A Just Security Debate!—What’s With the Criticism of the DNI Report on Civilian Casualties?

A U.S. Air Force MQ-1B Predator drone, carrying a Hellfire air-to-surface missile taxis after landing at a secret air base in the Persian Gulf region on January 7, 2016.

In a recent Just Security piece, Gabor Rona argues that there is a gross underestimation of casualty figures in the DNI report on civilian deaths resulting from US operations outside of areas of active hostilities during 2016, a report which the Obama administration issued in its final days. Rona’s main point is that individuals were wrongfully targeted using a law of armed conflict framework instead of a human rights framework. Gabor, however, does not prove his case. What is the basis for concluding that strikes were not undertaken against armed groups with which the U.S. and allied forces were in an armed conflict at the time? Indeed, the situations under review—e.g., Libya, Somalia, Yemen—reportedly include enemy fighters numbering in the thousands in each of those places, and repeated engagement of military forces. In some cases, the situation involved nothing short of civil war, and the United States may lawfully use force to assist foreign states battling an organized armed group in their territory as well as to target combatants who are directly involved in armed conflict against the United States.

Here’s a way of putting the relevant question: Was it correct for the Obama administration to apply the law of armed conflict to US lethal operations under the following conditions?

If US attacks were:
1. directed against members of an enemy’s armed forces (defined as such by international law);
2. in an armed conflict with that group (defined as such by international law);
3. when those fighters were involved in continuing and imminent attacks against the US or partner forces (arguably a policy constraint above what the law of targeting requires);
4. in locations the President considered “outside areas of active hostilities”?

Here’s the key to your answer: the fourth condition is a distraction from the legal question. It involves a policy choice made by a president to further constrain the actions of his subordinates beyond what the law itself requires. Those policy constraints are contained in the 2013 Presidential Policy Guidance (PPG). Understood in this light, trying to use the term “areas of active hostilities” to decide where the law of war should apply involves a category mistake–mixing a policy innovation with a legal definition of the scope of the armed conflict.

Here’s another category mistake: it matters not whatsoever whether the United States is in an armed conflict with the territorial state. Yet the rhetoric of some commentators suggests it somehow does. Conor Friedersdorf wrote that “Trump will also be inaugurated into an office that construes its mandate to kill with drones broadly, encompassing strikes in countries with which America is not at war.” Rona, in his piece, highlighted the fact that the US bombed people in “countries with which the United States is not ‘at war.’” What is the analytic significance of such a proposition? Do Friedersdorf and Rona think the Saudis should not use lethal force and not apply the law of war to their targeting operations against the Houthis in Yemen, because Saudi Arabia is not at war with Yemen? Surely not.

Finally, Rona is in disbelief that the civilian casualties can be so low. The application of the PPG, which contain much more restrictive conditions than the laws of war, has presumably driven down the risks to civilians. And for this time period, the DNI explains: “No discrepancies were identified between post-strike assessments from the U.S. Government and credible reporting from non-governmental organizations regarding non-combatant deaths resulting from these strikes.” See for yourself the studies conducted by the New America Foundation and Bureau of Investigative Journalism.

Image: John Moore/Getty 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter @rgoodlaw.