Collateral Damage

f1, Research — By on October 12, 2016 2:25 pm

Dr Tom Gregory from Politics and International Relations speaks with Judy Wilford about the uses and misuses of the language of the law and the dangers they pose for the future.

“Language can create a population that is killable,” says Tom Gregory. These are chilling words, but true. Under international law, within a conflict zone, combatants are killable. Non-combatants are unkillable, even in a declared war, except under stringently stated conditions.

But in wars such as those that are raging within and around civilian populations in Iraq and Afghanistan, the distinction between the two is becoming blurred – and the legal rules and regulations put in place to protect civilians are being interpreted in ways that are disturbingly elastic.

Supported by a prestigious three-year Marsden Fund grant, Tom is conducting research on counter-insurgency in Iraq and Afghanistan, focusing on how civilian casualties are defined, justified and excused.

International law comprises a complex assemblage of different treaties and documents along with customs and norms that have evolved over a significant period, certainly since the signing of the first Geneva Convention in 1864.

“These laws are not a static body and don’t cover everything,” says Tom, “so there is a constant process of interpreting and reinterpreting the law, and what we’re seeing is the stretching of these concepts and attempts to massage definitions to create new realities.

“The Obama administration was saying for a while that a drone strike in Afghanistan would not take place if there was any possibility of civilian casualties – even though NGOs tracking the numbers at the time were reporting a great many civilian deaths.”

Just one explanation for this discrepancy was the categorisation (commonly used by the US military) of all “military-aged males” as combatants. And even the concept of military age is elastic – is it 18 to 45 or 12 to 65?

“It can be difficult to identify who’s a legitimate target and who isn’t,” says Tom. “People talk about this person who is ‘a farmer by day, a fighter by night’. Added to this, you’ve got all these other actors on the battlefield – private security consultants, where do they fit? Even academics are a part of it. In Afghanistan you have anthropologists, social scientists, who’ve been deployed alongside the troops to learn about the local culture. Do they count as combatants? Can they be lawfully targeted?”

There is much talk about “precision bombings” with clearly identified targets right in the eye of the operator as the drone descends, but Tom’s research has shown that only two percent of drone strikes are launched against what is called “high value targets”. The majority are “signature strikes”, which attempt to distinguish likely targets through their appearance or behaviour. And there are times when the judgement is wrong – as in a case in Afghanistan where (even with prior information supplied) a community meeting was mistaken for a Taliban gathering.

“What is often missed,” says Tom, “is the horrifying effects on those who are killed and injured. The bodies of the dead are so badly damaged that it is impossible to identify them. Families are left to pick up bits of flesh and bone for the burial, uncertain if they even belong to the same person. In one case, the bodies were so badly damaged that the local doctor was unable to differentiate human tissue from the remains of dead cattle.”

Civilian deaths (even if forseeable) can occur within the law, provided the civilians are not deliberately fired upon but lose their lives in the context of an attack on a “legitimate” military target. Even so, the violence must not be disproportionate: it cannot kill too many non-combatants.

Dr Tom Gregory

Dr Tom Gregory

“But how many deaths are too many?” asks Tom. “In the end it’s often up to the military – or to military lawyers – to determine what qualifies as proportionate. It’s those responsible for the strike who are judging what’s acceptable.”

Cutting to the heart of the questions Tom is asking is the notion of the boundaries that delimit war.

“Whether we are actually at war with the people we’re killing is a major issue because it effectively determines what legal regime is in place. So you could have a situation where, for example in Afghanistan, there is a clearly-defined war, so drone attacks against the Taliban fall under the laws of armed conflict.

“However, America is not at war with Pakistan – so it’s not immediately clear that the laws of armed conflict should even apply. Instead, it’s human rights law, which would demand a police operation rather than a military one. You should be arresting and prosecuting the perpetrators, as you would in New Zealand or the UK.

“But this is where things get tricky and quite political,” he adds. “The Obama administration argues that there is no geographical limit on this war: that the authorisation signed by Congress after 9/11, which paved the way for the invasion of Afghanistan, effectively gives them the right to wage war against Al- Qaeda and affiliate groups all over the world.”

This goes against the interpretation of the United Nations special rapporteur, who defines fatal strikes that are not in a war zone as extra-judicial killings. And, as one of Bush’s advisers warned just after 9/11, the declaration of the “war on terror” has ushered in an era of war without end and without geographical boundaries.

The concept of “imminence”, authorising police to open fire if the person they intend to arrest threatens their safety or the safety of others, is also being stretched beyond recognition, says Tom. “Is someone an imminent threat when they’re just about to detonate a suicide bomb in a crowded market place? Do they pose an imminent threat when they’re driving to the market? Or when they’re putting together a suicide vest two weeks in advance? Or when they’re – perhaps – planning an attack some months or years in the future?” In the course of his research, Tom is speaking to a broad selection of those affected by violence, including the families of those killed, the military lawyers who make decisions on strikes and the pilots or drone operatives who carry them out.

His focus is on the human cost of casualties. “We talk about deaths of civilians using the horrible term of collateral damage. It’s a very dehumanising way of talking about human beings with a life to lead, with family and friends.

“When we talk about proportionality – slightly changing the trajectory of a weapon might mean you kill ten instead of 25 – it’s still ten human beings whose lives are being lost, whose families are going to be grieving.”

Tom’s research has confronted him with two strong realisations. One is how little protection there really is for civilians in war: “International law is very forgiving of the military. Those targeted are often weak and easily exploited.”

The other is that the laws of conflict, rather than restraining wars, enable them to take place: “Wars are waged not in violation of the laws of armed conflict but with the full force of the law. I’m curious about how it is that the law can be used to legitimise civilian deaths: how it comes to constitute some populations as being profoundly disposable.”

While the figures on deaths caused by drones are shrouded in secrecy, as are their rules of operation, the technology is now available to build algorithms into them so they can make decisions for themselves. Says Tom: “There’s even talk about programming these weapons with a kind of ‘ethical governator’ that allows them to select a target, weigh up the extent of collateral damage, judge the political fallout, and then act or refrain from acting.”

Tom has no doubt that his work has profound implications. Precedents now being set for the use of drones inside and outside conflict zones are likely to present enormous dangers later.

“Violence is being used by the US on a daily basis,” he says. “But the US is not the only country with drones. We need to be asking what will happen later, when other countries – for example Russia and China – will be using drones. As drones proliferate and as non-state actors obtain them, that will generate new problems.”

“We don’t want a situation like with nuclear weapons, where we create the monster that we later regret. The legal architecture we put in place now will be crucial for the future.”

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