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Drones Use Smaller Bombs But Still Raise Big Concerns for Civilians

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In Pakistan, the CIA is using smaller missiles and advanced surveillance technology to minimize civilian casualties caused by drone strikes. This suggests the CIA has learned a lesson from the Pentagon's experience with Afghan anger about civilian deaths across the border.

But serious concerns about the drone program remain. For one, the civilian death and injury toll from drone strikes remains unknown because without U.S. forces on the ground in Pakistan, proper investigations and collateral damage assessments cannot be carried out. Second, those harmed receive no compensation or assistance from the U.S. or Pakistani governments. And finally, the secrecy of the drone program raises questions about the legality of the CIA's targeting practices and whether civilians are appropriately distinguished from militants.

Nobody knows the real civilian cost of drones. CIA sources put the death toll at 20 civilians in the past 15 months, while New America Foundation has counted over 180 based on media reports. As Peter Bergen, head of New America's drone project notes, there is no way of accurately confirming or refuting the CIA's assessment without more access to the target areas or the CIA sharing surveillance information. Along with smaller bombs and better intelligence, there are humanitarian, legal and strategic imperatives that demand more accurate assessments of civilian casualties.

Smaller bombs will hopefully mean fewer potential civilian casualties, but that is little comfort to civilians already harmed in drone attacks. From my own discussions with those Pakistanis, I know they expect and believe they deserve amends for their losses. Pakistan already provides compensation to victims of terrorist attacks and has on occasion compensated civilians harmed by its own military operations (most recently in Khyber Agency where a Pakistani air strike killed over 60 civilians). What about the victims of drone strikes? Some portion of the massive amount of military aid the U.S. provides Pakistan should go to civilians injured or killed in drone strikes.

Ironically, it is the very precision of drone strikes--expected to now become even more precise with new surveillance equipment--that can make such assistance so meaningful. I recently met victims of a drone strike in South Waziristan. The family wanted compensation for their relatives killed and for the destruction of their home. One reason was to clear their name because the much-publicized precision of the drones meant the family faced suspicion. Compensation by authorities would acknowledge they were innocent.

While the CIA's new sensitivity to civilian casualties is welcome, we must also ask, who counts as a "civilian"? Who is protected from attack? Not knowing obscures the real civilian toll, because any casualty count released by the U.S. will assume only combatant deaths--while international legal standards may have counted some of those killed as civilian.

State Department Legal Advisor Harold Koh recently addressed the U.S. position on drones. His assertion of self-defense as one of the legal justifications for the program may open the door to civilians becoming targets. That's because under self-defense non-combatants might not be legally protected from attack. For example, would the infamous old lady in Switzerland who gave money to a charity that supports Islamic extremism still be a civilian? While she's an unlikely target, the issue of who's a civilian and who's a combatant is important enough to discuss openly.

A way to address all three concerns about drones is to develop a compensation system for civilians harmed in drone strikes--similar to what already exists in Afghanistan. Offering amends for deaths, injuries and property damage would bring the civilian toll of the strikes to light and clarify the operational legal distinction between civilians and combatants. Compensation would also acknowledge civilians harmed as unintentional victims, help them recover from their losses and potentially quell the population's increasing anger over the drone program.

The U.S. should work with the Pakistani government to develop such a mechanism, including conducting investigations. The U.S. should also encourage the Pakistanis to permit independent observers, such as the ICRC and the UN, to investigate civilian casualty incidents.

Efforts to minimize civilian casualties by any warring party--the CIA now included--are welcome. But we must not make the mistake of thinking technology is a substitute for transparency and accountability, nor that good intentions eliminate the need to help civilians harmed.