Applying Jus In Bello Proportionality to Drone Warfare
The Law of Armed Conflict has a four-part test for making sure you are not guilty of a war crime.
- The target cannot be a civilian or noncombatant;
- The target must be militarily significant;
- The target must not be obtainable by other means; and
- The value of the target must be proportional to the anticipated value of deaths and/or destruction of property
The fourth part, “proportionality,” is an escape clause to avoid committing manslaughter but you can judge for yourself in this excellent article by David J. Akerson from the University of Oregon’s Review of International Law. I have researched many articles on proportionality and Akerson’s article below is the best I’ve read so far.
(Originally published May 14, 2015 on Antiwar.com)
As America recently learned of the unintended deaths of its citizens from a CIA drone strike, it should reflect on the death warrant issued without due process for two other Americans, one that killed American citizen Anwar al-Awalki, a drone strike that ignored his Constitutional protections and took the life of another American citizen, his son.
When al-Awalki was killed in 2011, former attorney general Eric Holder was criticized for killing him without due process. In response, Holder educated the public that the Constitution promises due process but not judicial process. Additionally, by defining al-Awalki as an imminent threat, he said he could also rely on the government’s police powers to make a lawful killing. Obviously under some circumstances, government officials need to react quickly to kill without due process such as when a student begins shooting other students in school. But these kinds of exigencies were not present with al-Awalki.
The Caroline Test, an international legal test for an “imminent threat,” states that the threat must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” This was not the case for al-Awalki. The government chased al-Awalki for two years in an attempt to kill him proving that as a threat he was far from imminent.
In addition to distorting al-Awalki’s imminence, the Department of Justice justified killing al-Awalki without judicial process by citing the Supreme Court decision, Mathews versus Eldridge, to justify its administrative due process hearing as a replacement for a judicial hearing.
In fact, the Mathews case was about how much due process one is entitled to in administrative hearings on disability benefits. The Mathews case made it unambiguous that the greater the potential loss of rights, the greater the requirement for judicial as opposed to executive branch due process. Specifically, it said, “the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decision-making process.”
“‘Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.’” Moreover, the Hamdi case emphasized that “‘the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions.’”
Noting the irony in the government’s argument, the Supreme Court wrote in U.S. versus Robel, “[I]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”
Even in cases involving an enemy combatant, where the military wanted to shortcut the Constitution, the Supreme Court noted in Hamdi, “that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.”
Making a composite of these opinions we have to ask: If the Supreme Court takes the position that judicial process is required for an incarcerated citizen, wouldn’t it provide these same or greater safeguards when the executive branch of the federal government decides to kill a citizen when that citizen is not an imminent threat?
In spite of the executive branch’s attempt to minimize the role of the federal judiciary in wartime, the Hamdi court rejected the idea that war is an excuse to reduce due process to the equivalent of an administrative hearing. “[T]he position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.”
No doubt the military will claim that dropping ordnance from drones is more accurate than bombing from bombers, bombers that the military claimed during World War Two were accurate enough to drop a bomb into a pickle barrel. While it is true that drones are often more accurate than bombers, the drone program has been sold on it ability to minimize “collateral damage,” a euphemism for unintended deaths near the target that would be called manslaughter if a citizen did it.
Unfortunately, drones cannot distinguish an American from an Armenian, and as we’ve just learned, neither can the CIA. Furthermore, we have yet to hear that drones can drop ordnance into a pickle barrel. Indeed, we have no evidence of their accuracy. We do know that only thirty percent of American bombs dropped during 1943 landed within a 1,000 foot radius, a large pickle barrel indeed.
It is time for Americans to demand that the executive branch submit itself to the US Constitution that created it; call for federal courts to take note of the Supreme Court’s warning that the executive branch was attempting to “condense power into a single branch of government;” command congress to remain skeptical about drone results as well as determine if “collateral damage” is making us safer or increasing the number of terrorist; and demand that notice and an opportunity to be heard, fundamental to the Bill of Rights, remain sacrosanct.