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.

‘Acceptable CIVCAS is 0’

Posted on April 29, 2016 by Derek Gregory

Finally US Central Command has released a redacted version of its investigation into the US airstrike on MSF’s Trauma Center in Kunduz (see my posts here, here and especially here). You can download it from CENTCOM’s Freedom of Information Act library here. (All the extracts pasted below capture communications exchanges before the attack, but the report includes redacted interviews with the participants involved in clearing, executing and continuing the air strike; the image above – and the title for this post – is taken from a briefing slide included in the report).

I’ll be spending the weekend reading it, but meanwhile the Intercept has published its own long-form account of the attack by May Jeong – ‘Death from the sky: searching for ground truth in the Kunduz hospital bombing‘. It was written before CENTCOM’s investigation was released but includes details from a series of interviews and is truly compelling reading.

I obviously won’t be alone in working my way through the report. Yesterday MSF was briefed by the head of CENTCOM, General Joseph Votel, and today released this preliminary statement:

MSF will take the time necessary to examine the U.S. report, and to determine whether or not the U.S. account answers the many questions that remain outstanding seven months after the attack.

MSF acknowledges the U.S. military’s efforts to conduct an investigation into the incident. Today, MSF and other medical care providers on the front lines of armed conflicts continually experience attacks on health facilities that go un-investigated by parties to the conflict. However, MSF has said consistently that it cannot be satisfied solely with a military investigation into the Kunduz attack. MSF’s request for an independent and impartial investigation by the International Humanitarian Fact Finding Commission has so far gone unanswered….

The hospital was fully functioning at the time of the airstrikes. The U.S. investigation acknowledges that there were no armed combatants within – and no fire from – the hospital compound.

The nature of the deadly bombing of the MSF Kunduz Trauma Centre, and the recurring attacks on medical facilities in Afghanistan, demand from all parties to the conflict a clear reaffirmation of the protected status of medical care in the country. MSF must obtain these necessary assurances in Afghanistan before making any decision on if it is safe to re-start medical activities in Kunduz.

The Pentagon has insisted that no war crimes were committed but confirmed that 16 people had been punished. Mark Thompson explains:

None of those involved will face court martial, but the administrative punishments levied against them—ranging from removal from command, letters of reprimand, to counseling—likely mark the end of their careers in uniform. None was identified by name. Those involved—the highest-ranking was a two-star general—included those aboard the AC-130 gunship that repeatedly fired on the Doctors Without Borders hospital in Kunduz, as well as members of the Army Special Force team on the ground that called in the strikes.

MSF has, understandably, condemned this response, arguing that the punishments

are out of proportion to the destruction of a protected medical facility, the deaths of 42 people, the wounding of dozens of others, and the total loss of vital medical services to hundreds of thousands of people. The lack of meaningful accountability sends a worrying signal to warring parties, and is unlikely to act as a deterrent against future violations of the rules of war.

That last sentence is particularly important, because there has been a steady increase in the targeting of medical personnel and medical facilities in Afghanistan, occupied Palestine, Syria and elsewhere: all gross violations of medical neutrality.

So this commentary from Joanne Liu (International President of MSF) and Peter Maurer (President of the International Committee of the Red Cross) – also published today – is much more than a response to the bombing of yet another MSF facility, this time in Aleppo:

What we are witnessing is a sustained assault on, and massive disregard for, the provision of healthcare during times of conflict. Under international humanitarian law and principles, health workers must be able to provide medical care to all sick and wounded regardless of political or other affiliation, whether they are a combatant or not. And under no circumstances should they be punished for providing medical care which is in line with medical ethics. The doctor of your enemy is not your enemy.

But we are confronted with violations of these fundamental rules, with serious humanitarian consequences, for entire communities and healthcare systems that are already stretched to the limit. And this is not just the opinion of MSF and the Red Cross Red Crescent Movement.

That is why we, as the presidents of MSF and the ICRC, welcome the proposal for a landmark UN resolution to protect healthcare. But we urge the UN security council to make the resolution effective. First, it should send a powerful political message that healthcare needs to be protected. All parties to an armed conflict must fully comply with their obligations under international law, including humanitarian law. And they must clearly state their respect for the delivery of impartial medical care during times of conflict.

Second, it must urge states and all parties to armed conflict to develop effective measures to prevent violence against medical personnel, facilities and means of transport. States need to bolster, where appropriate, their legislation including by lifting restrictions and sanctions impeding impartial wartime medical care.

Armed forces and all parties to a conflict should integrate practical measures for the protection of the wounded and sick and for those engaged in medical work. These should be incorporated into orders, rules of engagement, standard operating procedures and training.

Third, it must acknowledge that when attacks on medical facilities and personnel do take place, there needs to be full, prompt, impartial and independent investigations to establish the facts. It cannot only be the victims or perpetrators who attempt to establish the facts. And there should be regular and formal reporting of such attacks at the highest level and an annual debate in the security council.

Underpinning everything has to be the acceptance that the medical needs of people – no matter who they are, where they are from or what side they support or fight for – must take precedence. Medical staff are present in areas of conflict in order to care for the sick and wounded, on the basis of need. And only need. This is the fundamental principle of impartiality and is the basis of medical ethics. It is the very fact that doctors treat on the basis of need – and are not involved in hostilities – that they can claim protection under international humanitarian law.

But there is more. John Sifton from Human Rights Watch insists that General Viotel was simply wrong to claim that war crimes must be deliberate or intentional, so that those involved in the attacks on the MSF hospital could be absolved of criminal responsibility because the acts they committed were genuine mistakes. According to the New York Times, Sifton argued:

There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, and that recklessness or negligence do not necessarily absolve someone of criminal responsibility under the United States military code.