“We see again and again, strikes wherein civilians are being killed based on misidentification, confirmation bias, conjecture, or supposition. And we don’t see any accountability after the fact. In fact, we see real failures of accountability.” – Priyanka Motaparthy
By Tamara Sepper
How big of an expected military advantage justifies the risk of collateral damage measured in human life and limb? This is a question the U.S. government often wrestles with when it green lights a lethal airstrike meant to take out terrorist suspects in the Middle East. The analysis is nuanced, complex, and imperfect. It is rendered much more difficult when the civilian death toll is regularly miscalculated across such counterterrorism operations. A series of recently published reports in the New York Times reveal that the military significantly undercounts civilian deaths that result from U.S. airstrikes, often due to “patterns of failed intelligence, decision-making and execution.” In bombshell reporting on hidden Pentagon records, the Times’s Azmat Khan writes, “There is no way to determine that full toll, but one thing is certain: It is far higher than the Pentagon has acknowledged.”
To help provide context to the latest revelations and to explain the laws and policies that underpin the use of lethal drone strikes, I spoke with Priyanka Motaparthy, Director of the Project on Counterterrorism, Armed Conflict, and Human Rights at Columbia University’s Human Rights Institute.
The following transcript has been edited for brevity and clarity
What was your reaction to the Times reporting?
The New York Times reporting was extraordinary. It was the product of several years worth of work. They retrieved more than 1,000 documents of how the military investigates civilian casualties. And at the same time, the conclusions that they came to are problems that many people working in this area, human rights advocates, civilian protection groups, humanitarian groups, have been flagging for years, if not decades. These are not new problems. Some of the things they concluded, like the cases were dismissed on trivial reasons, that there was repeated use of bad intelligence or inadequate intelligence, that the same types of problems kept cropping up again and again are problems that we’ve seen before and that various groups have documented and made clear. They are problems that the military has also studied. They’ve done their own internal studies of how civilian casualties come about, and found some of these problems. But over two decades, they’ve not been remedied.
Which military outfits are in charge of carrying out drone strikes? There have been times we’ve heard the CIA, although they haven’t acknowledged it, is behind some of the drone strikes. The Pentagon, and within the Pentagon, some elite units. What is your understanding of who carries out drone strikes, and where?
When we are speaking about the Middle East, the primary unit carrying out drones strikes or airstrikes, the lethal airstrikes as well, is the U.S. Central Command. This is the military combatant command responsible for operations in the Middle East, which the U.S. military defines as including Afghanistan. They are based in MacDill Air Force Base in Florida. And they are one of several geographic commands.
The U.S. military has divided the world up into regional areas and there’s a command responsible for each region. Operations in Iraq, Syria, Afghanistan, Yemen, et cetera, fall under the U.S. Central Command. But you mentioned elite units. It’s true that we’ve learned through the New York Times reporting, certain elite units, special ops have been responsible for some lethal force operations, including airstrikes that have killed potentially significant numbers of civilians. But we also understood from the Times reporting that they continue to fall under the U.S. Central Command.
You also mentioned the CIA, and this is a very important and much criticized part of the U.S. drone program. Because as much as the U.S. military is carrying out these operations, including outside of recognized armed conflict, and there’s very little accountability for what happens in those incidents, the CIA is even more secretive, more unaccountable. And we really don’t know when or where they carry out operations, except for in rare instances.
There used to be a provision that required the U.S. government to report these drone strikes, including CIA operations. But that was done away with under the Trump Administration. And we haven’t seen that type of reporting since Obama’s years.
Do we have a rough sense of how many civilian deaths have occurred at the hands of the United States government using airstrikes to target terrorists?
This is a number that the U.S. government itself has never published. There has not been transparency on this. We don’t even know that they’re tracking it or evaluating civilian casualties in this way.
There’s an independent group, a civilian protection monitoring group called Airwars, which has done tremendous work in terms of creating their own methodology and producing data on U.S. operations abroad. They did an analysis recently and found that between, I believe 22,000 and 41,000 civilians have been killed in the U.S. post 9/11 wars. That’s a very broad estimate. It’s a very challenging thing to count, particularly as an external civilian group. It’s certainly something that advocates have been asking the U.S. to be transparent about.
How can we carry out these operations if we cannot understand the human toll that they extract, the cost on local communities, on local families in the places where the U.S. is carrying out these operations? How can there be any accountability to the American public for what the government is doing in the name of their safety and wellbeing? So it’s an extremely important question. And it’s a question that is yet unanswered by the U.S. government.
The Times looked at 1300 Pentagon assessments of civilian casualty allegations, deeming 1100 to be non-credible. Therefore, no further investigation would be done. What do we know about how the military decides whether an allegation is credible or non-credible?
Generally, people submitting reports to the U.S. military are not told why their allegation is deemed credible or non-credible. It’s just a determination that the military comes to. But from the Times reporting and other sources, we know that reports have been dismissed for certain reasons. One is the US military will say, “We simply did not carry out strikes in the area in question.” But what the Times found is that the military did not always keep comprehensive or accurate logs of where they were carrying out strikes, particularly in an operation like the operation to clear ISIS from Mosul.
There were numerous strikes happening every day, at a high volume, at a fast pace. And apparently, not everything was logged. Reports were reportedly dismissed because the people submitting them were told there were no strikes in that area when in fact, there were. So there’s a problem of military records that are not comprehensive and so reports can get dismissed for that reason.
They can also get dismissed because the military may not deem the individuals as civilians. They use a different interpretation of the laws of war than most human rights advocates do, and so they may be using a different way of defining whether or not they can target someone. There are also questions of uncertainty. They may not always know for sure one way or the other, but they do not presume that people are civilians when they don’t really know their status. They presume that they are targetable.
Is there a presumption of guilt, basically, if you’re with a known terrorist?
We’ve certainly seen cases where I would say it’s not necessarily that you’re presumed to be guilty, but there’s a proportionality analysis that happens. The value of targeting one individual, given their role or function in an extremist group, could be seen to outweigh the presence of other civilians or people who the military doesn’t know what function they carry out.
What are the biggest systemic reasons behind civilian deaths in airstrikes?
I think there’s a few different reasons. First of all, you have cases where civilians are misidentified as legitimate targets. And that was what we saw happen in Kabul. You had a civilian individual, a humanitarian aid worker who the military, through confirmation bias, decided was up to some activities that were threatening the U.S. presence in Afghanistan, that were threatening US soldiers’ lives. And so they carried out the airstrike that ultimately killed 10 civilians, including seven children. So misidentification is quite a serious problem.An analyst named Larry Lewis, who used to work for the Department of Defense conducted an analysis of the reasons behind civilian deaths. He found that a significant portion of civilian deaths in Afghanistan were due to misidentification.
A second problem is civilians who are killed when the military is indeed striking a legitimate target, but either they may not know about the presence of civilians, or they may underestimate the presence of civilians for a variety of reasons.
When confronted with the facts of civilian deaths, the government, seldomly, but will admit, that it has made mistakes. And it will say, ‘Look, drones are precise, but mistakes still do happen.’ How avoidable are these mistakes? What sorts of mistakes should we tolerate? And where do we draw the line on the types of mistakes that should not be tolerated?
I think that’s such a good question, because of course, everyone can make mistakes in their work. We can’t hold them up to an unrealistic standard where zero mistakes are made. And I don’t think anyone is advocating for that. But at the same time, there has to be an effort to learn when mistakes are made. Is the military sufficiently carrying out its investigation to understand what went wrong? Are they truly identifying the causes of these problems?
Then, when they do identify these problems, are they really returning back to their process, baking that knowledge into what happens going forward, to ensure that they’re not going to keep carrying out the same types of mistakes over and over again? I think we have really not seen those lessons being learned, which is why you have strikes like that August 29th Kabul air strike happening. We were told it was the heat of the moment, it was a dynamic atmosphere, everything was happening very quickly. But we’ve been told time and time again, that the military is deeply skilled and experienced in carrying out precisely those kinds of strikes when things are moving quickly, when there’s a lot of pressure.
So I think the mistakes we saw in that strike are actually emblematic of mistakes that we’ve seen that cause civilian deaths in Afghanistan, but also in Iraq, in Syria, as well as outside of recognized conflict. We’ve seen bad intelligence, confirmation bias. These types of errors happen on numerous occasions. When you see patterns of mistakes happening over and over again, that’s when you know that policies need to have more serious change.
Do you believe the government is acting in good faith?
I would like to believe that they are. Certainly, the Biden administration has really defined itself in terms of its commitment to human rights, to moral accountability, to transparency, to racial justice, to adherence to international law and good governance, and rule of law. There’s a lot of opportunity there to actualize those commitments. At the same time, I think a lot of work needs to be done. The government and the Department of Defense needs to recognize that these are not one-off events. These are not bad apples or extraordinary or unique in some way.
Let’s turn to the legal framework around targeted killings. How are “targeted killings” defined? What distinguishes them from assassinations, as we saw, for example, with the killing of Iranian General Qasem Soleimani? Assassinations, of course, being against U.S. policy.
“Targeted killings” is not a legal term. It’s one that was used at some points in time to describe drone strikes outside of recognized armed conflict. It’s a descriptive term that is perhaps less offensive or less controversial than assassinations. But certain targeted killings are assassinations. And it’s just a different, more palatable way to describe them.
Human rights advocates and others working in this field, we’ve moved away from using the term “targeted killings,” because “targeted” implies a certain level of precision, that you’re aiming for something, that you’re accurate. And what we’ve seen in these drone strikes is that in fact, civilians have been targeted on numerous occasions. So now, we refer to them as “lethal strikes” outside of recognized armed conflict, or drone strikes if they are drone strikes. There can also be lethal airstrikes not carried out by drones.
Laws applicable to lethal strikes are very complex. Give us a broad understanding of how the government has legally justified lethal strikes, and what the key issues are.
Governments are allowed to kill people in the context of armed conflict, but war is meant to be a temporary state of exception. We are not meant to live in a state of permanent endless war. When you start using lethal force outside of what is recognized as armed conflict, you are arguing that the world is a battlefield and that war is boundless in both time and space. And that is a very dangerous precedent to set. That is why the U.S. drone program has been so controversial, because it has really stretched the limits of, and really eroded some of the international legal protections that are meant to protect us against exactly that scenario.
You have these killings, these lethal strikes happening in situations where international law and international human rights law would deem them illegal, extrajudicial killings. And yet the U.S. government has pursued this policy, and has justified it through justifications around self-defense, which is being used far more broadly and expansively and elastically than is meant to be in domestic legal justifications, and that this is all part of a post 9/11 war.
It has been more than 20 years since 9/11. And I don’t think anyone, whether those in government or the American public, know when this is meant to end. When will these justifications stop being ones that can be used?
It feels like as long as there are terrorist groups in existence, most probably anywhere, we’ll be engaged in a non-international armed conflict with these groups. Is that a fair assessment?
This is the scenario that my organization and many other advocacy groups have been strenuously warning against and trying to avoid. I can’t imagine who would want to be in a state of endless war. And certainly there are other tools for dealing with some of the problems these groups present: diplomacy, peace building, development programs. And certainly the drone program has created problems even as it attempted to solve them, by angering communities. It has left them impoverished, left families without breadwinners, left them with serious tragedies that they live with for the rest of their lives. These are destabilizing events, both for families and communities. They’re destabilizing, economically, socially, psychologically. And so none of these seem to be constructive effects in addressing the problem of terrorism.
Let’s talk about the procedure. What are the rules of engagement? Before the military orders a lethal drone strike, what type of a procedure and analysis does it undertake?
What we understand from conversations with the military and how they explain the precautions they take to avoid striking civilians is that they plan a strike based on intelligence. That could be intelligence from flight surveillance. It could be intelligence from sources on the ground. It could be signals intelligence, communications that are intercepted. But through some form of intelligence, they identify what can be a target.
Or it could be in the context of an armed conflict. They need to carry out a strike because they’re being fired upon, and then it’s self-defense. But through various processes, they identify what they’re going to target. Then they run a legal analysis to see if they believe themselves to be in compliance with the laws of war. The strike is approved or not approved, and then it’s carried out. So this is what we understand to be the situation.
Where a strike is pre-planned, including long in advance, they carry out what’s called a pattern of life analysis. They try to understand what is the civilian presence in the area? Who is going to be around? When should they plan a strike? Who might be affected? Who is living in a particular building? When do people go outside, or go to the market, or go to a particular civilian site that may be near what they’re planning to strike?
We also know that in other circumstances, what are called dynamic strikes, which happen much more quickly and don’t have the same level of planning, all of that gets compressed into a very short timeframe.
Is this analysis the gist of the precautions the government takes to mitigate civilian casualties and property damage?
In the case of civilians, they do their observation. They carry out their pattern of life analysis. They look at their intelligence. In some cases, they may collaborate with local partners. In the case of property damage, we don’t have a good understanding of what steps, if any, the military takes to avoid property damage.
We’ve never gotten the sense that this is a significant part of their calculations. There’s no public reporting or accounting of property damage. It’s really something we don’t see a lot of reporting on, or a lot of discussion about in terms of the military and civilian harm. It’s something that advocates have been trying to raise to their attention and create more discussion of and more protection for.
When you damage civilian property, you could be destroying someone’s livelihood. You could be destroying their home. Again, that’s not always illegal, but in certain circumstances, it would be. So I think there certainly needs to be more attention paid to civilian property damage as well.
The government has said that it needs to be “nearly certain” that non-combatants will not be killed or injured before it orders a drone strike. How has it defined “near certainty”?
“Near certainty” was a standard that was used under the Obama Administration, but the standard currently used is actually that of “reasonable certainty.” You saw this after the drone strike in Afghanistan on August 29th, that killed 10 civilians. The military justified its actions by saying, ‘Well, there was reasonable certainty that we were striking a legitimate target.’
How are these terms defined? I think there’s a lot of, certainly in the term “reasonable certainty,” a fair amount of elasticity. As long as they’re acting in good faith, based on the information that they had at the time and taking the necessary precautions, then I suppose that’s “reasonable certainty.”
It was also policy to capture terrorist targets instead of killing them, when feasible. Is that still the case?
This is something we’ve actually asked the U.S. military, if it’s something that they’re incorporating into their planning. My organization, the Columbia Human Rights Institute, has worked with a leading Yemeni human rights organization watching out for human rights. And we reported several cases of civilian harm, including deaths and injuries in Yemen, to the U.S. government, because they were carried out in U.S. operations.
We did ask: was capture considered in these circumstances? Because in some of these cases, people were members of the Yemeni military. So they could have asked their ally, the Yemeni government, to help apprehend this person. Or the person traveled and could have been captured at that point in time. Various circumstances and particular cases led us to believe that capture would have been feasible. We have never gotten an answer to that question.
I have also not seen any reporting of captures. It may be technically still an option, but it’s certainly not one that we see being exercised a lot.
If suspects were to be captured, would they be sent to Guantanamo Bay? What would happen with the detainees?
I don’t know what would happen to them. Perhaps that’s part of the reason why this isn’t happening. New individuals are not being transferred to Guantanamo. That would be highly controversial, given not only the tremendous public advocacy to close it, it’s been open for 20 years, the 20th anniversary was two days ago, but given Biden’s own promise to close Guantanamo. So one can imagine they could work with partner governments or something of that nature. But they would not go to Guantanamo.
You’ve mentioned the weighing that goes on in the decision making of whether to order a strike. What’s the military gain on the one hand, and what is the collateral damage on the other hand in terms of civilian lives. What’s considered disproportionate when it comes to the amount of collateral damage, as compared to the military advantage that’s expected?
That’s a really interesting question, and it’s a very nuanced one. What is considered proportional is heavily dependent on the facts of a particular situation, and the context. It depends on the military advantage being gained, which may be influenced by who is being targeted or what is being targeted, what role that person plays or what function that structure has, as well as the number of civilians present, the evidence about their civilian status. So it’s very context specific.
The problem that we have really seen has been when the military has failed to sufficiently detect civilian presence. For example, where they are looking at a particular video frame and they look for a few seconds and take a strike. Then, civilians come into the frame, or civilians are just outside of the frame. Or in certain contexts when people are sheltering in basements and they’re not going outside because the situation is very violent and unsafe for them, and they just stay inside almost 24 hours a day and they’re not detected.
There was a famous case in Mosul where there were more than 100 people sheltering in the basement of an apartment building. And the military took a strike, and they had been observing for three days and they didn’t see activity. So they assumed that there were no people there. And in fact, there was a huge amount of civilians there. So these are some of the circumstances during which we see problems.
When there is a disproportionate amount of collateral damage, especially in terms of civilian lives, what repercussions, if any, are there for the military?
In certain cases, I think the issue that advocates have tried to flag is a lack of accountability for these civilian deaths. The laws of war permit civilian deaths in real armed conflicts. But when you have drone strikes outside of armed conflicts, there’s a very different standard. And even within armed conflicts, there are rules and restrictions on the circumstances under which civilians can be killed. We see again and again, strikes wherein civilians are being killed based on misidentification, confirmation bias, conjecture, or supposition. And we don’t see any accountability after the fact. In fact, we see real failures of accountability.
Some of the recent Times reporting on this topic, described an incident in Baghouz, Syria, where legal officers within the military flagged an incident as a potential war crime. Yet it went under-investigated for more than two years. So I think we see a situation where there’s a real crisis of accountability for these types of incidents.
Congress has authorized $3 million a year to compensate for deaths, injuries, and property damage that was caused by the U.S. armed forces. What do you make of these so-called “condolence payments”? And what would you regard as appropriate reparations for victims of these strikes?
Those payments are known ex gratia payments, and they are specifically defined as payments that are made at a commander’s discretion to individuals who may have been harmed by the U.S. military. They’re not in any way an admission of fault, and they’re not meant to be compensation or reparations. They’re just sort of an “I’m sorry” payment. We’ve always been told that they’re given at a commander’s discretion, if they fulfill U.S. interests. It’s a very vague and broad program that has been very underutilized.
Last year, we learned that in the previous year, no ex gratia payments were made. The program is intended to provide some sort of recognition of harm and some sort of relief to individuals who’ve suffered very serious harm at the hands of the U.S. military. The fact that not even one dollar of that was used is shocking.
In 2016, the Obama Administration paid $3 million to the family of an Italian aid worker who was being held hostage by al-Qaeda and was killed in a U.S. drone strike. There seems to be a real inconsistency in how these cases are treated…
I would say it’s not just inconsistency, but racial discrimination and inequity. That was also the only case up until that point where we had seen an official apology. President Obama apologized to the family of the Italian man who was killed. As well as, I think, there’s another individual who was killed. He issued a public apology to those people and their families. And that kind of recognition is just vanishingly rare. And the type of compensation you describe is also just vanishingly rare.
Of course, it makes perfect sense. Western families with greater access to the media and the ability to communicate in English and potentially higher representation or what have you, will get greater recognition than Somali and Yemeni families living in remote areas where they’re not even able to access proper communications, cannot communicate in English, and just don’t have the same type of access to media or to recourse of any kind.
Even within countries, you see these inequities. Families that are wealthier or more politically connected can mount greater campaigns to get resources. Whereas families that are at the bottom of the socioeconomic scale, or have access to fewer resources, will have a much more difficult time getting attention to what’s happened to them.
Is there a role here for a court or some other independent body to sanction and review drone strikes? Or do you see too many challenges with that kind of arrangement?
There is meant to be a judicial element to all of this. If conduct within the military is so egregious, if a strike is carried out that is a potential war crime, there is meant to be access to the military justice system. That’s what it’s there for. But we very rarely see any kind of legal recourse being pursued in these cases. At most, we see internal disciplinary sanctions in terms of accountability that are not really public. And so again, this is part of the accountability crisis that we really don’t see anything beyond discretionary measures. And even those, in just rare cases.
What are the alternatives to lethal drone strikes? Are they still preferable to say, boots on the ground or some other types of military operations?
To be very explicit, my organization and an entire coalition of advocacy groups in a wide range of advocacy groups, nonprofits, faith-based groups, veterans groups, et cetera, have all called for an end to the program of lethal strikes outside of recognized armed conflict. In 2021, in June, over 100 groups called for an end to this program because of how secretive, how unaccountable and how outside the bounds of what we understand are the restrictions of international law the program has been.
In terms of the alternatives, what we’ve called for are more investment in peace-building measures, in diplomacy, in development, just other forms of trying to address some of the root causes of these problems.
You’ve had a distinguished career in this area of human rights crises and global atrocities. Previous to your current role, you were at the Human Rights Watch, where you were the Director of Emergencies. Can you talk about the arc of your career and what drew you to this work?
I’ve been in this field for over a decade. But I think I entered it very much feeling like, as a U.S. citizen, I had some sort of role to play, some sort of responsibility to take for U.S. actions in the world. I was thinking about this at a time when the U.S. was carrying out war in Iraq, a war that I didn’t believe in, that I went out into the streets and protested against. And I felt very upset at the policies and actions that my government was taking in the world. I felt that I didn’t have a lot of say in what was happening. Yet, people were being harmed in my name or on my behalf. I wanted to better understand the truth of how these policies were impacting people in places like Iraq and Syria, and Yemen. I wanted to hear other people’s side of the story, and I wanted to do work to try and improve some of the policies and practices that appeared most harmful to me at that point in time.