MOAB and the moral economy of bombing

In Reach from the Sky, my Tanner Lectures which I’m presently preparing for publication, I sketched what I called a ‘moral economy of bombing’:

It’s the last of these claims that concerns me here: bombing represented as ‘law-full’.  In the lectures I discussed the legal armature of aerial violence – referring to the combined bomber offensive against Germany in the Second World War Air Chief Marshall Arthur Harris famously insisted that ‘In this matter of the use of aircraft in war there is, it so happens, no international law at all’, a claim that was, I suppose, literally true in so far as it applied to the specific application of air power; I tried to show what has (and has not) changed since then, not least through the development of international humanitarian law and the juridification of later modern war – and the insistence that air power is an effective means of imposing a legal order on the nominally ‘lawless’ (a claim registered through colonial ‘air policing’ and continued in the US and Pakistan air strikes on the Federally Administered Tribal Areas of Pakistan: see ‘Dirty Dancing’ (DOWNLOADS tab).

In the ghastly light of the Trump administration’s decision last month to drop (for the first time in combat) what the US Air Force calls ‘the Mother Of All Bombs‘ (MOAB), the GBU-43/B,  on an IS ‘tunnel complex’ in eastern Afghanistan, Michael Weinman has written an excellent essay for Public Seminar on ‘Ordnance as ordinance‘ that elaborates the second part of my claim about bombing being ‘law-full’:

[B]oth the decision to name this weapon MOAB and the decision to deploy it in Afghanistan is tightly linked with what Judith Butler called a “new military convention” begun by Colin Powell when he described the deployment of “smart bombs” during the first Iraq War as “the delivery of ordnance.” In “Contingent Foundations,” Butler noted that Powell “figures an act of violence as an act of law” by substituting “ordnance” (munitions, agents of destructive violence) for “ordinance” (a law or decree). Powell’s speech act, apparently delivered in an unscripted moment during a press conference in January 1991, is an important instance of the “illocutionary force” of language that Butler explores throughout the work she did in the late 1990s and early 2000s — her most impressive and important work in my view. This aerial bombardment of Iraqi installations with technologically advanced munitions, viewable in real time on network and cable TV for the first time, was itself a phenomenon. But it was the declaration that such a display in itself was an act of law enforcement that truly brought us into a new era. An era in which, thanks to Powell and the Bush (41) administration, the alignment of violence and law against a regime that violates international law figures state violence, even where it might be in contradiction of international agreements, as the very agent of law and legitimation. Watching the media response to the recent deployment of MOAB in Afghanistan, it is clear we still haven’t learned Butler’s lesson.

The deeper resonance of reading this particular ordnance as a form of ordinance requires that we attend to a different resonance of its chosen acronym, MOAB. Not the “Mother of All Bombs” nomenclature, which bespeaks its terrifying awesomeness — in the literal sense of the term “awesome,” connoting utter sublimity. That is part of the story too, but it is not the heart of it. Rather, continuing Butler’s pursuit of the line of thought by which Saddam (Hussein) was recast as (the Biblical) Sodom,[1] we must turn instead to the Biblical Moab, patriarch of the Moabites. Crucially, we must bear in mind that, within the Hebrew Bible, this people, whose lands lay across the Dead Sea, is cast as a hostile neighboring people — indeed, the Moabites are depicted as the neighboring tribe most inherently in conflict with the people of Israel. Viewed in this light, there is continuing power in Powell’s fantasy that the deliverance of ordnance is the way “we” publicly declare the ordinance that those who defy international law will be vanquished by the synthesis of law and force executed by the United States military as the leader the coalition of the willing. This vision remains the reigning principle behind the self-image of the United States as an actor on the international scene. And this is so because, deeply steeped in an “Old Testament morality” (a morality wherein the enemies of the United States are figured as the ancient enemies of the people of Israel), this vision justifies a view of America as the model exemplar of a “Judeo-Christian” civilization. A civilization that is — as it ever was — waging a war, engaging in a “clash of civilizations.” Of course we would name our most deadly non-nuclear weapon “Moab” (or M.O.A.B., if you like): what other name than that of the oldest and deepest “frenemy” of Israel could the United States military have possibly dreamt up?

There is more that could be said, I think, especially if one stays with Butler and thinks of this episode as a speech-act.  After all – and repeating a line that was repeated endlessly during the Rolling Thunder campaign against North Vietnam – MOAB was originally developed in 2002 for the ‘Shock and Awe’ campaign that heralded the US-led  invasion of Iraq, and the Pentagon claimed that deploying the MOAB was an act of communication (really): it sent ‘a very clear message’ to IS that it would be ‘annihilated‘.  (The message-in-a-bomb line shouldn’t be confused with the terse messages that ground crews have scrawled on bombs in war after war after war, and I suppose it is less grotesque than the description of bombing Syria as a form of ‘after-dinner entertainment‘ for the US President – which sends an even more terrifying message to anyone with a shred of decency or understanding).

If the bombing in Afghanistan did send a message to IS – and to state actors elsewhere in the world – it also sent a message to innocent others in the vicinity of the blast:

“There is no doubt that Isis are brutal and that they have committed atrocities against our people. But I don’t see why the bomb was dropped,” said the mayor of Achin, Naweed Shinwari. “It terrorised our people. My relatives thought the end of the world had come. Every day fighter jets, helicopters and drones are in the area.”

In that vein, and to return to the colonial genealogy I mentioned at the start, the use of the global South as a laboratory for weapons testing and demonstration has a long history, as Scott Beauchamp‘s report here documents:

…the most interesting commentary probably came from former Afghanistan president Hamid Karzai, who tweeted that “This is not the war on terror but the inhuman and most brutal misuse of our country as a testing grounds for new and dangerous weapons.”

He’s got a point. There is a dark history of Western military powers testing novel weapons and strategies on technologically overmatched non-Western (and non-white) populations. It’s a legacy that mixes the brutal arrogance of colonialism with the technological promise of an easy fix. There are of course numerous examples of this cruel dynamic at play in the centuries leading up to the 20th — conquistadors with dogs and swords, gunpowder in general — but the disparity that currently exists between the material advantages of Western countries and the technological capability of enemies abroad continues to be exploited in ways that conform to a recognizable pattern.

PS Much as I’ve enjoyed Michael’s essay, I think Stephen Fry also had a point.

A heavy reckoning

Emily Mayhew‘s Wounded was one of the catalysts for my present research project on medical care and casualty evacuation in war zones.  The original idea was to complete four case studies – the Western Front in the First World War, the deserts of North Africa in the Second, Vietnam and Afghanistan – but since then it has expanded to include a detailed analysis of attacks on hospitals and healthcare in Syria and elsewhere.  But running throughout these investigations is an interest in what Emily called ‘precarious journeys‘ – and a determination to break away from the usual academic voice (see here) –  so an announcement of her new book is extremely welcome.

It’s due from Profile in May:

What happens when you reach the threshold of life and death – and come back? As long as humans have lived together on the planet, there have been wars, and injured soldiers and civilians. But today, as we engage in wars across the globe with increasingly sophisticated technology, we are able to bring people back from ever closer encounters with death. But how do we do it, and what happens next? Here, historian Emily Mayhew explores the modern reality of medicine and injury in wartime, from the trenches of World War One to the dusty plains of Afghanistan and the rehabilitation wards of Headley Court in Surrey. Mixing vivid and compelling stories of unexpected survival and giving astonishing insights into the frontline of medicine, A Heavy Reckoning is a book about how far we have come in saving, healing and restoring the human body. But what are the costs involved in this hardest of journeys back from the brink? From the plastic surgeon battling to restore function to a blasted hand to the double amputee learning to walk again on prosthetic legs, Mayhew gives us a new understanding of the limits of human life and the extraordinary costs paid both physically and mentally by casualties all over the world in the twenty-first century.

The book is published in conjunction with the Wellcome Collection, and I should note that Emily has also co-curated the current exhibition Wounded: Conflict, Casualties and Care at London’s Science Museum (more information here and here).  I spent a fascinated couple of hours there when I was in London last month – it is well worth a visit, though the parallels it draws between the Western Front and Afghanistan were too abbreviated for me.

The Death of the Clinic

This is the fifth in a new series of posts on military violence against hospitals and medical personnel in conflict zones. It follows directly from my analysis of the situation in Syria here.

President Bashar al-Assad has consistently denied that his forces have attacked hospitals or doctors.  In an interview with SBS Australia on 1 July 2016 he asked his interviewer:

‘… the very simple question is: why do we attack hospitals and civilians?… No government in this situation has any interest in killing civilians or attacking hospitals. Anyway, if you attack hospitals, you can use any building to be a hospital. No, these are anecdotal claims, mendacious statements …’

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There are at least four answers to Assad’s disingenuous question (if you falter at the adjective, see here).

(1) Silencing the witnesses

When Widney Brown from Physicians for Human Rights testified at the Tom Lantos Human Rights Commission on 31 March 2016 she provided one clear and compelling rationale for Assad’s attacks on doctors:

‘… attacks on doctors silence particularly powerful witnesses. When the Syrian government denies its use of chemical weapons, cluster munitions, starvation, or torture, doctors can bear witnesses to these violations because they have seen and treated the victims.’

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To be sure, there are other witnesses and even paper trails and photographic records.  Ben Taub, who has done so much to bring ‘Syria’s war on doctors‘ to the attention of a wider public, has also provided a detailed account of the work done by Bill Wiley and the Commission for International Justice and Accountability whose volunteers have smuggled over 600,000 documents out of Syria detailing mass torture and killings by the regime.

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The war crimes have not been confined to attacks on hospitals in opposition-held areas.  A photographer known only as ‘Caesar’, who had been attached to the Defence Ministry’s Criminal Forensic Division, smuggled out thousands of high-resolution digital images exposing the horrors of the regime’s own military hospitals:

The pictures, most of them taken in Syrian military hospitals, show corpses photographed at close range – one at a time as well as in small groupings. Virtually all of the bodies – thousands of them – betray signs of torture: gouged eyes; mangled genitals; bruises and dried blood from beatings; acid and electric burns; emaciation; and marks from strangulation…

These unfortunates may have lived and died in different ways, but they were bound in death by coded numerals scribbled on their skin with markers, or on scraps of paper affixed to their bodies. The first set of numbers (for example, 2935 in the photographs at bottom) would denote a prisoner’s I.D. The second (for example, 215) would refer to the intelligence branch responsible for his or her death. Underneath these figures, in many cases, would appear the hospital case-file number (for example, 2487/B)…

[T]he system of organizing and recording the dead served three ends: to satisfy Syrian authorities that executions were carried out; to ensure that no one was improperly discharged; and to allow military judges to represent to families—by producing official-seeming death certificates—that their loved ones had died of natural causes. In many ways, these facilities were ideal for hiding “unwanted” individuals, alive or dead. As part of the Ministry of Defense, the hospitals were already fortified, which made it easy to shield their inner workings and keep away families who might come looking for missing relatives. “These hospitals provide cover for the crimes of the regime,” said Nawaf Fares, a top Syrian diplomat and tribal leader who defected in 2012. “People are brought into the hospitals, and killed, and their deaths are papered over with documentation.” When I asked him, during a recent interview in Dubai, Why involve the hospitals at all?, he leaned forward and said, “Because mass graves have a bad reputation.”

(2) Multiplying the casualties

This is a radicalisation of an old strategy.  As Sam Weber pointed out in Targets of opportunity (2005), ‘every target is inscribed in a network or chain of events that inevitably exceeds the opportunity that can be seized or the horizon that can be seen.’  So, for example, when the United States or Israel bombs a power plant it often as not explains that it has been careful to bomb in the small hours when only a skeleton staff was in the building in order to minimise collateral damage.  But this begs the question: why bomb the power plant at all?  In most instances the degradation of the electricity supply means that it becomes impossible to pump water or treat sewage; refrigerators fail and food perishes; hospitals are forced to use unreliable generators. The result – the intended, carefully calculated result – is that casualties rise at considerable distances from the target and over an extended period of time.

Similarly, Dr Abdulaziz Adel notes:  ‘Kill a doctor and you kill thousands.’  Simply put, patients who are sick or injured then go without treatment and in many cases their lives are put at risk.  (The images below are from Collateral Damage: more here).

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Dr Rami Kalazi, a neurosurgeon from East Aleppo, agrees:

‘They are the artery of life in the city. Can you imagine a life in city without hospitals? Who will treat your kids? Who will make the surgeries for the injured people? So, they are targeting these hospitals because they know, if these hospitals were completely destroyed, the life will be completely destroyed.’

(3) ‘Moral[e] bombing’

This too is an old strategy.  The architects of ‘area bombing’ during the combined bomber offensive against Germany during the Second World War described it as ‘moral [sic] bombing’: a sustained and systematic attempt to undermine the morale of the enemy population so that they would demand their leaders sue for peace.  If this was a tried and tested strategy, however, the test showed that it was a complete failure (see my ‘Doors into nowhere’: DOWNLOADS tab).

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But the lesson was lost in Syria, where attacks on hospitals have had a central place.  As Samir Puri argues, the strategy behind the joint Syrian and Russian air campaign seems to be:

“If there is a total collapse of any kind of trauma care, those are the sort of things that can contribute to collapsing morale very suddenly. The morale of a besieged force can look robust until it collapses.”

And Syria is not unique in contemporary wars: Israel has deployed the same strategy in its repeated assaults on Gaza (see here, here and here for ‘Operation Protective Edge’ in 2014), and the Saudi-led coalition has attacked more than 70 hospitals and health facilities in Yemen since March 2015 (in this latter case Russian media have reported MSF’s objections to the ‘utter disregard for civilian life’ without dissent: see for example here).

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‘Preventing medicine’, as Annie Sparrow puts it, has become ‘a new weapon of mass destruction’.

(4) ‘Violence legislates’

Following the attack on the UN aid convoy delivering supplies to a Syrian Red Crescent warehouse outside East Aleppo on 19 September 2016, 101 humanitarian organisations issued a joint appeal to the United Nations on 22 September; in part it read:

‘Deliberate attacks on humanitarian workers and civilians are war crimes. This must mark a turning point: the UN Security Council cannot allow increasingly brazen violations of international humanitarian law to continue with impunity.

‘Heads of state are gathered in New York this week for the United Nations General Assembly. Each one that accepts a lack of accountability for perpetrators and facilitators of war crimes colludes in the ongoing dissolution of international humanitarian law’ (my emphases).

The first paragraph is damning enough.  Ben Taub in the New Yorker again:

Nowhere has the supposed deterrent of eventual justice proved so visibly ineffective as in Syria. Like most countries, Syria signed the Rome Statute, which, according to U.N. rules, means that it is bound by the “obligation not to defeat the object and purpose of the treaty.” But, because Syria never actually ratified the document, the International Criminal Court has no independent authority to investigate or prosecute crimes that take place within Syrian territory. The U.N. Security Council does have the power to refer jurisdiction to the court, but international criminal justice is a relatively new and fragile endeavor, and, to a disturbing extent, its application is contingent on geopolitics.

But the sting comes in the second paragraph.  As I’ve noted before, international humanitarian law is not a neutral court of appeal, a deus ex machina above the fray, but has always been closely entangled with military violence.  In many respects it travels in the baggage train, constantly pulled by the trajectory of the very violence it supposedly seeks to regulate (or facilitate, depending on your point of view).  In short, as Eyal Weizman has it, ‘violence legislates‘.

There is good reason to fear that the systematic violation of medical neutrality is intended to force its dissolution.  Thomas Arcaro writes: ‘Humanitarian principles like neutrality and impartiality that once seemed so self-evident have been drawn into question, especially on the politically and ethnically complex battlefields of Iraq and Syria.’

And not only there.  In the case of the US airstrike on the MSF Trauma Centre in Kunduz in 2015, I’ve suggested that some key Afghan officers and politicians chafed at the protections afforded to wounded Taliban combatants by international humanitarian law.  They also alleged that the Trauma Centre had breached its conditional immunity because the Taliban had overrun the hospital and were firing at US and Afghan forces from its precincts.  There is no evidence to support that assertion, but it is an increasingly familiar claim.  On 7 December 2016 US Central Command justified a ‘precision strike’ requested by Iraqi forces on a building within the al-Salem hospital complex in Mosul by claiming that IS fighters had used it as a base to launch heavy and sustained machine-gun and rocket-propelled grenade attacks.  That would certainly have compromised the hospital’s immunity, but international humanitarian law still requires a warning to be issued before any attack and a proportionality analysis to be conducted; Colonel John Dorrian said that the US Air Force did not ‘have any reason to believe civilians were harmed’ but conceded that it was ‘very difficult to ascertain with full and total fidelity’ whether any medical staff or patients were in the building at the time of the air strike.

But what the Syrian case suggests is a new impatience with medical neutrality tout court: not only a hostility towards the treatment of wounded and sick combatants but also an unwillingness to extend sanctuary to wounded and sick civilians.

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And that reluctance is not confined to the Assad regime and its allies.    A survey carried out for the International Committee of the Red Cross between June and September makes for alarming reading – even once you’ve overcome your scepticism about public opinion polls.  As Spencer Ackerman reports:

Areas in active conflict record greater urgency over questions of civilian protection in wartime than do the great powers that often conduct or participate in those conflicts. In Ukraine, 83% believe everyone wounded and sick during a conflict has a right to health care, compared with 62% of Russians. A full 100% of Yemenis endorse the proposition, as do 81% of Afghans, 66% of Syrians and 42% of Iraqis – compared with 49% of Americans, 53% of Britons, 37% of the Chinese and 67% of the French.

It’s that last clause that is so disturbing: for the last four states listed are all permanent members of the UN Security Council…

So what, then, are we to make of what I’ve been calling ‘the exception to the exception’?

The exception to the exception

homo-sacerI think it’s a mistake to treat ‘the camp’, following Giorgio Agamben‘s vital work, as the exemplary, diagnostic site of the modern space of exception; the killing fields of today’s wars (themselves spaces of indistinction, where it is never clear where war stops and peace begins, where the geometry of the battlefield or, better, ‘battlespace’ becomes ever more fractured and blurred, and where the partitions between international and internal conflicts have been reduced to rubble) are also spaces within which groups of people are deliberately and knowingly exposed to death through the removal of legal protections that would ordinarily be afforded to them.  In short, killing and injuring become legally permissible.

Those exposed groups include both combatants and civilians, but their fate is not determined solely by the suspension of national laws (the case that concerns Agamben) because international humanitarian law continues to afford them some minimal protections.  One of its central provisions has been medical neutrality: yet if, through its serial violations in Syria and elsewhere, we are witnessing the slow ‘death of the clinic’ – which I treat as a topological figure which extends from the body of the sick or wounded through the evacuation chain to the hospital itself – and the extinction of ‘the exception to the exception’, the clinic as a (conditionally) sacrosanct space – then I think it’s necessary to add further twists to Agamben’s original conception.

As Adia Benton and Sa’ed Ashtan have argued, medical neutrality – the exception to the exception – represents a fraught attempt to restrict the state’s recourse to military violence: it is a limitation on and has now perhaps become even an affront to sovereign power and the state’s insistence that it is ‘the sole arbiter of who can live and who can die’.

Agamben describes the inhabitants of the space of exception as so many homines sacri – where sacer has the double meaning of both ‘sacred’ and ‘accursed’ – and it may be that in today’s killing fields doctors, nurses and healthcare workers are being transformed into new versions of homo sacer: once ‘sacred’ for their selfless devotion to saving lives, they are now ‘accursed’ for their principled dedication to medical neutrality.

 

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Yet the precarity of their existence under conditions of detention and torture, siege and airstrike, has not reduced them to what Agamben calls ‘bare life’.  They care – desperately – whether they live or die; they have improvised a series of survival strategies; they have not been silent in the face of almost unspeakable horror; and they have developed new forms of solidarity, support and sociality.

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War Stories

The video from our War Stories event in Vancouver last month – including Farah Nosh‘s narration of her wonderful photographs, a superb capsule genealogy of PTSD from Ann Jones, my discussion of casualty evacuation over the last hundred years, a drama staged by veterans from Afghanistan and directed by George Belliveau, Contact! Unload!, and a lively Q&A with the audience moderated by Peter Klein is now available here.

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My lecture, Precarious journeys, has also been carved out for the Peter Wall Institute website here. The idea behind the event was, in large measure, to think through the multiple ways in which modern war is narrated, which is why we had such a rich and diverse portfolio of performers and why I take the turns I do…  Regular readers will probably recognize that the arc of my presentation draws on my current research on evacuation from the Western Front in the First World War, on evacuation from Afghanistan today, and on my admiration for Harry Parker‘s Anatomy of a Soldier (see my ‘Object lessons’ here and the slides available under the DOWNLOADS tab).

More in an interview with Charlie Smith from the Georgia Straight here.

Grim Reapers

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Sky News has a report on Launch & Recovery crews responsible for US/UK drone operations against IS in Iraq and Syria based “somewhere in the Middle East”.

Much of it will be all too familiar to most readers:

Relentlessly watching their prey. Monitoring every movement a high profile Islamic State target makes.

In the words of the American officer I speak to, “we are the unblinking eye”…

“We are going to be on that target as long as the weather allows and as long as the mission allows.

In many cases there is more than one asset on that individual.

“You know when he’s going to go to the bathroom, you know when he’s going to go to eat, you know when he’s going to go to prayer time.

“You know where he goes, his associates.

“That’s all about building that picture so that we know and we can project when he’s going and where he’s going to be.”

But the video embedded in the report repays close attention, not least for the brief glimpses of the video feeds from the drones themselves.

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The first two images (above) are clips from the video used by the pilot to control the aircraft – a view of the runway before take-off and an airborne view before control is handed off to the crew who will fly the assault mission from ground control stations in either the US or the UK – while the third (below) is from the imagery used to identify a ‘possible target’.  The comparison between this last image and the equally ‘High Definition’ imagery released from an Italian MQ-9 Reaper late last year is instructive: see my post here.

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You can find updates on the UK campaign in Iraq and Syria at Drone Wars UK here and here.

As Chris Cole reports there, too, the use of remote platforms [RPAs] to strike targets in Afghanistan has increased dramatically following the draw-down of US and NATO forces:

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It is surely not coincidental that last month the US Air Force renamed eight of its RPA reconnaissance squadrons ‘attack squadrons’:

‘Eight RPA reconnaissance squadrons [based at Holloman AFB in New Mexico, Whiteman AFB in Missouri, and Creech AFB in Nevada] will be redesignated as attack squadrons [and]… Air Force Chief of Staff Gen. Mark A. Welsh III authorized RPA aircrews to log combat time when flying an aircraft within designated hostile airspace, regardless of the aircrew’s physical location.

The changes were two of many recommendations that emerged as part of Air Combat Command’s Culture and Process Improvement Program, which seeks to address a number of issues affecting operations and the morale and welfare of Airmen across the RPA enterprise….

“Aerial warfare continues to evolve. Our great RPA Airmen are leading that change. They are in the fight every day,” Welsh said. “These policy changes recognize the burdens they bear in providing combat effects for joint warfighters around the world.”’

War crimes

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In my preliminary commentary on the US military investigation into the air strike on MSF’s trauma centre in Kunduz in October 2015 – and I’ll have much more to say about that shortly – I circled around the Pentagon’s conclusion that even though those involved in the incident had clearly violated international humanitarian law (‘the laws of war’) and the Rules of Engagement no war crimes had been committed.

That conclusion has sparked a fire-storm of protest and commentary, and to track the narrative I’ve transferred some of my closing comments from that post to this and continued to follow the debate.  (It’s worth noting that when the Pentagon published its updated Law of War Manual last year it produced an equally heated reaction – much of it from commentators who complained that its provisions hamstrung commanders and troops in the field: see here and scroll down).

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At Just Security Sarah Knuckey and two of her students complained that the report provided no justification for such a claim. After listing the gross violations of IHL (failure to take precautions in an attack, failure to distinguish between civilians and combatants, failure to respect the requirement of proportionality), they concluded:

While it is legally correct to state that the war crime of murder requires an “intent” to kill a protected person (e.g., a civilian), nowhere in the 120-page report is there an analysis of the legal meaning of “intention.” The report actually makes no specific or direct findings about war crimes. (“War crime” appears only once, in reference to a report by the United Nations Assistance Mission in Afghanistan) [Here I should note that UNAMA’s view of what constitutes a war crime has on occasion changed with the perpetrator.  As this commentary shows, the Taliban have sometimes been held to a higher standard than the US military: in one case UNAMA suggested that the very use of high explosives in an urban area ‘in circumstances almost certain to cause immense suffering to civilians’ rendered the Taliban guilty of war crimes, whereas after the Kunduz air strike UNAMA declared that ‘should an attack against a hospital be found to have been deliberate, it may amount to a war crime’ (emphasis added)] .

Under international law, “premeditation” is not necessary for the war crime of murder, but the precise scope of intention is less clear. Numerous cases have stated that genuine mistakes and negligence are insufficient for murder. But a number of international cases and UN-mandated inquiries have found that “recklessness” or “indirect intent” could satisfy the intent requirement. Article 85 of Additional Protocol I also provides that intent encompasses recklessness. (See The 1949 Geneva Conventions: A Commentary, from page 449, for a full discussion.)

The investigation released today makes clear that US forces committed numerous violations of fundamental rules of the laws of war, violations which should and could have been avoided. Yet the report provides zero direct analysis of whether these violations amounted to war crimes. Given the seriousness of the violations committed, the US should specifically explain why the facts do not amount to recklessness, and explain the legal tests applied for the commission of war crimes.

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Over at Lawfare, Ryan Vogel argues that the report will ‘will surely attract the attention of the International Criminal Court’s (ICC) Office of the Prosecutor (OTP)’. In fact, while the OTP has acknowledged

that the strike was being investigated by the United States [it has also] declared that “the [a]lleged crimes committed in Kunduz [would] be further examined by the Office” as part of the ongoing preliminary examination [see extract below]. By characterizing the incident as a violation of international law (and choosing not to prosecute), the United States may unwittingly be strengthening the OTP’s case. It is true that CENTCOM’s release statement makes clear that the investigation found that the actions of U.S. personnel did not constitute war crimes, noting the absence of intentionality. But the OTP might disagree with CENTCOM’s legal rationale, as it seems to have done previously with regard to detention operations, and decide to investigate these acts anyway as potential war crimes.

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As both commentaries make clear, much hangs on the interpretation of ‘intentionality’.  At Opinio Juris the ever-sharp Jens David Ohlin weighs in on the question.  Drawing from his essay on ‘Targeting and the concept of intent‘, he notes:

The word “intentionally” does not have a stable meaning across all legal cultures. … [It] is generally understood in common law countries as equivalent to purpose or knowledge, depending on the circumstances. But some criminal lawyers trained in civil law jurisdictions are more likely than their common law counterparts to give the phrase “intentionally” a much wider definition, one that includes not just purpose and knowledge but also recklessness or what civilian lawyers sometimes call dolus eventualis.

He concludes that the consequences of the latter, wider interpretation would be far reaching:

If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

His solution is to call for the codification of  ‘a new war crime of recklessly attacking civilians, and the codification of such a crime should use the word “recklessly” rather than use the word “intentionally.”’  This would then  ‘create a duty on the part of attacking forces and then penalize them for failing to live up to it.’  And this, he concludes, would allow a prima facie case to be made that those involved in the attack on the Kunduz trauma centre were guilty – but in his view, clearly, they also escape under existing law.

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Note those five, deceptively simple words: ‘those involved in the attack’.  I’ve had occasion to comment on this dilemma before – the dispersal of responsibility that is a characteristic of later modern war (see also here: scroll down) – and Eugene Fiddell, writing in the New York Times, clearly dismayed at the way in which the military inquiry was conducted, sharpens the same point:

Among the challenges a case like Kunduz presents is how to achieve accountability in an era in which an attack on a protected site is not the act of an isolated unit or individual. In today’s high-tech warfare, an attack really involves a weapons system, with only some of the actors in the aircraft, and others — with real power to affect operations — on the ground, in other aircraft, or perhaps even at sea.

And what if some of those ‘actors’ are algorithms and/or machines?

UPDATE:  Kevin Jon Heller offers this counter-reading to Jens’s:

As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

It’s a sharp reminder that international humanitarian law offers some protections to civilians but still renders their killing acceptable.  The exchange between Kevin and Jens continues below the line to this conclusion:

Opinio Juris JPEG

But if you read Charles Dunlap at Lawfire (sic), you will find him insisting that the mistakes made by the US military in firing on the MSF hospital ‘do not necessarily equate to criminal conduct’ – even though the investigation report concedes that they amounted to violations of international law – and that the charge of recklessness needs to be laid at the smashed-in door of MSF.  Really.  Here is what he says:

Had, for example, the hospital been marked with large Red Crosses/Red Crescents or one of the other internationally-recognized symbols (as the U.S. does) or something that would make its protected use clear from the air, isn’t it entirely plausible that the aircrew (or someone) might have recognized the error and stopped the attack before it began?

There were in fact two large MSF flags on the roof of the Trauma Centre, which was also one of the few buildings in the city on that fateful night to have been fully illuminated (from its own generator).

But in case you are still wondering about the responsibility borne by MSF – as ‘one of the few international humanitarian organisations that carries professional liability insurance’ (in contrast to amateur insurance, I presume), Dunlap says that is an admission that ‘even honest, altruistic, and well-intended professionals do make mistakes, even tragic ones, especially when trying to operate in the turmoil of a war zones’,  here is a paragraph from that investigation report:

MSF reach-out JPEG

How reckless was that?  The crew of the gunship that carried out the attack – in case you are still wondering – ‘specifically did not have any charts showing no strike targets or the location of the MSF Trauma Center.’

And if you picked up on Dunlap’s suggestion that if not the aircrew then ‘someone’ might have recognised the error, try this for size from the same source (and note especially the last sentence):

Multiple command failures JPEG

More to come.

The Geographies of Sixty Minutes

One of the cardinal principles informing modern casualty evacuation is the Golden Hour.  In 1975 R. Adams Cowley, founder of Baltimore’s Shock Trauma Institute, argued that ‘the first hour after injury will largely determine a critically injured person’s chances for survival.’  It’s not a straightforward metric, and combat medical care and evacuation has been transformed since it was first proposed, but the rule of thumb is that the chances of survival are maximised if the time between traumatic injury and definitive care is kept to 60 minutes or less.

Following a fire-storm of criticism on 15 June 2009 US Secretary of Defense Robert Gates required the standard time between a call for evacuation and treatment of the critically injured to be 60 minutes or less.  For US military personnel in the Second World War the average time was 10 hours; in Korea that had been cut to 5 hours (the result of using helicopters for speedy evacuation); and in Vietnam it was already down to one hour.  The reason for Gates’s intervention was that in Afghanistan the aim was two hours…

U.S. Air Force Sgt. Daniel Fye serving on a tour in the Kandahar province of Afghanistan in April 2011. (Courtesy of Daniel Fye)

U.S. Air Force Sgt. Daniel Fye serving on a tour in the Kandahar province of Afghanistan in April 2011. (Courtesy of Daniel Fye)

The importance of those time-critical sixty minutes was no secret to the troops in the line of fire.  Here is a scene from Brian Castner‘s truly brilliant All the ways we die and kill which imagines the thoughts running through one soldier’s head – Air Force Technical Sergeant Dan Fye on his third tour of duty with Explosive Ordnance Disposal (above) – after he stepped on an IED during a clearance operation in Mushan (Panjwayi) on 27 May 2011:

They worked on Fye a long time, and the longer they worked, the more anxious Fye got about the precious minutes slipping away. “I don’t hear the bird,” he said, over and over. They wrote the time of the tourniquet application on the white headband Fye wore under his helmet. Hopkins pushed morphine into his veins.

Eventually, an eon since Hopkins arrived but only twenty-five minutes after the blast, the hyperactive thump of helo blades cutting air slowly emerged in the distance.

Fye thought it was the most wonderful sound he had ever heard. They were at the extreme limit of the NATO footprint, and so it was a sixty-kilometer flight to the main hospital at Kandahar [see map below]. If they moved quickly, Fye would just make it in the magic golden hour.

1-FO0625_KandaharMap

Castner writes that as Fye was bleeding out in the back of the helicopter, he was

‘clinging to one thought and one thought only, running in a continuous Times Square news ticker across the front of his oxygen-starved brain: One hour. If I can get back to Kandahar in one hour, I’ll live. One hour, and I’ll live. That’s what they say. You’ll make it if you can get back to the hospital in one hour.’

He made it.  The new, modernised and expanded Role 3 NATO hospital at Kandahar had opened a year earlier, and its executive officer claimed that ‘They hit our doors, they live.’

Kandahar new Role 3 2010

But Fye was lucky.  Later he learned why it had taken so long for the helicopter to arrive, and why he very nearly never made it to Kandahar at all:

Over multiple radio calls between Hopkins’s platoon and the rescue operations center, his report of “bilateral amputation” had been converted, telephone-game style, into “bilateral lacerations.” The medical operations center had actually turned the rescue mission off; helos don’t fly for scraped knees. The bird that eventually picked up Fye wasn’t even a real medevac bird. That’s why the robotic flight crew ignored him, didn’t treat his wounds as they went. They weren’t medics. The helo pilots had just been in the air and happened to overhear the radio traffic, including the original call for help. They understood the mistake and had disobeyed orders to go get Fye. If the human pilot of that bird had been less stubborn, the golden hour would have been long past by the time Fye made it to KAF, and he could well have been one of the 1 percent.

(More from Brian on medical evacuation here and here).

Even without miscommunication the logistical challenges were formidable.  In 2007, two years before Gates’ intervention, ISAF produced this map showing the medevac coverage – what Fye called the ‘NATO footprint’ – that supported that two-hour standard (I have taken this map and the following one from a report prepared by Col Dr Ingo Hartenstein for NATO/ISAF in December 2008 which is available here; scroll down):

ISAF Medevac coverage 2 hours

Like Vietnam, Afghanistan was a ‘war without fronts’ with a battlefield geometry that imposed a radically different evacuation model from the classical line of evacuation that had been established during the First World War.  Here is how Brian Turner puts it in My life as another country:

We won’t hear the battle in progress and work our way toward it as baggage trains of wounded, exhausted soldiers and civilians carrying their lives on their backs travel in the opposite direction. Our battle space – and perhaps it’s a cliché now – will occur in a 360-degree, three-dimensional environment.

More technically, here is Brigadier Martin Bricknell, who served (among many other roles) as Medical Adviser to ISAF’s Regional Command South in Kandahar in 2010:

The tactical geometry for the current operating environment is based upon security forces holding areas of ground and securing this space from opposition activity. This converts the battlefield from the conventional force-on-force linear geometry with an identifiable confrontation line to an area battlefield with multiple nodes of contested space. Thus the MEDEVAC mission is converted from a linear flow to area support, hence MEDEVAC planning is based upon a ‘range ring’ coverage with a radius of 40–60 nautical miles.

Given the available resources, a second map showed how those ‘range rings’ would contract if the Golden Hour were to be imposed over the evacuation grid:

ISAF MEDEVAC coverage allowing 1 hr from POI to surgery HARTENSTEIN

In practice, the situation was more variable than these maps imply – not least because there was a significant difference between the ways in which American and British contingents organised medical evacuation.

The US military, drawing on their experience in Vietnam, used Blackhawk or Pavehawk helicopters to get paramedics or combat medical technicians to the casualty as fast as possible:

DUST OFF Afghanistan.001

DUST OFF Afghanistan.002

The British used larger Chinook helicopters to dispatch a Medical Emergency Response Team (MERT) with a trauma surgeon onboard to the casualty close to the point of injury (POI):

MERT Afghanistan.001

The response time was usually longer but the MERT enabled advanced trauma care to begin as soon as the patient was onboard.

There has been considerable debate and disagreement about the robustness of the ‘Golden Hour’ in military trauma care and its relation to evacuation pathways: see, for example,  Jonathan Clarke and Peter Davis, ‘Medical evacuation and triage of combat casualties in Helmand Province, Afghanistan: October 2010-April 2011’, Military Medicine 171 (11) (2012) 1261-6.  But a research team has now calibrated the effects of reduced evacuation time on US casualty fatality rates (CFR) in Afghanistan between 2001 and 2014 [Russ Kotwal et al, ‘The effect of a Golden Hour policy on the morbidity and mortality of combat casualties’, JAMA Surgery 151 (1) (2016) 15-24; see also here]:

KOTWAL Case fatality rate and transport time

For 4,500 cases of US military casualties with detailed data the study showed a substantial change in the CFR following the Secretary of Defense’s mandate to evacuate casualties within 60 minutes: as the median evacuation time fell from 90 minutes to 43 minutes the CFR fell from 13.7 to 7.6; before the mandate 25 per cent of casualty evacuation missions fell within the Golden Hour, after the mandate the proportion soared to 75 per cent.

The interpretive field is a complicated one – while a significant number of casualties who would previously have died from their wounds now survived, a proportion of those who would previously have been recorded as ‘killed in action’ (KIA) none the less now ‘died of wounds’ (DOW) – and the reasons for the improvement in survival rates are also multivariate:

‘Secondary effects resulting from the mandate that contributed to achieving the mandated time included stream-lined authority and helicopter launch procedures, increased number and dispersion of Army helicopters, and the addition of Air Force helicopters to assist with the Army prehospital transport mission. As decreased time from critical injury to treatment capability was the underlying goal, personnel with increased expertise (blood transfusion protocol-trained basic medics, critical care paramedics, and critical care nurses) were trained and assigned to prehospital flights more routinely, resulting in earlier availability of blood products and other advanced care.

In addition, an increase in the number and dispersion of small but mobile forward surgical teams across the battle-field brought major surgical capability even closer to the point of injury and provided an alternative to transporting patients longer distances to large, but less mobile, civilian trauma center–equivalent [Combat Support Hospitals].’

GoldenHourFig1

These findings – together with the experience of the British MERTs – intersect with a recalibration of the Golden Hour.  The US Combat Casualty Care Research Program (CCCRP) has proposed an ‘evolved concept’ (see the figure above) that moves from a location-based protocol to a physiological one:

The program must be willing to turn the doctrine of fixed or traditional echelons of care on its side and innovate for scenarios in which Level II and III care is performed aboard transport vehicles (land-, air- or sea-based) or within local structures of opportunity. In such circumstances, field care may be prolonged, lasting for days or even weeks. Combat casualty care research with these complex scenarios in mind promises to enhance resuscitative capability for injured service personnel regardless of environment, leveraging communications networks (i.e., telementoring) and targeted resupplies of materials. In the future, CCCRP must focus on transforming the concept of the golden hour into one bound not by the time to reach traditional echelons of care or fixed facilities, but the time until enhanced resuscitative capability can be delivered to the injured troop, regardless of location or need for transport.

There are two riders to add.  First, embedded within the Golden Hour are ‘the platinum ten minutes’: the imperative to stop bleeding (which has led to the re-emergence and re-engineering of the tourniquet) and to control the casualty’s airway within 10 minutes of wounding.

Combat Medical Technician and Platinum 10 minutes.001

The second is that the speed of treatment and trauma care available to American and British soldiers is radically different from that available to Afghan soldiers and police officers.  Previously, they could rely on aeromedical evacuation by their allies.  But now most of their medical evacuations take place by land, over difficult and dangerous roads.  Last September Josh Smith reported:

Under the dim light of a single bulb, a local Afghan policeman lay severely injured, slipping in and out of consciousness. A military doctor reported to an Afghan army brigade commander that the man was unlikely to live through the night.

Injured Afghan policeman examined by Afghan Army doctor August 2015

Despite the doctor’s pleas, the commander stood firm. The army could not spare any soldiers or ambulances [below] to make the five-hour drive to a better hospital at that late hour through territory teeming with Taliban ambushes and roadside bombs.

, Nangarhar province, August 2015

The lack of speedy evacuation is a tragically common problem for the rising number of Afghan police and soldiers being injured on the battlefields of Afghanistan. U.S. advisers have worked to help close the capability gap, but mostly behind the scenes, far from the battlefields where many Afghan troops say they increasingly feel alone.

Although the American forces still stationed in the country have conducted more than 200 airstrikes since their combat mission was declared over at the end of 2014, as of July, U.S. military aircraft had not flown a single conventional medical evacuation mission, according to data released by the U.S. Air Force Central Command.

U.S. military officials say they haven’t flown evacuation missions because they haven’t been asked. Also, there are far fewer American resources available for such missions now.

The difference shows up in the ratios of those killed and those who survived their wounds.

About 2,363 Americans have died in Afghanistan, with a little more than 20,000 wounded, a ratio of roughly 1-to-10.  In the first half of 2015 alone, 4,302 Afghan soldiers and police were killed in action and 8,009 more were wounded, a ratio of about 1-to-2.

Even where aircraft and trained medical technicians are available, Jeff Schogol found that the Afghan capability falls well outside the Golden Hour:

The time it takes to fly patients to hospitals varies depending on the point of injury, but it can take between 90 minutes and two and a half hours to fly an aeromedical evacuation mission in a C-208, plus one hour to transfer patients from Kandahar to Kabul in a C-130.

Injured ANA soldier lifted from Afghan Air Force C-27A

And the situation for Afghan civilians – as I explored in detail in ‘The prosthetics of military violence‘ – is still worse.

This is not a problem confined to Afghanistan: think of how the possibility of the Golden Hour recedes in urban combat zones subjected to artillery fire and bombing – the difficulties faced by first responders in Gaza or in the ravaged, rubble-strewn towns and cities of Syria (see also Annie Sparrow‘s report here).

 A Syrian youth walks past a destroyed ambulance in the Saif al-Dawla district of the war-torn northern city of Aleppo on January 12, 2013. An accident and emergency centre in Aleppo uses an abandoned supermarket to conceal a fleet of 16 ambulances, just 10 of which are in working order and are driven by 22 staff members. AFP PHOTO/JM LOPEZ/ (Getty Images)


A Syrian youth walks past a destroyed ambulance in the Saif al-Dawla district of the war-torn northern city of Aleppo on January 12, 2013. An accident and emergency centre in Aleppo uses an abandoned supermarket to conceal a fleet of 16 ambulances, just 10 of which are in working order and are driven by 22 staff members. AFP PHOTO/JM LOPEZ/ (Getty Images)

And there is no guarantee of safety even once casualties reach hospital since the principle of medical neutrality is now being routinely and systematically violated.