Drone Wars is today publishing ‘Falling Short: An analysis of the reporting of UK drone strikes by the MoD‘. Since the beginning of air attacks against ISIS in Iraq and Syria (Operations Shader), the MoD has periodically published reports of the RAF strikes on its website. Law lecturer and member of the Drone Wars Steering Committee, Max Brookman-Byrne, has undertaken quantitative analysis of these reports and examined them in the light of international law.
The report finds that while the MoD’s attempts to be transparent in this area are to be welcomed, too often insufficient information is given. The fact that nearly half of all reports of drone strikes fail to convey sufficient information for even cursory or superficial assessments in light of International Humanitarian Law (IHL) is highly concerning. It means that while the MoD’s reports provide an apparently transparent framework, in reality they fall short in this regard.
Max Brookman-Byrne writes:
“The fact that some air strikes are described in detail, particularly those that seem the most palatable, makes the absence of detail in others difficult to understand. It is not suggested that the MOD include detail on the legal analysis that surrounds each air strike, but it ought at least to include enough of the factual information around a strike to enable a prima facie conclusion that a strike probably adhered to international humanitarian law in terms of targeting. This is particularly so given that it only takes a small number of words to enable such a conclusion.”
Key points of the report are:
- Nearly half of the reports do not provide sufficient information to make a basic determination as to whether the strike accords with relevant law.
- The presence of civilians has been airbrushed from the reports. It is suggested that each report should include a short statement about whether civilians were, were possibly or were not present in the vicinity of a strike.
- Inappropriate metaphors such as ‘hunting’ and the shorthand description of individuals as ‘terrorists’ or ‘extremists’ instead of providing an explanation as to why those individuals were targeted should be avoided.
Civilians airbrushed out of the picture
Only 4% of the reports of UK drone strikes mention civilians. Generally, these refer to a drone crew checking an area for civilians before firing, though others are less explicit, referring to, for instance, the ‘crew wait[ing] patiently until the targets were in open countryside’. In these cases it is clear that care has been taken to avoid harm to civilians and that precautions were taken, in accordance with the requirements of IHL.
It is therefore highly concerning that the remaining 96% of reports make no mention of civilians. References to civilians demonstrates a number of things. First, where the facts allow, it shows that civilians have not been killed or hurt in a strike. Second, it demonstrates that the impact of a strike upon civilians is a key consideration when deciding to carry out a particular strike. Third, it creates the presumption that obligations under IHL have been taken seriously: that civilians are not targeted, that necessary precautions against harm to civilians have been taken, and that any incidental civilian deaths or injuries that occur are proportionate to the military advantage produced by a particular strike (the principle of proportionality).
In order to improve transparency, it is suggested that each MOD report should include whether or not civilians were present in the vicinity of a strike, or whether it was unknown if civilians were in the area. While some strikes take place far away from civilian areas, others target urban areas where the likelihood of civilian casualties is much greater. The virtual air brushing of civilians from all strike reports together with the blanket assertion that there is ‘no credible evidence of civilian casualties’ (held until the recent acknowledgement of the accidental killing of a civilian) is not compatible with the volume of civilian casualty reports from on the ground compiled by groups such as Airwars. Transparency about the presence or not of civilians would increase the credibility of UK reporting. It cannot be presumed that civilians are simply not harmed by air strikes.
The report also highlights the extent to which inappropriate terms are used to denote the person killed was a lawful target but which actually provide no evidence to support that implication. The main examples of this is the use of the term ‘terrorist’ and ‘extremist’. These terms suggest the person is a member of an armed group such as ISIS but which, on their own, say nothing concrete about them and what led to the conclusion that they could be lawfully killed. These terms are present in 61% of reports of drone strikes and 42% of conventional air strikes. Examples include:
“The Reaper hunted targets in the city centre, using three Hellfire missiles to pick off groups of extremists caught moving in the open.”
“Two Tornados used a Paveway IV guided bomb to destroy a building occupied by extremists on the west bank of the Tigris, in the Old City of Mosul.”
“A Reaper successfully engaged one small group of terrorists with a Hellfire, then provided support to two air strikes on further extremists operating on foot nearby.”
“A Reaper tracked terrorists manoeuvring to the north-east of Abu Kamal on Monday 8 January, and conducted four successful attacks, with three Hellfire missiles and a GBU-12 guided bomb, against extremists on foot and a Daesh pair moving at high speed on a motorcycle across the desert.”
These terms reflect the narratives presented in the media of the UK and US’s ongoing fight against global armed-groups. However, there is nothing within the term ‘terrorist’ or ‘extremist’ that indicates that a person is targetable under IHL. They are not legal terms, and, in the absence of additional facts, they do not indicate the reality of whether or not the person targeted in an air strike was a lawful target under IHL. That is not to say that those people are not targetable, but such a determination cannot be made without further information. Holding extreme views does not render a person liable to be killed, nor, necessarily, does membership of terrorist group. As the terms serve no real purpose in demonstrating the lawfulness of a particular air strike, it is unclear for what reason they are used, and who it is who decides whether a person killed by a drone was a ‘terrorist’ or an ‘extremist’. It is possible that the terms are being used to confer a sense of legitimacy to the public, implying that those killed deserved it, or perhaps that the terms are just in common use by those reporting the strikes. Whatever the reason, their use is questionable and undermines the ability of the reports to provide a transparent account of drone use and Operation Shader.
While the MoD’s public reporting of air and drone strikes is to be welcomed and represents an attempt to provide transparency, it is currently falling short of what should be done in this area. We urge the MoD to improve its reporting in order to give greater public understanding and to improve accountability.