18 May 2016

Just Warfare Entails Risk; Movie ‘Eye In The Sky’ Perverts Just War Laws

May 16, 2016 

Predator drone operators.

Dave Deptula, dean of the Air Force Association’s Mitchell Institute of Aerospace Power Studies, was the first general charged with overseeing drones and the Air Force general in command of the Air Operations Center when the first Predator fired a Hellfire missile. Dave knows drones, their capabilities and the laws and policies governing their use. He provides a powerful critique of the popular movie Eye In The Sky’s depiction of the laws of war and the policies and procedures governing armed drones. Since GEOINT 2016 starts today and the Intelligence Community is responsible for many of the armed drone strikes, we offer this for discussion! Read on. The Editor

Eye In The Sky is a real-time drama that examines the moral and philosophical implications of the war on terror. As a vehicle for understanding the web of complexities governing the use of sophisticated weaponry in warfare, it is good—but not perfect.

The plotline is, by now, routine, but still riveting. Senior military and political officials from the United States and the UK (Helen Mirren and Alan Rickman play high ranking British officers) are conducting a joint military operation to eliminate key leaders of al-Shabaab, who have embedded themselves within a civilian neighborhood of Nairobi.

The terrorists are located and tracked to a specific house through surveillance by a drone flying at 20,000 feet, and their presence confirmed through on-the-ground real-time surveillance techniques. The terrorists are known, with virtual certainty, to be plotting suicide bomb attacks that will clearly result in the deaths and cruel injury of numerous innocent civilians.

Had a little girl not set up a stand to sell bread just outside the fence surrounding the yard of the terrorists’ safe house, the movie could—and should—have ended there, except for the sight and sound of an AGM-114 Hellfire obliterating its target, followed by the credit roll. That is because the Laws of Armed Conflict (LOAC), as set forth in the Geneva Conventions, recognize that such a strike is lawful under principles of necessity and proportionality.

Even with the little girl, deliberations should have concluded far more swiftly and decisively in favor of an attack. Protocol 1 of the Geneva Conventions establishes that attacks which “may be expected to cause incidental loss of civilian life” are unlawful only if they will be “excessive in relation to the concrete and direct military advantage anticipated.” Moreover, combatants who initiate combat operations within civilian areas cause those sites to forfeit their immunity, and the responsibility for the resulting carnage lies squarely with the side that made the response necessary.

In other words, it is lawful to launch an attack upon enemy combatants sheltering in civilian areas, even if certain harm to civilians may occur, when the strike is necessary to avoid almost certain harm to other civilians that the combatants would cause if they are not eliminated.

It is surely a sign of the times then that Eye in the Sky trudges on in a manner that perverts the rationale for just warfare. After checking off an extensive series of precautions intended to minimize risk, the US Air Force drone pilot (played by Aaron Paul) and some of his political superiors decline to give or execute the strike order because one civilian entered the anticipated blast radius.

Given the great lengths taken in the film to avoid civilian casualties and the urgency of the time-sensitive mission, the strategic value of the target was greater than the relatively lower anticipated risk. So what explains the ethical confusion?

Unfortunately, this is the result of the vacillation, political dimness, and unnecessary restrictions that are the hallmarks of military engagements today. Increasingly, liberal democracies will impose policy constraints—rules of engagement—that exceed the level required by law.

Of course, the military must minimize civilian casualties whenever possible, consistent with the requirements of military necessity. Yet current policies guiding the war on terror unreasonably restrict the use of airpower. Such policies limit civilian casualties that may result from attacking the terrorists, but allow the certainty of civilians being slaughtered at the hands of those same terrorists if they are not eliminated. That is self-defeating at best, and counterproductive at worst. To be sure, it is immoral.

Warfare under law is unfortunately sometimes necessary, and it is not risk free. Compliance with the law, the act of rendering good-faith decisions amidst the “fog of war,” matters. The laws of armed conflict require a measure of reasonability, not certainty. Lawful warfare is not intended to equalize the battlefield, but rather to protect noncombatants to the extent possible within the entire range of applicable legal principles.

Western militaries work tirelessly and gallantly to minimize civilian deaths. But more and more, their governments are handicapping them on the battlefield by imposing unnecessary constraints.

Citizens of the West should understand how their nations balance the pursuit of military objectives with the protection of liberal ideals. In that sense, Eye in the Sky provides a useful glimpse into the complex decision-making processes and permutations of modern warfare.

Unfortunately, it also perpetuates the fallacies and misperceptions that cause Western democracies to limit legal military operations to halt the evil that is the source of the crimes against the civilians their self-imposed restrictions aim to protect.

Former Lt. Gen. Dave Deptula is a member of the Breaking Defense Board of Contributors. Raskas is a fellow participating in The Public Interest Fellowship.

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