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Caught in the Crosshairs: Legal Uncertainty over Drone Strikes Puts Civilians at Risk

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UN special rapporteur Philip Alston's recent report on targeted killings challenges the legality of drone strikes and highlights how legal uncertainty increases the risk to civilians from drone strikes.

The Obama Administration's legal justification for drone strikes has thus far been completely unsatisfactory. In much publicized comments, State Department Legal Advisor Harold Koh recently stated that drone strikes conform with international law; they are justified as acts of self-defense and part of an ongoing armed conflict. But as the UN Report demonstrates, such a defense leaves fundamental questions unanswered.

The question that is perhaps most consequential for civilians is who drones can kill. While civilian casualty figures attract significant media, little attention has been paid to who counts as a "civilian," or to be more legally precise, a non-combatant. "The greatest source of the lack of clarity with respected to targeted killings in the context of armed conflict is who qualifies as a lawful target, and where and when the person may be targeted," the UN report states.

Strictly speaking, civilians can be targeted in an armed conflict if and when they directly participate in hostilities--by picking up a gun to shoot a soldier, for instance. Members of armed forces or organized armed groups may also be targeted. The difficulty is distinguishing when a non-combatant civilian crosses the line into direct participation or membership in an armed group, thereby becoming a potential target of attack.

In Pakistan, this distinction is even more difficult. For instance, in the tribal areas, guns are omnipresent and have a distinct cultural importance. AK-47s are ubiquitous accessories at weddings, as are pistols strapped to mens' belts--some with translucent magazines and gold, polished bullets, I've been told. Last week while having lunch in an upscale hotel in Peshawar, I noticed a beautiful watercolor painting depicting two Pasthu men perched on a hill top, peering out at the sunset, AK-47s romantically slung across their backs. For military and intelligence personnel used to identifying threats by the weapons they carry, distinguishing fighter from farmer can be uniquely difficult in Pakistan.

Familial and tribal relations also complicate the picture. Many fighters live with their families--often 30 or 40 people in joint family homes. And strong traditions of hospitality and tribal and familial allegiances mean food, water, and protection are given to guests. But offering such support is not sufficient to make the hosts legitimate targets of attack.

Drawing heavily from the ICRC Interpretative Guidance on Direct Participation in Hostilities, the UN report notes that criminal activity, political support, financial assistance, or other general and indirect war supporting activities is not conduct that would constitute 'direct participation in hostilities' or qualify as a 'continuous combat function' such that the individual engaging in such activity may be targeted for attack.

Does the US believe differently?

It hasn't yet clarified where it draws the line between civilians and combatants, on what basis, or the standard of proof applied. Reports that the US has targeted drug traffickers in Afghanistan--criminals, not combatants--raises serious questions about whether the US has classified non-combatant civilians as targetable individuals. The targeting of unknown individuals based on "pattern of life" analysis also raises serious concerns over target selection process and the evidentiary standard applied. Protecting civilians and accurately assessing the costs to civilian life requires robust procedures as well as legally sound standards that clearly differentiate between combatants and non-combatants.

For civilians on the ground, uncertainty over who is legally targetable creates confusion and anxiety. Drones buzz overhead 24 hours a day in some areas of Pakistan, poised to strike at any time. Without knowing what conduct could lead to them or those around them to be targeted, civilians live in constant fear. Confusion over who is targetable also blurs the line between victims and combatants, denying victims the recognition and help they deserve.

The US's utter lack of a clear legal policy increases the risk that civilians will be targeted or collaterally killed and its lack of transparency prevents accurate assessments of civilian casualties. Such a precedent is even more alarming given that, according to the UN report, over 40 countries now have drone technology, many of which are developing offensive capabilities. The US should heed the warnings of the UN and others and come clean about drone strikes by providing a full legal justification, investigating civilian casualties, and compensating and assisting those unjustly harmed. Those civilians that must live each day with the threat of drone attacks deserve no less.