Revised Pentagon Guidelines on UAVs a Needed Adjustment

The Washington Times is reporting that the Pentagon has issued revised guidelines on avoiding civilian casualties during unmanned aerial vehicle (UAV) strikes:

“The Pentagon has loosened its guidelines on avoiding civilian casualties during drone strikes, modifying instructions from requiring military personnel to ‘ensure’ civilians are not targeted to encouraging service members to ‘avoid targeting’ civilians.”

“In addition, instructions now tell commanders that collateral damage ‘must not be excessive’ in relation to mission goals, according to Public Intelligence, a nonprofit research group that analyzed the military’s directives on drone strikes.”

This revised guidance appears to be a prudent departure from President Obama’s statement in May, 2013 at National Defense University that “…before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set.”  At that time, both John Yoo (in a separate post at National Review Online) and I commented that the President’s standard went unnecessarily and unwisely above and beyond what the laws of war require.

From Prof. Yoo’s comments at that time:

“The president risks rendering impossible the only element of his counterterrorism strategy that has bred success. An obvious problem is that there is almost never a ‘near certainty’ that a target is the person we think he is and that he is located where we think. President Obama either is imposing a far too strict level of proof on our military and intelligence officers or the standards will be rarely followed. But worse, if the U.S. publicly announces that it will not attack terrorists if civilian casualties will result, terrorists will always meet and travel in entourages of innocent family members and others — a tactic adopted by potential targets of Israeli targeted killings in the West Bank. Neither of these standards — near certainty of the identity of the target or of zero civilian casualties — applies to wartime operations. President Obama is placing impossible conditions on the use of force for what can only be assumed to be ideological reasons.”

And from mine:

“…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.”

Perhaps our ground troops in Afghanistan would benefit from a similar reassessment of targeting rules.  As The Washington Times reported recently:

“The new U.S.-Afghanistan security agreement adds restrictions on already bureaucratic rules of engagement for American troops by making Afghan dwellings virtual safe havens for the enemy, combat veterans say.”

“The rules of engagement place the burden on U.S. air and ground troops to confirm with certainty that a Taliban fighter is armed before they can fire — even if they are 100 percent sure the target is the enemy. In some cases, aerial gunships have been denied permission to fire even though they reported that targets on the move were armed.”