Israel Air Force unmanned aerial vehicle.
(photo credit: ISRAEL AIR FORCE MAGAZINE)
In one month, my son will accept his diploma from the United States Air Force Academy. On that day, he will begin his career as an officer in the United States Air Force, assigned as a Remotely Piloted Vehicle operator. My son will fly drones.
I worry about the challenges that await my son, but I am also hopeful that his experience has prepared him to meet these challenges. I wonder, however, whether anything will prepare him or any of his peers for the unrealistic expectations of perfection that many seem to think defines legitimacy in war.
This concern has been magnified over the past few days by the reaction to the unfortunate news that several hostages were killed during a drone attack in Pakistan. This incident stimulated significant media and legal criticism of the use of drones in our ongoing counter-terrorism operations, but reflects a much broader misunderstanding of the relationship between law, war and legitimacy.
Much of the criticism has focused on the president’s acknowledgment that these casualties were unexpected because there was no indication they were in the area of attack. How, it is asked, can such attacks be lawful or legitimate without complete certainty as to the nature of the target and the risk of killing innocent civilians, in this case the hostages? The answer is as simple as President Obama indicated: mistakes happen in war.
This might seem harsh or insensitive, but it is unrealistic and legally invalid to demand such certainty, or accuracy in results, even from most sophisticated lethal attack capabilities. Such a demand, and the accordant expectation of “zero defect” warfare it produces, is inconsistent with the law that provides the framework for wartime legality and legitimacy: the law of armed conflict. What this law does demand is reasonableness: reasonable efforts to verify the nature of the target; reasonable efforts to mitigate risk of civilian harm when attacking a lawful target; reasonable decisions to call off an attack because the anticipated harm to civilians is completely out of proportion to the benefit of the attack.
“Reasonableness” is the logical standard to judge the legality of lethal military operations.
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Commanders should be judged based on the situation that framed the attack decision at the time it was made, and not subjected to retrospective condemnations based on the highly emotive images of civilian casualties.
The standard of reasonableness built into the law protects from this type of invalid condemnation, and accounts for the chaotic nature of warfare.
War, no matter how sophisticated the capabilities, involves operationally, legally and morally complex judgments; judgments that we hope are always right, but will inevitably at times be wrong. Mistakes have and will always happen in war. What the law demands is that these mistakes be reasonable under the circumstances, not that they never occur.
A “zero defect” critique of lethal military operations distorts this fundamental reality.
More problematically, it corrodes the moral validity of lawful military operations, even when commanders – like those who will issue attack orders to my son – embrace the law and constantly strive to avoid even reasonable mistakes. An expectation of flawless, error-free warfare is simply intolerable, because it imposes an expectation that is impossible to satisfy.
This unattainable expectation worries me more than any other physical, mental, or moral challenge my son, and all of his peers, will confront. I must live with the reality that he will face the physical hazards of warfare; I should not worry that he will also face a moral hazard created by the increasing gap between the realities of warfare and ill-informed legal and moral standards.
I expect my son and his commanders to be cautious; I expect them to retain a deep sense of humanity even in the chaos of warfare; I expect them to embrace the humanitarian obligations of the law of war. But I also expect that they may have to live with the consequences of decisions and actions that very few of their critics will ever be called upon to make. I want all who are entrusted with the nation’s lethality to know that mistakes, while terribly unfortunate, do not ipso facto indicate failure, immorality, or illegality.
Stripping away the law’s rational balance, and substituting a zero defect expectation, creates a moral hazard whose debilitating effects may very well linger far longer than the physical risks of combat. And so I will continue to worry, as my son and all those like him continue to do the difficult business of fighting their nation’s wars.
The author is a professor of international and criminal law at South Texas College of Law in Houston. Prior to his teaching position, he served as the US Army’s senior law of war expert in the Office of the Judge Advocate General and chief of the Law of War Branch in the International Law Division. He has also provided expert testimony at the International Criminal Tribunal for the Former Yugoslavia in the Hague.
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