Drones, My Lai, and Prosecuting the Powerful

In April of this year, President Obama approved the CIA’s request to begin launching targeted assassinations in Yemen through drone strikes even when the identities of those being targeted is not known. The US government calls these “signature strikes,” and they are being deployed constantly in both Yemen and Pakistan. Drone operators thousands of miles away view people on the ground through a grainy video feed and identify “suspicious behavior.” And on that basis, the people are bombed.

But a new academic paper describes signature strikes as “legally suspect.” Kevin Jon Heller, professor at Melbourne Law School, writes in a forthcoming piece for the Journal of International Criminal Justice that the Obama administration appears to be engaging in the unlawful use of force in many of its signature strikes.

The drone war has been receiving renewed focus among academics skeptical of its legality and adherence to human rights. A study last month from the Stanford and NYU schools of law found that the drone program is “terrorizing” the civilian population of Pakistan and that it is having a “counterproductive” impact, effectively creating more enemies than it eliminates. Another study this month from Columbia Law School’s Human Rights Institute found the number of Pakistani civilians killed in drone strikes are “significantly and consistently underestimated” by tracking organizations which are trying to take the place of government estimates on casualties, which the Obama administration won’t comment on because the drone war is technically secret.

Heller deals primarily with the question of legality under international law. Broadly speaking, signature strikes are suspect because international humanitarian law obligates “[t]hose who plan or decide upon an attack” to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” Article 50(1) of the Additional Protols demands that “if there is still ‘doubt’ that an individual is a legitimate target after taking all feasible precautions, ‘that person shall be considered to be a civilian.’

The many anecdotal instances of massive civilian casualties in any number of drone strikes throughout the Obama presidency suggest that these legally mandated precautions were not adhered to; if no ‘doubt’ remained, we would not see so many incidents like this. But Heller tackles specific categories of signature strikes and shows that the criteria for bombing people in these drone strikes violates the law.

Citing a recent New York Times report, among others, that described the administration’s method of counting “all military-age males in a strike zone as combatants…unless there is explicit intelligence posthumously proving them innocent,” Heller writes:

That status, however, cannot simply be inferred from the fact that an individual is of military age and is present in an area that the CIA chooses to attack. As the ICRC has pointed out, membership in an organized armed group requires actual and continuous participation in hostilities; it ‘cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse.

The ‘military-age male’ signature, it is worth noting, is an unfortunate remnant of the Vietnam war, during which the US government routinely presumed that any military-age male in a combat zone was a Viet Cong fighter. Colin Powell openly acknowledged that practice in his autobiography:

“I recall a phrase we used in the field, MAM, for military-age male. If a helo [helicopter] spotted a peasant in black pajamas who looked remotely suspicious, a possible MAM, the pilot would circle and fire in front of him. If he moved, his movement was judged evidence of hostile intent, and the next burst was not in front but at him. Brutal? Maybe so.”

Powell’s description is echoed – more colorfully – by Lt. William Calley, the archietct of the infamous  1968 massacre at My Lai:

“[I]f those people weren’t all VC then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander… his star said its a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t yougn enough or old enough to do anything but sympathize.”

The ‘military-age male’ signature is not simply brutal, as Powell acknowledges. It is also unlawful.

Comparing the Obama administration’s criteria for signature drone strikes to one of the most notorious war crimes in modern memory is an extraordinary statement that the media and the political class are simply ignoring.

Another criteria Heller focuses on is “consorting with known militants.” The US has been targeting and killing people they determine through their drone cameras are “consorting” with “militants,” and going on to stand by these killings as morally and legally legitimate. Heller says this doesn’t meet the requirements for participating in hostilities and therefore targeting on this basis is criminal.

At most, then, consorting with known militants can be considered sympathizing or collaborating with and organized armed group. Neither activity however makes an individual a lawful target. With regard to sympathizing, the UN Sub-Commission on Human Rights adopted a resolution in 1985 that specifically condemned the US-backed El Salvadoran government’s practice of killing peasants it believed were sympathetic to the FMLN. According to the Sub-Commission, “as long as the so-called ‘masses’ do not participate directly in combat, although they may sympathize, accompany, supply food and live in zones under the control of the insurgents, they preserve their civilian character, and therefore they must not be subjected to military attacks.” With regard to collaboration, the Special Court for Sierra Leone specifically held in Fofana and Kondewa that “persons accused of ‘collaborating’ with the government or armed forces would only become legitimate military targets if they were taking direct part in the hostilities. Indirectly supporting or failing to resist an attacking force is insufficient to constitute such participation.

At the very least, the Obama administration deserves to be investigated for their conduct in the drone war. Heller doesn’t say all drone strikes are illegal, and he concludes that even the unlawful strikes “would be difficult to prosecute as war crimes,” because it’s difficult to prove intent to kill civilians on the part of the Obama administration. Several high-level officials at the United Nations, however, have speculated that war crimes have been committed in instances where the Obama administration targeted rescuers in follow-up strikes or funeral attendees – both of which have been alleged.

But even putting war crimes prosecution aside, crimes have clearly been committed. The Obama administration, however, is the most powerful cabinet in the world. And the powerful don’t typically submit to the law. Aggressive prosecutions and harsh jail sentences need to be reserved for pot-smokers and convenient store thieves. The powerful can’t be bothered with thousands of dead civilians and international laws governing the use of force.