloted vehicles and the missiles and laser-guided bombs they carry are not illegal. When used appropriately, drones’ enhanced surveillance capabilities can help minimize civilian casualties in combat operations. But as with other aerial attacks, drone operations may be hampered by poor intelligence or a failure to minimize the risk of civilian harm…

US statements and actions indicate that US forces are applying an overly broad definition of “combatant” in targeted attacks, for example by designating persons as lawful targets based on their merely being members, rather than having military operational roles, in the armed group…members of an armed group who play a political role or a non-military logistics function cannot be targeted on that basis alone.

How damning is this distinction for Foust’s critique? Here’s how Foust supports his thesis:

Take the Human Rights Watch report about Yemen. One of the incidents they highlight — the Dec. 17, 2009, cruise missile barrage into al-Majalah that killed scores of civilians along with 14 members of al-Qaeda in the Arabian Peninsula — wasn’t even a drone strike. Another strike they profile even seems to have been carried out by Yemeni jets, not American drones.

Reading this paragraph, one might fall under the impression that HRW was so blindered by bias that they erroneously presented the outcome of a cruise missile strike as evidence of drone brutality. So how does HRW describe the al-Majalah incident?

Al-Majalah, December 17, 2009: As many as five US Navy Tomahawk cruise missiles armed with cluster munitions struck the hamlet of al-Majalah in southern Abyan province. Yemeni government officials described the attack as a Yemeni airstrike that killed 34 “terrorists” at a training camp. According to a Yemeni government inquiry, the strike actually killed 14 suspected AQAP fighters, including the apparent primary target, Muhammad al-Kazami, but also at least 41 local civilians living in a Bedouin camp, including 9 women and 21 children. Subsequently, cluster munition remnants killed at least 4 additional civilians and wounded 13 others.

As you can see, HRW clearly understands that they are discussing a cruise missile strike. How about that alleged Yemeni airstrike? It’s not entirely clear which strike Foust is referring to here, but perhaps it’s the one that HRW described thus:

Sarar, September 2, 2012: As two drones flew overhead, two warplanes or drones attacked a vehicle heading north from the city of Radaa in central Yemen. The strike in the hamet of Sarar killed 12 passengers, including 3 children and a pregnant woman, in violation of the laws-of-war prohibition against attacks that do not discriminate between civilians and combatants. The driver and a 13th passenger survived. The strike’s apparent target, tribal leader Abd al-Raouf al-Dahab, was not in the vehicle, and it is not clear that he was even a member of AQAP.

Neither deviation from “drone strikes” is a problem for HRW’s report because, as the report makes clear throughout, it’s about the legality of targeted killing. I don’t know why Foust made such an obvious mischaracterization given that “getting important facts wrong” is a central charge of his critique, but he did. Defense One should issue a correction.

(The report’s title, “Between a Drone and Al-Qaeda,” is a direct quote from a Yemeni national discussing the psychological toll for those caught in the crossfire. Foust might be forgiven for overlooking the metaphor if not for the fact that the accompanying subtitle is “The Civilian Cost of US Targeted Killings in Yemen.”)

Moreover, Foust mischaracterizes HRW’s legal argument. Foust:

They do not credibly support the charge that the other strikes they profile are illegal under international law. In an armed conflict, strikes generally must adhere to three principles: distinction (telling the difference between militants and civilians), necessity (whether a target is sufficiently important to warrant a strike) and proportionality (the size of the strike matches its importance). In their report, HRW argues that any civilian caught in the crossfire, even if they are assisting AQAP terrorists, makes a strike either unnecessary or without distinction. In effect, they redefine all air strikes, no matter the size of the warhead or its precision, as disproportionate and therefore illegal.

Does HRW in fact argue that “any civilian caught in the crossfire, even if they are assisting AQAP terrorists, makes a strike either unnecessary or without distinction?” You decide:

not all attacks that cause civilian deaths violate the laws of war, only those that target civilians, are indiscriminate or cause disproportionate civilian loss.

…Civilians may only be deliberately attacked when and for that time they are “directly participating in the hostilities.”

In the conduct of military operations, warring parties must take constant care to spare the civilian population and civilian objects from the effects of hostilities, and are required to take precautionary measures with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects. These precautions include: doing everything feasible to verify that the objects to be attacked are military objectives and not civilians or civilian objects; taking all feasible precautions in the choice of means and methods of warfare to minimize loss of civilian life; and doing everything feasible to cancel or suspend an attack if it becomes apparent that a target is not a military objective or would result in disproportionate civilian loss.

The laws of war also place obligations on warring parties to take steps to minimize harm to civilians. These include: avoiding locating military objectives within or near densely populated areas; endeavoring to remove the civilian population from the vicinity of military objectives; and not deliberately seeking to prevent attacks on one’s forces by using them as “human shields.”

Some of those targeted by US forces as terrorist suspects may not in fact have been valid military targets. Where the laws of war apply, combatants may lawfully be attacked. Persons who accompany or support an organized armed group, but whose activities are not directly related to military operations, such as engaging in recruiting or propaganda, are not lawful military targets.

Further, in his invocation of the three principles of lawful targeting in armed conflict, Foust ignores a contentious legal debate over the prior question of whether the US is actually in an armed conflict against AQAP. This debate is critical for determining which bodies of law apply to individual strikes. HRW:

Where the United States acts as a party to the armed conflict between the Yemeni government and AQAP, US military actions fall within the laws of war. Should the fighting between the US and AQAP not meet the threshold for an armed conflict, any attacks carried out independently of the Yemen-AQAP conflict, including some or all of the attacks detailed here, would fall under international human rights law. Human rights law only permits the use of lethal force where there is an imminent threat to human life.

HRW’s argument is that if the fighting between the US and AQAP fails to meet the threshold for an armed conflict (which, not surprisingly, is a much more popular opinion in Rest of World than it is in the US security sector), the US cannot use lethal force except to prevent an imminent attack. Not all legal experts agree with this view–for instance, Jordan Faust argues that such targeting is permissible under the law of self defense. But Foust sidesteps this debate and treats both a US-AQAP conflict and US participation in the Yemen-AQAP armed conflict as a given:

Because AQAP has killed thousands of Yemenis and attempted at least three attacks on the U.S. homeland, the idea that even low-level active members are not militarily important enough to strike stretches credulity.

Whether AQAP has killed thousands of Yemenis pertains to the Yemen-AQAP conflict, not to a US-AQAP conflict. Multiple conflicts may be blurred on the ground, but nobody forced Foust to invoke the law of war in his argument on military targeting.

In any event, President Obama’s declaratory policy would seem to render the point moot. HRW notes that Obama declared that the United States “does not carry out attacks against individuals in Yemen unless they pose a direct threat to the United States or its interests.” HRW continues:

The [president’s] speech and fact sheet did not adequately explain the legal rationale for the targeted killings. Nor did they address the lawfulness of specific strikes. In broad terms, however, the policies unveiled in the president’s speech and in the fact sheet suggest a policy that is reflective of the higher threshold for the use of lethal force under international human rights law than the laws of war require. That is, the standards articulated go beyond the requirement of the laws of war. This may be indicative of a shift within the US administration from an armed conflict approach to a law enforcement approach in operations against alleged terrorists. However, the administration has not referred to international human rights law with respect to these policies, and spoke in terms of meeting policy guidelines, not adhering to law.

None of the six strikes investigated by Human Rights Watch for this report appear to have complied with the administration’s guidelines. Less clear is whether that is because the standards the administration unveiled in May 2013 were not in effect at the time or because US military forces failed to apply them.

The following five standards are drawn from Obama’s May 23 statement and the White House Fact Sheet:

1. No Civilian Casualties. The administration said that targeted strikes are only made when there is “near-certainty that no civilians will be killed or injured.” In an apparent reference to so-called signature strikes, based on individuals’ patterns of behavior, the Fact Sheet asserted that, “it is not the case that all military-aged males in the vicinity of a target are deemed to be combatants” [emphasis in the original]. In at least four of the targeted killings detailed in this report, Human Rights Watch found that civilians were present at the strike location and were killed. In two cases the civilians included women and children. In the other two cases the civilians were young men.

2. Ensure Target is Present. The White House Fact Sheet said there must be a “near-certainty” that the target is present. In one of the targeted killings detailed in this report, the target was not in the vicinity of the strike, which killed 12 civilians.

3. Capture When Feasible. Obama said that the US does not carry out targeted killings when capture is feasible. “Our preference is always to detain, interrogate, and prosecute” targets, he said. The Fact Sheet said capture “offers the best opportunity to gather meaningful intelligence and to mitigate and disrupt terrorist plots.” In three of the cases detailed in this report, the evidence strongly suggests that capture of the target was feasible in areas under government control.

4. Target Must Pose an Imminent Threat. Obama said the United States only carries out strikes against those who pose a “continuing and imminent threat to the American people,” and does not target anyone to “punish” them for past deeds.The meaning of the phrase “continuing and imminent threat” is not clear. In none of the cases has the administration sought to provide evidence that the target posed an imminent threat to life, the law enforcement standard.

5. Compensate Civilians. In February 2013, then-White House counterterrorism chief and current CIA director, John Brennan said that in the “rare instances” in which civilians are killed in targeted killings, the government carries out reviews of the strikes. “Where possible, we also work with local governments to gather facts and, if appropriate, provide condolence payments to families of those killed,” he said.

Human Rights Watch found no evidence of US post-strike investigations to verify the extent of civilian casualties. The Yemeni authorities began payments to some civilians in the cases described in this report after Human Rights Watch and other organizations raised concerns with the United States and Yemen about the failure to compensate. However if the United States contributed to such payments it has not made that information public.

Foust asserts that the strikes profiled by HRW present an “incomplete picture” that casts the drone program (again, not the proper subject of the HRW report) in an “unfavorable light” compared to “the alternative” of capture or forgoing strikes. This complaint seems to utterly ignore HRW’s closing recommendations to the US government. Rather than calling for more capture or less strikes, HRW calls for a more complete picture from the White House:

To the Obama Administration

  • Explain the full legal basis on which the US carries out targeted killings, including the attacks detailed in this report.
  • Conduct prompt, thorough, and impartial investigations into all cases where targeted strikes may have resulted in unlawful killings. Make public the findings and seek disciplinary measures or criminal prosecutions as appropriate.
  • Publicly clarify all policy guidelines for targeted killings. Make public, to the extent possible, government documents that set forth these standards, including the Presidential Policy Guidance on targeted attacks of May 2013; disclose when each standard went into effect.
  • Ensure that all targeted killings conducted during armed conflict situations are in accordance with the laws of war, including by taking all feasible precautions to minimize harm to civilians. Outside of armed conflict situations, use lethal force only when absolutely necessary to protect human life in accordance with international human rights law.
  • Review pre-strike and post-strike assessment procedures, and implement appropriate changes in order reduce, track, investigate, and publicly report on all incidents of civilian casualties as effectively as possible. Post-strike material that should be made public includes US video footage of the strikes.

This brings me to my final point: Despite his concern for the plight of Yemenis caught amidst extreme violence, Foust never takes the human rights perspective into account.

Recall that Foust characterized drone strikes (which, you’ll also recall, are not the subject of the HRW report) as “a program that, while far from perfect, White House officials argue is one of the most effective, low-impact tools in the global struggle against violent extremism.” Not “Joshua Foust argues,” but “White House officials argue.” And not “a lawful tool in the global struggle against violent extremism” but “one of the most effective, low-impact tools in the global struggle against violent extremism.” Foust repeats a White House talking point on strategy (under the pretense of journalism, no less) as if it settles a debate on international law.

Foust also takes HRW to task for their alleged failure to “accurately diagnose the human suffering” of Yemenis who face objectively greater levels of violence from AQAP. But HRW’s report is not meant as a comprehensive survey of Yemeni suffering. Rather, it’s strategically designed to compel respect for human rights standards from a particular set of actors. That HRW devotes so much of its resources toward US compliance is a tacit acknowledgment that the US is more responsive to human rights concerns than AQAP. Further, the US commands greater moral authority than does AQAP. As such, US behavior has greater implications for other parties’ attitudes toward human rights than does AQAP’s.

Foreign policy presents a unique dilemma for the democratic world: Foreigners have no vote on the policies that affect them. It does indeed appear that the White House takes unilateral measures to limit civilian casualties but what Obama giveth, Obama can taketh away. HRW is part of a very small cohort that takes up the rights–not the mere well-being–of the powerless. There is no objective reason why an organization with the following mission statement should defer to White House judgment, especially when the White House is not transparent in its targeting criteria or legal rationale:

Human Rights Watch is dedicated to protecting the human rights of people around the world. We stand with victims and activists to prevent discrimination, to uphold political freedom, to protect people from inhumane conduct in wartime, and to bring offenders to justice. We investigate and expose human rights violations and hold abusers accountable. We challenge governments and those who hold power to end abusive practices and respect international human rights law. We enlist the public and the international community to support the cause of human rights for all.

If Foust thinks that targeted killings are of great strategic utility to the United States, he’s entitled to that opinion. But he shouldn’t conflate that opinion with concern for international human rights.

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