The NDU Speech: UAVs and Proportionality Doctrine

Much, though not all, of what President Obama said about his administration’s use of unmanned aerial vehicles (UAVs, also referred to as “drones”) in today’s speech at National Defense University tracks with a reasonable use of UAVs against enemy combatants overseas during wartime.

One line in the segment on UAVs stood out, though, both for its interpretation of the law and its potentially counter-productive impact on policy.

At roughly the 22:28 mark, Obama stated:

“…and before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.” (emphasis mine)

This is a tighter standard than what the facet of the Laws of Armed Conflict addressing “proportionality” is understood to require.  According to testimony given to the Senate Armed Services Committee by Charles “Cully” Stimson, former Deputy Assistant Secretary of Defense for Detainee Affairs and currently the Deputy Chief Trial Judge and Executive Officer for the Navy-Marine Corps Trial Judiciary, Reserve Component, the Army’s Operational Law Handbook states:

The law of war rests on four basic principles:

1. The principle of necessity—which authorizes that use of force required to accomplish the mission;
2. The principles of distinction or discrimination—the requirement that combatants be distinguished from non-combatants, and that military objectives be distinguished from protected property or protected places;
3. The principle of proportionality—the concept that the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained; (emphasis mine) and
4. The principle of humanity or unnecessary suffering—a military force must minimize unnecessary suffering and is forbidden from employing arms or materials calculated to cause unnecessary suffering.

Notice that the Laws of Armed Conflict (the part of international law governing the conduct of armed conflict) do not require that an attack produce zero civilian casualties in order to be lawful — only that the loss of life not be excessive relative to the military advantage expected to be gained.

Not only is Obama’s proportionality standard unnecessarily stringent from a legal perspective, but it could also prove counter-productive on the policy side.   If the United States is no longer allowed to use a UAV to target a terrorist overseas unless there is “near-certainty” that there will be “no” civilian casualties, look for every terrorist to hide himself or “blend in” among civilians even more than usual.

In the same speech today at NDU, Obama remarked that Osama bin Laden, in his writings, indicated that UAV strikes had been highly effective against his operatives.  Tragically, the President’s new proportionality doctrine risks undermining that effectiveness.