Drone Visuals and Compliance with IHL

Abstract

On August 29, 2021, the U.S. military launched its last drone strike in Afghanistan before American troops withdrew from the country. 1 The strike targeted a white Toyota Corolla near Kabul's international airport, driven by Zemari Ahmadi, believed to be carrying an ISIS bomb. As a result of the strike, the targeted vehicle was destroyed and ten people were killed. The U.S. military called it a "righteous strike," explaining that it was necessary to prevent an imminent threat to American troops at Kabul's airport. 2 However, following the findings of a New York Times investigation, 3 a high-level U.S. Air Force investigation found that the targeted vehicle did not pose any danger and that all ten casualties were civilians, seven of them children. Despite these outcomes, the investigation concluded that the strike did not violate any law, because it was a "tragic mistake" resulting from "inaccurate" interpretation of the available intelligence. 4 The investigation suggested that the wrong-and lethal-interpretation of the intelligence-which included eight hours of drone visuals-resulted from "execution errors" combined with "confirmation bias."Using cognitive insights, such as confirmation bias, to explain-and excuse-military errors resulting in civilian casualties, is a step forward, but not necessarily in the right direction. It is a step forward in the sense that it recognizes significant cognitive dynamics that limit crucial military risk assessment and fact-finding processes. But this step will not lead to better outcomes without a deeper understanding of how existing data practices-including real-time drone visuals-are susceptible to, and affected by, cognitive biases. Stronger, more effective, protections to civilians in armed conflicts require acknowledging the core role drone visuals play in generating knowledge that is often perceived as objective-despite being distorted by technical, socio-technical, and cognitive dynamics.In this presentation I aim to add these technological and behavioral elements in military knowledge production to the important discussions on compliance with international humanitarian law (IHL). Before delving into the substantive issues, it is important to clarify what I mean by "compliance." Compliance is often invoked in the context of armed conflict as a technical-legalistic term * Professor of Law, Deakin Law School; Chair, Lieber Society on the Law of Armed Conflict, American Society og International Law (ASIL); Co-Lead, Law and Policy Theme, Cyber Security Cooperative Research Centre (CSCRC); Affiliate Scholar, Stanford Center on International Security and Cooperation (CISAC). An earlier, pre-presentation draft of this contribution was published as Shiri Krebs, Through the Drone Looking Glass: Visualisation Technologies and Military Decision-Making, ARTICLES OF WAR (Feb. 11, 2022), at https://lieber.westpoint.edu/visualization-technologiesmilitary-decision-making.