Wanted: More light, less heat about drone attacks

03/18/2011 01:20 pm ET | Updated May 25, 2011

By Gabor Rona
International Legal Director

Drone strikes conducted by the United States in Pakistan are an increasingly hot flash point in relations between the two countries. This week, a drone strike is reported to have killed approximately 40 people. The New York Times reports that it was a meeting of Taliban mediators and local citizens. But a Pakistani resident dismissed that assertion, saying "[t]he Taliban will never gather in such a large number in broad daylight to be targeted by the drones. It has been a big mistake to target the jirga, as it will have severe consequences." A Pakistani General upped the rhetorical ante: "It is highly regrettable that a jirga of peaceful citizens, including elders of the area, was carelessly and callously targeted with complete disregard to human life."

The U.S. could take a meaningful step toward reducing the heat by adding more light. The use of drones to deliver deadly force is not necessarily a violation of law. In war, killing is permitted, but subject to certain limitations. The U.S. could, and should, make public the criteria it uses to determine that a drone strike is lawful, as well as the vetting process by which targeting decisions are made. This would not jeopardize national security, as no disclosure of decisions in individual cases would be required.

Careless statements by U.S. officials, such as "These people weren't gathering for a bake sale. They were terrorists," merely add to the need for clarification and greater transparency. Why careless? Because international law does not permit deadly force against a person simply because they are considered a "terrorist." The laws of war are more restrictive and are commonly understood to prohibit use of deadly force unless the target is a combatant or a civilian directly participating in hostilities. If such statements accurately reflect U.S. targeted killing policy, there is, indeed, cause for concern.

A second point of contention concerns the problem of unintended victims, or what international law antiseptically calls "collateral damage." Not all targeting of legitimate military objectives becomes illegitimate because of the risk of civilian death. Instead, the law establishes a test of proportionality, weighing military advantage against civilian harm. In this case, a U.S. intelligence official is reported to have said that of the 32 people at the meeting, 13 were Taliban fighters, 11 of whom were killed, and that the rest of the dead were elders and tribesmen. This admission raises serious questions about the vetting process. The proportionality analysis is not simply a numbers game and even disproportionate civilian casualties might not be a violation of law if adequate precautions are taken. Mistakes can, and do, occur. But so long as both the criteria for deciding who to kill and the process for making the decision remain unknown, reasonable doubts about the legality of such attacks will, and should, persist.

One resident is reported to have said that given the large Taliban presence, average people and the militants were difficult to distinguish in the area, but that to target a jirga would lead to a backlash. "It will create resentment among the locals," he said, "and everyone might turn into suicide bombers."

There are limits to what can be done to eliminate civilian casualties in so complex an environment. And every reason to strive to those limits, for purposes both humanitarian and strategic. Improved transparency by the government will build confidence in the U.S. and elsewhere if it shows that the policy is within the bounds of law. If it shows otherwise, it should put pressure on the government to bring the practice to heel.