The major reports by Human Rights Watch (HRW) and Amnesty International (AI) on targeted killings make valuable contributions to public debate (see Sarah Knuckey’s Guide to the reports), and will now go through the process of public scrutiny and interrogation. It is, indeed, important that critiques of the reports are aired and debated.

Joshua Foust has written what appears to be intended as a scathing critique entitled, How Human Rights Groups Misinterpret Drone Strikes. It is based, in my view, on misunderstandings of the HRW report and of the laws of war. That said, analyzing some of these flaws can be fruitful in examining aspects of the HRW report, including grasping the report’s complexities and understanding its strengths and its weaknesses. [In the interest of space, I do not address his analysis of the AI report.]

I should say at the outset that I have my own criticisms of the reports (some of which I elaborate below). I disagree, for example, with HRW’s definition of who should be considered a civilian (their definition of the legal criteria for direct participation in hostilities). And I may have a fundamental disagreement with AI on whether the US is in an armed conflict with Al Qaeda and associated forces.

Let’s consider Foust’s line of criticism.

1. First, Foust presents scarecrow arguments and, in doing so, badly misrepresents HRW’s position.

Foust states:

“[A]re the pictures they construct accurate representations? It is clear that innocent civilians have been hurt and killed in drone strikes … But the existence of civilian casualties is not automatically evidence of illegality or a war crime.”

Where does the HRW report claim that the existence of civilian casualties is automatically evidence of illegality or a war crime? Indeed, the report states the opposite. In describing the legal criteria, HRW states (correctly): “not all attacks that cause civilian deaths violate the laws of war, only those that target civilians, are indiscriminate or cause disproportionate civilian loss.”

Further in his criticism, Foust states:

“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.”

This is another invention. Indeed, it is as though he read a different report. To be honest, I was not even sure where to look to find the source of his concern. And, it is easy to find examples that contradict such a categorical and exaggerated statement.

For example, in an attack that allegedly killed two low-level militants and two civilians, HRW does not declare the attack unlawful. Instead, the report raises concerns and states that the legality of the strike ultimately depends on the importance of the targets (p. 4). In another case, one AQAP member was the primary target of an attack (Muhammad al-Kazami), allegedly 13 other suspected AQAP fighters were also killed, and at least 41 civilians living in a Bedouin camp including 21 children were allegedly killed. On the question of excessive loss of civilian life, the report actually reaches a fairly restrained conclusion: the attack resulted in “possibly disproportionate civilian casualties,” according to HRW.

That said, the latter case does point to a weakness in the report. HRW also suggests that the use of cluster munitions is inherently discriminatory and potentially inherently illegal—despite acknowledging elsewhere that neither the United States nor Yemen is a party to the 2008 Convention on Cluster Munitions. The report would have been on stronger footing if it grounded its concerns specifically on the use of cluster munitions close to civilian populations such as the Bedouin camp.

2. Foust presents an erroneous definition of international law for assessing military attack, and he then incorrectly suggests that HRW tries and fails to meet this standard.

Foust states that under the laws of war, a strike must adhere to the principle of proportionality. This is, of course, true. But Foust presents an incorrect definition of proportionality: “the size of the strike matches its importance.” This is an odd construction. A correct definition of the proportionality rule compares the military value of the strike against civilian injuries. (As the HRW correctly states, “the expected loss of civilian life or property is disproportionate to the anticipated military gain of the attack;” see also Article 51(5) of Additional Protocol I to the Geneva Conventions).

Foust then suggests that HRW concluded that a specific strike (in Al-Masnaah) failed to meet his standard of proportionality. Specifically, in Foust’s telling of the report, HRW argues that low-level members of AQAP are not legitimate targets because they are unimportant. Foust writes: “the idea that even low-level active members are not militarily important enough to strike stretches credulity.”

But that isn’t HRW’s claim in this case. Applying the correct test of proportionality, HRW instead claims that a strike that targeted two low-level AQAP members may have been disproportionate due to the death of two civilian strangers with whom the AQAP members were travelling (HRW at p. 4 and p. 39: “Depending on the military importance of the two targeted AQAP members, under the laws of war the strike on the vehicle may have caused disproportionate harm to civilians.”).

It is also notable that, a few months ago, Foust wrote another piece, in which he made essentially the very claim that yesterday he described as almost absurd. Here is that comparison:

Joshua Foust yesterday: “[T]he idea that even low-level active members are not militarily important enough to strike stretches credulity”

Joshua Foust in April: “Still, using a drone with an explosive warhead to strike at a single, low-level insurgent pushes the boundaries of proportionality under the terms of conflict, even in Pakistan.”

That said, Foust’s line of criticism does raise a deeper concern about the HRW report. In the section on legal criteria, the report makes statements about the law that are troubling. Consider the following two statements:

“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.”

“Combatants include members of armed groups who are directly participating in hostilities.”

The validity of the first statement might turn on the specific definition of “military operational roles.” Regardless, it is unclear why membership in a fighting force is an overly broad definition of combatant.  The second statement is, at least, conceptually confusing. It potentially conflates two separate categories of individuals subject to lethal force: members of armed groups and civilians who directly participate in hostilities.

3. A reader of Foust’s critique might easily draw the conclusion that the HRW report is at fault for reporting an incident in which cruise missiles were used (in al-Majalah) in order to indict the legal and ethical frameworks of drones. The HRW report however is clearly about the practice of targeted killings, not drones per se. And HRW never claims that the al-Majalah attack was carried out with drones, and actually very clearly explains that al-Majalah involved cruise missiles (p. 5).

4.  Finally, Foust criticizes HRW for concluding, on the basis of the evidence that the organization collected, that particular individuals are not sufficiently important militarily when the US government decides that they are. He writes: “HRW, in contrast, asserts individual targets, while part of AQAP, are not militarily important enough to warrant a strike. Yet they hardly have access to the same intelligence that guides U.S. targeters.” This is an extraordinary amount of deference to US intelligence when the government does not disclose the information or methods upon which it relies. Moreover, there may be sound reasons to doubt the reliability of the US information in these cases. For example, one commentator (Joshua Foust) not too long ago noted that the former Yemeni government was able to mislead the US government to kill the regime’s political rivals. That commentator also cautioned against “allowing the Defense Department and the CIA to target people they cannot identify — to kill people who behave suspiciously without knowing who they are or what their intentions are. … Yemen is a perfect example of what can go wrong.” And that same commentator (Joshua Foust) has elsewhere written about the severe mistakes that can be made in targeting:

Within the U.S. Intelligence Community, various lethal targeting programs are heavily classified, compartmented, and SAPed — meaning, they are mostly closed off from each other. … It also means it is practically impossible for anyone, in any position including the top of the Office of the Director of National Intelligence, to exercise proper oversight over the program. ….

… In some targeting programs, staffers have review quotas — that is, they must review a certain number of possible targets per given length of time. Because they are contractors, their continued employment depends on their ability to satisfy the stated performance metrics. So they have a financial incentive to make life-or-death decisions about possible kill targets just to stay employed. This should be an intolerable situation, but because the system lacks transparency or outside review it is almost impossible to monitor or alter.

The enormous expansion of drone operations … has come at an enormous cost … in the lives of the many innocent people we’ve killed through either sloppiness or ignorance.

I don’t understand why Foust wrote such a flawed attack on the HRW report. I have read many of his writings, learned from them, and been persuaded by them. I hope and expect to do so in the future. That said, some of Foust’s criticisms, regardless of his intentions, help us to understand the HRW report better, including its nuances, its strengths, and its shortcomings.