[Editor’s Note: The post below is part of an exchange between Naureen Shah and Chris Jenks on the recently released reports by Amnesty International and Human Rights Watch on the US drone program.  Don’t miss Naureen’s earlier post.]

Thanks to Just Security for hosting this discussion, and to Naureen Shah, Amnesty International, and Human Rights Watch for the opportunity to comment on their report, “Will I be next? US Drone Strikes in Pakistan.”  While I hope readers find my and Naureen’s comments interesting, I encourage everyone to read the report.

The report reflects the understandable and continued frustration that the requisite information to conclusively answer whether or not a given drone strike in Northwest Pakistan was legal or illegal is not publicly available.

The report bears testament to the dedication of the researches involved.  The information isn’t available for a lack of effort by Amnesty International and Human Rights Watch, it isn’t available because the entity conducting the strikes, the United States government “refuses to make public even basic information about the program and does not release legal or factual information about specific strikes.”

This requisite information includes, among other information, the intended target of the strike, the military advantage to be gained by neutralizing that target, whether the targeting process was time sensitive/hasty vs deliberate, anticipated civilian causalities and property damage.  Essentially, we need to know the information reasonably available to the individual ordering the strike at the time of the strike.  We don’t have that information, so, as the report at least initially acknowledges, we are “unable to reach firm conclusions about the context” of the drone strikes the report examined.  Without that context, we can’t answer the question.

I imagine Amnesty, HRW and I are in agreement that this is both unsettling and unsatisfying. Where we diverge is how then to respond to a legal question for which the requisite components to the answer are outside our knowledge and control.

My answer is to argue for more transparency on policy and moral/ethical grounds.

Mine may seem a Pollyannaish approach.  That’s certainly not my intent, rather I arrive at that position having considered the issue from the perspective of trial litigation: what is the strongest argument that advances my interest and for which the other side is least able to effectively respond.

By contrast, the report, while initially resisting the temptation, lapses into projecting human rights concepts onto the question and essentially answers the legality question despite having acknowledged the lack of requisite information.

As a result, I think the report may represent a (partially) missed opportunity to prompt more transparency.

The report analyzes the selected drone strikes under a “if human rights law (IHRL) applies, then…” and “if international humanitarian law (IHL) applies, then…”.  This stems from the report’s contention that while there have been non-international armed conflict(s) in North Waziristan, “it is unclear whether the current intensity of fighting…is sufficient to qualify it as such.”

Fair enough, though the report needed to maintain this bifurcated analysis throughout. It doesn’t.

Instead, in the middle of the report in a section entitled “survivors denied justice and reparations”, the report merges IHRL and IHL, claiming that “States responsible for violating their obligations under [IHRL and/or IHL] are also required to provide victims with adequate, effective, and prompt reparation for their harm suffered, which can take the form of restitution, compensation, rehabilitation, satisfaction and guarantee of non repetition.”  The support for the IHL portion of the claim is the ICRC’s customary IHL study, Rule 150, which recognizes “[t]he possibility for an individual victim of a violation of IHL to seek reparation from a State” by inference to the Rome Statute. An ICRC study describing the possibility of a right, by inference to a Statute neither the U.S. nor Pakistan are parties to, does not a right make.

International Humanitarian Law does not require compensation to victims of conflict.  The word transparency is not mentioned in IHL.  And while there is an investigation obligation under IHL, it is qualitatively different than that under IHRL.

The obligation under IHL is to investigate and prosecute persons alleged to have committed grave breaches of the Geneva Conventions. In the drone strike context, that obligation flows from the requirement that a State examine its targeting decisions in light of the principles of distinction and proportionality, based on information reasonably available at the time.   So the requirement is that when appropriate, a State conducts investigations and prosecutes offenders. The requirement is not that the State publicly release its investigations.

Similarly, the recommendations section of the report is replete with human rights terms and concepts (judicial review, public investigations and findings) which presuppose the application of IHRL and not IHL.

This is unfortunate. I think the conflation of IHRL and IHL and the desire to find the non existent legal hook upon which to hang the transparency argument detracts from the powerful examples the report includes, one of which, under my formulation, would be the basis of a policy based argument.

The report examines the death of Mamana Bibi, a 68 year old grandmother purportedly killed in the fall of 2012 by a U.S. drone strike.  The report personalizes Ms. Bibi, includes photos of her and her family, and pieces of the hellfire missile which took her life.  It’s a compelling example and one I would suggest the report focus on, even to the exclusion of all others.

Assuming it was the result of a drone strike, we still don’t know if Ms. Bibi’s death was unlawful. Indeed the report acknowledges that “it is not possible for Amnesty International to fully asses the reasons behind the killing of Mamana Bibi without further information from the U.S. authorities.” But on the same page the report states that “Amnesty International’s evidence indicates that Mamana Bibi was unlawfully killed.” The report attempts to answer the question surrounding Ms. Bibi’s death despite not having the information and context needed to do so.

I think a report focusing solely on Ms. Bibi juxtaposed against the administration’s representations (which the report includes) might be a more effective way to raise public concern and prompt the transparency the report seeks.

No jus ad bellum. No in bello. No IHRL/IHL trigger, application, and intersection debates.  But a 68 old year grandmother purportedly killed in the middle of a field in broad daylight in front of her grandchildren.

I believe the drone strike occurred during an armed conflict, so while the outcome was tragic, I don’t believe there is a legal obligation to publicly explain the targeting decision which took her life.  But if you remove the legal objections by bypassing the legal argument, and instead focus on morality, policy and what kind of country the U.S. purports to be, I’m hard pressed to justify not explaining the drone strike.