War crimes

Posted on May 2, 2016 by Derek Gregory

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).

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.

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.

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.

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:

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:

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):

More to come.

Asymmetric law

Posted on May 4, 2015 by Derek Gregory

Breaking the Silence has just published a major report into the Israeli military’s tactics during its most recent offensive against Gaza and its people, so-called ‘Operation Protective Edge’ (see my posts here, here, here and here).

Based on interviews with 65 IDF soldiers, the report includes Background, Testimonies (‘This is how we fought in Gaza‘), and a media gallery.

Writing in today’s Guardian, Peter Beaumont reports:

Describing the rules that meant life and death in Gaza during the 50-day war – a conflict in which 2,200 Palestinians were killed – the interviews shed light for the first time not only on what individual soldiers were told but on the doctrine informing the operation.

Despite the insistence of Israeli leaders that it took all necessary precautions to protect civilians, the interviews provide a very different picture. They suggest that an overarching priority was the minimisation of Israeli military casualties even at the risk of Palestinian civilians being harmed….

Post-conflict briefings to soldiers suggest that the high death toll and destruction were treated as “achievements” by officers who judged the attrition would keep Gaza “quiet for five years”.

The tone, according to one sergeant, was set before the ground offensive into Gaza that began on 17 July last year in pre-combat briefings that preceded the entry of six reinforced brigades into Gaza.

“[It] took place during training at Tze’elim, before entering Gaza, with the commander of the armoured battalion to which we were assigned,” recalled a sergeant, one of dozens of Israeli soldiers who have described how the war was fought last summer in the coastal strip.

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

You can find an impassioned, detailed commentary on the report by Neve Gordon – who provides vital context, not least about the asymmetric ethics pursued by supposedly ‘the most ethical army in the world’ – over at the London Review of Books here, and a shorter commentary by Kevin Jon Heller at Opinio Juris here. Kevin notes:

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

The legal and ethical framework pursued by the Israeli military – and ‘pursued’ is the mot (in)juste, since its approach to international law and ethics is one of aggressive intervention – is in full view at a conference to be held in Jerusalem this week: ‘Towards a New Law of War‘.

‘The goal of the law of war conference,’ say the organisers, ‘is to influence the direction of legal discourse concerning issues critical to Israel and her ability to defend herself. The law of war is mainly unwritten and develops on the basis of state practice.’

You can find the full program here, dominated by speakers from Israel and the US, but notice in particular the session on ‘Proportionality: Crossing the line on civilian casualties‘:

As this makes clear, and as Ben White reports in the Middle East Monitor, law has become the target (see also my post here):

After ‘Operation Cast Lead’, Daniel Reisner, former head of the international law division (ILD) in the Military Advocate General’s Office, was frank about how he hoped things would progress.

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries….International law progresses through violations.

Similarly, in a “moral evaluation” of the 2008/’09 Gaza massacre, Asa Kasher, author of the IDF’s ‘Code of Ethics’, expressed his hope that “our doctrine” will ultimately “be incorporated into customary international law.” How?

The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.

Now Israel’s strategy becomes clearer… Israel’s assault on the laws of war takes aim at the core, guiding principles in IHL – precaution, distinction, and proportionality – in order to strip them of their intended purpose: the protection of civilians during armed conflict. If successful, the victims of this assault will be in the Occupied West Bank and Gaza Strip, Lebanon – and in occupations and war zones around the world.

Britain’s Reapers

Posted on March 25, 2014 by Derek Gregory

As Craig Jones has discussed in detail, it’s been much easier to get information about the ways in which the United States has incorporated drones into its military and paramilitary operations than to prise open the door of UK operations (see also Chris Cole on ‘five basic facts we are simply not allowed to know here).

But the House of Commons Defence Committee has just published a two-volume report, Remote Control: remotely piloted air systems – current and future UK use.

Volume 1, the report and formal minutes (58 pp), can be downloaded as a pdf here, and Volume II, written evidence (130 pp), is available here. The second volume includes submissions from the Ministry of Defence, Northrop Grumman, and General Atomics together with critical submissions from Drone Wars UK, Reprieve, the Network for Social Change’s Remote Control project, and the Bureau of Investigative Journalism.

Over at the Bureau, Alice Ross has a first response and summary here, while Chris Cole has a trenchant critique at Drone Wars UK here.

I’m still working my way through all this, but here are some key passages.

First, on the ‘double proximity’ of drone operations – as I’ve said before, even though these platforms can be controlled from thousands of miles away they are not weapons of global reach:

‘The MoD told us that in order to utilise unmanned air systems in the most efficient manner, they should be based as close as possible to the target area of interest to allow for the longest loiter time possible. In a “non-permissive” or hostile environment this would be “extremely difficult”.’

The other side of this is the invocation of a new (though, as I’ve also emphasised, thoroughly conditional and technologically mediated) quasi-intimacy:

‘It was very clear from the visit to XIII Squadron and discussions with Reaper aircrew that all were experienced professional personnel with a clear purpose and keen understanding of the Rules of Engagement which govern their operations. Despite being remote from the battle space they exhibited a strong sense of connection to the life and death decisions they are sometimes required to take. This was in stark contrast to the image portrayed by some commentators of “drone” pilots as video gaming “warrior geeks”.’

Again, as I’ve argued elsewhere, that ‘sense of connection’ is much more highly developed in relation to troops on the ground than to others who are in (or beyond) the field of view, and who are inevitably shut out from audio or online communications, which in part accounts for the risk to non-combatants whenever troops are ‘in contact’ with the Taliban and other fighters.

Second, the report seeks to draw a line between the US program of targeted killing and UK military operations in Afghanistan:

‘We acknowledge that over the last few years there has been a growing concern in relation to the sharing of intelligence with allies and the uses to which such data may contribute. While the issues raised by Reprieve stray beyond the terms of reference for our inquiry and indeed the remit of the Defence Committee, we do believe that there should be greater transparency in relation to safeguards and limitations the UK Government has in place for the sharing of intelligence…

‘We consider that it is of vital importance that a clear distinction be drawn between the actions of UK Armed Forces operating remotely piloted air systems in Afghanistan and those of other States elsewhere… In Afghanistan UAS provide intelligence in support of our ground commanders, enabling them to stay one step ahead of the enemy. Whether for targeting the Taliban or supporting troops on patrol, their ability to loiter over and survey areas for enemy activity and then feed back images and video in real time means they are an invaluable asset to our forces on the ground. Together, the UK’s fleet of UAS have carried out over 160,000 hours of ISR operations.

‘The General Atomics MQ-9 Reaper operated by the RAF is the UK’s only armed remotely piloted air system. The RAF fleet rose to ten in early 2014 as an additional five aircraft were accepted into service. RAF Reapers provide persistent intelligence, surveillance, target acquisition and reconnaissance (ISTAR) for ISAF forces in Afghanistan, mostly in support of UK forces in Helmand province…. Since May 2008, UK Reaper aircraft have been armed with precision-guided weapons—Hellfire laser guided air-to-ground missiles and GBU-12 Paveway 500lb laser guided bombs… By 31 August 2013, UK operated Reaper aircraft had flown over 50,000 hours on operations in the ISR role with 418 weapons fired in the same period.’

Here are the raw figures released to Drone Wars UK last month, following a FoI Request to the Ministry of Defence:

Chris Cole is not convinced by the Committee’s (and, by extension, the Ministry’s) attempt to draw the line:

‘The report also argues that it is “of vital importance” that a clear distinction be draw between the use of drones by UK armed forces and what it discreetly calls “those of other States elsewhere.” It urges the MoD to continue its PR campaign – what the committee calls a “public awareness programme” – in order to “aid public understanding and acceptance.” PR it seems trumps transparency.’

Third, and closely connected to Chris’s misgivings, the report restates without examination the legal armature for UK military operations:

‘…the MoD told us that UK remotely piloted aircraft operate within the constraints of UK rules of engagement (ROE) and policy, even where operational control is assigned to a Coalition Commander, such as the Commander of ISAF. The MoD also stated that UK policy relating to targeting by remotely piloted aircraft is exactly the same as that for manned aircraft (and land and maritime weapons where applicable):

‘It is entirely compliant with International Humanitarian Law. Targets are always positively identified as legitimate military objectives and both pattern of life assessment and collateral damage estimate conducted. Strikes are carried out in accordance with the Law of Armed Conflict.

‘Personnel were keen for the public to know more and understand better what it is they do and to dispel some myths that have grown up about Reaper operations in particular. One pilot commented that the public needed to know that remotely piloted aircraft are “not robots, they’re not autonomous and we spend an awful lot of time training to fly them”. This training emphasised all aspects of the RAF rules of engagement such as whether a strike is necessary, whether any civilians are nearby, and what instructions have been received from the ground commander. Reaper aircrew were firmly of the view that the loiter time of remotely piloted aircraft allowed more informed decisions to be made and consequently the risk of civilian casualties was reduced should a missile strike be required….

Fourth, on civilian casualties and transparency:

‘The MoD told us that it was aware of only one incident involving an armed UK remotely piloted air system Reaper, which had resulted in the deaths of civilians:

‘On 25 March 2011 [three years ago to the day!] an attack on two pick-up trucks resulted in the destruction of a significant quantity of explosives and the death of two insurgents. Sadly, four Afghanistan civilians were also killed. In line with current ISAF procedures, an ISAF investigation was conducted to establish if any lessons could be learned or if any errors in operational procedures could be identified. In that case, the report concluded that the actions of the Reaper crew had been in accordance with extant procedures and rules of engagement.

…We note the conclusion of the UN Special Rapporteur [Ben Emmerson] that in any case in which civilians have been, or appear to have been, killed, there is an obligation on the State responsible to conduct a prompt, independent and impartial fact-finding inquiry and to provide a detailed public explanation. We recognise that this is not a simple and straightforward request as to do so could seriously jeopardise continuing operations. Nonetheless, we recommend that, to the extent that it is operationally secure to do so, following an event which has resulted in confirmed civilian casualties the MoD should seek to publish details about the incident and any lessons learned from the review process…’

For a good discussion of the UK’s definition of ‘civilian’ in such cases, see Dapo Akande at the European Journal of International Law here.

To be continued.