Transparency is the new buzzword in counterterrorism. Two U.N. special rapporteurs and numerous human rights groups, among others, now regularly call for transparency about drone strikes and other counterterrorism operations. These demands for transparency focus on who is being targeted, who else (namely civilians) is being killed, which governmental agency is launching the strikes, and under what legal rationale such strikes are authorized and carried out. In other words, the transparency debate is about law, not about battle plans, military readiness or other operations questions, but about law and legal analysis.
Those calling for transparency argue that it is a legal obligation. But the law of armed conflict — the law that applies to U.S. strikes against al Qaeda as long as the conflict is ongoing — does not require transparency. It does mandate that parties engaged in armed conflict comply with the legal obligations and fundamental principles set forth in the Geneva Conventions, their additional protocols, and customary international law, including minimizing harm to civilians and using lawful means and methods of warfare. Attacks must be carried out in a lawful manner against lawful targets, but the reasons and legal justifications for the attacks do not need to be made public.
This international law—legitimacy connection lies at the heart of the debate about targeted strikes by unmanned aerial vehicles, or drones, over the past several years. Drone strikes were presented as a legitimate means of counterterrorism specifically because of the heightened capabilities drones offer for compliance with the law of armed conflict's key principles of distinction, proportionality and precautions. Repeated reports of civilian casualties — exactly what the law of armed conflict seeks to minimize — undermined this claim of legitimacy because of actual or perceived unlawfulness, the second stage of legitimacy above.
It is important to understand that the law of armed conflict does not prohibit nor criminalize all civilian deaths during armed conflict. It prohibits deliberate attacks on civilians, indiscriminate attacks and attacks that violate the principle of proportionality (by causing civilian casualties that are excessive in relation to the military advantage of the target being attacked). Indeed, the law accepts that there will be incidental casualties from lawful attacks, a tragic but not criminal consequence of war. But the perception of unlawfulness — even stemming from misunderstandings or misapplications of the law — is sufficient to undermine legitimacy in this second phase of legitimacy.
Transparency about drone strikes is not so much about law as about legitimacy. Those advocating for transparency have very effectively presented it as a legal issue, even though there is no obligation under the law of armed conflict to be transparent about targeting decisions before or after the fact. The effect, however, is that in a very short time, the touchstone of legitimacy has shifted from international law compliance to openness and transparency about the application of international law.
Once transparency becomes integral to legitimacy, we risk losing the war, because legitimacy is about far more than law.
Pic - "75 MQ-1Cs are hunters AND killers!"