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The drone-casualty-law-civic nexus

The issue of civilian casualties from armed-drone strikes in Afghanistan and elsewhere needs transparency from Britain's military establishment. Both legal and civic pressures are rising.

Paul Rogers author pic
Paul Rogers
3 April 2014

The defence committee of the UK parliament published a report on the country's use of drones, armed or otherwise, on 25 March 2014. The committee, using the ministry of defence (MoD's) preferred terminology, "remotely piloted aerial systems" - more anodyne than armed-drones - declined to allow oral evidence, thus constraining debate on a rightly controversial issue (see "The drone evasion", 27 March 2014).

One of the report's biggest failures was a reluctance to engage fully with the issue of civilian casualties, reflected in its acceptance of the defence ministry's extraordinary claim that in only one of the 418 weapon-strikes fired from drones had there been evidence of civilians being killed or wounded. Moreover, in its failure to even discuss United Nations thinking on definitions of “civilian”, the committee glossed over a core issue in the dispute over armed-drones.

This week the committee has published a new report on another subject, but one that is closely related to drones. This is the manner in which service personnel and their families are able to sue for negligence in the case of death. The BBC reports: "The committee said that the Supreme Court’s ruling last year that military personnel and their families could sue the MoD for negligence in the case of death or injury had undermined the previously well-understood principle of combat immunity” (see "Legal challenges undermining armed forces, say MPs", BBC News, 2 April 2014).

The committee’s primary concern was with UK soldiers suing the MoD. But the issue also relates to occasions in recent years where British law firms have acted for Iraqis in taking legal action against the British government for death and injury. A former army commander in Afghanistan, Colonel Richard Kemp, comments: “In my opinion unscrupulous lawyers have attempted to persuade large numbers of Iraqis to make claims against the British Army. And the reasoning behind these in some cases are purely financial greed and in other cases political motivation. The more of that that happens, then the more difficult it becomes, the more that this will be in the forefront of commanders’ minds.”

A time for transparency

The underlying principle here is the potential for people in countries that have been attacked to seek justice and recompense through the British legal system - and not just for British soldiers. It clearly is a problem for the military and legal establishment; but the establishment's own attitude to civilian casualties is hardly helpful in addressing it. Again, the previous week’s committee report on armed-drones is a clear illustration.

The claim in that report - that a single drone-attack killed four civilians, but 417 others killed only insurgents - seems incredible on a cursory view. A more detailed reading of the report reinforces this impression. The reason is that the committee quotes the opinion of the UN’s special rapporteur, Ben Emmerson (a senior lawyer), on definitions of casualties. 

In relation to Afghanistan, an incident that may have resulted in civilian casualties is referred to the "joint incident assessment team" (JIAT) in the International Security Assistance Force (ISAF). The definition says: "Individuals are presumed to be civilian for this purpose unless it can be established that they were directly involved in immediate attempts or plans to threaten the lives of ISAF personnel”.

The MoD claims that in 417 of 418 attacks, only insurgents were killed. It further reports that an “Operational Learning Account and After-Action Report (OLAAAR) is produced after every weapon release. Aircrew involved in the strike engage in a formal debrief process in which learning points are identified” (Remote Control: Remotely Piloted Air Systems, paragraph 64). All well and good, but such reports are purely internal and are not made public.

Moreover, it is in the nature of the reconnaissance capabilities of drones that after-action reports can include copious data on what has happened to a target. Indeed, this has to be the case - since if the target is not destroyed then it will have to be attacked again, whether that target is a person or persons, a vehicle or a building.

Now in principle, it might be conceivable that 417 attacks only killed specific individuals, or destroyed physical objects without killing civilians. But recall that the definition of civilian offered by the UN rapporteur is uncompromising: it does not include relatives, friends or others close to the individual targeted - unless they too are “directly involved”. Such precision is simply not credible, and will not become so until the MoD shows willingness to be far more transparent about the nature and purpose of these hundreds of attacks.

The ministry’s annoyance with the course of the debate may be understandable, as is its genuine desire to limit its own military casualties through the issue of drones. But without far more openness, the controversy will continue. It could well see families of Afghans killed by British forces pursuing the British government through British courts (see "Drone wars: the Afghan model", 14 February 2013).

An overdue debate

More generally, the linkage between drones and lawsuits is part of an emerging debate that has two wider aspects. The first is the considerable work being done to examine civilian casualties in war and the argument that they should be fully recognised in their individuality; the Every Casualty group is very much leading the way in this work (see "Every casualty: the human face of war", 15 September 2011).

The second is the role of armed-drones as part of the strategic shift that - following the costly failures in Iraq and Afghanistan - would replace “boots on the ground” with security by “remote control” (see "Remote control: a new way of war", 18 October 2012). That, too, is an issue being explored by non-government groups, in this case the Remote Control Project of the Network for Social Change, whose information-packed website has just gone live.

These are matters that go to the fundamentals of modern war and its impacts, of human security, and of legal and human rights in the 21st century. They simply will not go away; they will be addressed, however long it takes. If the UK defence committee was more able to recognise this, it might be better equipped to serve the valuable parliamentary purpose of aiding a long overdue debate.

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