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The Good and Bad in the US Government’s Civilian Casualties Announcement

The US government on Friday, July 1 released long-sought information on its views as to how many people it has killed in drone and other strikes “outside areas of active hostilities,” and also released a new Executive Order on civilian casualties.

The Director of National Intelligence (DNI) released a “Summary of Information” about the strikes, and it states that, according to the government, the US has killed between 64–116 “non-combatants” (the document is not clear whether this is meant to be a synonym for “civilian” as it is defined under international law) and 2,372–2,581 “combatants” in 473 strikes “against terrorist targets outside areas of active hostilities.” (The Bureau of Investigative Journalism, which has the most transparent and comprehensive data collection and calculation methods among the various drone count databases, estimates far more civilian deaths.) The Executive Order sets out a number of policies to mitigate civilian casualties, and states that the government will investigate civilian casualties, acknowledge responsibility for civilian casualties and offer ex gratia payments to victims, and report annually on the number of strikes and civilian and combatant deaths.

Here’s a quick rundown on some of the positives, as well as of the many inadequacies, in the documents released. 

Some positives:

1) Until Friday, the drone civilian death rate debates were characterized by NGOs and others offering their death estimates, followed by the government not responding at all, or responding by saying — generally through “anonymous officials” — that it believed the actual numbers were lower. Many years after the push for transparency about US drone strikes started, the government’s release of its own estimate of how many combatants and non-combatants it thinks it has killed allows us to have a more nuanced conversation about death rates, and allows a more specific debate and clearer comparison between the US and others’ numbers.

2) The Executive Order requiring that civilian casualty rates (unlike the DNI summary, the Executive Order does refer to “civilians”) be annually reported — even though it can be rescinded by the next President — is a step forward for regularizing some basic transparency about the effects of US operations abroad.

3) The continuous lack of acknowledgement of civilian deaths to date has stifled democratic debate in the US, and victims’ families have suffered for years with unacknowledged harms and losses. The lack of payments from the government to victims has also exacerbated harms and left families to deal with economic costs of the loss of a loved one. Thus, one of the most significant positives (but note the caveat below) in the Executive Order is that it provides that the government will “acknowledge U.S. Government responsibility for civilian casualties and offer condolences, including ex gratia payments, to civilians who are injured or to the families of civilians who are killed.” These are recommendations pushed for many years by victims, the UN, and human rights NGOs.

4) The DNI summary specifically states that the death counts take into account reports from NGOs as well as the media. The government also openly acknowledges that NGO and journalist numbers are different from the government’s, and provides some general reasons for why there may be differences between the counts. (But note the caveat below).

6) The DNI summary provides that “The assessed range of non-combatant deaths includes deaths for which there is an insufficient basis for assessing that the deceased is a combatant.” The wording is vague, but I interpret this to mean that persons of “uncertain” status are counted as non-combatant, rather than combatant. If that is correct, this aspect of the government counting method accords with international law, which requires a presumption of civilian status.

7) The DNI summary states that the government will consider new credible information on civilian deaths that may emerge in the future, and will revisit its counts. This kind of revision and non-static database, as The Bureau of Investigative Journalism’s regularly updated database shows, is essential to usefulness and credibility.

But there are many gaps, limitations, and concerns, including:

1) The release is many years delayed. Applause should be heavily muted by the years of unjustified secrecy, which has undermined the rule of law and US democratic and international community debate, and which has caused continuing harm to victims and their families, who have been left without acknowledgement of harms caused.

2) Individualized, case-specific information is not provided at all, even in redacted form to take into account security, intelligence-gathering, and confidentiality concerns. It is this kind of case specific information that is necessary to answer the many specific allegations of civilian harm put forward by victims and NGOs. The generalized numbers provided Friday mean that we have no way to know which strikes the US agrees entailed civilian deaths, or which they dispute, and why. In addition, death counts are not broken down by year or by location, inhibiting external analysis of government numbers. The government says: “trust us,” but does not explain meaningfully why more information cannot be released and does not provide enough information to allow outsiders to really engage or to challenge any specifics.

3) Victims are not named in the DNI summary. Real acknowledgement of civilian deaths would move beyond numbers, and would acknowledge individual harm. Relatedly, the “civilian protection” language in the Executive Order is framed fully in light of US “national interests.” The Executive Order says the US should minimize civilian deaths to gain civilian population support, “enhance the legitimacy” of US operations, etc. Victim and family-centered language is missing.

4) The DNI summary provides only the most general information about the methods the US used to factually investigate non-combatant or combatant status, and the methods it has used to come to its non-combatant death figures. At this level of generality, they are impossible to meaningfully assess or monitor. (Although the lack of “interviews with survivors of attacks, witnesses, and family members” is a striking omission from the list of sources of information the government uses in its investigations.)

5) Despite its positive elements mentioned earlier, the part of the Executive Order on acknowledgement of civilian deaths and ex gratia payments has wording that may entail carve-outs in practice. Relevant agencies “shall” acknowledge civilian deaths and offer payments, but “as appropriate and consistent with mission objectives.” If acknowledgement is not deemed “appropriate” (say, by the CIA following a sensitive strike in Pakistan), can public acknowledgement be avoided?

6) There is zero explanation in the DNI summary about the cause of any of the civilian deaths that are acknowledged, and the Executive Order does not require such explanation in future. Were the civilian deaths intentional but proportionate under the rules of international humanitarian law? Were they unanticipated? Were any the result of US government mistakes, errors, or legal violations?

7) Injuries are not counted in the DNI summary. Killings are not the only impact of US strikes, and injuries can cause life-long suffering. (The Executive Order does provide for ex gratia payments for injuries as well as deaths.)

8) The DNI summary gives reasons for why the US government may have more accurate information than NGOs, but does not acknowledge that there are circumstances when NGOs may actually have more accurate information (e.g., because they conducted an in situ visit to the site of a US attack and spoke with witnesses and family members).

9) There is no mention of human rights law in either document, despite US obligations. In addition, the DNI summary footnote (a) is unclear about the separation between the jus ad bellum and the jus in bello, reading as possibly confusing self-defense law (the law governing when a state can lawfully use force on the territory of another state) with a legal basis for targeting an individual (either international humanitarian law or human rights law). Does the government mean to imply that “national self-defense,” whether in its customary law or UN Charter form, is a stand-alone legal basis for the use of force against an individual?

10) The DNI summary is not clear and specific enough about which are the “areas outside active hostilities” and specifically how such areas are assessed and characterized. The DNI summary only states that Afghanistan, Iraq, and Syria are “areas of active hostilities.” Is everywhere else “outside,” including all of Yemen and all of Pakistan at all times? On what basis?

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About the Author

is associate clinical professor of law at Columbia Law School, director of the Human Rights Clinic, co-director of the Human Rights Institute, and a Special Advisor to the UN Special Rapporteur on extrajudicial executions. Follow her on Twitter (@SarahKnuckey).